/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/170209.mbx C L A S S A C T I O N R E P O R T E R Thursday, February 9, 2017, Vol. 19, No. 29 Headlines AARON'S INC: Court Denies Peterson's Bid for Class Certification AMBIT ENERGY: 3rd Cir. Reinstates Consumer's Suit Over Fees AMERICAN AIRLINES: Bid to Certify in "Thompson" Suit Withdrawn APPLE INC: Wins Summary Judgment in "English" Suit APNA HOLDING: Cortez, et al. File Suit Under NY, Pa. Labor Law AREBA CASRIEL: Faces "Allen" Suit in Southern Dist. of New York AUDI AG: "White" Suit Consolidated in MDL 2672 BANC OF CALIFORNIA: Faces "Garcia" Suit Over Galanis Ties BEACH LIFE: Faces "Suarez" Suit Alleging Violations of FLSA CANADA: Quebec Transport Ministry Faces Class Action CAPITAL ONE: Faces "Wiseman" Suit in Southern Dist. of California CENTRAL YETEV: Faces "Pagoada" Suit Under FLSA, NY Labor Law COLGATE-PALMOLIVE: "Canale" Suit Remanded to State Court CONVERGENT OUTSOURCING: Faces "Shpetehaib" Suit in E.D.N.Y. CREDIT COLLECTION: "G.G." Suit Moved from Super. Ct. to D.N.J. DELTA AIRLINES: Obtains Favorable Ruling in Wage Class Action DEVRY EDUCATION: Seeks to Dismiss Pension Fund's Amended Suit DEVRY EDUCATION: Seeks to Dismiss Robinson-Brown Amended Suit DEVRY EDUCATION: Amended Complaint Filed in Petrizzo-Jara Cases DISCOVER FINANCIAL: Illinois Court Drops "Gingerich" Class Suit DOLLAR GENERAL: Status Hearing in "Lambert" Suit Set for Feb. 28 DUTCH LLC: "Hoffman" Case Settlement Fails Court Scrutiny E. I. DU PONT: Diagnostic Screening and Testing Begins E. I. DU PONT: 3,550 Personal Injury Lawsuits Pending at Dec. 31 EDIBLE ARRANGEMENTS: Faces "Rando" Suit in Dist. of New Jersey ELECTROLUX HOME: "Rice" Suit Stays in M.D. Pa. Court ENVOY AIR: Anthony, et al. File Suit Under FLSA, Mich. OT Laws F.H. CANN: Faces "Ezra" Suit in Eastern District of New York FCA US: "Spratley" Consumer Suit Transferred to N.D. New York FIVE GUYS: Faces "Lucia" Suit in Southern District of New York GENWORTH FINANCIAL: Faces "Rice" Suit Over China Oceanwide Merger GNS & ASSOCIATES: Faces "Marquez" Suit in S.D. of Alabama GREAT LAKES: "Hutchins" Lawsuit Alleges Violations of FLSA HAWAIIAN AIRLINES: Trainees are not Employees, Calif. Judge Says JB MEDICAL: Bid to Transfer "Schwanke" Suit to Calif. Denied JO-ANN STORES: Faces "Kreppel" Suit in District of New Jersey JOHNSON & JOHNSON: Talcum Powder Ovarian Cancer Lawsuits Ongoing JUMEI INT'L: Securities Class Suit in New York Dismissed KELLY SERVICES: Wins Prelim. Okay of "Hillson" Class Settlement KIMBALL ELECTRONICS: Has $4MM Pre-Tax Income from Deal Payment KROLL LABS: Appeals Ruling in Case Over False Positive Drug Test LITHIA MOTORS: Court Narrows Claims in Mendoza et al. Suit LORENZO AUTO: "Montes" Suit Seeks to Recoup Pay Under FLSA LOS ANGELES, CA: Yagman Seeks Certification of Three Classes MALLINCKRODT PLC: Faces "Shenk" Securities Lawsuit Over Acthar MIDDLESEX CORPORATION: Faces "Myrick" Suit in M.D. of Florida MISSOURI, USA: Postawko Moves to Certify Class of MDOC Inmates MONTEREY FINANCIAL: Gusman Seeks to Certify 4 Classes Under TCPA NAT'L COLLEGIATE: Settles Antitrust Class Action for $208.7MM NAVIENT SOLUTIONS: "Ponce" Suit Invokes TCPA, Debt Collection Law NCSLT 2005-1: Citizen & PNC Dismissed from Student Loan Suit NEW WEST HEALTH: Gordon May Amend Suit to Add Claim for Cert. NEW YORK: NYSTA Faces American Bus Assoc. Suit in S.D.N.Y. NEW YORK, NY: Faces "Smyth" Suit Seeking to Recover Wages OSRAM SYLVANIA: May 4 Auto Lighting Claims Filing Deadline Set PIGGLY WIGGLY: Faces Class Action Over Employee Stock Plan PIONEER CREDIT: Court Trims Claims in "Biber" Complaint PNC BANK: Cruz et al. Appeal Dismissal of Ponzi Scheme Suit POST HOLDINGS: Has $74.5 Million Provision in Legal Settlements PPE CASINO: Court OKs Harbourt's Dealer Course Attendees Class PRECIOUS ANGELS: Faces Class Action Over Patients' Deaths QUALCOMM INC: "Shah" Suit Alleges Securities Act Violations RUTHERFORD COUNTY, TN: Suit v. Education Board Dismissed SAMSUNG ELECTRONICS: Faces "Higginbotham" Suit in W.D. of Okla. SANDERSON FARMS: Company, 4 Poultry Producers Defending Suit SOUTH AFRICA: Health MEC Sued Over Psychiatric Patients' Deaths SPECIAL COMMITMENT: Faces Disability Right Suit in W.D. Wash. STANDARD DRYWALL: App. Ct. Won't Send "Cruz" Suit to Arbitration STEMLINE THERAPEUTICS: Faces Shareholder Class Action TUESDAY MORNING: Judge Rejects Wage Class Action Settlement TIERRA LEASE: Faces "Metting" Suit Seeking to Recoup OT Wages TRANSWORLD SYSTEMS: Faces "Grempel" Suit in Eastern Dist. of N.Y. UNITED PARCEL: Court Rules on Discovery Dispute in "Solo" Suit UNITED ROAD: Faces "Taylor" Suit in California Superior Court UNITED STATES: Class of PACER Users Certified in Veterans Suit UNITED STATES: Darweesh Moves to Certify Class Over Travel Ban UNITIL CORPORATION: Individual Claims Pending in "Bellermann" UNIVERSAL ACCEPTANCE: Court Refuses to Certify "Ung" Suit Class USA PLUMBING: Overtime Pay Sought in "Molina" Labor Suit VOLKSWAGEN AG: Deutsche See Files EUR11.9MM Diesel Emissions Suit WABTEC CORP: Busker Appeals Judgment to Ninth Circuit WASHINGTON: Sex Offenders' Records Remain Sealed, App. Ct. Says WAWONA FROZEN: Court Preliminary Approves Settlement in "Aguilar" WELLS FARGO: Undocumented Immigrants Sue Over Student Loan Denial WISCONSIN, USA: Jackson Seeks Certification of Prisoners Class YUMMY SUSHI: Faces "Chen" Suit in Southern District of New York * Neil Gorsuch Criticized Securities Suits in Judicial Opinions ********* AARON'S INC: Court Denies Peterson's Bid for Class Certification ---------------------------------------------------------------- The Hon. Thomas W. Thrash, Jr., entered an opinion and order in the lawsuit entitled MICHAEL PETERSON, et al. v. AARON's, INC., et al., Case No. 1:14-CV-1919-TWT (N.D. Ga.), denying the Plaintiffs' motion for class certification. The Plaintiffs has sought certification of this class: "(1) those persons who leased and/or purchased one or more computers from Aspen Way on which PC Rental Agent ("PCRA") was installed without their consent, and (2) their household members and employees." Michael Peterson and Matthew Lyons allege in this action that the Defendant Aspen Way Enterprises, Inc., a franchisee of the Defendant Aaron's, Inc., unlawfully accessed their computers from a remote location and collected private information stored therein. According to the Opinion and Order, the Plaintiffs are seeking monetary relief for each putative class member, and the damages calculation will be individualized. Thus, Judge Thrash opines, the requested monetary relief cannot be considered incidental to the injunctive relief. Judge Thrash also notes that injunctive relief cannot be granted unless "a serious risk of continuing irreparable injury" is apparent. Judge Thrash explains that the Plaintiffs have not presented an argument as to why there is a serious risk of future injury. As a matter of fact, Judge Thrash points out, there appears to be little to no risk of continuing injury because the Defendants have entered into consent decrees with the Federal Trade Commission agreeing to cease any use of the monitoring software at issue. A copy of the Opinion and Order is available at no charge at https://goo.gl/JLlKh4 from Leagle.com. Plaintiffs Michael Peterson and Matthew Lyons are represented by: Andrea Solomon Hirsch, Esq. HERMAN GEREL, LLP 230 Peachtree Street NW Atlanta, GA 30303 Telephone: (404) 880-9500 Facsimile: (404) 880-9605 E-mail: ahirsch@hermangerel.com - and - Frederick S. Longer, Esq. LEVIN, FISHBEIN, SEDRAN & BERMAN 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Telephone: (215) 592-1500 Facsimile: (215) 592-4663 E-mail: flonger@lfsblaw.com - and - John H. Robinson, Esq. JAMIESON & ROBINSON, LLC 214 S. Grant Street Casper, WY 82601 Telephone: (307) 235-3575 Telecopier: (307) 577-9435 E-mail: robinsn@vcn.com Defendant Aaron's, Inc., is represented by: Donald MacKaye Houser, Esq. Kristine McAlister Brown, Esq. ALSTON & BIRD, LLP One Atlantic Center 1201 West Peachtree Street NW Atlanta, GA 30309 Telephone: (404) 881-7000 Facsimile: (404) 881-7777 E-mail: donald.houser@alston.com kristy.brown@alston.com Defendant Aspen Way Enterprises, Inc., is represented by: Anthony Joseph Williott, Esq. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN, P.C. U.S. Steel Tower, Suite 2900 600 Grant Street Pittsburgh, PA 15219 Telephone: (412) 803-1193 Facsimile: (412) 803-1188 E-mail: ajwilliott@mdwcg.com - and - Mark Stephen VanderBroek, Esq. Sean Michael Kirwin, Esq. NELSON MULLINS RILEY & SCARBOROUGH Atlantic Station 201 17th Street NW, Suite 1700 Atlanta, GA 30363 Telephone: (404) 322-6675 Facsimile: (678) 777-4878 E-mail: mark.vanderbroek@nelsonmullins.com sean.kirwin@nelsonmullins.com AMBIT ENERGY: 3rd Cir. Reinstates Consumer's Suit Over Fees ----------------------------------------------------------- Circuit Judge Patty Shwartz of the Court of Appeals, Third Circuit, vacated the order granting summary judgment in favor of defendant in the case captioned, AMY SILVIS, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, Appellant, v. AMBIT ENERGY L.P., d/b/a AMBIT TEXAS, LLC; AMBIT TEXAS, LLC; AMBIT NORTHEAST LLC, d/b/a AMBIT ENERGY; AMBIT ENERGY; AMBIT ENERGY HOLDINGS, d/b/a AMBIT NORTHEAST, LLC; AMBIT HOLDINGS LLC, d/b/a AMBIT ENERGY HOLDINGS, LLC; AMBIT ENERGY HOLDINGS LLC, d/b/a AMBIT, d/b/a AMBIT ENERGY, Case No. 16-1976 (3rd Cir.). Amy Silvis brought a putative class action against Ambit Northeast, LLC (Ambit) alleging that Ambit's pricing of its variable-rate electricity plan breached their contract "by charging rates that did not meet the contractual obligation to provide a competitive rate based on market factors." Ambit advertised that the price of its variable rate plan favorably compared with Penelec's prices. Silvis switched her electricity provider from Penelec to Ambit. Ambit's services were provided pursuant to a contract composed of two documents: the "Sales Agreements and Terms of Service" (Terms of Service) and the "Residential Disclosure Statement". Silvis avers that Ambit charged her more for electricity than she would have been charged had she remained with Penelec. After approximately 20 months of service, Silvis terminated her contract with Ambit. Following discovery, Ambit moved for summary judgment. The District Court granted Ambit's motion, holding that Silvis could not show that Ambit breached a contractual duty in setting its prices because the contract unambiguously afforded Ambit discretion to set the prices and did not impose a duty to set competitive rates. The District Court also found that Silvis did not "proffer any legitimate evidence of bad faith" and so could not raise any genuine dispute of material fact regarding whether Ambit violated the covenant of good faith and fair dealing in setting its rates. On appeal, Silvis argues that the contract's pricing clause cabins Ambit's discretion and permits prices to vary based only on the "energy and capacity markets." Ambit, on the other hand, argues that the clause merely describes one non-exclusive basis upon which it may vary the rates. In the Opinion dated January 9, 2017 available at https://is.gd/qqRgVJ from Leagle.com, Judge Shwartz found that the contract is ambiguous as to the limitations on Ambit's pricing discretion. The case is remanded to the District Court to determine whether, viewing the ambiguous clause in the light most favorable to the non-movant Silvis, the record contains a genuine issue of material fact as to whether Ambit breached the contract under the interpretation favoring Silvis, and thus whether the ambiguity can "affect the outcome of the suit under governing law." AMERICAN AIRLINES: Bid to Certify in "Thompson" Suit Withdrawn -------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on January 24, 2017, in the case entitled Cher Thompson, et al. v. American Airlines Group, Inc., et al., Case No. 1:14-cv-07980 (N.D. Ill.), relating to a hearing held before the Honorable Sharon Johnson Coleman. The minute entry states that by agreement, the Plaintiff's motion to certify class is withdrawn without prejudice. A copy of the Notification of Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=6PgSKaJM APPLE INC: Wins Summary Judgment in "English" Suit -------------------------------------------------- District Judge William H. Orrick of the United States District Court for the Northern District of California granted Apple's request for summary judgment and denied Plaintiff's discovery request in the case captioned FABRIENNE ENGLISH, Plaintiff, v. APPLE INC, et al., Defendants, Case No. 3:14-cv-01619-WHO (N.D. Cal.). Plaintiff Fabrienne English alleges that Apple misrepresents to consumers that replacement iPhones under AppleCare+ will be new when in fact many of the replacement devices in Apple's service stock are "refurbished" or otherwise not new. She asserts claims under California law for violations of the Consumer Legal Remedies Act (CLRA), the False Advertising Law (FAL), the Unfair Competition Law (UCL), and the Secondhand Merchandize Labeling Law, Cal. Bus. & Prof. Code Section 17531, and for fraud. Apple Inc., AppleCare Service Company Inc., and Apple CSC Inc. move for summary judgment of English's claims related to Apple's alleged misrepresentations and omissions in connection with AppleCare+, an extended service plan Apple offers to purchasers of iPhones. English urges the Court to deny Apple's motion for summary judgment, or to stay the matter pending additional discovery to give her the opportunity to present facts essential to justify her opposition under Federal Rules of Civil Procedure 56(d). She insists that, through additional discovery and/or testing of the phone, she can prove that her replacement phones under AC+ were not new when Apple gave them to her. In his Order dated January 11, 2017 available at https://is.gd/ls5qyY from Leagle.com, Judge Orrick held that English failed to raise a disputed issue whether she relied on an affirmative misrepresentation made by defendants, dooming her CLRA, FAL, UCL, and common law fraud claims. Her claim under Secondhand Merchandise Labeling Law claim fails because there is no dispute that she received new phones. Her request for further discovery lacks good cause. Fabrienne English is represented by Peter D. Kafin, Esq. -- pkafin@earthlink.net -- and -- Renee Fagan Kennedy, Esq. P.O. Box 2222 Friendswood, TX 77549 Tel:(832)428-1552 Apple Inc, et al. are represented by Purvi Govindlal Patel, Esq. -- ppatel@mofo.com -- Margaret Elizabeth Mayo, Esq. -- mmayo@mofo.com -- and -- Penelope Athene Preovolos, Esq. -- ppreovolos@mofo.com -- MORRISON & FOERSTER LLP APNA HOLDING: Cortez, et al. File Suit Under NY, Pa. Labor Law ------------------------------------------------------------- RENE JORGE CORTEZ, INOCENTE RECINOS GARCIA, CONSTANTINO GARCIA DIAZ, MANUEL LOPEZ, MIGUEL ANGEL MARTINEZ, and MIGUEL COJ MEJIA, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, against APNA HOLDING LLC d/b/a APNA BAZAR CASH & CARRY, S&K VEGETABLES CORP., S&K GREEN GROCERIES, INC., J&B VEGETABLES, INC., MASPETH WHOLESALE CORP. d/b/a APNA WHOLESALE, DESH DEEPAK BHARDWAJ, JASWINDER SINGH, and JOHN DOE CORPS. #1-4, Jointly and Severally, Defendants, Case No. 1:17-cv-00374 (E.D.N.Y., January 23, 2017), seeks to recover on behalf of current and former helpers, stock clerks, and general supermarket employees, alleged unpaid overtime wages pursuant to the New York Labor Law, unpaid spread-of-hours premiums, and damages due to Defendants' violations of the wage notice provisions under the New York Labor Law and unpaid minimum wage and overtime wages pursuant to the Pennsylvania Minimum Wage Act, and the Wage Payment and Collection Law. Defendants own, operate and manage a chain of supermarkets throughout New York and Pennsylvania specializing in South Asian groceries operating under the trade name "Apna Bazar." The Plaintiff is represented by: Brent E. Pelton, Esq. Taylor B. Graham, Esq. PELTON GRAHAM LLC 111 Broadway, Suite 1503 New York, NY 10006 Phone: (212) 385-9700 Web site: http://www.PeltonGraham.com E-mail: Pelton@PeltonGraham.com Graham@PeltonGraham.com AREBA CASRIEL: Faces "Allen" Suit in Southern Dist. of New York --------------------------------------------------------------- A class action lawsuit has been filed against AREBA Casriel, Inc. The case is captioned as Georgiana J. Allen individually and on behalf of all others similarly situated, the Plaintiff, v. AREBA Casriel, Inc., Stephen Yohay, and Warren Zysman, the Defendants, Case No. 1:17-cv-00764 (S.D.N.Y., Feb. 1, 2017). AREBA is a private substance abuse treatment provider. The Plaintiff appears pro se. AUDI AG: "White" Suit Consolidated in MDL 2672 ---------------------------------------------- The class action lawsuit titled Daniel White, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. Audi AG and Audi of America LLC, the Defendants, Case No. 3:16-cv-03037, was transferred from the U.S. District Court for the Southern District of California, to the U.S. District Court for Northern District of California (San Francisco). The District Court Clerk assigned Case No. 3:17-cv-00522-CRB to the proceeding. The White case is being consolidated with MDL 2672 in re: Volkswagen Clean Diesel Marketing, Sales Practices, and Products Liability Litigation. The MDL was created by order of the United States Judicial Panel on Multidistrict Litigation On December 8, 2015. These cases primarily concern certain 2.0 and 2 3.0 Liter diesel engines sold By Defendants Volkswagen Group Of America, Volkswagen AG And affiliated companies, which allegedly contain software that enables the vehicles to evade emissions requirements by engaging full emissions controls only when Official Emissions Testing Occurs. In its December 8, 2015 order, the MDL panel found that the actions in this litigation involve common questions of fact, and that centralization in the northern District of California will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. Presiding Judge in the MDL is Hon. Charles R. Breyer, United States District Judge. The lead case is 3:15-md-02672-CRB. Audi of America and its network of U.S dealers offer a full line of highly engineered vehicles, including the newest premium- engineered compact sedans. The Plaintiff is represented by: Brian J. Robbins, Esq. Kevin A. Seely, Esq. Leonid Kandinov, Esq. ROBBINS ARROYO LLP 600 B Street, Suite 1900 San Diego, CA 92101-3350 Telephone: (619) 525 3990 Facsimile: (619) 525 3991 E-mail: notice@robbinsarroyo.com kseely@robbinsarroyo.com lkandinov@robbinsarroyo.com The Defendants are represented by: Laura Kabler Oswell, Esq. SULLIVAN & CROMWELL LLP 1870 Embarcadero Road Palo Alto, CA 94303 Telephone: (650) 461 5600 Facsimile: (650) 461 5700 E-mail: oswelll@sullcrom.com BANC OF CALIFORNIA: Faces "Garcia" Suit Over Galanis Ties --------------------------------------------------------- FERNANDO X. GARCIA, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. BANC OF CALIFORNIA, INC., STEVEN A. SUGARMAN, RONALD J. NICOLAS, JR., and JAMES J. MCKINNEY, Defendants, Case No. 2:17-cv-00540 (C.D. Cal., January 23, 2017), alleges that Defendants violated the U.S. Securities and Exchange Act by making false and/or misleading statements and/or failed to disclose the Company's ties to Jason Galanis, and that the revelation of Galanis' ties to the Company could cause a substantial decline in the market price of the Company's shares. According to an article by SeekingAlpha.com, Jason Galanis has a "long history of secretly gaining control of banks and public companies via front men, looting assets, and leaving unsuspecting investors and taxpayers with hundreds of millions in losses." Banc of California is purportedly a financial holding company regulated by the Federal Reserve Board that serves California's private businesses and entrepreneurs. The Company claims to offer a variety of financial products, including both deposit products offered through multiple channels that include retail banking, business banking, and private banking; and lending products including residential mortgage lending, commercial lending, commercial real estate lending, multifamily lending, and specialty lending including Small Business Administration lending, commercial specialty finance, and construction lending. The Plaintiff is represented by: Lionel Z. Glancy, Esq. Robert V. Prongay, Esq. Lesley F. Portnoy, Esq. Charles H. Linehan, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Phone: (310) 201-9150 Fax: (310) 201-9160 Email: rprongay@glancylaw.com info@glancylaw.com BEACH LIFE: Faces "Suarez" Suit Alleging Violations of FLSA ----------------------------------------------------------- NICOLAS MANUEL SUAREZ and all others similarly situated under 29 U.S.C. 216(b), Plaintiffs, vs. BEACH LIFE OF MIAMI LLC, NIR SELA, YAKOV BLIVES, SHLOMI SELA, Defendants, Case No. 1:17-cv-20280-FAM (S.D. Fla., January 23, 2017), alleges that Defendants have employed several other similarly situated employees like Plaintiff who have not been paid overtime and/or minimum wages for work performed in excess of 40 hours weekly from the filing of this complaint back three years in violation of the Fair Labor Standards Act. Plaintiff worked for Defendants as a salesman and cashier from November 10, 2015 to December 31, 2016. The Plaintiff is represented by: J.H. Zidell, Esq. J.H. ZIDELL, P.A. 300 71st Street, Suite 605 Miami Beach, FL 33141 Phone: (305) 865-6766 Fax: (305) 865-7167 Email: ZABOGADO@AOL.COM CANADA: Quebec Transport Ministry Faces Class Action ---------------------------------------------------- Billy Shields, writing for Global News, reports that a man running an upholstery business on St. Jacques Street has applied for a class action lawsuit against the Quebec Transport Ministry (MTQ). Frank Berdah says his business has taken a hit during the Turcot Interchange construction. Mr. Berdah has run his family business out of a storefront at the corner of St. Jacques Street and Girouard Avenue for more than a decade. Since Turcot construction closed off part of St. Jacques Street around a year ago, he says it has cost his business as much as $150,000. His lawyer, Joey Zukran, said the lawsuit seeks to represent anyone in the same area who's experienced a loss of quality of life or business as a result. The lawsuit alleges the construction was not explained properly or carried out in a timely fashion. In Mr. Berdah's individual case, he said his typical customers find it almost impossible to get to his storefront. The Turcot work costs $3 billion and is slated for completion in 2020. Neither city officials or a spokesperson for the MTQ returned calls seeking comment by our deadline. CAPITAL ONE: Faces "Wiseman" Suit in Southern Dist. of California ----------------------------------------------------------------- A class action lawsuit has been filed against Capital One Bank USA, N.A. The case is titled as Christina Wiseman, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, v. Capital One Bank USA, N.A. the Defendant, Case No. 3:17-cv-00199- AJB-KSC (S.D. Cal., Feb. 1, 2017). The case is assigned to Hon. Judge Anthony J. Battaglia. Capital One offers financial products and services to consumers, small businesses, and commercial clients in the United States. The Plaintiff is represented by: Abbas Kazerounian, Esq. KAZEROUNIAN LAW GROUP, APC 245 Fischer Avenue, Suite D1 Costa Mesa, CA 92626 Telephone: (800) 400 6808 Facsimile: (800) 520 5523 E-mail: ak@kazlg.com CENTRAL YETEV: Faces "Pagoada" Suit Under FLSA, NY Labor Law ------------------------------------------------------------ Mirna Pagoada and Luis Gonzalo Zelaya, on behalf of themselves and all others similarly situated, Plaintiffs, against Central Yetev D'Satmar Meat Inc. d/b/a Glatt Kosher Meat & Poultry, Satmar Meat of Cong. Yetev Lev, Inc. d/b/a Satmar Meats & Take Out, Central Yetev Lev D'Satmar Meat I d/b/a Satmar Meat Woodbourne and Moshe Brown, Defendants, is an action that seeks to recover alleged unpaid overtime compensation for kitchen workers pursuant to the Fair Labor Standards Act and the New York Labor Law. Defendants own and operate several meat markets. The Plaintiffs are represented by: Laura Gerace Rodriguez, Esq. PECHMAN LAW GROUP PLLC 488 Madison Avenue New York, NY 10022 Phone: (212) 583-9500 Fax: (212) 308-8582 E-mail: rodriguez@pechmanlaw.com - and - Louis Pechman, Esq. PECHMAN LAW GROUP PLLC 488 Madison Avenue New York, NY 10022 Phone: (212) 583-9500 Fax: (212) 308-8582 E-mail: pechman@pechmanlaw.com COLGATE-PALMOLIVE: "Canale" Suit Remanded to State Court -------------------------------------------------------- District Judge Cathy Seibel of the United States District Court for the Southern District of New York granted Plaintiffs' motion to remand to state court the case captioned, LORI CANALE, individually and on behalf of all others similarly situated, Plaintiff, v. COLGATE-PALMOLIVE CO., Defendant, Case No. 16-CV- 3308 (CS) (S.D.N.Y.). Plaintiffs filed the action in the Circuit Court for the Twenty- Second Judicial Circuit, City of St. Louis, Missouri. Plaintiffs are 94 individual women, each of whom alleges that she suffered injuries resulting from the use of Essure, a permanent birth control system manufactured by Defendants. Plaintiffs assert claims of negligence, negligence per se, strict liability for failure to warn, strict liability based on a manufacturing defect, common law fraud, constructive fraud, fraudulent concealment, breach of express warranty, breach of implied warranty, violations of consumer protection laws, Missouri products liability, violation of the Missouri Merchandising Practices Act, and gross negligence/punitive damages. Plaintiffs include citizens of a number of different states, including Missouri, Indiana, Pennsylvania, and New Jersey. On October 28, 2016, Defendants removed the case to this Court on the basis of diversity jurisdiction under 28 U.S.C. Section 1332(a), federal question jurisdiction under 28 U.S.C. Section 1331, and Class Action Fairness Act (CAFA) jurisdiction under 28 U.S.C. Section 1332(d). Defendant Bayer Corporation is a citizen of Indiana and Pennsylvania. Defendant Bayer HealthCare LLC is a citizen of New Jersey, Pennsylvania, Germany, and the Netherlands. Defendant Bayer Essure, Inc., and Defendant Bayer Healthcare Pharmaceuticals are citizens of Delaware and New Jersey. With respect to diversity jurisdiction, Defendants argued that although there is a lack of complete diversity on the face of the Petition, the Court should dismiss the claims of the non-Missouri plaintiffs for lack of personal jurisdiction, at which point complete diversity would exist. Defendants also argued that diversity jurisdiction exists because Plaintiffs' claims have been fraudulently misjoined. On November 3, 2016, Plaintiffs filed the instant motion to remand the case, arguing that the Court should address subject matter jurisdiction before personal jurisdiction and that the Court should remand the case for lack of subject matter jurisdiction because there is no complete diversity, no federal question jurisdiction, and no jurisdiction under CAFA. In her Opinion and Order dated January 10, 2017 available at https://is.gd/5y8qAn from Leagle.com, Judge Seibel hold that the Court lacks subject matter jurisdiction over the case and that CAFA cannot form a basis for subject matter jurisdiction. The case is remanded to the Circuit Court for the Twenty-Second Judicial Circuit, City of St. Louis, Missouri. Karla Mann, et al. are represented by Eric D. Holland, Esq. -- eholland@allfela.com -- and Randall S. Crompton, Esq. -- scrompton@allfela.com -- HOLLAND LAW FIRM LLC Bayer Corp., et al. are represented by Gerard T. Noce, Esq. -- gnoce@heplerbroom.com -- and W. Jason Rankin, Esq. -- jrankin@heplerbroom.com -- HEPLER BROOM -- Rebecca K. Wood, Esq. -- rwood@sidley.com -- SIDLEY AUSTIN, LLP CONVERGENT OUTSOURCING: Faces "Shpetehaib" Suit in E.D.N.Y. ----------------------------------------------------------- A class action lawsuit has been filed against Convergent Outsourcing, Inc. The case is entitled as Rintek Shpetehaib, on behalf of himself and all others similarly situated, the Plaintiff, v. Convergent Outsourcing, Inc., the Defendant, Case No. 1:17-cv-00579 (E.D.N.Y., Feb. 1, 2017). Convergent Outsourcing offers business process outsourcing, revenue cycle, and receivables management services. It also provides receivables collection services to credit grantors in retail, telecommunications, and utilities industries. The Plaintiff is represented by: Joseph H. Mizrahi, Esq. Alan J Sasson, Esq. LAW OFFICE OF ALAN J. SASSON, P.C. 2687 Coney Island Avenue, 2nd Floor Brooklyn, NY 11235 Telephone: (718) 339 0856 Facsimile: (347) 244 7178 E-mail: jmizrahi@sassonlaw.com alan@sassonlaw.com CREDIT COLLECTION: "G.G." Suit Moved from Super. Ct. to D.N.J. -------------------------------------------------------------- The class action lawsuit titled G.G., a minor, through Eden Davis, the GAL, Individually, and on behalf of all others similarly situated, the Plaintiff, v. CREDIT COLLECTION SERVICES, the Defendant, Case No. ESX-L-08664-16, was removed from the New Jersey Superior Court Law Division, Essex County, to the U.S. District Court for the District of New Jersey (Newark). The District Court Clerk assigned Case No. 2:17-cv-00704-WJM-MF to the proceeding. Credit Collection Services Group (CCSG) is a professional full service debt recovery, law firm and investigations company. The Plaintiff is represented by: Daniel Zemel, Esq. ZEMEL LAW LLC 70 Clinton Ave. Newark, NJ 07114 Telephone: (862) 227 3106 E-mail: dz@zemellawllc.com The Defendant is represented by: Lawrence J. Bartel, III, Esq. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 2000 Market Street, Suite 2300 Philadelphia, PA 19103 Telephone: (215) 575 2780 E-mail: ljbartel@mdwcg.com DELTA AIRLINES: Obtains Favorable Ruling in Wage Class Action ------------------------------------------------------------- Shanice Harris, writing for Legal Newsline, reports that a California judge has ruled on the Oman v. Delta case and has held that an out-of-state employee who has limited attendance in California is not obligated by the state to be in compliance with California wage and hour laws. Four flight attendants filed a class-action lawsuit against their employer, Delta Airlines, claiming because they frequently are stationed in California that the California Labor Code governs their scheduled work for that pay period and they deserve the benefits that come with that. In response to the claim, Delta filed a pre-certification summary judgment motion, which challenged the applicability of Section 226 and Section 204; both laws requiring wage statements and timing of pay. Judge William Orrich eventually ruled in Delta's favor, stating that since the flight attendants worked minimal hours in California, they were not eligible for California wage and hour laws. Judge Orrich also noted that Delta is headquartered outside of California, which further negates the flight attendants' argument. "It would have sown a lot of confusion [if plaintiffs had won]," Chantelle C. Egan -- cegan@seyfarth.com -- associate at Seyfarth Shaw in San Francisco, told Legal Newsline. "Plaintiffs argued that anytime a flight attendant flew in or out of a California airport, California wage and hour laws applied, even if the flight attendant was a non-California resident whose work was primarily out-of-state." Ms. Egan said that If an airline had to comply with California wage and hour laws every time an out-of-state employee merely touches land in California, it would create chaos. Changes would have to be made to employee wages and work schedules, just for those hours worked in California. But, according to Egan, the presiding judge also stated that other factors, including employer's place of business, nature of the travel and/or presence in California, could implicate California wage and hour laws in some other cases. "The analysis for whether California wage and hour laws apply to employees who work both in and out of California is a multi-factor test that relies heavily on the specific facts of each case," Ms. Egan said. "Here, the airline is not headquartered in California, the flight attendants' working time in California was negligible, and the plaintiffs argued that the flight attendants' residence was inconsequential." Not too long before the ruling in Oman v. Delta, Northern District Judge Jon S. Tigar ruled that California wage and hour protections did apply to a case involving several flight attendants who consisted of actual California residents who often only worked in California airports. That undisclosed airline is headquartered in California. In another case, the outcome was very similar to Oman vs. Delta. "In Ward v. United Airlines Inc., District Judge William Alsup ruled that the California wage statement statute (Labor Code section 226) does not apply to pilots who, though California residents, work primarily out of state," Ms. Egan said. Ms. Egan believes the case was rightfully decided. Seyfarth Shaw LLP does not know what the plaintiffs' plans are regarding any appeal. DEVRY EDUCATION: Seeks to Dismiss Pension Fund's Amended Suit ------------------------------------------------------------- DeVry Education Group Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 2, 2017, for the quarterly period ended December 31, 2016, that defendants have moved to dismiss the second amended class action complaint in the case by the Pension Trust Fund for Operating Engineers. On May 13, 2016, a putative class action lawsuit was filed by the Pension Trust Fund for Operating Engineers, individually and on behalf of others similarly situated, against DeVry Group, Daniel Hamburger, Richard M. Gunst, and Timothy J. Wiggins in the United States District Court for the Northern District of Illinois. The complaint was filed on behalf of a putative class of persons who purchased DeVry Group common stock between February 4, 2011 and January 27, 2016. Citing the FTC lawsuit and the ED January 2016 Notice, the plaintiff claims that defendants made false or misleading statements regarding DeVry University's graduate employment rate and the earnings of DeVry University graduates relative to the graduates of other universities and colleges. As a result of these false or misleading statements about DeVry University graduate outcomes, plaintiff alleges, defendants overstated DeVry Group's growth, revenue and earnings potential and made false or misleading statements about DeVry Group's business, operations and prospects. The plaintiff alleges direct liability against all defendants for violations of Sec.10(b) and Rule 10b-5 of the Exchange Act and asserted liability against the individual defendants pursuant to Sec.20(a) of the Exchange Act. The plaintiff seeks monetary damages, interest, attorneys' fees, costs and other unspecified relief. On July 13, 2016, the Utah Retirement System ("URS") moved for appointment as lead plaintiff and approval of its selection of counsel, which was not opposed by the Pension Trust Fund for Operating Engineers and URS was appointed as lead plaintiff on August 24, 2016. URS filed a second amended complaint ("SAC") on December 23, 2016. The SAC seeks to represent a putative class of persons who purchased DeVry Group common stock between August 26, 2011 and January 27, 2016 and names an additional individual defendant, Patrick J. Unzicker. Like the original complaint, the SAC asserts claims against all defendants for alleged violations of Sec.10(b) and Rule 10b-5 of the Exchange Act and asserted liability against the individual defendants pursuant to Sec.20(a) of the Exchange Act for alleged material misstatements or omissions regarding DeVry University graduate outcomes. On January 27, 2017, defendants moved to dismiss the SAC. DEVRY EDUCATION: Seeks to Dismiss Robinson-Brown Amended Suit ------------------------------------------------------------- DeVry Education Group Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 2, 2017, for the quarterly period ended December 31, 2016, that the DeVry Parties have moved to dismiss the amended complaint in the case by T'Lani Robinson and Robby Brown. On or about June 21, 2016, T'Lani Robinson and Robby Brown filed an arbitration demand with the American Arbitration Association in Chicago, seeking to represent a putative class of students who received a DeVry University education from January 1, 2008 until April 8, 2016 ("Putative Class Period"). Following DeVry Group's filing of a declaratory judgment action in the United States District Court for the Northern District of Illinois seeking, among other things, an order declaring that federal court is the appropriate venue for this putative class action, on September 12, 2016, Robinson and Brown voluntarily withdrew their demand for arbitration. On September 20, 2016, Robinson and Brown answered the declaratory judgement action and filed a putative class action counterclaim, individually and on behalf of others similarly situated, against DeVry Group Inc., DeVry University, Inc., and DeVry/New York, Inc. in the United States District Court for the Northern District of Illinois. The counterclaim asserted causes of action for breach of contract, misrepresentation, concealment, negligence, violations of the Illinois Uniform Deceptive Trade Practices Act, the Illinois Consumer Fraud and Deceptive Trade Practices Act, and the Illinois Private Business and Vocational Schools Act, conversion, unjust enrichment, and declaratory relief. The plaintiffs sought monetary, declaratory, injunctive, and other unspecified relief. On November 4, 2016, following a stipulated dismissal of the declaratory action, the DeVry Parties moved to dismiss the counterclaim after which plaintiffs voluntarily withdrew it. On December 2, 2016, Robinson and Brown filed an amended complaint adding two additional named plaintiffs. The amended complaint purports to assert nationwide class claims under the above- referenced Illinois statutes and common law theories on behalf of those who, during the Putative Class Period, (i) enrolled in DeVry University; (ii) financed their education with DeVry University with direct loans administered by ED; or (iii) entered into an enrollment agreement with DeVry University and otherwise paid for a DeVry University education. The amended complaint also seeks to represent a fourth class of individuals residing in, or enrolled in a DeVry University campus located in, California during the Putative Class Period bringing claims under the California Business and Profession Code. In addition to the claims previously asserted as described above, the amended complaint adds a claim for breach of fiduciary duty owed students in administering Title IV funds. The DeVry Parties moved to dismiss the amended complaint on January 13, 2017. DEVRY EDUCATION: Amended Complaint Filed in Petrizzo-Jara Cases --------------------------------------------------------------- DeVry Education Group Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 2, 2017, for the quarterly period ended December 31, 2016, that plaintiffs in the Petrizzo and Jara cases have filed an amended consolidated complaint. On October 14, 2016, a putative class action lawsuit was filed by Debbie Petrizzo and five other former DeVry University students, individually and on behalf of others similarly situated, against the DeVry Parties in the United States District Court for the Northern District of Illinois (the "Petrizzo Case"). The complaint was filed on behalf of a putative class of persons consisting of those who enrolled in and/or attended classes at DeVry University from at least 2002 through the present and who were unable to find employment within their chosen field of study within six months of graduation. Citing the FTC lawsuit, the plaintiffs claimed that defendants made false or misleading statements regarding DeVry University's graduate employment rate and asserted claims for unjust enrichment and violations of six different states' consumer fraud, unlawful trade practices, and consumer protection laws. The plaintiffs sought monetary, declaratory, injunctive, and other unspecified relief. On October 28, 2016, a putative class action lawsuit was filed by Jairo Jara and eleven others, individually and on behalf of others similarly situated, against the DeVry Parties in the United States District Court for the Northern District of Illinois (the "Jara Case"). The individual plaintiffs claim to have graduated from DeVry University in 2001 or later and sought to proceed on behalf of a putative class of persons consisting of those who obtained a degree from DeVry University and who were unable to find employment within their chosen field of study within six months of graduation. Citing the FTC lawsuit, the plaintiffs claimed that defendants made false or misleading statements regarding DeVry University's graduate employment rate and asserted claims for unjust enrichment and violations of ten different states' consumer fraud, unlawful trade practices, and consumer protection laws. The plaintiffs sought monetary, declaratory, injunctive, and other unspecified relief. By Order dated November 28, 2016, the district court ordered the Petrizzo and Jara Cases be consolidated under the Petrizzo caption for all further purposes. On December 5, 2016, plaintiffs filed an amended consolidated complaint on behalf of 38 individual plaintiffs and others similarly situated. The amended consolidated complaint seeks to bring claims on behalf of the named individuals and a putative nationwide class of individuals for unjust enrichment and alleged violations of the Illinois Consumer Fraud and Deceptive Practices Act and the Illinois Private Businesses and Vocational Schools Act of 2012. In additional, it purports to assert causes of action on behalf of certain of the named individuals and 15 individual state-specific putative classes for alleged violations of 15 different states' consumer fraud, unlawful trade practices, and consumer protection laws. Finally, it seeks to bring individual claims under Georgia state law on behalf of certain named plaintiffs. The plaintiffs seek monetary, declaratory, injunctive, and other unspecified relief. DISCOVER FINANCIAL: Illinois Court Drops "Gingerich" Class Suit --------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on January 24, 2017, in the case styled Rachel Gingerich v. Discover Financial Services, Inc., Case No. 1:16-cv-10226 (N.D. Ill.), relating to a hearing held before the Honorable Sharon Johnson Coleman. The minute entry states that: -- pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure, the Plaintiff's individual claims against the Defendant are dismissed with prejudice, and without costs; -- the putative class claims are dismissed without prejudice, and without costs or notice; -- Plaintiff's motion to certify class is moot; -- motion hearing and status hearing set for March 13, 2017, are stricken; and -- civil case is terminated. A copy of the Notification of Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=gZJui4Ld DOLLAR GENERAL: Status Hearing in "Lambert" Suit Set for Feb. 28 ---------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on January 19, 2017, in the case titled Thera Lambert, et al. v. Dollar General Corporation, Case No. 1:16-cv-11319 (N.D. Ill.), relating to a hearing held before the Honorable Harry D. Leinenweber. The minute entry states that: -- motion hearing was held on January 19, 2017; -- Plaintiffs' "Damasco" Motion for Class Certification is entered and continued generally; and -- status hearing is set for February 28, 2017, at 9:00 a.m. A copy of the Notification of Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=UoCmRFNI DUTCH LLC: "Hoffman" Case Settlement Fails Court Scrutiny --------------------------------------------------------- In the case captioned, SONIA HOFMANN, an individual and on behalf of all others similarly situated, Plaintiff, v. DUTCH LLC, a California Limited Liability Company; and DOES 1 through 100, inclusive, Defendant, Case No. 3:14-CV-02418-GPC-JLB (S.D. Cal.), District Judge Gonzalo P. Curiel of the United States District Court for the Southern District of California on January 19, 2017, ruled that the Motion 1) Granting Preliminary Approval of Class Settlement; 2) Scheduling a Fairness and Final Approval Hearing; and 3) Directing that Notice be Sent to Class Members filed by Sonia Hofmann is taken under submission. Judge Curiel on January 10 tentatively denied Plaintiff's third motion for preliminary approval of the proposed class settlement. The Court said it would entertain additional argument at the hearing on January 11. The next day, the Court entered an order rescheduling the settlement hearing to January 19. On April 26, 2016, the Court denied Plaintiff's initial motion for preliminary approval of the class settlement. The initial proposed settlement provided for: (1) $20 worth of e-gift certificates for each of the class members; (2) $250,000 in cy pres awards; and (3) up to $175,000 in plaintiff's attorney's fees with a clear sailing provision attached. The Court identified three problems with the proposed settlement, namely: (1) that the e-gift certificates effectively constituted coupons because they required class members to pay out of their own pocket before they could redeem them, since while the face value of the e-gift certificates was $20, the average price of Defendant's jeans was -- and still is -- around $200, and no item was being sold by Defendant for less than $58.80; (2) that the cy pres award failed to meet the objective of the underlying statute of consumer protection, since the proposed charities did not promote consumer protection, but rather focused on "helping and meeting the needs of women in our society"; and (3) that, when considered in conjunction with the other provisions of the proposed settlement, the clear sailing provision "created at least a danger of collusion during the settlement negotiations which is not refuted by the record." On August 16, 2016, the Court denied Plaintiff's second motion for preliminary approval of the class settlement. For the renewed attempt to propose a settlement, Plaintiff proposed the following: (1) one denim tote bag ($128 retail value) and $20 e-gift certificates for the class members; (2) $250,000 in cy pres awards, to the same charities as proposed in the initial settlement; and (3) up to $175,000.00 in Plaintiff's attorney's fees with the same clear sailing provision attached. In other words, the only difference between the first and second proposed settlement was the addition of the denim tote bag. The Court denied the parties' renewed motion for preliminary approval because it did not cure the deficiencies that the Court has previously identified. Plaintiff filed the motion for preliminary approval on October 14, 2016. Here, the proposed settlement consists of (1) a current- Elliot brand tote bag (retail value of $128.00) and electronic gift card codes "redeemable on www.CurrentElliott.com only and loaded with values of multiples of $20.00 corresponding to the number of units of Class Products purchased during the Class Period"; (2) $250,000 in cy pres awards to be made over five years; (3) and up to $175,000 in attorney's fees, with the same clear sailing provision. In the Order dated January 10, 2017 available at https://is.gd/YlOFD4 from Leagle.com, Judge Curiel held that (1) the proposed class award still requires class members to purchase items from Current Elliot in order to reap any monetary benefit. And as the Court has previously noted, because the cost of Defendant's jeans hovers around $200.00, class members would have to spend much more than they would gain by receiving $20, $40, or even $60 gift cards; and (2) the proposed class settlement does not remove the clear sailing provision in Plaintiff's request for attorney's fees. The continued presence of that provision fortifies the Court's concern that the attorneys have not proposed a settlement with the best interests of the class in mind and invites the Court to continue to apply an exacting standard in analyzing the reasonableness of the settlement terms. Sonia Hofmann is represented by John H. Donboli, Esq. -- jdonboli@delmarlawgroup.com -- DEL MAR LAW GROUP, LLP Dutch, LLC is represented by Arthur K. Purcell, Esq. -- apurcell@strtrade.com -- and -- Kenneth N. Wolf, Esq. -- kwolf@strtrade.com -- SANDLER TRAVIS AND ROSENBERG PA -- Mitchell J. Freedman, Esq. -- mjf@pksllp.com -- PK SCHRIEFFER LLP E. I. DU PONT: Diagnostic Screening and Testing Begins ------------------------------------------------------ E. I. du Pont de Nemours and Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 2, 2017, for the quarterly period ended December 31, 2016, that in the drinking water actions, diagnostic screening and testing has begun and associated payments to service providers are being disbursed from the escrow account; at December 31, 2016, less than $1 million has been disbursed. In August 2001, a class action, captioned Leach v DuPont, was filed in West Virginia state court alleging that residents living near the Washington Works facility had suffered, or may suffer, deleterious health effects from exposure to PFOA (collectively, perfluorooctanoic acids and its salts, including the ammonium salt), in drinking water. DuPont and attorneys for the class reached a settlement in 2004 that binds about 80,000 residents. In 2005, DuPont paid the plaintiffs' attorneys' fees and expenses of $23 million and made a payment of $70 million, which class counsel designated to fund a community health project. The company funded a series of health studies which were completed in October 2012 by an independent science panel of experts (the C8 Science Panel). The studies were conducted in communities exposed to PFOA to evaluate available scientific evidence on whether any probable link exists, as defined in the settlement agreement, between exposure to PFOA and human disease. The C8 Science Panel found probable links, as defined in the settlement agreement, between exposure to PFOA and pregnancy- induced hypertension, including preeclampsia; kidney cancer; testicular cancer; thyroid disease; ulcerative colitis; and diagnosed high cholesterol. In May 2013, a panel of three independent medical doctors released its initial recommendations for screening and diagnostic testing of eligible class members. In September 2014, the medical panel recommended follow-up screening and diagnostic testing three years after initial testing, based on individual results. The medical panel has not communicated its anticipated schedule for completion of its protocol. The company is obligated to fund up to $235 million for a medical monitoring program for eligible class members and, in addition, administrative costs associated with the program, including class counsel fees. In January 2012, the company established and put $1 million into an escrow account to fund medical monitoring as required by the settlement agreement. Under the settlement agreement, the balance in the escrow amount must be at least $0.5 million; as a result, transfers of additional funds may be required periodically. The court appointed Director of Medical Monitoring has established the program to implement the medical panel's recommendations and the registration process, as well as eligibility screening, is ongoing. Diagnostic screening and testing has begun and associated payments to service providers are being disbursed from the escrow account; at December 31, 2016, less than $1 million has been disbursed. While it is probable that the company will incur liabilities related to funding the medical monitoring program, such liabilities cannot be reasonably estimated due to uncertainties surrounding the level of participation by eligible class members and the scope of testing. In addition, under the settlement agreement, the company must continue to provide water treatment designed to reduce the level of PFOA in water to six area water districts, including the Little Hocking Water Association (LHWA), and private well users. E. I. DU PONT: 3,550 Personal Injury Lawsuits Pending at Dec. 31 ---------------------------------------------------------------- E. I. du Pont de Nemours and Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 2, 2017, for the quarterly period ended December 31, 2016, that at December 31, 2016 there were about 3,550 personal injury lawsuits, of which about 30 allege wrongful death, pending in various federal and state courts in Ohio and West Virginia. Leach class members may pursue personal injury claims against DuPont only for the six human diseases for which the C8 Science Panel determined a probable link exists. At December 31, 2016 there were about 3,550 lawsuits, of which about 30 allege wrongful death, pending in various federal and state courts in Ohio and West Virginia. These lawsuits are consolidated in multi-district litigation (MDL) in the U.S. District Court for the Southern District of Ohio (the Court). The approximate number of lawsuits pending in the MDL remained constant year-over-year. However, the company has refined the number pending at December 31, 2016, in connection with updates to the table below. DuPont, through Chemours, denies the allegations in these lawsuits and is defending itself vigorously. The table approximates the number of lawsuits based on primary alleged disease. Alleged Injury Number of Claims Kidney cancer 210 Testicular cancer 70 Ulcerative colitis 300 Preeclampsia 200 Thyroid disease 1,430 High cholesterol 1,340 In 2014, six cases from the MDL were selected for individual trial. In 2016, three of these cases, two kidney cancer and one ulcerative colitis, were settled for amounts immaterial individually and in the aggregate, and one case was voluntarily withdrawn by plaintiffs. The other two matters, (Barlett v DuPont, kidney cancer, and Freeman v DuPont, testicular cancer) were tried to jury verdicts in 2015 and 2016, respectively. The Bartlett jury awarded compensatory damages of $1.6 million and no punitive damages. The company has appealed the Bartlett verdict to the U.S. Court of Appeals for the Sixth Circuit (the Sixth Circuit) which is expected to issue a ruling in the first half of 2017. In 2016, the Freeman jury awarded compensatory damages of $5.1 million and $0.5 million in punitive damages and attorneys' fees. Pending a post-trial motion, the company will appeal to the Sixth Circuit. In January 2016, the Court determined that 40 cases asserting cancer claims, to be identified by plaintiffs' attorneys, would be scheduled for trial through year-end 2017. In the first two matters selected for trial, (Vigneron v DuPont and Moody v DuPont) plaintiffs make testicular cancer claims. After a fourth quarter 2016 trial, the Vigneron jury awarded compensatory damages of $2 million and punitive damages of $10.5 million. Pending post-trial motions, the company will appeal to the Sixth Circuit. The Moody trial began in January 2017 and the jury is expected to render a verdict in the first quarter 2017. The remaining 38 trials are scheduled to begin each week starting in May 2017. In 2016, the Court ordered the parties to participate in confidential, nonbinding mediation regarding global resolution of the MDL. This process continues. At December 31, 2016, the company has established an accrual of $100 million related to the MDL, representing the company's estimate of the low end of the range of potential loss. While DuPont could incur liabilities in excess of the amount accrued, the upper end of the range of such loss cannot be reasonably estimated. The range of possible loss is unpredictable and involves significant uncertainty due to the uniqueness of individual plaintiff's claims and the company's defenses as to potential liability and damages on an individual claims basis, and the timing and outcome of the appellate process, among other factors. This type of litigation could take place over many years and interim results do not predict the final outcomes of cases. EDIBLE ARRANGEMENTS: Faces "Rando" Suit in Dist. of New Jersey -------------------------------------------------------------- A class action lawsuit has been filed against EDIBLE ARRANGEMENTS INTERNATIONAL, LLC. The case is styled as NICOLE RANDO, individually and on behalf of all others similarly situated, the Plaintiff, v. EDIBLE ARRANGEMENTS INTERNATIONAL, LLC, the Defendant, Case No. 1:17-cv-00701-JBS-AMD (D.N.J., Feb. 1, 2017). The case is assigned to Hon. Chief Judge Jeome B. Simandle. Edible Arrangements is a U.S.-based franchising business that specializes in fresh fruit arrangements, melding the concept of fruit baskets with designs inspired by the floral business. The Plaintiff is represented by: Mark W. Morris, Esq. CLARK LAW FIRM 811 16th Avenue Belmar, NJ 07719 Telephone: (732) 443 0333 E-mail: mmorris@clarklawnj.com ELECTROLUX HOME: "Rice" Suit Stays in M.D. Pa. Court ---------------------------------------------------- District Judge Matthew W. Brann of the United States District Court for the District of Middle District of Pennsylvania ruled that retention of jurisdiction is appropriate in the case captioned, ELAINE RICE, individually and on behalf of all others similarly situated, Plaintiff, v. ELECTROLUX HOME PRODUCTS, INC., Defendant, Case No. 4:15-CV-00371 (M.D. Pa.). The case is a putative class action alleging certain defects in mounted stove-top microwaves that purportedly caused at least one consumer -- the Plaintiff -- to come into contact with a hot surface while preparing food. In her complaint, Plaintiff asserted the following claims, both individually and on behalf of several putative classes: (1) declaratory relief pursuant to 28 U.S.C. Section 2201, et seq.; (2) strict liability -- design defect and failure to warn on behalf of a Rule 23(b)(2) declaratory relief class; (3) negligent failure to warn on behalf of Rule 23(b)(3) Pennsylvania and Other State sub-classes; (4) violation of the Magnuson Moss Warranty Act (MMWA) on behalf of all classes; (5) breach of implied warranty of merchantability on behalf of all classes; (6) breach of express warranty on behalf of all classes; (7) unjust enrichment on behalf of all classes; and (8) strict liability -- design defect and failure to warn on behalf of Plaintiff individually for her personal injuries. Plaintiff brought putative class action claims on behalf of a nationwide Rule 23(b)(2) injunctive relief class, a Pennsylvania Rule 23(b)(3) subclass, and an Other States Rule 23(b)(3) subclass. The Other States subclass included the following 35 jurisdictions: Alaska, Arkansas, California, Colorado, Delaware, District of Columbia, Hawaii, Indiana, Kansas, Louisiana, Maine, Massachusetts, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Oklahoma, Rhode Island, South Carolina, South Dakota, Texas, Utah, Virginia, Washington, West Virginia, and Wyoming. On July 28, 2015, this Court granted Defendant's Motion to Strike the Rule 23(b)(3) Other States subclass. Therefore, after the Court granted the motion to strike the Other States subclass, only a Pennsylvania damages class remained pursuant to Rule 23(b)(3). Consideration of that class -- absent some assignment of monetary value for certain declaratory relief sought by the nationwide class under Rule 23(b)(2) -- would not satisfy CAFA's $5,000,000.00 amount in controversy requirement. A question as to the propriety of subject matter jurisdiction under the Class Action Fairness Act of 2005 (CAFA) was raised sua sponte by the Court during its May 12, 2016 oral argument and again by the parties in relation to a motion to transfer pending in a related matter before the United States District Court for the District of Maryland. In his Memorandum dated January 10, 2017 available at https://is.gd/Z3QIT6 from Leagle.com, Judge Brann held that it is unnecessary to proceed and value the amount in controversy through the lens of the remaining subclasses because the jurisdictional amount is properly considered at the time of the filing and not after rulings on preliminary motions. The motion to strike did not "oust" the Court of CAFA jurisdiction as perfected at the time of the filing. Elaine Rice is represented by Charles J. Kocher, Esq. -- ckocher@smbb.com -- Patrick Howard, Esq. -- phoward@smbb.com -- and -- Simon B. Paris, Esq. -- sparis@smbb.com -- SALTZ, MONGELUZZI, BARRETT & BENDESKY, P.C. -- Raina C. Borrelli, Esq. -- rborrelli@gustafsongluek.com -- Daniel E. Gustafson, Esq. -- dgustafson@gustafsongluek.com -- Jason S. Kilene, Esq. -- jkilene@gustafsongluek.com -- GUSTAFSON GLUEK PLLC -- Joseph G. Price, Esq. -- jprice@dlplaw.com -- Paul T. Oven, Esq. -- ptoven@dlplaw.com -- and -- Sean P. McDonough, Esq. -- smcdonough@dlplaw.com -- DOUGHERTY, LEVENTHAL & PRICE, L.L.P. Electrolux Home Products, Inc. is represented by David R. Fine, Esq. -- david.fine@klgates.com -- David R. Osipovich, Esq. -- david.osipovich@klgates.com -- Loly G. Tor, Esq. -- loly.tor@klgates.com -- Michael S. Nelson, Esq. -- michael.nelson@klgates.com -- and -- Patrick J. Perrone, Esq. - patrick.perrone@klgates.com -- K&L GATES LLP ENVOY AIR: Anthony, et al. File Suit Under FLSA, Mich. OT Laws -------------------------------------------------------------- LESLIE ANTHONY, AARON HENDERSON, ANGELA VALCARCEL, and CHAVONNE WIMBERLY, Plaintiffs, v. ENVOY AIR INC., Defendant, Case No. 5:17- cv-10212-JEL-RSW (E.D. Mich., January 23, 2017), was brought on behalf of individuals who were employed by Defendant Envoy Air Inc. and who did not receive their workers overtime pay, and pay for work performed during "lunch periods" in violation of the Fair Labor Standards Act and the Michigan overtime laws. Envoy Air Inc. is an air carrier that is a wholly owned subsidiary of American Airlines Group. The plaintiffs are cabin cleaners. The Plaintiffs are represented by: Bruce A. Miller, Esq. Keith D. Flynn, Esq. Adam C. Graham, Esq. MILLER COHEN, P.L.C. 600 W. Lafayette Blvd., 4th Floor Detroit, MI 48226-0840 Phone: (313) 964-4454 F.H. CANN: Faces "Ezra" Suit in Eastern District of New York ------------------------------------------------------------ A class action lawsuit has been filed against F.H. Cann & Associates, Inc. The case is captioned as Ouriel Ezra, on behalf of himself and all others similarly situated, the Plaintiff, v. F.H. Cann & Associates, Inc., Case No. 1:17-cv-00572 (E.D.N.Y., Feb. 1, 2017). F.H. Cann offers default prevention, debt collection and account resolution solutions for federal, state and local governments, education & financial institutions. The Plaintiff is represented by: Alan J Sasson, Esq. LAW OFFICE OF ALAN J. SASSON, P.C. 2687 Coney Island Avenue, 2nd Floor Brooklyn, NY 11235 Telephone: (718) 339 0856 Facsimile: (347) 244 7178 E-mail: alan@sassonlaw.com FCA US: "Spratley" Consumer Suit Transferred to N.D. New York ------------------------------------------------------------- The case captioned STEVEN SPRATLEY, TIMOTHY CANFIELD, ANDREW CATTANO, JAMES LETT, DENNIS PECK, SUSAN STEBBINS, AND YVETTE TAYLOR, on behalf of themselves and all others similarly situated, Plaintiff, v. FCA US LLC f/k/a CHRYSLER GROUP LLC Defendant, Case No. 3:17-cv-00062-MAD-DEP (August 3, 2016) was transferred from the U.S. District Court for the District of Eastern New York to the U.S. District Court for the Northern District of New York and assigned Case Number 1:16-cv-04334. The case was brought by Plaintiffs in four states who allege that Chrysler concealed from its customers a defect in its metal alloy valve stem on vehicles equipped with a tire pressure monitoring system. The Defendant designs, manufactures and sells automobiles throughout the United States. An Initial Rule 16 Conference is set for February 17, 2017 at 12:30 PM in Binghamton before Magistrate Judge David E. Peebles. The Plaintiffs are represented by: Gary S. Graifman, Esq. Robert A. Lubitz, Esq. KANTROWITZ GOLDHAMER & GRAIFMAN, P.C. 747 Chestnut Ridge Road, Suite 200 Chestnut Ridge, NY 10977 Phone: (845) 356-2570 - and - Nicholas A. Migliaccio, Esq. Jason S. Rathod, Esq. MIGLIACCIO & RATHOD LLP 412 H Street N.E., Ste. 302 Washington, DC 20002 Phone: (202) 470-3520 - and - Elmer Robert Keach, III, Esq. LAW OFFICES OF ELMER ROBERT KEACH III, P.C. 1040 Riverfront Center P.O. Box 70 Amsterdam, NY 12010 Phone: (518) 434-1718 - and - Gary E. Mason, Esq. WHITFIELD BRYSON & MASON LLP 5101 Wisconsin Ave NW, Suite 305 Washington, DC 20016 Phone: (202) 429-2290 - and - Daniel Calvert, Esq. PARKER WAICHMAN LLP 27300 Riverview Center Boulevard, Suite 103 Bonita Springs, FL 34134 Phone: (239) 390-1000 FIVE GUYS: Faces "Lucia" Suit in Southern District of New York -------------------------------------------------------------- A class action lawsuit has been filed against Five Guys Enterprises LLC. The case is titled as Marett Lucia, on behalf of herself and all others similarly situated, the Plaintiff, v. Five Guys Enterprises LLC, the Defendant, Case No. 1:17-cv-00788 (S.D.N.Y., Feb. 1, 2017). Five Guys is an American fast casual restaurant chain focused on hamburgers, hot dogs, and French fries, with its headquarters in the Lorton community in unincorporated Fairfax County, Virginia. The Plaintiff appears pro se. GENWORTH FINANCIAL: Faces "Rice" Suit Over China Oceanwide Merger ----------------------------------------------------------------- ALEXANDER RICE, Individually And On Behalf Of All Others Similarly Situated, Plaintiff, v. GENWORTH FINANCIAL INCORPORATED, THOMAS J. MCINERNEY, JAMES S. RIEPE, WILLIAM H. BOLINDER, G. KENT CONRAD, MELINA E. HIGGINS, DAVID M. MOFFETT, THOMAS E. MOLONEY, JAMES A. PARKE, DEBRA J. PERRY, ROBERT P. RESTREPO JR., Defendants, Case No. 3:17-cv-00059-REP (E.D. Va., January 23, 2017), is a securities suit over the proposed acquisition of Genworth by a Chinese investment holding company, China Oceanwide Holdings Group Co., Ltd. through a merger. The Plaintiffs alleged that the Transaction is unfair to Genworth's public stockholders as the Merger Consideration represents only a 4.2% premium to the Company's closing price of $5.21 on October 21, 2016, the last trading day before the Proposed Transaction was announced. GENWORTH FINANCIAL INCORPORATED provides mortgage insurance products. The Plaintiff is represented by: Scott A. Simmons, Esq. Christopher J. Habenicht, Esq. MEYERGOERGEN PC 1802 Bayberry Court, Suite 200 Richmond, VA 23226 Phone: 804.288.3600 Fax: 804.565.1231 E-mail: simmons@mg-law.com habenicht@mg-law.com - and - James M. Wilson, Jr., Esq. FARUQI & FARUQI, LLP 685 Third Ave., 26th Fl. New York, NY 10017 Phone: (212) 983-9330 Fax: (212) 983-9331 - and - Juan E. Monteverde, Esq. MONTEVERDE & ASSOCIATES PC The Empire State Building 350 Fifth Avenue, 59th Floor New York, NY 10118 Phone (212) 971-1341 (305) 205-8284 (646) 522-4840 E-mail: jmonteverde@monteverdelaw.com GNS & ASSOCIATES: Faces "Marquez" Suit in S.D. of Alabama --------------------------------------------------------- A class action lawsuit has been filed against GNS & Associates, Inc. The case is captioned as James Marquez and Kennedy Dixon, individually, and on behalf of himself and others similarly situated, the Plaintiff, v. GNS & Associates, Inc.; Oasis Legal Finance, LLC; and Oasis Financial, LLC, the Defendant, Case No. 1:17-cv-00060 (S.D. Ala., Feb. 1, 2017). GNS & Associates is a rental company that provides consumer electronics and appliances for rent. The Plaintiffs are represented by: Lucy Elizabeth Tufts, Esq. CUNNINGHAM, BOUNDS, LLC P.O. Box 66705 Mobile, AL 36660 Telephone: (251) 471 6191 E-mail: let@cunninghambounds.com The Defendants are represented by: Allen E. Graham, Esq. P.O. Box 2727 Mobile, AL 36652 Telephone: (251) 432 4481 Facsimile: (251) 433 1820 E-mail: teeto.graham@phelps.com - and - Jessica Breanne Stanley Zarzour, Esq. PHELPS DUNBAR LLP P. O. Box 2727 Mobile, AL 36652 Telephone: (251) 441 8210 Facsimile: (251) 433 1820 E-mail: Brie.Zarzour@Phelps.com GREAT LAKES: "Hutchins" Lawsuit Alleges Violations of FLSA ---------------------------------------------------------- SANDRA HUTCHINS, on behalf of herself and similarly situated employees, Plaintiff, v. GREAT LAKES HOME HEALTH SERVICES, INC. and GREAT LAKES ACQUISITION CORP., d/b/a GREAT LAKES CARING, Defendants, Case No. 2:17-cv-10210-GCS-DRG (E.D. Mich., January 23, 2017), alleges that Defendants failed to pay Plaintiff and similarly situated employees overtime premium compensation for hours worked over 40 in a week, in violation of the Fair Labor Standards. Defendants have employed hundreds of other individuals who provided home health, palliative, and hospice care to homebound clients. These individuals are referred to as "home health workers." Plaintiff was employed by Defendants as a Licensed Practical Nurse. The Plaintiff is represented by: Jesse Young, Esq. JESSE YOUNG SOMMERS SCHWARTZ, P.C. One Town Square, 17th Floor Southfield, MI 48076 Phone: (248) 746-4027 E-mail: JYoung@sommerspc.com - and - Jerry E. Martin, Esq. Joshua A. Frank, Esq. BARRETT JOHNSTON MARTIN & GARRISON LLC 414 Union Street, Suite 900 Nashville, TN 37219 Phone: (615) 244-2202 E-mail: jmartin@barrettjohnston.com E-mail: jfrank@barrettjohnston.com - and - Peter Winebrake, Esq. R. Andrew Santillo, Esq. Mark J. Gottesfeld, Esq. WINEBRAKE & SANTILLO, LLC 715 Twining Road, Suite 211 Dresher, PA 19025 Phone: (215) 884-2491 E-mail: pwinebrake@winebrakelaw.com asantillo@winebrakelaw.com mgottesfeld@winebrakelaw.com HAWAIIAN AIRLINES: Trainees are not Employees, Calif. Judge Says ---------------------------------------------------------------- District Judge Vince Chhabria of the United States District Court for the District of Northern District of California on January 18, 2017, entered an order of dismissal in the case captioned, KATHRYN OTICO, Plaintiff, v. HAWAIIAN AIRLINES, INC., Defendant, Case No. 9:16-CV-81316-ROSENBERG/BRANNON (N.D. Cal.). On January 9, the Court granted summary judgment for Hawaiian Airlines. The court had set an in-person case management conference for January 24 at 1:30 p.m. to discuss if Otico may proceed on her alleged claim at all, and if so, how. On January 17, the Plaintiff filed a notice with the Court that a settlement has been reached by the parties. Otico was accepted into a training program to become a customer service representative for Hawaiian Airlines. The program, which took place at Oakland International Airport, lasted ten days. It consisted almost exclusively of classroom work and tours of the facilities. Employees of the company taught Otico about FAA regulations, the computer system, and the way the company operated. At the end of the training period, Otico was required to take a test. Otico passed the test, was hired, and worked a short period for Hawaiian before quitting. Otico filed a proposed class action lawsuit in which she alleges that she was an "employee" under federal and California law during the training period, and that Hawaiian should therefore have paid her for that time. Neither side argues that there is any difference between the federal and California legal standards for determining whether Otico qualifies as an "employee" for purposes of the FLSA and California Labor Code, and the law of both jurisdictions indeed appears to be the same. The parties opted to file cross-motions for summary judgment on her individual claims before litigating the class certification question. In his Order dated January 9, 2017 available at https://is.gd/qmRnbw from Leagle.com, Judge Chhabria held that Otico presents no evidence to support her claims because it cannot be inferred she was acting as an "employee" when she took her training courses at Hawaiian Airlines. Kathryn Otico is represented by Alisa Ann Martin, Esq. -- alisa@amartinlaw.com -- PATTERSON LAW GROUP, APC -- Lindsay Christine David, Esq. -- lcdavid@sdlawoffices.com -- SAN DIEGO COUNTY LAW OFFICES Hawaiian Airlines, Inc, et al. are represented by Tracy Thompson, Esq. -- TracyThompson@dwt.com -- Michael A. Aparicio, Esq. -- maparicio@dwt.com -- and -- Victoria L. Tallman, Esq. -- victoriatallman@dwt.com -- DAVIS WRIGHT TREMAINE LLP JB MEDICAL: Bid to Transfer "Schwanke" Suit to Calif. Denied ------------------------------------------------------------ District Judge James S. Moody, Jr. of the United States District for the Middle District of Florida granted in part the motion to transfer or dismiss in the case captioned, LAWRENCE E. SCHWANKE, D.C., d/b/a BACK TO BASICS FAMILY CHIROPRACTIC, a Florida resident, individually, and as the representative of a class of similarly-situated persons, Plaintiff, v. JB MEDICAL MANAGEMENT SOLUTIONS, INC., MCKESSON CORPORATION, MCKESSON BUSINESS PERFORMANCE SERVICES, MCKESSON TECHNOLOGY SOLUTIONS, MCKESSON PROVIDER TECHNOLOGIES, MCKESSON TECHNOLOGIES, INC. and JOHN DOES 1-12, Defendants, Case No. 5:16-CV-597-Oc-30PRL (M.D. Fla.). McKesson Corporation, including its various divisions and subsidiaries, created a medical software product called Medisoft. Medisoft is marketed to healthcare providers nationwide. On October 4, 2012, Plaintiff received an unsolicited fax from Defendant JB Medical Management Solutions, Inc. advertising Medisoft and bearing McKesson's name and motto. The fax, though, does not list any particular McKesson entity or any other information identifying what McKesson entity was involved. Plaintiff claims the unsolicited fax violated the TCPA and unlawfully converted his property. On September 29, 2016, Plaintiff filed a class action against JB Medical, the McKesson Defendants, and 12 John Does. The Complaint does not make specific allegations about any of the McKesson Defendants; instead it lumps all McKesson Defendants together and accuses them jointly of sending the fax or having it sent on their behalf. The proposed class is "Every person sent one or more facsimiles from JB Medical at any time after September 29, 2012, about Medisoft and which did not state that the fax recipient could request that the sender not send any future fax and that the failure to comply with such a request within 30 days would be unlawful." In the motion, the McKesson Defendants raise two arguments: The first is that Plaintiff's action for violation of the Telephone Consumer Protection Act (TCPA) and conversion should be transferred to the District Court for the Northern District of California because it substantially overlaps with a case that was filed there first, or because transferring would further the interests of convenience and justice. The second argument is that Plaintiff's action should be dismissed for failing to state a cause of action. In the motion dismiss, the McKesson Defendants argue the Complaint should be dismissed for two reasons. First, they argue the Complaint fails to state a cause of action because Plaintiff lumps the five McKesson Defendants together without differentiating what each of the Defendants did. Second, they argue that the conversion count should be dismissed because the loss is de minimis. The Court agrees with both arguments, but says only the first has merit. In his Order dated January 9, 2017 available at https://is.gd/Avx9ak from Leagle.com, Judge Moody, Jr. held that Plaintiff's case does not substantially overlap with the Northern District of California case and that transfer would not further convenience or justice. As to motion to dismiss, the Court found that it is fair to dismiss the Complaint as to all McKesson Defendants except McKesson Corporation and allow Plaintiff to conduct discovery so it can determine what other entities may be proper defendants to this action. The statutes of limitations will also be tolled to give Plaintiff time to conduct discovery. Lawrence E. Schwanke is represented by Daniel J. Cohen, Esq. -- daniel@classlawyers.com -- and -- Phillip Bock, Esq. -- phil@classlawyers.com -- BOCK, HATCH, LEWIS & OPPENHEIM, LLC McKesson Corporation, et al. are represented by Grant C. Schrader, Esq. -- gschrader@mofo.com -- Lucia X. Roibal, Esq. -- lroibal@mofo.com -- and -- Tiffany Cheung, Esq. -- tcheung@mofo.com -- MORRISON & FOERSTER, LLP -- Jennifer Lada, Esq. -- jennifer.lada@hklaw.com -- and -- Joseph H. Varner, III, Esq. -- joe.varner@hklaw.com -- HOLLAND & KNIGHT, LLP JO-ANN STORES: Faces "Kreppel" Suit in District of New Jersey ------------------------------------------------------------- A class action lawsuit has been filed against Jo-Ann Stores, LLC. The case is entitled as JODI KREPPEL, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, the Plaintiff, v. JO-ANN STORES, LLC, the Defendant, Case No. 3:17-cv-00708-FLW-LHG (D.N.J., Feb. 1, 2017). The case is assigned to Hon. Judge Freda L. Wolfson. Jo-Ann Stores is a specialty retailer of crafts and fabrics based in Hudson, Ohio. It operates the retail chains Jo-Ann Fabrics and Jo-Ann Etc. The Plaintiff is represented by: Mark W. Morris, Esq. CLARK LAW FIRM 811 16th Avenue Belmar, NJ 07719 Telephone: (732) 443 0333 E-mail: mmorris@clarklawnj.com JOHNSON & JOHNSON: Talcum Powder Ovarian Cancer Lawsuits Ongoing ---------------------------------------------------------------- Joseph H. Saunders, writing for Legal Examiner, reports that Johnson & Johnson Baby Powder has been implicated in hundreds of cases of ovarian cancer in women. Many women have used talcum powder for decades for feminine hygiene believing in the safety of the powder. Johnson & Johnson markets the product for "freshness" and "comfort". Many advertisements suggest that use of the powder in the vaginal area would mask odors and adsorb excess wetness. Women were not told of a medical study in 1982 that found a 92% increase in ovarian cancer in women who reported genital talc use. There had been a prior study that suggested this connection back in 1971. Since the 1982 study by Dr. Daniel Cramer there have been 27 studies on the connection between Talcum powder and ovarian cancer and most of them have confirmed the relationship. Johnson & Johnson internal documents obtained in the lawsuits reveal the Company knew years ago that "Retrospective studies have implicated talc use in the vaginal area with the incidence of ovarian cancer". In 1993, The United States National Toxicology Program concluded that talc was a carcinogen. And in 1996, the condom industry stopped dusting condoms with talc at the request of the U.S. Food and Drug Administration (FDA). This was the direct result of the scientific concern about the ovarian cancer risk from vaginal exposure to talc. In spite of this overwhelming evidence that Johnson & Johnson Baby Powder was causing ovarian cancer, it continued to aggressively market the powder and failed to warn women of the increased risk of ovarian cancer. Johnson & Johnson put the companies own profits from sales ahead of the health of its customers by continuing to promote the talcum powder and concealing the cancer risk. Johnson & Johnson should have changed to product to a corn starch powder which works just as well as talc. They did not do so because from a sales perspective customers were so used to "talcum powder" that the company feared loss of sales. Johnson & Johnson was also part of a trade group named Talc Interested Party Task Force (TIPTF). This group included companies such as Imerys Talc that sold talc and had a vested interest in continuing to market talc baby powder. These companies organized and pooled resources to defend talc and create false science to counter the objective academic scientific studies done by Cramer and others. They followed the playbook of the Tobacco industry in trying to attack the science against their products and hiring lobbyists to prevent any government regulation. The filing of personal injury lawsuits by women with ovarian cancer who used baby powder is rapidly increasing. A petition was recently filed with the United States Federal Judicial Panel on Multidistrict Litigation to have the talcum powder cases all assigned to one federal judge for pretrial management. This should be helpful in organizing the lawsuits which will number in the hundreds and possibly thousands. The Multidistrict Panel assigned the cases to U.S. District Judge Freda Wolfson in New Jersey. Currently, there are fewer than 100 cases in federal court but new ones are being filed every day. There have already been some multi-million dollar jury verdicts in St. Louis in the Missouri state court system against Johnson & Johnson. Those cases are on appeal and J&J has not paid anyone in any settlements or verdicts. In New Jersey, one state court judge dismissed over 200 lawsuits ruling that there was not enough science yet to prove that the baby powder causes ovarian cancer. That ruling is on appeal. None of these cases are class action lawsuits. An individual lawsuit must be filed on behalf of any woman who has contracted ovarian cancer from baby powder. There are strict time limits for filing these lawsuits so it is important for individuals to get prompt legal advice from my firm or any other lawyer specialized in this area of the law. Set forth below are some of the scientific articles that I have cited in one of the Talc lawsuits Mr. Saunders filed in January 2017: In 1983, a case-control study found a 150% increased risk of ovarian cancer for women who use talcum powder in the genital area. Hartge, P., et al. Talc and Ovarian Cancer. 1983; 250(14):1844. In 1988, a case control study of 188 women diagnosed with epithelial ovarian cancer and 539 control women found that 52% of the cancer patients habitually used talcum powder on the genital area before their cancer diagnosis. The study showed a 40% increased risk of ovarian cancer in women that used talcum powder on their genital area and the relative risk for talc use between 1 and 9 years, relative to a shorter duration, was 1.6 (p = 0.05). Whittemore AS, et al. Personal and environmental characteristics related to epithelial ovarian cancer. II. Exposures to talcum powder, tobacco, alcohol, and coffee. J. Epidemiol. 1988 Dec; 128(6):1228-40. A 1989 study looked at 235 women diagnosed with epithelial ovarian cancer and 451 controls, and found a 29% increased risk in ovarian cancer with women who reported genital talcum powder use more than once a week. Booth, M., et al. Risk factors for ovarian cancer: a case-control study. Br J Cancer. 1989 Oct; 60(4):592-8. In 1992, a case-control study found an 80% increased risk of ovarian cancer in women with more than 10,000 lifetime perineal applications of talc, demonstrating a positive dose-response relationship. Harlow BL, et al. Perineal exposure to talc and ovarian cancer risk. Obstet Gynecol. 1992 Jul; 80(1):19-26. Another 1992 case-control study reported at 70% increased risk from genital talc use and a 379% significantly increased risk of ovarian cancer in women who used talc on sanitary napkins in their genital area. Rosenblatt, K.A. et al. Mineral fiber exposure and the development of ovarian cancer. Oncol. 1992 Apr; 45(1):20-5. Yet another case-control study by Yong Chen with 112 diagnosed epithelial ovarian cases and 224 age-matched community controls found an elevated risk for ovarian cancer in women who applied talc-containing dusting powder to the lower abdomen and perineum for longer than 3 months. Yong Chen, et al., Risk Factors for Epithelial Ovarian Cancer in Beijing, China, 21 I Epidemiol. 23-29 (1992). In 1995, the largest study of its kind to date found a 27% increased risk in ovarian cancer for women who regularly use talc in the abdominal or perineal area. Purdie, D., et al. Reproductive and other factors and risk of epithelial ovarian cancer: An Australian case-control study. Survey of Women's Health Study Group. Int J Cancer. 1995 Sep 15; 60(6):678-84. In 1996, a case-control study found a statistically significant 97% increased risk of ovarian cancer in women who used what they described as "moderate" or higher use of talc-based powders in their genital area. See Shushan, A., et al. Human menopausal gonadotropin and the risk of epithelial ovarian cancer. Steril. 1996 Jan; 65(1):13-8. In 1997, a case control study of 313 women with ovarian cancer and 422 without this disease found that the women with cancer were more likely to have applied talcum powder to their external genitalia area. Women who performed any perineal dusting or used genital deodorant spray respectively had a statistically significant 60% to 90% higher risk of developing ovarian cancer. Cook, LS, et al. Perineal powder exposure and the risk of ovarian cancer. J Epidemiol. 1997 Mar 1; 145(5):459-65. In 1997, a case-control study involving over 1,000 women found a statistically significant increased risk of 42% for ovarian cancer for women who applied talc directly or via sanitary napkins to their perineal area. Chang, S, et al. Perineal talc exposure and risk of ovarian carcinoma. 1997 Jun 15; 79(12):2396-401. In 1998, a case-control study found a 149% increased risk of ovarian cancer in women who used talc-based powders on their perineal area. Godard, et al. Risk factors for familial and sporadic ovarian cancer among French Canadians: a case-control study. Am J Obstet Gynecol. 1998 Aug; 179(2):403-10. Daniel Cramer conducted another case-control study in 1999, observing 563 women newly diagnosed with epithelial ovarian cancer and 523 women in a control. The study found a statistically significant 60% increased risk of ovarian cancer in women that used talc-based body powders on their perineal area and an 80% increase in risk for women over 10,000 lifetime applications. Cramer, DW, et al. Genital talc exposure and risk of ovarian cancer. Int J Cancer. 1999 May 5; 81(3):351-56. In 2000, a case-control study including over 2,000 women found a statistically significant 50% increased risk of ovarian cancer from genital talc use in women. Ness, RB, et al. Factors related to inflammation of the ovarian epithelium and risk of ovarian cancer. 2000 Mar; 11(2):111-7. In 2004, a case-control study of nearly 1,400 women from 22 counties in Central California found a statistically significant 37% increased risk of epithelial ovarian cancer from women's genital talc use, and a 77% increased risk of serous invasive ovarian cancer from women's genital talc use. Importantly, this study also examined women's use of cornstarch powders as an alternative to talc, and found no increased risk of ovarian cancer in women in the cornstarch group, supporting a safe alternative to talc for genital use. Mills, PK, et al. Perineal talc exposure and epithelial ovarian cancer risk in the Central Valley of California. Int J Cancer. 2004 Nov 10; 112(3):458-64. In at 2007 study by Buz'Zard, et al., talc was found to increase proliferation, induce neoplastic transformation and increase reactive oxygen species (ROS) generation time-dependently in the ovarian cells. The study concluded that talc may contribute to ovarian carcinogenesis in humans. The data suggested that talc may contribute to ovarian neoplastic transformation and Pycnogenol reduced the talc-induced transformation. Phytotherapy Research: PTR 21, no. 6 (June 2007): 579-86. In 2008, a combined study of over 3,000 from a New England-based case-control study found a 36% statistically significant increased risk for all types of epithelial ovarian cancer from genital talc use and a 60% increased risk of the serous invasive cancer subtype. The study also found a highly significant dose-response relationship between the cumulative talc exposure and incidence of ovarian cancer (an all serous invasive ovarian cancer), adding further support to the causal relationship. Gates, MA, et al. Talc Use, Variants of the GSTM1, GSTT1, and NAT2 Genes, and Risk of Epithelial Ovarian Cancer. Cancer Epidemiol Biomarkers Prey. 2008 Sep; 17(9):2436-44. A 2009 case-control study of over 1,200 women found the risk of ovarian cancer increased significantly with increasing frequency and duration of talc use, with an overall statistically significant 53% increased risk of ovarian cancer from genital talc use. That increased risk rose dramatically, to 108%, in women with the longest duration and most frequent talc use. Wu, AH, et al. Markers of inflammation and risk of ovarian cancer in Los Angeles County. J Cancer. 2009 Mar 15; 124(6):1409-15. In 2011, another case-control study of over 2,000 women found a 27% increased risk of ovarian cancer from genital talc use. Rosenblatt, KA, et al. Genital powder exposure and the risk of epithelial ovarian cancer. Cancer Causes Control. 2011 May; 22(5):737-42. In June of 2013, a pooled analysis of over 18,000 women in eight case-control studies found a 20% to 30% increased risk of women developing epithelial ovarian cancer from genital powder use. The study concluded by stating, "Because there are few modifiable risk factors for ovarian cancer, avoidance of genital powders may be a possible strategy to reduce ovarian cancer incidence." Terry, KL, et al. Genital powder use and risk of ovarian cancer: a pooled analysis of 8,525 cases and 9,859 controls. Cancer Prey Res (Phila). 2013 Aug; 6(8):811. In May, Roberta Ness performed a meta-analysis of all accumulated epidemiologic evidence (23 case-control studies, 5 meta-analyses, and analyses of a single cohort). Talc use was found to increase ovarian cancer by 30-60% in almost all well-designated studies. The results were published in the International Journal of Gynecological Cancer. Ness, R. Does talc exposure cause ovarian cancer? Intl. Jnl Gyn Cancer. 25 Suppl 1 (May 2015): 51. Also in 2015, Cramer, et al. performed a retrospective case- control study. Overall, genital talc use was associated with an OR (95% CI) of 1.33 (1.16; 1.52), with a trend for increasing risk by talc-years. In addition, subtypes of ovarian cancer more likely to be associated with talc included invasive serous and endometriod tumors and borderline serous and mucinous tumors. Premenopausal women and postmenopausal HRT users with these subtypes who had accumulated greater than 24 talc-years had ORs (95% CI) of 2.33 (1.32; 4.12) and 2.57 (1.5, 4.36), respectively. Epidemiology (Cambridge, Mass.), December 17, 2015. A 2016 study of African-American women found that body powder was significantly associated with Epithelial Ovarian Cancer. Genital powder was associated with an increased risk of EOC (OR = 1,44; 95% CI, 1.11-1.86) and a dose-relationship was found for duration of sue and a number of lifetime applications (P <05). The study concluded that body powder is a risk factor for epithelial ovarian cancer among African-American women. Schildkraut JM, et al. Association between Body Powder Use and Ovarian Cancer: the African American Cancer Epidemiology Study (AACES). Cancer epidemiology, biomarkers & prevention: a publication of the American Association for Cancer Research, cosponsored by the American Society of Preventative Oncology. Cancer Epidemiol Biomarkers Prey; 21(10); 1411-7. A 2014 study examined 2,041 cases with epithelial ovarian cancer and 2,100 age-and-residence-matched controls. Genital use of talc was associated with a 1.33 OR with a trend for increasing risk by years of talc use. Most women in the study reported using Johnson & Johnson Baby Powder and Shower to Shower. Among epidemiologic variables, no confounders for the association were identified. Cramer, DW, et al. The association between talc use and ovarian cancer: a retrospective case-control study in two US states. 2016; 27, 33446. In 1990, the U.S. Food and Drug Administration ("FDA") asked manufacturers to voluntarily stop putting talc on surgical gloves because mounting scientific evidence showed that it caused adhesions in surgical patients, an indication of a foreign body reaction. On December 19, 2016, the FDA issued a ban on powdered surgical gloves, stating that "the risk of illness or injury posed by powdered gloves is unreasonable and substantial". In November 10, 1994. the Cancer Prevention Coalition mailed a letter to Ralph Larson, who was CEO of Johnson & Johnson at the time, informing his company that studies as far back as 1960's " . . . show[ ] conclusively that the frequent use of talcum powder in the genital area pose [ ] a serious health risk of ovarian cancer." The letter cited a recent study by Dr. Bernard Harlow from Harvard Medical School confirming this fact and quoted a portion of the study where Dr. Harlow and his colleagues discouraged the use of talc in the female genital area. The letter further stated that 14,000 women per year die from ovarian cancer and that this type of cancer is very difficult to detect and has a low survival rate. The letter concluded by requesting that Johnson & Johnson withdraw talc products from the market because of the alternative of corn starch powders, or at a minimum, place waning information on its talc-based body powders about the ovarian cancer risk they pose. On or about September 17, 1997, Johnson & Johnson's own toxicology consultant, Dr. Alfred Wehner, informed the company about false public statements being made by the Defendants regarding talc safety. In February, 2010, the International Association for the Research of Cancer (IARC) part of the World Health Organization published a paper whereby they classified perineal use of talc based body powder as a "Group 2B" human carcinogen. IARC which is universally accepted as the international authority on cancer issues, concluded that studies from around the world consistently found an increased risk of ovarian cancer in women from perineal use of tale. IARC found that between 16-52% of women in the world were using talc to dust their perineum and found an increased risk of ovarian cancer in women talc users ranging from 30-60%. IARC concluded with this "Evaluation": "There is limited evidence in humans for the carcinogenicity of perineal use of talc-based body powder." By definition "Limited evidence of carcinogenicity" means "a positive association has been observed between exposure to the agent and cancer for which a causal interpretation is considered by the Working Group to be credible, but chance, bias or confounding could not be ruled out with reasonable confidence." In approximately 2006, the Canadian government under The Hazardous Products Act and associated Controlled Products Regulations classified talc as a "D2A" , "very toxic", "cancer causing" substance under its Workplace Hazardous Materials Information System (WHMIS). Asbestos is also classified as "D2A". In or about 2006, Imerys Talc began placing a warning on its Material Safety Data Sheets (MSDS) it provided to the Johnson & Johnson Defendants regarding the talc it sold to them to be used in the PRODUCTS. These MSDSs not only provided the warning information about the IARC classification, but also included warning information regarding "States Rights to Know" and warning information about the Canadian Government's "D2A" classification of talc as well. In 2008, the Cancer Prevention Coalition submitted a second "Petition Seeking a Cancer Warning on Cosmetic Talc Products" to the FDA. The first Citizen Petition had been filed on November, 17, 1994. The second Petition requested that the FDA immediately require cosmetic talcum powder products to bear labels with a prominent warning that frequent talc application in the female genital area is responsible for major risks of ovarian cancer. The FDA response to the two Citizen Petitions was filed on April 1, 2014. In 2013, Cancer Prevention Research published a study that showed that women who used talcum powder in their groin area had a 20 to 30 percent greater risk of developing ovarian cancer than women who did not use talc products in that area. The Gilda Radner Familial Ovarian Cancer Registry, Roswell Park Center Institute, and the Department of Gynecologic Oncology at the University of Vermont, published a pamphlet entitled "Myths & Facts about ovarian cancer: What you need to know." In this pamphlet, under "known" risk factors for ovarian cancer, it lists: "Use of Talc (Baby Powder) in the Genital Area". JUMEI INT'L: Securities Class Suit in New York Dismissed -------------------------------------------------------- District Judge William H. Pauley, III of the United States District for the Southern District of New York granted dismissal of the complaint in the case captioned, IN RE JUMEI INTERNATIONAL HOLDING LIMITED SECURITIES LITIGATION, Case No. 14cv9826 (S.D.N.Y.). The action arises from Jumei's May 16, 2014 initial public offering of Jumei's American Depository Shares (ADS), on the New York Stock Exchange. Jumei is a Chinese online retailer specializing in beauty products and apparel. Plaintiffs claim that the IPO registration statement and a subsequent earnings report contained materially false and misleading statements because they failed to disclose Jumei's plan to wind down its third-party beauty supply marketplace in September 2014, a decision that precipitated a sharp decline in Jumei's share price. The putative class, consisting of investors in Jumei's ADS brings the suit under Sections 10(b) and 20(a) of the Exchange Act and Sections 11 and 15 of the Securities Act. Defendants move to dismiss the Securities Act claims on two theories. First, Defendants argue that the Section 11 claims sound in fraud and thus are subject to the heightened pleading standard of FRCP 9(b). In the alternative, Defendants maintain that these claims fail even under the less-stringent FRCP 8 pleading rules, as Plaintiffs have failed to allege an actionable misrepresentation or omission. In his Opinion and Order dated January 10, 2017 available at https://is.gd/FOhuLi from Leagle.com, Judge Pauley, III held that Plaintiffs have failed to allege an actionable misstatement or omission and that Plaintiffs point to no evidence other than the temporal proximity between the positive financial forecasts and Jumei's exit from the marketplace business which is not sufficient to meet either the Rule 9(b) or PSLRA pleading standard. Goldenrain Assets Limited, et al. are represented by Jeremy Alan Lieberman, Esq. -- jalieberman@pomlaw.com -- and -- Michele S. Carino, Esq. -- mscarino@pomlaw.com -- POMERANTZ LLP Chao Lu, et al. are represented by Frank James Johnson, Esq. -- FrankJ@JohnsonandWeaver.com -- and -- William Scott Holleman, Esq. -- scotth@johnsonandweaver.com -- JOHNSON & WEAVER, LLP -- Samuel Howard Rudman, Esq. -- SRudman@rgrdlaw.com -- ROBBINS GELLER RUDMAN & DOWD LLP Xiangbo Yin is represented by Casey Edwards Sadler, Esq. -- csadler@glancylaw.com -- Lionel Z. Glancy, Esq. -- lglancy@glancylaw.com -- Michael Goldberg, Esq. -- ngoldberg@glancylaw.com -- Lesley F. Portnoy, Esq. -- lportnoy@glancylaw.com -- and -- Robert Vincent Prongay, Esq. -- rprongay@glancylaw.com -- GLANCY PRONGAY & MURRAY LLP Jumei International Holding Limited, et al. are represented by Robert Alexander Fumerton, Esq. -- robert.fumerton@skadden.com -- and -- Scott D. Musoff, Esq. -- scott.musoff@skadden.com -- SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP Goldman Sachs (Asia) L.L.C., et al. are represented by Edmund Polubinski, III, Esq. -- edmund.polubinski@davispolk.com -- Jessica L. Turner, Esq. -- jessica.turner@davispolk.com -- John Hammond Heath, Esq. -- john.health@davispolk.com -- and -- Lawrence Jay Portnoy, Esq. -- lawrence.portnoy@davispolk.com -- DAVIS POLK & WARDWELL KELLY SERVICES: Wins Prelim. Okay of "Hillson" Class Settlement --------------------------------------------------------------- The Hon. Laurie J. Michelson entered an opinion and order preliminarily approving a settlement agreement and preliminarily certifying a settlement class in the lawsuit styled LASANDRA HILLSON, STEVEN BOHLER, and ASHLEY SCHMIDT, individually and as proposed representatives of a class v. KELLY SERVICES INC., Case No. 2:15-cv-10803 (E.D. Mich.). The Settlement Class is defined as: All persons on whom Defendant procured a consumer report pursuant to the Fair Credit Reporting Act during the period from July 18, 2012 through January 23, 2014, and whose initial hire date with Defendant was during the period of time when Defendant was providing new applicants with a disclosure form that contained a liability release. Plaintiffs Lasandra Hillson, Steven Bohler, and Ashley Schmidt allege that Defendant Kelly Services, Inc. violated the Fair Credit Reporting Act. When Plaintiffs applied for jobs Kelly offered, they received a form disclosing that Kelly might run a background check to assess their employability. But, say the Plaintiffs, this form included additional information that violated the FCRA's requirement that the disclosure be in a stand- alone document. The Plaintiffs are appointed as Class Representatives, and Nichols Kaster, PLLP; Berger & Montague, P.C.; and Lyngklip & Associates Consumer Law Center PLC are appointed as Class Counsel. Judge Michelson also approves the Parties' Second Revised Postcard Notice and Claim Form and Second Revised Adjudicated Ineligible Postcard Notice and Claim Form for distribution in accordance with the schedule included in the Settlement Agreement. Settlement Class Members will have the right to either opt out or object to this Settlement pursuant to the procedures and schedule included in the Settlement Agreement. A Final Approval Hearing is set for August 2, 2017, at 10:00 a.m. A copy of the Opinion and Order is available at no charge at https://goo.gl/UiD9DO from Leagle.com. The Plaintiffs are represented by: Eleanor Michelle Drake, Esq. BERGER & MONTAGUE, P.C. 43 SE Main Street, Suite 505 Minneapolis, MN 55414 Telephone: (612) 594-5933 Facsimile: (612) 584-4470 E-mail: emdrake@bm.net - and - Anna P. Prakash, Esq. NICHOLS KASTER, PLLP 80 S. 8th St., Suite 4600 Minneapolis, MN 55402-2242 Telephone: (612) 256-3200 Facsimile: (612) 215-6870 E-mail: aprakash@nka.com - and - Ian B. Lyngklip, Esq. LYNGKLIP & ASSOCIATES CONSUMER LAW CENTER, PLC 24500 Northwestern Highway, Suite 206 Southfield, MI 48075 Telephone: (248) 208-8864 E-mail: IanLyngklip@Att.Net The Defendant is represented by: Gerald L. Maatman, Jr., Esq. David J. Rowland, Esq. Laura Jean Maechtlen, Esq. Michael Williams Stevens, Esq. Pamela Q. Devata, Esq. Shireen Y. Wetmore, Esq. SEYFARTH SHAW LLP 131 S. Dearborn Street, Suite 2400 Chicago, IL 60603-5577 Telephone: (312) 460-5000 Facsimile: (312) 460-7000 E-mail: gmaatman@seyfarth.com drowland@seyfarth.com lmaechtlen@seyfarth.com bstevens@seyfarth.com pdevata@seyfarth.com swetmore@seyfarth.com - and - Michael L. Weissman, Esq. FINKEL WHITEFIELD SELIK 32300 Northwestern Highway, Suite 200 Farmington Hills, MI 48334 Telephone: (248) 855-6500 Facsimile: (248) 855-6501 E-mail: mweissman@fwslaw.com KIMBALL ELECTRONICS: Has $4MM Pre-Tax Income from Deal Payment -------------------------------------------------------------- Kimball Electronics, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 2, 2017, for the quarterly period ended December 31, 2016, that Other General Income in the six months ended December 31, 2016 included $4.0 million of pre-tax income resulting from a payment received related to a class action lawsuit in which Kimball Electronics was a class member. The lawsuit alleged that certain suppliers to the EMS industry conspired over a number of years to raise and fix the prices of electronic components, resulting in overcharges to purchasers of those components. No Other General Income was recorded in the six months ended December 31, 2015. Kimball Electronics, Inc. is a global contract electronic manufacturing services ("EMS") company that specializes in producing durable electronics for the automotive, medical, industrial, and public safety end markets. KROLL LABS: Appeals Ruling in Case Over False Positive Drug Test ---------------------------------------------------------------- Heather Yakin, writing for Times Herald-Record, reports that a drug test can change your life. Test positive one day for an illicit drug, and you can lose your job, or your kids, your marriage or your freedom. Dec. 17, 2007, was that day for Eric Landon, formerly of Middletown. He was two weeks from finishing probation for a felony forgery conviction. And then, a saliva drug screen showed a false- positive for marijuana. "I was a guy that was, for the first and only time in his life, engaged to be married and become a stepfather to two young girls, was at the beginning of living and working in a perfect kind of town for me -- Albany, and had career and business plans and opportunities stacked up and waiting to be activated by, and all timed, with one thing: the end of that probation sentence," Landon said. "And none of that ever got to happen." If not for Mr. Landon's natural wariness -- a trait that led him to get his own blood tests and to document everything -- he would likely have gone to prison on that false-positive screen. Instead, he's David taking on a Goliath, and he helped make a new law. Mr. Landon is suing the testing company, Kroll Laboratories LLC, in Orange County Supreme Court for negligence over its failure to follow established scientific and state standards for testing and reporting of results. Mr. Landon said the probation violation triggered by the test left him with diagnosed post-traumatic stress disorder. He is seeking damages for his loss of liberty and for emotional and psychological harm. This negligence claim -- that a testing lab has a "duty of care" or responsibility to the person being tested -- did not exist in New York law until Landon's case. Jackie Lustig, the senior director of corporate communications for Alere Toxicology, which now owns Kroll, said the company does not comment on ongoing litigation. Lawyer Mitchel Ochs of Manhattan-based Anderson & Ochs LLP, who represents Kroll in Mr. Landon's lawsuit, did not respond to multiple phone calls and an email seeking comment on the case. In legal papers and during in-court arguments, Ochs has argued that Kroll's labs did everything they were supposed to do in processing Landon's sample. Kroll denies that Mr. Landon has suffered damage that can be recovered through a negligence claim. "Our argument is that nothing we did was the legal cause of the harm he claims," Mr. Ochs argued in court on Aug. 18, 2015, according to a transcript. "It was the county that took our -- our results. It was the county that decided to do additional testing. It was the county that decided to commence violation of parole (sic) proceedings." According to court papers, Kroll offered, at one point, to settle Mr. Landon's claim for $100,000. Mr. Landon said he turned down the offer on principle. He wants his day in court. Orange County spokesman Justin Rodriguez said the county no longer uses Kroll or Alere. Since 2012, probation has used instant tests -- three different companies since then, as pricing changes and technology improves - - to administer the roughly 4,000 drug tests the department conducts annually. As of late January, about 2,400 people were on probation in Orange County -- about 40 percent of them for felonies. 'Fatally flawed' Mr. Landon said his case is about the principle. "I want every probationer to find out that they should get their own blood test," he said. Documents show that Mr. Landon's Dec. 17, 2007 specimen, once screened, didn't contain enough material for confirmation. New York's testing standards -- which labs must follow to maintain a license to operate in the state, and which Kroll was obliged to follow by its contract with Orange County -- require that an insufficient sample be discarded as "fatally flawed." If Kroll had followed those requirements, there would have been no extension of probation and no anguish, Mr. Landon argues. In 2001, Mr. Landon was arrested on forged-prescription charges. He says he had been prescribed opioids for intractable migraines and became dependent, but he makes no excuses for the crime. He pleaded guilty to second-degree forgery, a felony, and was sentenced in January 2002 to five years of probation. An early drug test showed positive for marijuana; Landon said that, too, was a false-positive. He started getting his own blood tests immediately after every probation test. False-positives can be caused by environmental exposure to a drug, or by medications. Confirmation testing weeds out those false alarms. Dec. 17, 2007 was supposed to be Mr. Landon's last probation appointment. He had a full-time retail job and part-time funeral services work waiting for him upstate. "I was laying the first row of bricks in the foundation in Albany, when everything was made different -- and far worse -- for me," Mr. Landon said. The probation officer asked him to take one last drug test, using the then-standard OraSure Intercept saliva swab kit. Court documents show that Kroll notified the probation officer of the positive screen on Dec. 20, 2007. She requested a confirmation test and filed paperwork to revoke probation, charging Mr. Landon with testing positive for marijuana and denying that he had used marijuana. Kroll's documentation shows that they could not perform the confirmation because the sample was insufficient. Court of Appeals victory On Jan. 2, 2008, Judge Jeffrey Berry extended Mr. Landon's probation until the test issue could be resolved, despite Mr. Landon's proof of clean blood test results and despite him passing a urine test that morning at the courthouse. As the probation fight unfolded, Mr. Landon says, his relationship with his long-term girlfriend deteriorated. Mr. Landon and his lawyer demanded a hearing. In mid-March 2008, according to court papers, probation withdrew the revocation petition, and Judge Berry released Landon from probation. Mr. Landon said he called a lawyer from the parking lot to start his lawsuit. As the civil case began, Mr. Landon's relationship with his girlfriend ended. He moved to Erie, Pa., hoping for a fresh start. Lawyers Robert Isseks and Kevin Bloom filed a federal class-action lawsuit against Orange County, probation, the probation officer and her boss, and Kroll on behalf of Landon and others similarly situated. That case was dismissed after they failed to amend a flawed complaint. The lawyers then filed a new class action against Kroll in Orange County Supreme Court, but the court dismissed the claim, accepting Kroll's argument that they were responsible only to the county. By the time the state's highest court was ready to hear his appeal, Mr. Landon had parted ways with Messrs. Isseks and Bloom over strategy disagreements. Mr. Landon argued his own case before the Court of Appeals on Sept. 3, 2013. His victory there resurrected his lawsuit. Mr. Landon's life revolves around the litigation. He does his legal research at the Erie County, Pa., courthouse. He writes his own briefs, investigates witnesses, and makes the six-hour drive to argue his case in court. He has devoted his limited spare time and money to rescuing and caring for stray cats. "I haven't sat in a restaurant in eight years," he said. "I haven't been on a date. I haven't been to a concert." His case survived bids by Kroll for dismissal in 2015 and again in November. Mr. Landon lost his economic harm claim because he couldn't document the expenses and losses, but Orange County Supreme Court Judge Catherine Bartlett ruled that his claims on loss of liberty and emotional harm will go forward. Kroll appealed the latest ruling. Mr. Landon's case returns to court for a pretrial conference on March 30, when Judge Bartlett will likely set the trial date. LITHIA MOTORS: Court Narrows Claims in Mendoza et al. Suit ---------------------------------------------------------- In the case captioned, JOSEPH FRANK MENDOZA, MARTIN and CAROL JOCKS, DONALD and ANGELA GARRISON, DAVID and ANGELITA JARMAN, individually and on behalf of all others similarly situated, Plaintiffs, v. LITHIA MOTORS, INC., LITHIA FINANCIAL CORPORATION, SALEM-V, LLC d/b/a VOLKSWAGEN OF SALEM, and LITHIA KLAMATH, INC. d/b/a LITHIA KLAMATH FALLS AUTO CENTER, Defendants, Case No. 6:16- CV-01264-AA (D. Or.), District Judge Ann Aiken of the United States District Court for the District of Oregon ruled that defendants' motion to dismiss is granted in part and denied in part; and Plaintiff's motion to seek leave to amend is allowed. Plaintiffs purchased a vehicle from a Lithia dealership. The dealership paid a third party more than $100 for the warranty contract, and defendants either retained a large portion the warranty payment or received a large "kickback" payment from the third-party. Plaintiffs bring the putative class action suit against defendants alleging violations of the federal Truth in Lending Act (TILA), Oregon's Unlawful Trade Practices Act (UTPA), and Oregon's financial elder abuse statute. Plaintiffs allege that defendants failed to comply with the disclosure requirements of both TILA and the UTPA, and that in failing to make those disclosures, defendants wrongfully appropriated money from elderly persons. Defendants move to dismiss certain claims pursuant to Fed. R. Civ. Proc. 12(b)(6) for failure to state a claim upon which relief can be granted on grounds that plaintiffs fail to allege and cannot show that they suffered ascertainable loss as a result of defendants' alleged misrepresentations. Defendants also move to dismiss plaintiffs' claims relating to third-party good or services on grounds that no UTPA provision requires them to itemize and disclose profits associated with third-party goods and services. In her Opinion and Order dated January 10, 2017 available at https://is.gd/GNaUh5 from Leagle.com, Judge Aiken granted dismissal as to plaintiffs' UTPA claims because plaintiffs do not allege concealment of any fact relating to credit availability, the nature of the credit transaction, or the credit obligation incurred by plaintiffs and denied as to the elder financial abuse claim because plaintiffs' allegations suffice to state plausible claims under Sec. 646.608(1)(u). Within 30 days, plaintiffs shall move to amend their complaint to clarify the nature of the losses they suffered and explain how their losses were caused by each defendant's conduct. Joseph Frank Mendoza, et al. are represented by Jack E. McGehee, Esq. -- txlaw@lawtx.com -- MCGEHEE CHANG BARNES LANDGRAF -- Young W. Walgenkim, Esq. -- young@hansonwalgenkim.com -- HANSON & WALGENKIM, LLC Lithia Motors, Inc., et al. are represented by Jeremy D. Sacks, Esq. -- Jeremy.sacks@stoel.com -- Keith E. McIntire, Esq. -- keith.mcintire@stoel.com -- and -- Kennon H. Scott, Esq. -- kennon.scott.stoel.com -- STOEL RIVES LLP LORENZO AUTO: "Montes" Suit Seeks to Recoup Pay Under FLSA ---------------------------------------------------------- ROGER JAVIER CARBALLO MONTES and all others similarly situated under 29 U.S.C. 216(b), Plaintiffs, vs. LORENZO AUTO SERVICES CORP., FRANCISCO J JIMENEZ, Defendants, Case No. 1:17-cv-20271-DPG (S.D. Fla., January 23, 2017), was filed to recover overtime and/or minimum wages for work performed in excess of 40 hours weekly under the Fair Labor Standards Act. LORENZO AUTO SERVICES CORP. offers car repair services. The Plaintiff is represented by: J.H. Zidell, Esq. J.H. ZIDELL, P.A. 300 71st Street, Suite 605 Miami Beach, FL 33141 Phone: (305) 865-6766 Fax: (305) 865-7167 Email: ZABOGADO@AOL.COM LOS ANGELES, CA: Yagman Seeks Certification of Three Classes ------------------------------------------------------------ The Plaintiff in the lawsuit styled STEPHEN YAGMAN, etc. v. ERIC GARCETTI, et al., Case No. 2:16-cv-05944-JAK-E (C.D. Cal.), moves the Court to certify three classes of persons, who were issued parking violation citations within the City of Los Angeles. The class definitions should be: Class 1. All persons whose parking citation initial review was conducted not by defendants, as is required by Cal. Vehicle Code Section 40125(a), as interpreted by Weiss v. City of Los Angeles, 2 Cal.App. 5th 194 (2016), 206 Cal.Rptr. 3d 213 (2016), but instead by a processing agency; Class 2. All persons whose parking citation initial review was conducted not by defendants, but instead by a processing agency, who did not prevail in the initial review, and who were required to pay the parking citation fine amount as a condition precedent to a review of the initial review by defendants; and Class 3. All persons whose parking citation initial review was conducted not by defendants but instead by a processing agency, who did not prevail in the initial review, who did not pay the parking citation fine to obtain a review by defendants of the initial review, who were not provided review by defendants, and who then were required to pay the fine. The class period should be March 29, 2012, to the date of certification. Eric Michael Garcetti is the current mayor of Los Angeles. The Court will commence a hearing on April 3, 2017, at 8:30 a.m., to consider the Motion. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=Q7uIMmIH Plaintiff STEPHEN YAGMAN is represented by: Joseph Reichmann, Esq. Marion R. Yagman, Esq. YAGMAN & REICHMANN 475 Washington Boulevard Venice Beach, CA 90292-5287 Telephone: (310) 452-3200 Facsimile: (310) 557-0420 E-mail: JReichm@aol.com mrygmn@msn.com MALLINCKRODT PLC: Faces "Shenk" Securities Lawsuit Over Acthar -------------------------------------------------------------- PATRICIA A. SHENK, 106 Cambridge Dr., Hershey, PA 17033, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. MALLINCKRODT PLC, 675 McDonnell Blvd., Hazelwood, MO 63042 and MARK TRUDEAU, c/o Mallinckrodt PLC 675 McDonnell Blvd., Hazelwood, MO 63042, Defendants, Case No. 1:17-cv-00145 (D.C., January 23, 2017), alleges that Defendants violated the U.S. Securities and Exchange Act by making false and misleading statements and failing to disclose material adverse facts about the long-term sustainability of the Company's revenues from its Acthar drug and the exposure of Acthar to reimbursement rates by Medicare and Medicaid. Mallinckrodt develops and produces specialty pharmaceutical products, including generic drugs and imaging agents. The Plaintiff is represented by: Michael Weitzner, Esq. 4916 Brandywine Street N.W. Washington, DC 20016 Phone: (202) 905-1172 Fax: (202) 265-0403 E-mail: mweitzner@weitznerlaw.com - and - Geoffrey C. Jarvis, Esq. Naumon A. Amjed, Esq. Ryan T. Degnan, Esq. Nathan Hasiuk, Esq. KESSLER TOPAZ MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 Phone: (610) 667-7706 Fax: (610) 667-7056 E-mail: gjarvis@ktmc.com namjed@ktmc.com rdegnan@ktmc.com nhasiuk@ktmc.com MIDDLESEX CORPORATION: Faces "Myrick" Suit in M.D. of Florida ------------------------------------------------------------- A class action lawsuit has been filed against Middlesex Corporation. The case is styled as Marshall Myrick, on behalf of himself and on behalf of all others similarly situated, the Plaintiff, v. The Middlesex Corporation, the Defendant, Case No. 8:17-cv-00261-JDW-MAP (M.D. Fla., Feb. 1, 2017). The case is assigned to Hon. Judge James D. Whittemore. Middlesex Corporation provides heavy civil construction and asphalt paving services throughout the Northeast and Southeast United States. The Plaintiff is represented by: Brandon J. Hill, Esq. WENZEL FENTON CABASSA, PA 1110 N Florida Ave Ste 300 Tampa, FL 33602-3343 Telephone: (813) 224 0431 Facsimile: (813) 229 8712 E-mail: bhill@wfclaw.com MISSOURI, USA: Postawko Moves to Certify Class of MDOC Inmates -------------------------------------------------------------- The Plaintiffs in the lawsuit captioned Michael G. Postawko, et al. v. Missouri Department of Corrections, et al., Case No. 2:16- cv-04219-NKL (W.D. Mo.), move the Court for certification of a Plaintiff Class on the claims for prospective relief set forth in Counts I and II of their second amended complaint. The Plaintiffs ask the Court to certify a Plaintiff Class of: all those individuals in the custody of MDOC, now or in the future, who have been, or will be, diagnosed with HCV but who are not provided treatment with DAA drugs In this action, the Plaintiffs challenge the alleged custom or policy Defendants Missouri Department of Corrections (MDOC), Anne L. Precythe (in her official capacity), and Corizon to refuse medical treatment that is consistent with current and prevailing medical standards in a manner that is deliberately indifferent to Plaintiffs' serious medical needs. In particular, the Plaintiffs contend, while a cure is available for Hepatitis C viral infection in the form of direct-acting antiviral drugs, these Defendants withhold that treatment from inmates who should receive it-- leaving them to develop serious illnesses, spread Hepatitis C viral infections to other inmates, and, in some cases, die. The Plaintiffs also ask the Court to appoint Michael Postawko, Christopher Baker, and Michael Jamerson as class representatives, and appoint Mae C. Quinn, Esq., Amy E. Breihan, Esq., Gillian R. Wilcox, Esq., Jessie Steffan, Esq., and Anthony E. Rothert, Esq., as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=S401ENbZ The Plaintiffs are represented by: Anthony E. Rothert, Esq. Jessie Steffan, Esq. AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION 454 Whittier Street St. Louis, MO 63108 Telephone: (314) 652-3114 Facsimile: (314) 652-3112 E-mail: trothert@aclu-mo.org jsteffan@aclu-mo.org - and - Gillian R. Wilcox, Esq. AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION 406 West 34th Street, Suite 420 Kansas City, MO 64111 Telephone: (816) 470-9938 Facsimile: (314) 652-3112 E-mail: gwilcox@alcu-mo.org - and - Mae C. Quinn, Esq. Amy E. Breihan, Esq. MACARTHUR JUSTICE CENTER AT ST. LOUIS 3115 South Grand Blvd., Suite 300 St. Louis, MO 63118 Telephone: (314) 254-8540 Facsimile: (314) 254-8547 E-mail: mae.quinn@macarthurjustice.org amy.breihan@macarthurjustice.org MONTEREY FINANCIAL: Gusman Seeks to Certify 4 Classes Under TCPA ---------------------------------------------------------------- The Plaintiff in the lawsuit titled JAMES GUSMAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED v. MONTEREY FINANCIAL SERVICES LLC, and DOES 1 through 10, inclusive, and each of them, Case No. 2:16-cv-07003-JAK-AS (C.D. Cal.), moves the Court for an order granting his motion for class certification and for appointment of class counsel in the action asserting violations of the Telephone Consumer Protection Act. Mr. Gusman moves the Court to certify two classes under 47 U.S.C. Section 227(b)(1)(A)(iii) consisting of: All persons within the United States who received any collection telephone calls from Defendant to said person's cellular telephone made through the use of any automatic telephone dialing system or an artificial or prerecorded voice and such person had not previously consented to receiving such calls within the four years prior to the filing of this Complaint. All persons within the United States who received any solicitation/telemarketing telephone calls from Defendant to said person's cellular telephone made through the use of any automatic telephone dialing system or an artificial or prerecorded voice and such person had revoked any prior express consent to receive such calls prior to the calls within the four years prior to the filing of this Complaint. The Plaintiff additionally moves the Court to certify two classes under 47 U.S.C. Section 227(c) consisting of: All persons within the United States registered on the National Do-Not-Call Registry for at least 30 days, who had not granted Defendant prior express consent nor had a prior established business relationship, who received more than one call made by or on behalf of Defendant that promoted Defendant's products or services, within any twelve-month period, within four years prior to the filing of the complaint. All persons within the United States registered on the National Do-Not-Call Registry for at least 30 days, who received more than one call made by or on behalf of Defendant that promoted Defendant's products or services, after having revoked consent and any prior established business relationship, within any twelve-month period, within four years prior to the filing of the complaint. Mr. Gusman also asks the Court to appoint him as Class Representative and to appoint his attorneys as Class Counsel. The Court will commence a hearing on December 4, 2017, at 8:30 a.m., to consider the Motion. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=KJE0Hsps The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. Thomas E. Wheeler, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St. Suite 780, Woodland Hills, CA 91367 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com twheeler@toddflaw.com NAT'L COLLEGIATE: Settles Antitrust Class Action for $208.7MM ------------------------------------------------------------- The Associated Press reports that the NCAA and 11 major athletic conferences announced on Feb. 3 they have agreed to pay $208.7 million to settle a federal class-action lawsuit filed by former college athletes who claimed the value of their scholarships was illegally capped. The settlement still must be approved by a judge and it does not close the antitrust case. The NCAA said in a statement the association and conferences "will continue to vigorously oppose the remaining portion of the lawsuit seeking pay for play." The settlement will be fully funded by NCAA reserves, the association said. No school or conference will be required to contribute. The original antitrust lawsuit was filed in 2014 by former West Virginia football player Shawne Alston. The case was later combined with other lawsuits and covers Division I men's and women's basketball players and FBS football players who competed from 2009-10 through 2016-17 and did not receive a cost-of- attendance stipend. In January 2015, the five wealthiest college conferences -- the Atlantic Coast Conference, Big Ten, Big 12, Pac-12 and Southeastern Conference -- passed NCAA legislation that allowed schools to increase the value of an athletic scholarship by several thousand dollars to the federally determined actual cost of attending a college or university. Cost of attendance includes expenses beyond tuition, room and board, books and fees. Each member of the class will receive approximately $6,000, said Steve Berman, lead attorney in the case. "This is a historic settlement for student-athletes and there is more to come as the second part of the case seeks injunctive relief that will force the NCAA to pay student-athletes a fair share," Mr. Berman told AP in a text message on Feb. 3. The NCAA said in its statement that the agreement maintains cost of attendance as "an appropriate dividing line between collegiate and professional sports." The statement also said the NCAA and conferences "only settled this case because the terms are consistent with Division I financial aid rules." The NCAA and college sports have been facing numerous legal challenges simultaneously in recent years. Last year, a judge approved a $75 million class-action concussion case against the NCAA. Also in 2016, the Supreme Court declined to hear the NCAA's appeal of the Ed O'Bannon case, leaving in place lower court rulings that found amateurism rules for big-time college sports violated federal antitrust law but prohibited payments to student-athletes. In 2014, a U.S. district judge decided the NCAA's use of names, images and likenesses of college athletes without compensation violated antitrust law. Judge Claudia Wilken ruled schools could -- but were not required to -- pay football and men's basketball players up to $5,000 per year. The money would go into a trust and be available to the athletes after leaving college. Judge Wilken also ruled schools could increase the value of the athletic scholarship to meet the federal cost of attendance figure for each institution. In 2015, the San Francisco-based 9th U.S. Circuit Court of Appeals overturned Judge Wilken's ruling on the payments of $5,000 but upheld the antitrust violation. The NCAA and Division I football conferences are also currently facing dozens of new lawsuits by former players seeking damages for the mishandling of concussions. NAVIENT SOLUTIONS: "Ponce" Suit Invokes TCPA, Debt Collection Law ----------------------------------------------------------------- ALFRED PONCE, individually and on behalf of all others similarly situated, Plaintiff, vs. NAVIENT SOLUTIONS, INC., Defendant, Case No. 2:17-cv-00551 (C.D. Cal., January 23, 2017), alleges negligent violations of the Telephone Consumer Protection Act, willful violations of the Telephone Consumer Protection Act and Fair Debt Collection Practices Act in connection with its debt collection practices. Navient Solutions, Inc. -- https://www.navient.com/ -- provides loan management, servicing, and asset recovery solutions. The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Phone: 877-206-4741 Fax: 866-633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com NCSLT 2005-1: Citizen & PNC Dismissed from Student Loan Suit ------------------------------------------------------------ In the case captioned, JANE C. FORRESTER WINNE, Plaintiff, v. NATIONAL COLLEGIATE STUDENT LOAN TRUST 2005-1, et al., Defendants, Case No. 1:16-CV-00229-JDL (D. Maine), District Judge Jon D. Levy of the United States District Court for the District of Maine granted dismissal of the Complaint as to Citizen's and PNC's motion to dismiss and denied as to US Bank's motion to dismiss. The Plaintiff, Jane C. Forrester Winne, filed a class action complaint seeking damages and injunctive relief, brought, she asserts, on behalf of "vulnerable Maine students who are being unlawfully pursued on alleged private student loan debts they do not owe, were fraudulently procured, or both." Her individual claims arise out of attempts by various parties to collect student debts she allegedly owes. Winne's claims focus on two private student loans that were allegedly made to her in 2004 and 2005 by Charter One Bank (now Citizens) and PNC, respectively. Winne denies ever receiving the proceeds from these loans, and asserts that she has never made any payments on either loan. Winne alleges that Charter One sold its loan to National Collegiate Student Loan Trust 2005-1 (NCSLT 2005- 1), and PNC sold its loan to National Collegiate Student Loan Trust 2005-3 (NCSLT 2005-3). The two loans allegedly then became the subject of collection efforts by various entities connected with the NCSLTs, beginning in 2014. Three of the defendants -- Citizens Bank, N.A. (Citizens), U.S. Bank National Association (US Bank), and PNC Bank, N.A. (PNC) -- filed motions to dismiss the claims against them pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. US Bank also seeks dismissal under Rule 12(b)(2), asserting lack of personal jurisdiction. In his Order dated January 11, 2017 available at https://is.gd/TmTa9j from Leagle.com, Judge Levy granted the motion to dismiss as to Citizen and PNC finding that Winne has failed to plead any basis for concluding that she exercised due diligence in trying to discover that the required TILA disclosures were not made, or for concluding that Citizens or PNC fraudulently concealed their failure to make disclosures from her within the one-year statutory period. The Court denied US Bank's motion to dismiss finding that Winne has plausibly stated claim for relief against it under Fair Debt Collection Practices Act (FDCPA) and the Maine Fair Debt Collection Practices Act (MFDCPA) and Maine Unfair Trade Practices Act (MUTPA). Jane C Forrester Winne is represented by Cynthia A. Dill, Esq. -- cdill@troubhheisler.com -- and William K. Mckinley, Esq. -- wmckinley@troubhheisler.com -- TROUBH HEISLER National Collegiate Student Loan Trust 2005-1, et al. are represented by Brian D. Roth, Esq. -- broth@sessions.legal -- Bryan C. Shartle, Esq. -- bshartle@sessions.legal -- and -- Kristen L. Burge, Esq. -- kburge@sessions.legal -- SESSIONS FISHMAN NATHAN & ISRAEL -- Michael Messerschmidt, Esq. -- mmesserschmidt@preti.com -- and -- Adam J. Shub, Esq. -- ashub@preti.com -- PRETI, FLAHERTY, BELIVEAU, & PACHIOS, LLP NEW WEST HEALTH: Gordon May Amend Suit to Add Claim for Cert. ------------------------------------------------------------- The Hon. Brian Morris entered an order in the lawsuit styled LANCE R. GORDON and RONI A. GORDON v. NEW WEST HEALTH SERVICES, and its related affiliates, subsidiaries, and successors, Case No. CV 15- 24-GF-BMM (D. Mt.): (1) denying the Plaintiffs' motion for class certification; (2) granting the Defendant's motion to deny class certification; and (3) permitting the Plaintiffs to amend their complaint to include a claim for class certification under Rule 23(b)(3) of the Federal Rules of Civil Procedure. Judge Morris ruled, among other things, that the Gordons' putative class cannot be certified under Rule 23(b)(2) due to the Gordons' failure to identify any ongoing conduct that they seek to enjoin. Plaintiff Roni A. Gordon works as an employee of the Billings Clinic and Lance and Roni Gordon were insured for health care under New West Health Services Billings Clinic plan in 2010 and 2011. The Gordons' policy remained in effect at the time that they made a claim to New West on behalf of their minor son. The Gordons' attending physician recommended inpatient detoxification therapy, but New West denied the claim based upon its determination that inpatient detoxification was not medically necessary. The Gordons originally proposed the following class for injunctive relief: All beneficiaries as such term is used under the provisions of 29 U.S.C. Section 1002(8) of ERISA plans as that term is defined under the provisions of 29 U.S.C. Section 1002(1) for which Defendant provided insurance services known as New West Health Plan for such ERISA Plans in which beneficiaries have made application for treatment for mental health, alcohol, chemical, and/or drug abuse and/or addiction; who were in need of alcohol and/or drug treatment; and, who were denied said benefits by Defendant on the grounds that said treatment was not medically necessary. The Gordons defined the class more specifically after further discovery. A copy of the Order is available at no charge at https://goo.gl/X9Zsrr from Leagle.com. The Plaintiffs are represented by: Daniel Patrick Buckley, Esq. BUCKLEY LAW OFFICE 125 West Mendenhall Bozeman, MT 59715 Telephone: (406) 587-3346 Facsimile: (406) 587-0475 E-mail: dbuckley@danbuckleylaw.com - and - Lawrence A. Anderson, Esq. ANDERSON LAW OFFICE PO Box 2608 Great Falls, MT 59403 Telephone: (406) 727-8466 Facsimile: (406) 771-8812 E-mail: laalaw@me.com Defendant New West Health Services is represented by: Ian McIntosh, Esq. Kelsey E. Bunkers, Esq. William M. Morris, Esq. CROWLEY FLECK 1915 South 19th Avenue PO Box 10969 Bozeman, MT 59719-0969 Telephone: (406) 556-1430 Facsimile: (406) 556-1433 E-mail: imcintosh@crowleyfleck.com kbunkers@crowleyfleck.com wmorris@crowleyfleck.com NEW YORK: NYSTA Faces American Bus Assoc. Suit in S.D.N.Y. ---------------------------------------------------------- A class action lawsuit has been filed against New York State Thruway Authority. The case is titled as American Bus Association, DATTCO, Inc., and Starr Transit Co., Inc., on behalf of themselves all others similarly situated, the Plaintiff, v. New York State Thruway Authority; New York State Canal Corporation; Bill Finch, in his official capacity as Acting Executive Director of the New York State Thruway Authority; Joanne M. Mahoney, in her official capacity as Chair of the New York State Thruway Authority/Canal Corporation Boards of Directors; Donna J. Luh, in her official capacity as Vice-Chair of the New York State Thruway Authority/Canal Corporation Boards of Directors; Richard N. Simberg, in his official capacity as a member of the New York State Thruway Authority/Canal Corporation Boards of Directors; J. Donald Rice, Jr., in his official capacity as a member of the New York State Thruway Authority/Canal Corporation Boards of Directors; Jose Holguin-Veras, in his official capacity as a member of the New York State Thruway Authority/Canal Corporation Boards of Directors; Robert L. Megna, in his official capacity as a member of the New York State Thruway Authority/Canal Corporation Boards of Directors; Stephen M. Saland, in his official capacity as a member of the New York State Thruway Authority/Canal Corporation Boards of Directors, the Defendants, Case No. 1:17-cv- 00782 (S.D.N.Y., Feb. 1, 2017). New York State Thruway is a system of limited-access highways located within the state of New York in the United States. The Plaintiffs are represented by: Reginald Raybern Goeke, Esq. MAYER BROWN LLP(DC) 1999 "K" Street, N.W. Washington, DC 20006 Telephone: (202) 263 3241 Facsimile: (202) 263 5241 E-mail: rgoeke@mayerbrown.com NEW YORK, NY: Faces "Smyth" Suit Seeking to Recover Wages --------------------------------------------------------- FAYE SMYTH, individually and on behalf of all other persons similarly situated, Plaintiffs, against THE CITY OF NEW YORK, THE CITY OF NEW YORK FIRE DEPARTMENT, Daniel A. Nigro, as Commissioner of the New York City Fire Department, Defendants, Case No. 1:17- cv-00492 (S.D.N.Y., January 23, 2017), was brought pursuant to the Fair Labor Standards Act to recover liquidated damages for delayed payments of overtime and other wages. Defendant, The City of New York, is a municipal corporation duly organized and existing under the Constitution and laws of the State and City of New York. Defendant, The City of New York Fire Department, is an agency of the City of New York authorized and existing, pursuant to New York City Charter. Plaintiff Faye Smyth has been employed by Defendant the City of New York in various capacities since approximately 1989, has been employed by the Fire Department of the City of New York since approximately 1997, and currently works as a Supervising Fire Alarm Dispatcher, Level 1. The Plaintiff is represented by: Lloyd Ambinder, Esq. James Emmet Murphy, Esq. VIRGINIA & AMBINDER, LLP 40 Broad Street 7th Floor New York, NY 10004 Phone: (212) 943-9080 OSRAM SYLVANIA: May 4 Auto Lighting Claims Filing Deadline Set -------------------------------------------------------------- If You Bought Sylvania Automotive Lighting You Could Get Money from a Class Action Settlement Detailed information and updates are available on the Settlement Website: www.AutolightClaims.ca A Canada-wide Settlement has been negotiated in class actions relating to the marketing and sales of Osram Sylvania Premium Automotive Lighting. This Settlement has been approved by the Courts and will provide benefits to purchasers of the following "Covered Products": -- SilverStar ULTRA, SilverStar, XtraVision, or Cool Blue replacement headlight capsules; -- SilverStar, XtraVision, or Cool Blue sealed beam headlights; or -- SilverStar fog or auxiliary lights. ARE YOU INCLUDED? You may be a Class Member if you purchased a Covered Product in Canada from September 22, 2005 until December 31, 2014. WHAT IS THIS CASE ABOUT? The lawsuits claim that Osram Sylvania, Inc., Osram Sylvania Products, Inc. and Osram Sylvania, Ltd. ("Sylvania") misrepresented that certain replacement automotive lighting is brighter, provides a wider beam and allows drivers to see farther down the road than standard halogen lighting. It also claims that Sylvania omitted material information regarding the reduced life of the replacement lighting. Sylvania denies that it did anything wrong. The Courts did not decide which side was right. Instead, the parties have decided to settle. WHAT DOES THIS SETTLEMENT PROVIDE? A Settlement Amount of not less than CDN $1,150,000 (the "Settlement Fund Minimum") and not more than CDN $1,750,000 (the "Settlement Cap Maximum") is intended to pay claims to eligible Class Members, Notice Costs, Claims Administration Fees and Expenses, Class Counsel Fees and Expenses, and Honorarium Awards to the Representative Plaintiffs. In addition, Sylvania has also modified certain product(s) packaging. Full details about the Settlement are available on the Settlement Website at www.AutolightClaims.ca. WHAT TYPE OF COMPENSATION CAN YOU RECEIVE? Individual Class Member may qualify for Compensation for one of the following, irrespective of how many products have been purchased: Covered Products Initial Amount Maximum Amount SilverStar ULTRA, SilverStar, XtraVision, or Cool Blue replacement headlight capsule $12.00 $24.00 SilverStar, XtraVision, or Cool Blue sealed beam headlight $12.00 $24.00 SilverStar fog or auxiliary lights $12.00 $24.00 For each Claimant who submits a valid Claim, payment as described above will be issued1, so long as providing such Compensation does not exceed the Settlement Cap Maximum. If providing each Claimant with such Compensation will exceed the Settlement Cap Maximum, then in such circumstances each Claimant's Compensation will be reduced on a pro-rata basis. HOW DO I ASK FOR A PAYMENT? To receive Compensation, eligible Class Members must submit a Claim Form to the Claims Administrator through the Settlement Website, by email, or by mail sent no later than May 4, 2017. The Claim Form only takes 3-5 minutes to complete. No proof of purchase is necessary. WHEN SHOULD I MAKE A CLAIM? Immediately - the Claim Form is already available on the Settlement Website at www.AutolightClaims.ca or you can obtain one by contacting the Claims Administrator at 1-855-745-7374. You should act as quickly as possible, a Claim Deadline has been set for May 4, 2017. WHAT HAVE THE COURTS DECIDED? The Ontario Superior Court of Justice and the Superior Court of Quebec have approved the Settlement as fair, reasonable and in the best interests of Class Members. The Courts have also approved a request from Class Counsel for counsel fees, disbursements and taxes, as well as, honorarium payments to the Representative Plaintiffs. WHAT ARE YOUR OPTIONS? If you are a Class Member, you may (1) send in a Claim Form; (2) exclude yourself (Opt-Out); or (3) do nothing. If you don't want to be legally bound by the settlement, you must opt-out. To do so, you must complete and submit an Opt-Out Form to the Claims Administrator by no later than March 20, 2017. The manner in which you opt-out is available on the form found on the Settlement Website. Residents of Quebec must in addition give notice to the Clerk of the Superior Court of Quebec. Anyone who opts out will not be bound by the Settlement Agreement and will not be eligible to claim benefits under the Agreement, but may be eligible to pursue an individual claim. WHEN WILL I BE PAID? Cheques will only begin to be mailed to eligible Class Members for Compensation at the earliest starting on July 3, 2017. HOW CAN I GET MORE INFORMATION? This Notice summarizes the proposed Settlement. More details are in the Settlement Agreement. You can get a copy of the Settlement Agreement and detailed information on how to obtain or file a Claim or Opt-Out on the Settlement Website at www.AutolightClaims.ca For any other information, please call the Claims Administrator at: Bruneau Group Inc. Nelson P.O. 20187 - 322 Rideau St. Ottawa, Ontario K1N 5Y5 Tel: 1-855-745-7374 Email: info@autolightclaims.ca WHO REPRESENTS ME? Class Counsel, or the law firms representing the Plaintiffs, are the following: Consumer Law Group P.C. 251 Laurier Ave. West, Suite 900 Ottawa, Ontario KIP 5J6 jorenstein@clg.org Consumer Law Group Inc. 1030 rue Berri, Suite 102 Montreal, Quebec H2L 4C3 agrass@clg.org This Notice has been approved by the Ontario Superior Court of Justice and the Superior Court of Quebec. 1 less the withholding owing to the Fonds d'aide aux recours collectifs (for Quebec residents only and if applicable). PIGGLY WIGGLY: Faces Class Action Over Employee Stock Plan ---------------------------------------------------------- WCBD reports that a federal class action lawsuit may go to court in Charleston County. The lawsuit claims several counts of breach of fiduciary duty against an employee stock plan for Piggly Wiggly Carolina company Inc. and Greenbax Enterprises Inc. The defendants also include the plan's trustees. The complaint alleges that more than a thousand employees included in the stock plan will not get money expected due to the company's wrong doings over almost a decade. The lawsuit states almost Piggly Wiggly and Greenbax Enterprises offered an Employee Stock Option Plan, or "ESOP". In short, a privately owned company sells the company to the employees. In this case, the employees expected to gain money at retirement. The ESOP trustees and directors for the company are held to a fiduciary standard, in which they are to manage the money in the best interest of the employees. However, the suit alleges that the trustees and directors misused the money and did not uphold that standard. The suit claims those handling the money did not have the employees best interest in mind. The lawsuit says, and gives examples of, "company-wide corruption." Former Piggly Wiggly employees who were part of the ESOP received a letter that shows their ESOP account balance as $0.00. David Schools, President of Greenbax enterprises, said in the letter the money was used, among other things, to go toward worker compensation claims. Schools denied comment on the open litigation. PIONEER CREDIT: Court Trims Claims in "Biber" Complaint ------------------------------------------------------- District Judge T.S. Ellis III of the United States District Court for the Eastern District of Virginia granted in part motions to dismiss in the case captioned, ATTILA BIBER et al., Plaintiffs, v. PIONEER CREDIT RECOVERY, INC., Defendant, Case No. 1:16-cv-804 (E.D. Va.). The putative class action arises from defendant's issuance of a letter that allegedly violates the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. Sections 1692 et seq. Plaintiff, Attila Biber, a Virginia resident who has defaulted on federal student loans, contends that defendant, Pioneer Credit Recovery, Inc. (Pioneer), a debt-collection corporation, violated the FDCPA by sending letters that mislead recipients into believing that their wages are about to be garnished if the recipients do not pay their debts. The Second Amended Complaint (SAC) alleges that on April 1, 2016, Pioneer sent a letter (the Letter) to Biber and others, which was captioned in bold, capitalized letters, "Administrative Wage Garnishment Proceedings Notice." Biber, in the SAC, alleges that Pioneer violated the FDCPA's prohibition on a debt collector's "use of any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. Section 1692e. Specifically, the SAC alleges that Pioneer used false, deceptive, or misleading representations or means. Pioneer has moved to dismiss the SAC raising a facial challenge to Biber's Article III standing to bring an FDCPA claim and contending that the SAC fails to state a claim upon which relief can be granted, pursuant to Rules 12(b)(1) and 12(b)(6), Fed. R. Civ. P. In the Memorandum Opinion dated January 11, 2017 available at https://is.gd/3ALb4A from Leagle.com, Judge Ellis, III granted the motion to dismiss as to false implication that the letter was legal process and deprivation of statutory verification rights because Biber lacks standing and has no there is no subject matter jurisdiction to adjudicate Pioneer's Rule 12(b)(6) motion and as to unfair and unconscionable means to collect pursuant to Rule 12(b)(6). Both the Rule 12(b)(1) and the Rule 12(b)(6) motions must be denied in all other respects. Attila Biber is represented by: Thomas Ray Breeden, Esq. THOMAS R. BREEDEN PC 894 Paramount Rd Oakland, CA 94610 Tel: (703)361-9277 Pioneer Credit Recovery, Inc. is represented by Deborah Jean Israel, Esq. -- disrael@wcsr.com -- and Alexander Paul Rothschild, Esq. -- ARothschild@wcsr.com -- WOMBLE CARLYLE SANDRIDGE & RICE PLLC PNC BANK: Cruz et al. Appeal Dismissal of Ponzi Scheme Suit ----------------------------------------------------------- Plaintiffs Gloria Cruz, Rafael M. Cruz, and Rafael F. Cruz filed on January 27, 2017, a Notice of Appeal to the U.S. Court of Appeals for the Sixth Circuit from the Order on Motion to Dismiss for Failure to State a Claim entered by the U.S. District Court for the Southern District of Ohio in the case captioned, RAFAEL M. CRUZ, et al., Plaintiffs, v. PNC BANK, NATIONAL ASSOCIATION, et al., Defendants, Case No. 3:16-CV-292 (S.D. Ohio). Plaintiffs Dr. Rafael M. Cruz, Dr. Gloria Cruz, and Dr. Rafael F. Cruz brought the putative class action lawsuit against PNC Bank and PNC Financial Services for alleged violation of the Ohio Securities Act, Ohio Rev. Code Section 1707.01, et seq. Plaintiffs allege that they are victims of a massive financial fraud perpetrated by William Apostelos and his wife, Connie Apostelos, with the assistance of his sister, niece and other associates. As alleged in the Complaint, between January 2010 and October 2014, the Aposteloses and their associates raised at least $66.7 million from at least 350 investors across the United States. William Apostelos, who portrayed himself as a sophisticated investor and businessman, falsely represented to investors that their funds would be pooled with other funds and invested in real estate, stock, bonds, or precious metals, or used to make high risk loans to businesses and farmers. Instead, the Aposteloses used investors' funds to operate a Ponzi scheme, in which early investors were paid fictitious returns on their investments with money received from later investors. In October 2014, the Ponzi scheme collapsed when a group of defrauded investors forced William and Connie Apostelos into involuntary bankruptcy. The Complaint contains a single count against Defendants for the sale of unregistered securities in violation of the Ohio Securities Act, Ohio Rev. Code Section 1707.01. Plaintiffs allege that the Aposteloses sold the unregistered securities to them and the members of the proposed class. Plaintiffs contend that the Aposteloses and Defendants are jointly and severally liable to Plaintiffs and the proposed class for their purchases because Defendants "participated in or aided" the Aposteloses in making the unlawful sales. PNC Bank and PNC Financial Services moved to dismiss the Complaint for failure to state a claim on the grounds that Plaintiffs have not alleged that they engaged in anything more than ordinary banking activities, which Defendants contend are not actionable under the Ohio Securities Act. In his Entry and Order dated January 10, 2017 available at https://is.gd/YtpFYf from Leagle.com, District Judge Thomas M. Rose granted a motion to dismiss the Complaint. Judge Rose held that plaintiffs failed to make any allegation that the defendant "acted outside the scope of routine banking activities," which Ohio courts have held do not subject financial institutions to liability under Ohio Rev. Code Section 1707.43. The Court premised its ruling to Boyd v. Kingdom Trust Co., No. 3:16-CV-009, 2016 WL 6441411, recently dismissed a nearly identical complaint alleging the same cause of action under the Ohio Securities Act against another financial institution. Gloria Cruz, et al. are represented by Gary A. Gotto, Esq. -- ggotto@kellerrohrback.com -- KELLER ROHRBACK, LLP -- Matthew G. Bruce, Esq. -- mbruce@ssdlaw.com -- and -- Toby K. Henderson, Esq. -- thenderson@ssdlaw.com -- SEBALY SHILLITO & DYER PNC Bank, National Association, et al. are represented by Thomas David Warren, Esq. -- twarren@bakerlaw.com -- Jessie Morgan Gabriel, Esq. -- jgabriel@bakerlaw.com -- and -- Lauren Marie Hilsheimer, Esq. -- lhilsheimer@bakerlaw.com -- BAKER & HOSTETLER LLP POST HOLDINGS: Has $74.5 Million Provision in Legal Settlements --------------------------------------------------------------- Post Holdings, Inc. (NYSE:POST), a consumer packaged goods holding company, reported results for the first fiscal quarter ended December 31, 2016. Net sales were $1,249.8 million, an increase of 0.1%, or $1.0 million, compared to the prior year. On a comparable basis, net sales declined 2.2% when compared to the same period in fiscal 2016 primarily resulting from an anticipated decline in sales within the Michael Foods Group segment. Gross profit was $379.2 million or 30.3% of net sales, an increase of $16.7 million compared to the prior year gross profit of $362.5 million or 29.0% of net sales. Selling, general and administrative (SG&A) expenses were $264.1 million or 21.1% of net sales, an increase of $77.1 million compared to the prior year SG&A of $187.0 million or 15.0% of net sales. First quarter 2017 SG&A expenses include a provision for $74.5 million in legal settlements related to agreements to settle egg antitrust class action claims. Post Holdings, Inc. -- http://www.postholdings.com/-- headquartered in St. Louis, Missouri, is a consumer packaged goods holding company operating in the center-of-the-store, foodservice, food ingredient, private label, refrigerated and active nutrition food categories. Through its Post Consumer Brands business, Post is a leader in the ready-to-eat cereal category and offers a broad portfolio that includes recognized brands such as Honey Bunches of Oats(R), Pebbles(TM), Great Grains(R), Grape-Nuts(R), Honeycomb(R), Frosted Mini Spooners(R), Golden Puffs(R), Cinnamon Toasters(R), Fruity Dyno-Bites(R), Cocoa Dyno-Bites(R), Berry Colossal Crunch(R) and Malt-O-Meal(R) hot wheat cereal. Post's Michael Foods Group supplies value-added egg products, refrigerated potato products, cheese and other dairy case products and dry pasta products to the foodservice, food ingredient and private label retail channels and markets retail brands including All Whites(R), Better'n Eggs(R), Simply Potatoes(R) and Crystal Farms(R). Post's Active Nutrition platform aids consumers in adopting healthier lifestyles through brands such as PowerBar(R), Premier Protein(R) and Dymatize(R). Post's Private Brands Group manufactures private label peanut butter and other nut butters, dried fruits, baking and snacking nuts, cereal and granola. PPE CASINO: Court OKs Harbourt's Dealer Course Attendees Class -------------------------------------------------------------- The Hon. Catherine C. Blake entered a memorandum in the lawsuit titled CLAUDIA HARBOURT, et al., v. PPE CASINO RESORTS MARYLAND, LLC, d/b/a MARYLAND LIVE! CASINO, Case Nos. CCB-14-3211, CCB-16- 339 (D. Md.), stating that the Plaintiffs' motions for equitable tolling and conditional certification will be denied, and Plaintiffs' motion for class certification will be granted. The Plaintiffs seek to certify this class: All persons that attended Defendant's twelve (12) week dealer course at Marley Station between January 7, 2013, the date that the course began, and April 1, 2013, the date the course ended. The putative class consists of all persons that attended the course, regardless of the number of days or weeks attended. The Plaintiffs bring the putative class action against PPE Casino Resorts Maryland, LLC, owner and operator of Maryland Live! Casino. The Plaintiffs allege that PPE failed to pay them for the vast majority of a training course they attended as Casino employees, in violation of the Fair Labor Standards Act ("FLSA") and Maryland wage and hour laws. "In this case the plaintiffs have shown neither due diligence towards preserving the rights of other potential opt-in plaintiffs nor extraordinary circumstances in the litigation process. No motion for conditional certification or equitable tolling was filed between October 14, 2014, when the complaint was filed, and April 21, 2015, when the motion to dismiss was granted within four months of full briefing. A new complaint was filed February 5, 2016, with seven new plaintiffs, but again no motion for conditional certification or equitable tolling followed until June 2016," according to the Memorandum. "Under the FLSA, the filing of the complaint in itself is not enough to permit tolling of potential plaintiffs' claims. Inevitably some plaintiffs' claims may expire before they receive notice, even where conditional class certification is sought and granted at an early stage of the litigation. Given the statutory framework, and that the narrow circumstances under which the Fourth Circuit has permitted equitable tolling have not been shown here, the plaintiffs' motion must be denied," Judge Blake opined. Because the motion for equitable tolling has been denied, and more than three years has passed since the conclusion of the dealer school, the motion for conditional certification must be denied, Judge Blake noted. Judge Blake added that the Plaintiffs will be permitted to proceed with their FLSA claims. A copy of the Memorandum is available at no charge at https://goo.gl/UWoXUY from Leagle.com. Plaintiffs Claudia Harbourt, Michael Lukoski and Ursula Pocknett are represented by: Steven Marc Lubar, Esq. James A. Lanier, Esq. LAW OFFICES OF PETER T. NICHOLL 36 South Charles Street, Suite 1700 Baltimore, MD 21201 Telephone: (410) 244-7005 Facsimile: (410) 244-8454 E-mail: slubar@nicholllaw.com jlanier@nicholllaw.com Plaintiffs Claudia Harbourt, Michael Lukoski and Ursula Pocknett, and Consol Plaintiffs Philip Kroll, Melvin Lorden, Charles Parker, Nathan Reid, Tyrese Rice, Harvey Robinson and William Sanders are represented by: Benjamin L. Davis, III, Esq. LAW OFFICES OF PETER T. NICHOLL 36 South Charles Street, Suite 1700 Baltimore, MD 21201 Telephone: (410) 244-7005 Facsimile: (410) 244-8454 E-mail: bdavis@nicholllaw.com Defendant PPE Casino Resorts Maryland, LLC, is represented by: Lillian Lane Reynolds, Esq. Robert G. Ames, Esq. Todd James Horn, Esq. VENABLE LLP 750 East Pratt Street, Suite 900 Baltimore, MD 21202 Telephone: (410) 244-7844 Facsimile: (410) 244-7742 E-mail: llreynolds@Venable.com rgames@Venable.com thorn@Venable.com PRECIOUS ANGELS: Faces Class Action Over Patients' Deaths --------------------------------------------------------- Ntombizodwa Makhoba, writing for News24, reports that the presence of white patients at nongovernmental organisation (NGO) Precious Angels in Atteridgeville, Tshwane, caused a concerned neighbour to dismiss thoughts of alerting health inspectors to the facility where 20 mentally ill patients died. "There were white patients there, so I was sure that the NGO was legitimate," she said. "I could have saved many lives. Look what happened now," she said with tears in her eyes. Health Ombudsman Malegapuru Makgoba revealed in his that at least 94 patients died after being moved from Life Esidimeni to 27 NGOs that operated illegally. The neighbour, who lives a few houses away from the NGO that belonged to Ethel Ncube, said they were relieved when the facility was shut down in September in 2016. "Patients used to cry loudly day and night. We witnessed ambulances and hearses coming in and out from the house," she said. "At some point we had to stop our kids from playing outside because they were being exposed to dead bodies while playing. This was bad for our children. "Ethel has to go to jail. She played with many people's lives." On Feb. 3, Ms. Ncube was nowhere to be found. The house's new occupants allowed City Press inside. The facility, which was occupied by 57 patients, had only one bath tub and toilet. The neighbour said mentally disabled children and adults lived under the same roof. Neighbours, she said, were also not told that the patients were going to move in in April last year. "We only saw a bus full of patients and since then we've had sleepless nights," she said. Ms. Ncube, she said, was gone. "I haven't seen her since it was announced that [Gauteng health MEC] Qedani Mahlangu had resigned. I hope the families who lost their family members find closure." Meanwhile, some members of the bereaved families, led by Christine Nxumalo, whose sister, Virginia Machpelah, died in August last year at Precious Angels, have united to file a class action against the department. "It is sad that Mahlangu resigned without giving us answers," she said. Ms. Machpelah spent two years at Life Esidimeni before she was dumped at Precious Angels. Ms. Nxumalo said her family was only told of her sister's death two weeks thereafter. "She was frail, dry, her eyes were hollow and you could literally see her bones. I was shocked to see my sister like this when I went to identify her body," she said. "The only thing that helped me to identify her was a black spot between her front teeth." She said the provincial health department promised the families a settlement that has yet to be determined. "We want closure with this whole thing. Settlement is the small part of accountability and it won't bring our loved ones back," she said. QUALCOMM INC: "Shah" Suit Alleges Securities Act Violations ----------------------------------------------------------- RASESH SHAH, Individually and on behalf of all others similarly situated, Plaintiff, v. QUALCOMM INCORPORATED, STEVE MOLLENKOPF, PAUL E. JACOBS, GEORGE S. DAVIS, and WILLIAM KEITEL, Defendants, Case No. 3:17-cv-00121-JAH-WVG (S.D. Cal., January 23, 2017), alleges that Defendants violated the U.S. Securities and Exchange Act, by among others, making false and/or misleading statements and/or failing to disclose that Qualcomm was engaging and/or had engaged in anticompetitive conduct to maintain a monopoly for semiconductors used in mobile phones in violation of the Federal Trade Commission (FTC) Act. Defendant Qualcomm develops, designs, manufactures, and markets worldwide digital communications products and services. The Plaintiff is represented by: Laurence M. Rosen, Esq. THE ROSEN LAW FIRM, P.A. 355 South Grand Avenue, Suite 2450 Los Angeles, CA 90071 Phone: (213) 785-2610 Fax: (213) 226-4684 Email: lrosen@rosenlegal.com RUTHERFORD COUNTY, TN: Suit v. Education Board Dismissed -------------------------------------------------------- District Judge Aleta A. Trauger of the United States District Court for the Middle District of Tennessee granted the motion to dismiss in the case captioned, T.D., a minor student, by and through her parents, W.D. and H.D., and all persons similarly situated, Plaintiffs, v. RUTHERFORD COUNTY BOARD OF EDUCATION, Defendant, Case No. 3:16-CV-1488 (M.D. Tenn.). On June 21, 2016, T.D., by and through her parents and on behalf of all others similarly situated, filed the proposed class action against Rutherford County Board of Education (RCBOE), bringing claims for violation of the Individuals with Disabilities Act, 20 U.S.C. Section 1400 et seq. (the IDEA) and Tennessee's special education laws, Tenn. Code Ann. Section 49-10-101 et seq., and seeking declaratory and injunctive relief. According to the Complaint, T.D. is a minor child who attends Lascassas Elementary School in Lascassas, Tennessee, and resides in Murfreesboro, Tennessee, both within Rutherford County. The Complaint alleges that a Senior Occupational Therapist within the Rutherford County school system, Matt Barnett, placed in writing and disseminated a policy and practice for Rutherford County that aims to remove or reduce related services in order to save money for RCBOE. On July 20, 2016, RCBOE filed the currently pending Motion to Dismiss under Fed.R.Civ.Proc. Rule 12(b)(6), along with an accompanying Memorandum, arguing that T.D. has failed to state a claim due to failure to exhaust administrative remedies. RCBOE also argues that the allegations in the Complaint do not meet the requirements for certification of a class action. In her Memorandum dated January 9, 2017 available at https://is.gd/TyHkTZ from Leagle.com, Judge Trauger held that the case failed to administratively exhaust. Class certification is unlikely to be appropriate in this situation, given the dearth of factual allegations involving any students aside from T.D. and the fact that the unique constellation of needs addressed by any individual student's Individualized Education Program (IEP) is unlikely to be compatible with the commonality required for class action litigation. T. D., et al. are represented by: Justin S. Gilbert, Esq. GILBERT RUSSELL MCWHERTER PLC 341 Cool Springs Blvd, Suite 230 Franklin, TN 37067 Tel:(615)354-1144 Rutherford County Board of Education is represented by Melinda H. Jacobs, Esq. -- jacobslawmelinda@gmail.com -- THE LAW OFFICE OF MELINDA JACOBS -- and -- Jeffrey L. Reed, Esq. COPE, HUDSON, REED & MCCREARY, PLLC 16 Public Square North PO Box 884 Murfreesboro, TN 37133 Tel:(615)893-5522 SAMSUNG ELECTRONICS: Faces "Higginbotham" Suit in W.D. of Okla. --------------------------------------------------------------- A class action lawsuit has been filed against Samsung Electronics America Inc. The case is captioned as Vicky Higginbotham on behalf of herself and on behalf of all others similarly situated, the Plaintiff, v. Samsung Electronics America Inc.; Samsung Electronics Co Ltd; Home Depot Inc.; Lowes Companies Inc.; Best Buy Co Inc.; and Sears Holding Corporation, the Defendants, Case No. 5:17-cv-00102-HE (W.D. Okla., Feb. 1, 2017). The case is assigned to Hon. Joe Heaton. Samsung Electronics supplies consumer electronics and digital products in the United States. The Plaintiff is represented by: William B Federman, Esq. FEDERMAN & SHERWOOD 10205 N Pennsylvania Ave Oklahoma City, OK 73120 Telephone: (405) 235 1560 Facsimile: (405) 239 2112 E-mail: wbf@federmanlaw.com SANDERSON FARMS: Company, 4 Poultry Producers Defending Suit ------------------------------------------------------------ Sanderson Farms said in its Form 8-K Report filed with the Securities and Exchange Commission on February 2, 2017, that the Company, along with the Company's subsidiaries Sanderson Farms, Inc. (Foods Division), Sanderson Farms, Inc. (Production Division) and Sanderson Farms, Inc. (Processing Division), were named as defendants along with four other poultry producers and certain of their affiliated companies in a putative class action lawsuit filed on January 27, 2017 in the United States District Court for the Eastern District of Oklahoma. The complaint alleges that the defendants unlawfully conspired by sharing data on compensation paid to broiler farmers, with the purpose and effect of suppressing the farmers' compensation below competitive levels. The complaint also alleges that the defendants unlawfully conspired to not solicit or hire the broiler farmers who were providing services to other defendants. The complaint seeks treble damages, costs and attorneys' fees. The lawsuit is in its early stages and the Company intends to defend it vigorously. SOUTH AFRICA: Health MEC Sued Over Psychiatric Patients' Deaths --------------------------------------------------------------- Mark Sonderup, writing for AllAfrica, reports that the MEC for Health in Gauteng, South Africa's wealthiest province, resigned on Jan. 31 just before the release of a report into the deaths of 94 mental health patients. Qedani Mahlangu's post is the equivalent of a health minister but at provincial level. She faces a class action lawsuit after a report by South Africa's health ombudsman exposed the appalling conditions in which the psychiatric patients died between 23 March and 19 December 2016. The patients came to their deaths because of a cost-cutting exercise by the Gauteng government. A total of 2,000 patients were moved from Life Esidimeni private hospitals to 27 NGOs. The report stated that: All the 27 NGOs to which patients were transferred operated under invalid licences. All patients who died in these NGOs died under unlawful circumstances. It was initially reported that 36 patients had died, but the figure turned out to be nearly triple that. The health ombudsman found that the most common cause of the deaths was pneumonia, followed by uncontrolled seizures. Patients were found to be starving and dehydrated. Relatives testified that the patients had been given no blankets or warm clothing during last year's cold winter. The patients died on average two months after the hurriedly and haphazardly arranged transfers took place. The report has been met with outrage and shock. In addition to the Gauteng Health MEC's resignation, the suspensions of two other senior officials have also been recommended -- the head of Health and a senior director. Both are registered medical doctors. The report stated that the MEC's and the two officials' fingerprints are 'peppered' throughout the project. SPECIAL COMMITMENT: Faces Disability Right Suit in W.D. Wash. ------------------------------------------------------------- A class action lawsuit has been filed against Special Commitment Center. The case is captioned as R. R., G. J., R. G.; all others similarly situated, and Disability Rights Washington, the Plaintiffs, v. DSHS, Patricia Lashway, Special Commitment Center, and William Van Hook, the Defendants, Case No. 3:17-cv-05080 (W.D. Wash., Feb. 1, 2017). Special Commitment Center in the state of Washington is a post- sentence treatment institution for people designated as sexually violent predators, located on McNeil Island. The Plaintiff is represented by: Anna Catherine Guy, Esq. David R Carlson, Esq. Rachael E Seevers, Esq. DISABILITY RIGHTS WASHINGTON 315 5th Ave S. Ste 850 Seattle, WA 98104 Telephone: (206) 324 1521 E-mail: annag@dr-wa.org DavidC@dr-wa.org rachaels@dr-wa.org STANDARD DRYWALL: App. Ct. Won't Send "Cruz" Suit to Arbitration ---------------------------------------------------------------- Presiding Judge Lee Ann Edmon of the California Court of Appeals affirmed an order denying petition to compel arbitration in the case captioned, JOSE VINCENTE DE LA CRUZ, Plaintiff and Respondent, v. STANDARD DRYWALL, INC. Defendant and Appellant, Case No. B270433 (Cal. App.). On August 19, 2015, Jose Vincente De La Cruz filed the putative class action against Standard, his former employer. Standard is a construction company that performs carpentry and drywall work in California and throughout the Western United States. Plaintiff alleges that he was employed by Standard as a plasterer from approximately April 2010 to October 20, 2013. During the course of his employment plaintiff traveled daily to job sites in various California counties. In the lawsuit, plaintiff seeks relief on behalf of himself and a putative class consisting of all nonexempt hourly-paid employees currently or formerly employed by Standard in California during the class period, which plaintiff defines as the period commencing four years prior to the filing of the complaint through the date of certification. Plaintiff asserts causes of action for failure to pay all wages, failure to provide meal periods, failure to provide rest periods, failure to pay wages of terminated or resigned employees, unfair competition, and failure to reimburse business expenses. In lieu of an answer, on December 18, 2015, Standard filed a petition to compel arbitration of each cause of action alleged in the complaint. Standard asserted that its construction employees in California, including De La Cruz, work pursuant to collective bargaining agreements. In opposition, De La Cruz contended the petition to compel arbitration should be denied because Standard failed to establish that he and Standard were parties to the collective bargaining agreements at issue. The trial court denied Standard's petition to compel arbitration finding that Standard failed to meet its initial burden to show the existence of a valid arbitration agreement. On appeal, Standard contends that the trial court erred in holding that Standard had not proven the existence of the Southwest Regional Council Agreements and their applicable arbitration provisions by a preponderance of the evidence; the trial court erred in shifting the burden of establishing waiver of arbitration to Standard to prove that it had not waived arbitration; and the trial court erred in not granting Standard a further evidentiary hearing. In her Opinion dated January 23, 2017 available at https://is.gd/QPn3Qh from Leagle.com, Judge Edmon concluded that the trial court properly determined that Standard failed to establish that it was a party to either of the two arbitration agreements on which it sought to rely and that there is no abuse of discretion in the trial court's refusal to reopen the matter. Jose Vincente dela Cruz is represented by Kevin Mahoney, Esq. -- kmahoney@mahoney-law.net -- Katherine J. Odenbreit, Esq. -- kodenbreit@mahoney-law.net -- Morgan Glynn, Esq. -- mglynn@mahoney-law.net -- and -- Anna R. Salusky, Esq. -- asalusky@saluskylaw.com -- MAHONEY LAW GROUP Standard Drywall, Inc. is represented by Chad T. Wishchuk, Esq. -- cwishchuk@ftblaw.com -- and -- Kathleen A. Donahue, Esq. -- kdonahue@ftblaw.com -- FINCH, THORNTON & BAIRD STEMLINE THERAPEUTICS: Faces Shareholder Class Action ----------------------------------------------------- The law firm of Kessler Topaz Meltzer & Check, LLP on Feb. 4 announced that a shareholder class action lawsuit has been filed against Stemline Therapeutics, Inc. (NASDAQ: STML) ("Stemline" or the "Company") on behalf of purchasers of the Company's securities made: (1) pursuant and/or traceable to Stemline's secondary public offering on or about January 20, 2017; and/or (2) on the open market between January 19, 2017 and February 1, 2017, inclusive (the "Class Period"). Investors who purchased Stemline securities during the Class Period may, no later than April 4, 2017, seek to be appointed as a lead plaintiff representative of the class. For additional information or to learn how to participate in the action please visit https://www.ktmc.com/new-cases/stemline-therapeutics- inc#join Stemline, a clinical-stage biopharmaceutical company, focuses on the discovery, acquisition, development and commercialization of proprietary oncology therapeutics in the United States. The Company is developing "SL-401," a targeted therapy directed to the interleukin-3 receptor (IL-3R), which is in Phase II clinical trial for advanced hematologic cancers. On January 20, 2017, Stemline announced the pricing of a public offering of common stock. Specifically, the Company announced that it had priced an underwritten public offering of 4.5 million shares of Stemline common stock at a price of $10.00 per share, for gross proceeds to the Company of $45 million. Less than two weeks later, on February 2, 2017, Stemline provided an update "on its ongoing pivotal Phase 2 trial" and disclosed that, "[o]n January 18, the Company received a report that a patient death had occurred. The patient had developed capillary leak syndrome (CLS), a known, sometimes fatal, and well-documented side effect of SL-401." Following this news, shares of the Company's common stock declined $4.15 per share, or over 42.5%, to close on February 2, 2017 at $5.60 per share, on unusually heavy trading volume. The complaint alleges that Stemline and certain of its executive officers violated the federal securities laws by making false and misleading statements and/or failing to disclose that a cancer patient in a Stemline clinical trial tied to SL-401 died from a severe side effect on January 18, 2017. Additionally, the complaint alleges that, as a result of the foregoing, the defendants' statements about Stemline's business, operations and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. Stemline shareholders who wish to discuss this action and their legal options are encouraged to contact Kessler Topaz Meltzer & Check, LLP (Darren J. Check, Esq., D. Seamus Kaskela, Esq. or Adrienne O. Bell, Esq.) at (888) 299-7706 or at info@ktmc.com. Stemline shareholders may, no later than April 4, 2017, petition the Court to be appointed as a lead plaintiff representative of the class through Kessler Topaz Meltzer & Check or other counsel, or may choose to do nothing and remain an absent class member. A lead plaintiff is a representative party who acts on behalf of all class members in directing the litigation. In order to be appointed as a lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class in the action. Your ability to share in any recovery is not affected by the decision of whether or not to serve as a lead plaintiff. For additional information or to learn how to participate in this action please visit https://www.ktmc.com/new- cases/stemline-therapeutics-inc#join Kessler Topaz Meltzer & Check -- http://www.ktmc.com-- prosecutes class actions in state and federal courts throughout the country. Kessler Topaz Meltzer & Check is a driving force behind corporate governance reform, and has recovered billions of dollars on behalf of institutional and individual investors from the United States and around the world. The firm represents investors, consumers and whistleblowers (private citizens who report fraudulent practices against the government and share in the recovery of government dollars). The complaint in this action was not filed by Kessler Topaz Meltzer & Check. TUESDAY MORNING: Judge Rejects Wage Class Action Settlement ----------------------------------------------------------- Benchmark Monitor reports that a California federal judge on Feb. 3 rejected discount retailer Tuesday Morning Corporation agreement to pay $750,000 to end an unpaid wages class action, saying that the retailer may be getting a bargain by settling claims for a fraction of a percentage of the claims' maximum value. TIERRA LEASE: Faces "Metting" Suit Seeking to Recoup OT Wages ------------------------------------------------------------- RUSSELL METTING, on behalf of himself and others similarly- situated, Plaintiff, v. TIERRA LEASE SERVICE, LLC, Defendant, Case No. 5:17-cv-00044 (W.D. Tex., January 23, 2017), was brought on behalf of Plaintiff and all others similarly- situated, who were formerly or are currently employed as laborers, roustabouts, and heavy equipment operators by Defendant, and seeking damages resulting from Defendant's alleged failure to comply with the overtime requirements of the Fair Labor Standards Act. Defendant Tierra is a Texas corporation that provides equipment and personnel to oil drilling operators in Texas. The Plaintiff is represented by: Charles W. Branham, III, ESq. Corinna Chandler, Esq. DEAN OMAR & BRANHAM, LLP 3900 Elm Street Dallas, TX 75201 Phone: 214-722-5990 Fax: 214-722-5991 E-mail: tbranham@dobllp.com cchandler@dobllp.com TRANSWORLD SYSTEMS: Faces "Grempel" Suit in Eastern Dist. of N.Y. ----------------------------------------------------------------- A class action lawsuit has been filed against Transworld Systems Inc. The case is captioned as Thomas Grempel, on behalf of himself and all others similarly situated, the Plaintiff, v. Transworld Systems Inc. and EGS Financial Care, Inc. f/k/a NCO Financial Systems, Inc., the Defendants, Case No. 2:17-cv-00585 (E.D.N.Y., Feb. 1, 2017). The Transworld Systems is debt collection company. The Plaintiff appears pro se. UNITED PARCEL: Court Rules on Discovery Dispute in "Solo" Suit -------------------------------------------------------------- Magistrate Judge R. Steve Whalen of the United States District Court for the Eastern District of Michigan granted in part Plaintiffs' Motion to Compel Answers to Interrogatory No. 1 in the case captioned, JOE SOLO, ET AL., Plaintiffs, v. UNITED PARCEL SERVICE CO., Defendant, Case No. 14-12719 (E.D. Mich.). The case is a putative consumer class action case in which Plaintiffs claim that Defendant United Parcel Service Co. (UPS) breached its contract with shippers by overcharging for shipments that had a declared value of over $300. Specifically, UPS's pricing table contained "declared value service" charges that increased incrementally with the declared value of the package being shipped. From zero to $100, the charge was zero, and from $100.01 to $50,000, the charge was $0.85 "for each $100.00 of the total value declared." Plaintiffs claim that for packages with a declared value of over $300, UPS charged $0.85 for the first $100 of value, in violation of the contractually binding pricing table. Plaintiffs' Interrogatory No. 1 reads as follows: (A) Separately for Direct Shippers and Third-Party Retailer Shippers, provide the total number of Qualifying Shipments carried by UPS from each Originating State for the time periods indicated in the chart attached as Exhibit A hereto and made part hereof; (B) Separately for Direct Shippers and Third-Party Retailer Shippers, identify the number of Qualifying Shipments carried by UPS from December 30, 2013, to the close of the calendar month immediately preceding the response to this interrogatory; (C) Separately for Direct Shippers and Third-Party Retailer Shippers, identify the number of Qualifying Shipments carried by UPS from June 30, 2013, to December 29, 2013; and (D) For each of the totals in answer to the above Interrogatory No. 1A-1C, quantify on a monthly basis the Qualifying Shipments you contend were not subject to UPS's published pricing tables for declaring excess value, including the pricing tables contained in the Declared Value of Carriage charts on pages 70 and 136 of the UPS Rate and Service Guide updated on July 8, 2013; and identify the agreements, terms, pricing tables, or rates that were used to price coverage for loss or damage for such Qualifying Shipments, and the customers to whom they applied UPS contends that providing the package-specific information requested in Interrogatory No. 1 would be excessively burdensome in terms of both time, manpower, and costs. UPS argues that the cost and burden of responding to the interrogatory on a package- level basis, going back as far as 2008, would be overwhelming and would take at least six months just to restore the archived tapes as described above, at a cost of $120,000 in labor, requiring UPS employees to take on responsibilities outside of their regular duties. Instead, UPS provided an estimate of the number of packages with declared value over $300 that were shipped during the period June 30, 2013 to December 29, 2013. The estimate was based on a methodology described in the sealed version of UPS's response. Therefore, UPS contends, June 30, 2013 through December 29, 2013 is "the time period most likely to be deemed relevant if Plaintiffs' claims are ultimately permitted to proceed on a classwide basis." In his Opinion and Order dated January 10, 2017 available at https://is.gd/DW5Zvs from Leagle.com, Judge Whalen denied as to Plaintiff's request for the production of package-specific information going back as far as 2008 because producing package- specific information going as far back as 2008 would be extraordinarily burdensome, particularly at the stage of the proceedings and granted as to the extent that the parties will meet, confer, and devise a mutually agreeable methodology for obtaining a sampling of the requested data for the time period June 30, 2013 to December 29, 2013. UPS will provide the data thus sampled to Plaintiff, and UPS shall bear the cost of the production. If the parties are unable to agree on an acceptable sampling methodology, then Plaintiff will have the option of requesting that UPS produce the package-specific data for the period June 30, 2013 to December 29, 2013, with Plaintiff bearing the entire cost of production. Joe Solo and BleachTech L.L.C. are represented by Daniel R. Karon, Esq. -- dkaron@karonllc.com -- KARON LLC -- Diana Gjonaj, Esq. -- dgjonaj@milberg.com -- and -- Paul F. Novak, Esq. -- pnovak@milberg.com -- MILBERG LLP United Parcel Service Co. is represented by Bonnie L. Mayfield, Esq. -- bmayfield@dykema.com -- DYKEMA GOSSETT -- Caitlin S. Blythe, Esq. -- cblythe@mofo.com -- Gregory B. Koltun, Esq. -- gkoltun@mofo.com -- and -- Paul T. Friedman, Esq. -- pfriedman@mofo.com -- MORRISON AND FOERSTER UNITED ROAD: Faces "Taylor" Suit in California Superior Court ------------------------------------------------------------- A class action lawsuit has been filed against United Road Services, Inc. The case is styled as CEDRIC TAYLOR ON BEHALF OF HIMSELF, ALL OTHERS SIMILARLY SITUATED, AND ON BEHALF OF THE GENERAL PUBLIC, the Plaintiff, v. UNITED ROAD SERVICES, INC., the Defendant, Case No. BCV-17-100222 (Cal. Super. Ct., Feb. 1, 2017). United Road provides automobile transport services in the United States and Canada. The Plaintiff is represented by: Jamie Serb, Esq. THE TURLEY LAW FIRM 7428 Trade St. San Diego, CA 92121 UNITED STATES: Class of PACER Users Certified in Veterans Suit -------------------------------------------------------------- The Hon. Ellen Segal Huvelle granted the Plaintiffs' motion for class certification filed in the lawsuit captioned NATIONAL VETERANS LEGAL SERVICES PROGRAM, et al. v. UNITED STATES OF AMERICA, Case No. 1:16-cv-00745-ESH (D.D.C.). The certified class consists of: All individuals and entities who have paid fees for the use of PACER between April 21, 2010, and April 21, 2016, excluding class counsel in this case and federal government entities. The Court certifies one class claim: that the fees charged for accessing court records through the PACER system are higher than necessary to operate PACER and, thus, violate the E-Government Act, entitling plaintiffs to monetary relief from the excessive fees under the Little Tucker Act. Gupta Wessler PLLC and Motley Rice LLC are appointed as co-lead class counsel. Judge Huvelle directed the parties to file an agreed-upon proposed form of class notice within 30 days of the date of the Order. If the parties cannot agree on a proposed form of class notice, then they will file separate proposed forms within 20 days of the date of the Order. After a form of class notice has been determined by the Court, class counsel will ensure that individual notice is provided to all absent class members, who can be identified through reasonable efforts using the records maintained by defendant, as required by Fed. R. Civ. P. 23(c)(2), within 90 days of the Court's order approving the form of notice. Class counsel will pay all costs incurred to provide notice. Parties will proceed according to the Scheduling Order issued by the Court on January 24, 2017. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=tkyN5rTt UNITED STATES: Darweesh Moves to Certify Class Over Travel Ban -------------------------------------------------------------- The Petitioners in the lawsuit entitled Hameed Khalid Darweesh, on behalf of himself and all others similarly situated; and, Haider Sameer Abdulkhaleq Alshawi, on behalf of himself and all others similarly situated v. DONALD TRUMP; U.S. DEPARTMENT OF HOMELAND SECURITY ("DHS"); U.S. CUSTOMS AND BORDER PROTECTION ("CBP"); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; JAMES T. MADDEN, New York Field Director, CBP, Case No. 1:17-cv-00480-CBA (E.D.N.Y.), moves for class certification or representative habeas action. The Petitioners contend that they have valid entry documents for the United States but are presently detained by the Respondents at John F. Kennedy International Airport on the basis of an Executive Order issued by President Donald Trump on January 27, 2017. Mr. Khalid Darweesh is an Iraqi national with a valid Special Immigrant Visa to enter the United States, based on his work for U.S. contractors and the U.S. consulate general in Erbil, Iraq. Mr. Abdulkhaleq Alshawi is also an Iraqi national, who arrived in the United States with an approved application to join his legal permanent resident wife, who entered as a refugee, and their child. The Jan. 27 EO purports, inter alia, to suspend the U.S. Refugee Admissions Program and categorically deny admission to the United States for certain individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen, which are designated as "countries of concern." The Executive Order is the sole basis for the Respondents' custody over them, the Petitioners contend. The Petitioners are represented by: Michael J. Wishnie, Esq. Muneer I. Ahmad, Esq. Elora Mukherjee, Esq. Amit Jain, Law Student Intern Aaron Korthuis, Law Student Intern Natalia Nazarewicz, Law Student Intern My Khanh Ngo, Law Student Intern Victoria Roeck, Law Student Intern Yusuf Saei, Law Student Intern Thomas Scott-Railton, Law Student Intern THE JEROME N. FRANK LEGAL SERVICES ORGANIZATION P.O. Box 209090 New Haven, CT 06520-9090 Telephone: (203) 432-4800 Facsimile: (203) 432-1426 E-mail: michael.wishnie@yale.edu muneer.ahmad@yale.edu elora.mukherjee@yale.edu - and - Omar C. Jadwat, Esq. Lee Gelernt, Esq. Cecillia D. Wang, Esq. AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2600 E-mail: ojadwat@aclu.org lgelernt@aclu.org cwang@aclu.org - and - Jennifer Chang Newell, Esq. Cody H. Wofsy, Esq. AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0770 E-mail: jnewell@aclu.org cwofsy@aclu.org - and - Mark Doss, Esq. Rebecca Heller, Esq. Julie Kornfeld, Esq. Stephen Poellot, Esq. INTERNATIONAL REFUGEE ASSISTANCE PROJECT URBAN JUSTICE CENTER 40 Rector St, 9th Floor New York, NY 10006 Telephone: (646) 602-5600 E-mail: mdoss@refugeerights.org bheller@refugeerights.org jkornfeld@refugeerights.org spoellot@refugeerights.org - and - Karen C. Tumlin, Esq. Nicholas Espiritu, Esq. Melissa S. Keaney, Esq. Esther Sung, Esq. NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Boulevard, Suite 1600 Los Angeles, CA 90010 Telephone: (213) 639-3900 E-mail: tumlin@nilc.org espiritu@nilc.org keaney@nilc.org sung@nilc.org - and - Justin B. Cox, Esq. NATIONAL IMMIGRATION LAW CENTER 1989 College Ave. NE Atlanta, GA 30317 Telephone: (678) 404-9119 E-mail: cox@nilc.org - and - Jonathan Polonsky, Esq. KILPATRICK TOWNSEND & STOCKTON LLP 1114 Avenue of the Americas New York, NY 10036-7703 Telephone: (212) 775 8703 E-mail: jpolonsky@kilpatricktownsend.com UNITIL CORPORATION: Individual Claims Pending in "Bellermann" ------------------------------------------------------------- Unitil Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on February 2, 2017, for the fiscal year ended December 31, 2016, that plaintiffs' individual claims remain pending. In early 2009, a putative class action complaint was filed against Unitil's Massachusetts based utility, Fitchburg, in Massachusetts' Worcester Superior Court (the "Court"), (captioned Bellermann et al v. Fitchburg Gas and Electric Light Company). The Complaint seeks an unspecified amount of damages, including the cost of temporary housing and alternative fuel sources, emotional and physical pain and suffering and property damages allegedly incurred by customers in connection with the loss of electric service during the ice storm in Fitchburg's service territory in December 2008. The Massachusetts Supreme Judicial Court issued an order denying class certification status in July 2016, though the plaintiffs' individual claims remain pending. The Company continues to believe that this suit is without merit and will continue to defend itself vigorously. The Town of Lunenburg filed a separate action in the Court arising out of the December 2008 ice storm. The Court granted the Company's Motion for Summary Judgment on all counts in December 2016 and dismissed the Town's complaint. The Court's decision remains subject to a potential motion for reconsideration and appeal. The Company believes, based upon information furnished by counsel and others, that the ultimate resolution of these suits will not have a material impact on its financial position, operating results or cash flows. Unitil's principal business is the local distribution of electricity and natural gas to approximately 184,200 customers throughout its service territories in the states of New Hampshire, Massachusetts and Maine. UNIVERSAL ACCEPTANCE: Court Refuses to Certify "Ung" Suit Class --------------------------------------------------------------- The Hon. Richard H. Kyle denied the Plaintiff's motion for class certification and motion to strike untimely disclosed witness filed in the lawsuit captioned Spencer Ung v. Universal Acceptance Corporation, Case No. 15-127 (RHK/FLN) (D. Minn.). In this action, Plaintiff Spencer Ung alleges that Defendant Universal Acceptance Corporation made unauthorized calls to his cell phone, in violation of the Telephone Consumer Protection Act. Mr. Ung has moved for an order certifying this class: All persons in the United States to whose cellular telephone number [Universal] placed a non-emergency telephone call using the same software and/or equipment it used to call Plaintiff between July 1, 2012, and February 9, 2015, where the person was identified as a landlord or other reference in UAC's system. In his memorandum opinion and order, Judge Kyle noted that while Ung is correct that class certification "is normal in litigation under" the TCPA, "there are no invariable rules regarding the suitability of a particular case under. . . the TCPA for class treatment," citing Gene & Gene LLC v. BioPay LLC, 541 F.3d 318, 328 (5th Cir. 2008). "[T]he unique facts of each case generally will determine whether certification is proper," id., and for the reasons set forth above, the Court concludes the facts of this case render it inappropriate for class-action treatment. A copy of the Memorandum Opinion and Order is available at no charge at https://goo.gl/oH6ABI from Leagle.com. The Plaintiff is represented by: Keith J. Keogh, Esq. Michael S. Hilicki, Esq. KEOGH LAW, LTD. 55 West Monroe Street, Suite 3390 Chicago, IL 60603 Telephone: (312) 726-1092 Facsimile: (312) 726-1093 E-mail: Keith@KeoghLaw.com mhilicki@keoghlaw.com - and - Patrick J. Helwig, Esq. Peter F. Barry, Esq. BARRY & HELWIG, LLC 2701 University Ave. SE, Suite 209 Minneapolis, MN 55414-3236 Telephone: (612) 379-8800 Facsimile: (612) 379-8810 E-mail: phelwig@lawpoint.com pbarry@lawpoint.com The Defendant is represented by: Burt M. Rublin, Esq. Daniel J.T. McKenna, Esq. Matthew David Lamb, Esq. Philip N. Yannella, Esq. BALLARD SPAHR ANDREWS AND INGERSOLL, L.L.P. 1735 Market Street, 51st Floor Philadelphia, PA 19103 Telephone: (215) 864-8238 Facsimile: (215) 864-9511 E-mail: rublin@ballardspahr.com mckennad@ballardspahr.com lambm@ballardspahr.com yannellap@ballardspahr.com - and - David L. Hartsell, Esq. Sarah A. Zielinski, Esq. MCGUIREWOODS LLP 77 West Wacker Dr., Suite 4100 Chicago, IL 60601-1818 Telephone: (312) 849-8100 Facsimile: (312) 849-3690 E-mail: dhartsell@mcguirewoods.com szielinski@mcguirewoods.com - and - Patrick C. Summers, Esq. DEWITT, MACKALL, CROUNSE & MOORE, S.C. 1400 AT&T Tower 901 Marquette Avenue Minneapolis, MN 55402 Telephone: (612) 305-1473 Facsimile: (612) 305-1414 E-mail: pcs@dewittmcm.com USA PLUMBING: Overtime Pay Sought in "Molina" Labor Suit -------------------------------------------------------- Yoel Molina and all others similarly situated, Plaintiffs, v. U.S.A. Plumbing & Septic, Inc., Antonio L. Garcia, Defendants, Case No. 1:17-cv-20374, (S.D. Fla., January 26, 2017), requests double damages and reasonable attorney fees from Defendants, jointly and severally, pursuant to the Fair Labor Standards Act. U.S.A. Plumbing & Septic, Inc., is a sanitation company operating within Miami-Dade County, owned by Antonio L. Garcia, and where Plaintiff worked. Mr. Molina seeks unpaid overtime for hours rendered in excess of 40 weekly. Plaintiffs are represented by: J.H. Zidell, Esq. J.H. ZIDELL, P.A. 300 71st Street, Suite 605 Miami Beach, FL 33141 Tel: (305) 865-6766 Fax: (305) 865-7167 Email: zabogado@aol.com VOLKSWAGEN AG: Deutsche See Files EUR11.9MM Diesel Emissions Suit ----------------------------------------------------------------- Jan Schwartz, writing for Reuters, reports that fish distributor Deutsche See is suing Volkswagen for misrepresenting a fleet of vehicles it leased as environmentally friendly, becoming the first major German customer to sue Europe's biggest carmaker over its diesel-test cheating. Volkswagen already faces numerous lawsuits from individual owners, regulators, states and dealers, many of them in the form of class- action cases in the United States. This is the first case brought by a corporate customer in its home market. Bremerhaven-based Deutsche See, which leases about 500 vehicles from Volkswagen, said it had been unable to reach an out-of-court settlement. Talks had broken down after Volkswagen replaced the relevant managers with lawyers and PR managers. German tabloid Bild am Sonntag said Deutsche See was suing for 11.9 million euros ($12.8 million). Deutsche See was not immediately reachable to comment on the sum. "Deutsche See only went into partnership with VW because VW promised the most environmentally friendly, sustainable mobility concept," said a statement from Deutsche See, which won a sustainability prize in 2010. Volkswagen said on Feb. 5 it had not yet seen the charge and so could not comment on it. Deutsche See said it had filed its complaint for malicious deception at the regional court in Braunschweig, near Volkswagen's Wolfsburg headquarters. The court was not reachable on Feb. 5 to confirm it had received the case. Volkswagen admitted in September 2015 it had used software to cheat diesel-emissions tests in the United States. The legal fallout has cost the company over 20 billion euros ($21.6 billion) so far and its former chief executive is being investigated by German prosecutors for suspected fraud and market manipulation. WABTEC CORP: Busker Appeals Judgment to Ninth Circuit ----------------------------------------------------- John Busker filed on February 7, 2017, a Notice of Appeal to the U.S. Court of Appeals for the Ninth Circuit from the judgment, Order on Motion to Remand Case to State Court, and Order on Motion for Summary Judgment, entered by the U.S. District Court for the Central District of California in the case captioned, JOHN BUSKER, on behalf of himself and all others similarly situated, Plaintiff, v. WABTEC CORPORATION; MARK MARTIN; and DOES 1 through 100, Defendants, Case No. 2:15-CV-08194-ODW-AFM (C.D. Cal.). On September 11, 2015, Plaintiff John Busker filed the putative class action in the Los Angeles Superior Court against Wabtec Corporation and Mark Martin. Busker and other putative class members work on a public works project under the employment of Wabtec. Then, on October 15, 2015, Plaintiff filed an amended complaint in state court alleging causes of action for: (1) failure to pay minimum and overtime wages, (2) failure to pay prevailing wages on a public works project, (3) failure to provide accurate wage statements, (4) waiting time penalties under California Labor Code section 203, (5) unfair business competition, (6) declaratory relief, and (7) penalties pursuant to California Labor Code section 2699. On October 19, 2015, Defendants removed the action to federal court. Defendants move for summary judgment, arguing that Busker's claims fail as a matter of law because prevailing wage requirements are not applicable to his work for Defendants. In his Order dated January 10, 2017 available at https://is.gd/0THDl6 from Leagle.com, District Judge Otis D. Wright, II of the United States District Court for the Central District of California granted Defendants' Motion for Summary Judgment. Judge Wright, II found that as a matter of law Busker's work for Wabtec does not entitle him to prevailing wages, and as such, there is no need for discussion of his additional claims. Defendants, the Court said, have proven that Busker was not involved in a public works project involving fixed works or realty on land. John Busker is represented by Judith L. Camilleri, Esq. -- jcamilleri@donahoo.com -- Richard E. Donahoo, Esq. -- rdonahoo@donahoo.com -- and -- Sarah Louise Kokonas, Esq. -- skokonas@donahoo.com -- DONAHOO AND ASSOCIATES -- Aaron Lee Arndt, Esq. -- aarndt@foleybezek.com -- Justin P. Karczag, Esq. -- jkarczag@foleybezek.com -- Kevin D. Gamarnik, Esq. -- kgamarnik@foleybezek.com -- Muhammed Talal Hussain, Esq. -- mhussain@foleybezek.com -- and -- Thomas Foley, Esq. -- tfoley@foleybezek.com -- FOLEY BEZEK BEHLE AND CURTIS LLP WABTEC Corporation and Mark Martin are represented by Christopher J. Kondon, Esq. -- christopher.kondon@klgates.com -- Patrick M. Madden, Esq. -- patrick.madden@klgates.com -- Suzanne J. Thomas, Esq. -- suzanne.thomas@klgates.com -- and -- Saman M. Rejali, Esq. -- saman.rejali@klgates.com -- K&L GATES LLP WASHINGTON: Sex Offenders' Records Remain Sealed, App. Ct. Says --------------------------------------------------------------- Justice J. Robert Leach of the Washington Court of Appeals affirmed the trial court's order enjoining disclosure of certain special sex offender sentencing alternative (SSOSA) evaluations in the case captioned, JOHN DOE G, JOHN DOE I, and JOHN DOE H, as individuals and on behalf of others similarly situated, Respondents, v. DEPARTMENT OF CORRECTIONS, STATE OF WASHINGTON, Appellant, DONNA ZINK, a married woman, Appellant, Case No. 74354- 6-I, Consolidated with No. 74355-4-I (Wash App.). The plaintiffs are current or former level I sex offenders who underwent SSOSA evaluations. Level I offenders are those who the Department's end-of-sentence review committee determines pose the lowest risk to the public. Doe filed the action to enjoin the Department from releasing evaluations of level I sex offenders. The trial court first granted a temporary restraining order and then a preliminary injunction against the Department. It also allowed the plaintiffs to use pseudonyms and to represent a certified class of compliant level I offenders who have received SSOSA evaluations since 1990. The trial court granted summary judgment for the plaintiffs, finding that RCW 71.05.445 and ch. 70.02 RCW exempt the evaluations from disclosure. The court permanently enjoined the Department from fulfilling Zink's request. On appeal, the appellant contends that that the trial court improperly sealed court records when it allowed the plaintiffs to use pseudonyms. She asserts that the trial court had to hold a hearing in open court and apply the five factors from Seattle Times Co. v. Ishikawa before allowing the plaintiffs to use pseudonyms. In his Opinion dated January 23, 2017 available at https://is.gd/GxfyE4 from Leagle.com, Judge Leach hold that the trial court did not err in allowing the plaintiffs to proceed under pseudonyms. And because the PRA does not prohibit plaintiffs from suing as class representatives, the trial court did not err in certifying the class. Department of Corrections and Donna Zink are represented by: Timothy John Feulner, OFFICE OF THE ATTORNEY GENERAL Po Box 40116, Olympia, WA, 98504-0116 John Doe G, John Doe I and John Doe H are represented by: Benjamin Blystad Gould, Esq. KELLER ROHRBACK LLP E-mail: bgould@kellerrohrback.com - and - Prachi Vipinchandra Esq. Attorney at Law 901 5th Ave Ste 630 Seattle, WA, 98164-2086 - and - Timothy John Feulner, OFFICE OF THE ATTORNEY GENERAL Po Box 40116, Olympia, WA, 98504-0116 WAWONA FROZEN: Court Preliminary Approves Settlement in "Aguilar" ----------------------------------------------------------------- District Court Dale A. Drozd of the United States District Court for the Eastern District of California granted plaintiffs' motion for preliminary approval of a class action settlement in the case captioned, LUIS AGUILAR and VEDA RAMOS, individually and on behalf of those similarly situated, Plaintiffs, v. WAWONA FROZEN FOODS, and DOES 1-50, inclusive, Defendants, Case No. 1:15-CV-00093-DAD- EPG (E.D. Cal.). The wage-and-hour class action was originally filed in this court on January 20, 2015. The case is currently proceeding on plaintiffs' second amended complaint (SAC), filed on October 2, 2015. Plaintiffs and the putative class members are employees and former employees of Wawona Frozen Foods, which owns and operates various food production facilities. Plaintiffs allege they are non-exempt, hourly employees who were not paid for all required pre- and post-shift work activities required for their jobs, including "donning and doffing, waiting in line to sanitize, [and] waiting in line to punch-in/out." Plaintiffs' SAC presents the following nine causes of action: (1) failure to pay the requisite minimum wage pursuant to various California labor laws; (2) failure to compensate for all hours worked in violation of California law; (3) failure to pay overtime wages in violation of California law; (4) failure to provide meal and rest breaks in accordance with California law; (5) penalties in relation to unpaid wages and waiting time penalties pursuant to California Labor Code Sections 201-03; (6) failure to properly itemize pay stubs in violation of California law; (7) violations of California Business and Professions Code Section 17200, et seq.; (8) civil penalties available under California Labor Code Section 2698, et seq.; and (9) violation of the FLSA, 29 U.S.C. Section 201, et seq., for failing to pay overtime wages or providing appropriate meal and rest breaks. Plaintiff seeks certification of estimated to include approximately 4,557 members. The proposed classes were determined after mediation conducted in front of Honorable Patrick J. O'Hara (retired) on May 3, 2016 and July 13, 2016. The mediation was conducted after substantial discovery had been conducted by the parties, including the exchange of disclosures, interrogatories, document production, and a number of depositions. The matter came before the court on December 6, 2016 for hearing on plaintiffs' motion for preliminary approval of a class action settlement. Attorneys Philip A. Downey and Robert W. Sink appeared at the hearing on behalf of plaintiffs, and attorney Ian Wieland appeared on behalf of defendant. In support of the pending motion, plaintiffs submitted the declaration of Robert W. Sink, co-counsel for the plaintiffs. According to Attorney Silk, the maximum possible recovery class members stood to recover, in attorney Sink's estimation, was $6,175,955.00. The total proposed settlement amount of $4.5 million, per attorney Sink, reflects approximately 75 percent of the estimated total maximum possible recovery. Attorney Sink declares he multiplied $9 per hour by 1.5, assuming that the extra ten minutes would be paid at an overtime rate, and determined that payment for ten minutes at that rate worked out to $2.25 per workday. The amount of $2.25 multiplied by 686,217 workdays equals $1,543,988.00, which would equal the maximum expected recovery for the uncompensated job preparation time. Concerning the claims about meal period violations, he determined a maximum possible award of $4,631,967.00 for the meal/rest period violations. In the Order dated January 11, 2017 available at https://is.gd/NAFnZD from Leagle.com, Judge Drozd found that the settlement amount in the case to be fair for the purposes of preliminary approval of the settlement. Plaintiffs' counsel Robert W. Sink and Philip A. Downey are appointed as class counsel; plaintiffs Luis Aguilar and Veda Ramos as appointed as class representatives; and Rust Consulting is approved as claims administrator. The hearing for final approval of the proposed settlement is set for May 16, 2017 at 9:30 a.m. Veda Ramos, et al. are represented by: Philip A. Downey, Esq. -- and - Cory Lee, Esq. THE DOWNEY LAW FIRM, LLC 801 Noble Street, Suite 1005 Anniston, Alabama 36201 P. O. Box 626 (36202) Tel: (256)294-4129 -- and -- Robert W. Sink, Esq. LAW OFFICES OF ROBERT W. SINK 1600 John F Kennedy Blvd #503, Philadelphia, PA 19103 Tel: (215)729-3333 Wawona Frozen Foods is represented by: Howard A. Sagaser, Esq. Ian Blade Wieland, Esq. SAGASER, WATKINS & WIELAND, PC 7550 N Palm Ave #100, Fresno, CA 93711, USA Tel: (559)421-7000 WELLS FARGO: Undocumented Immigrants Sue Over Student Loan Denial ----------------------------------------------------------------- Stacy Cowley, writing for The New York Times, reports that student loan debt is not something most people covet, but for Mitzie Perez, a 25-year-old university student in California, borrowing money to cover her tuition bills would be a boon. Ms. Perez is an undocumented immigrant who was illegally brought to the United States from Guatemala in 1997, when she was 5 years old. She was sheltered from deportation by the Deferred Action for Childhood Arrivals program, known as DACA, an Obama-era initiative that grants some protections to those who were brought here as children. But Ms. Perez, a junior majoring in gender and sexuality studies at the University of California, Riverside, has never been able to do something that most college students take for granted: obtain a loan to finance her studies. She sued a lender, Wells Fargo, that turned her down, claiming that its policy of denying applicants because of their immigration status is illegal. The lawsuit, which seeks class-action status, is one of the first to challenge common industry policies that make it difficult for undocumented students to finance higher education. The case was filed in San Francisco federal court, with the California League of United Latin American Citizens participating as a plaintiff. "Our position is that banks are supposed to make these kinds of loan decisions based on an assessment of risk," said Ossai Miazad, a lawyer who is representing Ms. Perez. "To put that aside completely and deny people based on their immigration status is discriminatory." Most student borrowers rely on loans backed by the federal government, but undocumented students are not eligible for federal loans. Those wishing to borrow must turn to private loans, which generally carry fewer protections -- and, often, higher rates -- than federal loans. No laws prohibit lenders from making loans to undocumented borrowers who possess identifying information like a Social Security number, which Ms. Perez has. Still, this is an area where banks tread very lightly. Among five of the nation's largest issuers of private student loans, two -- Discover Bank and Sallie Mae -- said they made loans to undocumented students under some circumstances. Discover "does not differentiate between borrowers based on DACA status, and would loan to such individuals if they were otherwise qualified," said Robert Weiss, a company spokesman. Sallie Mae will make loans to qualifying students enrolled in DACA if they have a co-signer who is a United States citizen or permanent resident, said Rick Castellano, a company spokesman. Those loans are typically more expensive than federal loans. For undergraduates, the interest rate on federal loans disbursed this year is fixed at 3.76 percent. (The loans also carry an origination fee of around 1 percent.) The rates that Discover and Sallie Mae offer vary by borrower, but can top 11 percent. At other banks, even high-interest student loans cannot be obtained by undocumented borrowers. Wells Fargo and PNC Bank said they required student borrowers to have United States citizenship or permanent resident status. Citizens Bank did not provide details on its policy. "Wells Fargo understands the dream of pursuing higher education, and we remain focused on our responsible lending practices to assist temporary and permanent residents and United States citizens in obtaining student financing," Jason A. Vasquez, a spokesman for Wells Fargo, said in response to Ms. Perez's lawsuit. Lenders face unique challenges in extending credit to borrowers who are not in the country legally. Students with DACA status can legally work in the United States, but that right could vanish if the program is curtailed or eliminated. Still, many banks, including Wells Fargo, will issue credit cards to undocumented borrowers. Ms. Perez has several credit cards (from banks other than Wells Fargo), and uses them to help pay her tuition -- at a much higher interest rate than a student loan would carry. The fate of the DACA program and the 750,000 young immigrants in it is one of the thorniest immigration issues facing President Trump. Created in 2012 by President Barack Obama through an executive action, the program has allowed hundreds of thousands of people who were brought here as children to obtain jobs, pursue college degrees and live openly in the country where they were raised. Many are worried that they will lose those protections under Mr. Trump, who has moved to upend America's immigration policies. Ms. Perez said she was deeply anxious about the future of the DACA program and how Mr. Trump's actions would affect her and her family. But she also has immediate concerns, like how to pay for her next few months of schooling. For the moment, she works as a community organizer and uses her income and credit card loans to finance her education. "I'm considering having to drop out or cut back, because I can't make ends meet," Ms. Perez said. Thomas A. Saenz, the president of the Mexican American Legal Defense and Educational Fund, which helped Ms. Perez bring her lawsuit, said expanding access to student loans was a critical issue for thousands of people. "We are hoping that businesses will understand that this type of discrimination is not permissible -- regardless of how folks may erroneously conclude that the rhetoric of the new administration may change things," Mr. Saenz said. "It doesn't change what anti- discrimination laws provide." WISCONSIN, USA: Jackson Seeks Certification of Prisoners Class -------------------------------------------------------------- The Plaintiffs in the lawsuit entitled J.J., by and through his next friend, Sakeena Jackson; et al., for themselves and all others similarly situated v. Jon E. Litscher, in his official capacity as Secretary of the Wisconsin Department of Corrections, et al., Case No. 3:17-cv-00047-jdp (W.D. Wisc.), move the Court for class certification of this class: "All prisoners who are now, or in the future will be, confined at Lincoln Hills School for Boys and Copper Lake School for Girls." The Plaintiffs also ask that their counsel be appointed to represent the certified Class. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=yR5ZCkir The Plaintiffs are represented by: Laurence J. Dupuis, Esq. Karyn L. Rotker, Esq. R. Timothy Muth, Esq. ACLU OF WISCONSIN FOUNDATION 207 E. Buffalo Street, Suite 325 Milwaukee, WI 53202 Telephone: (414) 272-4032 Facsimile: (414) 272-0182 E-mail: ldupuis@aclu-wi.org krotker@aclu-wi.org tmuth@aclu-wi.org - and - Jessica Feierman, Esq. Karen Lindell, Esq. Marsha Levick, Esq. JUVENILE LAW CENTER The Philadelphia Building 1315 Walnut Street, 4th Floor Philadelphia, PA 19107 Telephone: (215) 625-0551 E-mail: jfeierman@jlc.org klindell@jlc.org mlevick@jlc.org - and - Matthew J. Splitek, Esq. Rachel A. Graham, Esq. QUARLES & BRADY LLP 33 East Main Street, Suite 900 Madison, WI 53703 Telephone: (608) 251-5000 E-mail: matthew.splitek@quarles.com rachel.graham@quarles.com - and - Emily L. Stedman, Esq. Zachary T. Eastburn, Esq. QUARLES & BRADY LLP 411 East Wisconsin Avenue, Suite 2400 Milwaukee, WI 53202-4426 Telephone: (414) 277-5000 E-mail: emily.stedman@quarles.com zachary.eastburn@quarles.com YUMMY SUSHI: Faces "Chen" Suit in Southern District of New York --------------------------------------------------------------- A class action lawsuit has been filed against Yummy Sushi 1st Ave, Inc. The case is titled as ZHEN MING CHEN, individually and on behalf of all other employees similarly situated, the Plaintiff, v. YUMMY SUSHI 1ST AVE, INC. d/b/a YUMMY JAPANESE RESTAURANT, corporate defendant; XONG YI ZHI, individual defendant; YI ZHI ZHENG, individual defendant; and Lin "Jane" (First Name Unknown), individual defendant, the Defendants, Case No. 1:17-cv-00786 (S.D.N.Y., Feb. 1, 2017). Yummy Sushi is compact sushi bar serving tempura, teriyaki and hibachi-grilled dishes. The Plaintiff appears pro se. * Neil Gorsuch Criticized Securities Suits in Judicial Opinions --------------------------------------------------------------- Hazel Bradford, writing for Pensions & Investments, reports that Supreme Court nominee Neil Gorsuch's legal positions are reassuring employer groups that they will have a pro-business ally critical of regulators and investor lawsuits if he is confirmed to replace the late Justice Antonin Scalia. Still, legal experts say, his reputation for balance does not guarantee it. Mr. Gorsuch, President Donald Trump said as he announced the nomination Jan. 31, is "a "judge's judge' who decides cases based on the law, not personal policy preferences. He is not afraid to reach results contrary to his own policy views." And as the current court's youngest justice at 49, Mr. Gorsuch would have a say in plenty of issues before the Supreme Court for many years to come. Some of the pro-business optimism comes from legal opinions Mr. Gorsuch has written in the last 10 years as a judge in the 10th U.S. Circuit Court of Appeals in Denver. In those, he has disagreed with the Supreme Court precedent for deferring to federal agencies on interpretation of laws and complained that it is too easy for investors to bring securities fraud claims. The Supreme Court's position that federal agencies' interpretations of ambiguous statutes should prevail, known as Chevron deference based on a 1984 decision in Chevron vs. Natural Resources Defense Council, was criticized by Mr. Gorsuch in a 2016 concurring opinion. In that opinion, he suggested that it was time to reconsider such deference, which would make it easier for employers and others to push back. "Elephant in the room' Calling it "an elephant in the room," he went on to say that in the opinion, Chevron and a similar case "permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers' design. Maybe the time has come to face the behemoth." Federal regulations have gotten so complicated that it takes "an army of perfumed lawyers and lobbyists" to keep up, he wrote. David Levine, a principal at Groom Law Group, a Washington firm specializing in ERISA, said that "in the benefit context, given the significant number of administrative rules and interpretations, including enforcement actions by regulators, such a change could make efforts to challenge agency actions and rules more likely to succeed." Still, said Nancy Ross, a Chicago-based partner at law firm Mayer Brown, while Mr. Gorsuch will be wary of regulatory burdens on employers, "he will not uniformly side with the employer or plan sponsor." Billy Corriher, a legal expert with the progressive advocacy group Center for American Progress in Washington, worries that if confirmed, Mr. Gorsuch's position on Chevron "would upset the long-standing separation of power between the judiciary and the political branches of government," and give unelected judges more power to strike down regulations. Noting that Mr. Gorsuch has criticized using litigation for social agendas, "he seems to be fine with corporations using lawsuits to strike down laws if they do not want to comply," Mr. Corriher said. Mr. Gorsuch has often criticized the proliferation of securities lawsuits in his judicial opinions and in legal writings from his time in private practice. An August 2014 opinion from the appeals court bench made it harder to bring securities cases about misleading statements by issuers. In MHC Mutual Conversion Fund LP et al. vs. Sandler O'Neill & Partners LP et al., investors were rebuffed in seeking to establish liability by United Western Bancorp Inc. over projections in a 2009 stock offering. "Establishing that an opinion about the future failed to pan out in the end may go some way to meeting that standard (for pursuing such cases) but it doesn't go all the way," wrote Mr. Gorsuch. "To establish liability for an opinion about the future, more is required." As a partner in the Washington office of law firm Kellogg, Huber, Hansen, Todd, Evans & Figel PLLC until 2005, Mr. Gorsuch served a diverse clientele, including the U.S. Chamber of Commerce, on whose behalf he filed two briefs arguing to make it harder to file securities class actions. Such cases, he complained in a 2005 paper, largely lead to settlements that enrich lawyers as much, or more, than investors. In that paper written for the Washington Legal Foundation while he was at the law firm, he argued that while securities class actions have offered some social benefits, "experience has shown that, like many other well-intended social experiments, they are not exempt from the law of unintended consequences, having brought with them vast social costs never imagined by their early promoters. Today, economic incentives unique to securities litigation encourage class-action lawyers to bring meritless claims and prompt corporate defendants to pay dearly to settle such claims. These same incentives operate to encourage significant attorneys' fee awards even in cases where class members receive little meaningful compensation. And the problem is widespread," argued Mr. Gorsuch, who recommended a bidding process to reduce lawyers' fees, and more enforcement by courts of securities law restrictions on "professional plaintiffs" that would help institutional investors "from becoming spread too thin." Represented institutions Mr. Gorsuch has also represented institutional investors before the Supreme Court in two related cases criticizing the dynamics of class-action settlements that favor some class members over others. In one, arguing for the Council of Institutional Investors and the lead plaintiffs, the $306.6 billion California Public Employees' Retirement System, Sacramento, and the $186.2 billion Florida State Board of Administration, Tallahassee, Mr. Gorsuch said class-action settlements prevented them from objecting to settlements that benefited lead class members, counsel and defendants at the expense of other class members. His successful 1999 petition for Supreme Court review ended in a tie with the lower court judgment affirmed. But in a related case three years later in which Mr. Gorsuch wrote the amicus brief, a 6-3 vote gave CII and its public pension fund members standing to object to settlements. Shaped by clerkships His opinions have also been shaped by his clerkship for a District of Columbia circuit judge and for Supreme Court justices Byron White and Anthony Kennedy, and his time as principal deputy associate attorney general from 2005 to 2006. After being appointed by President George W. Bush to the 10th circuit appellate court in 2006, Mr. Gorsuch was approved by the Senate in a unanimous voice vote, which the current Senate is not likely to repeat, given vocal resistance from the Democratic party on Feb. 6, 11 of whom approved him in 2006. If confirmed by March, Mr. Gorsuch will have a role in deciding whether church-affiliated retirement plan sponsors are covered by the Employee Retirement Income Security Act, a decision that could have wide implications for all benefit plans. The case, which consolidates three cases brought by plan sponsors Dignity Health, Advocate Health Care and Saint Peter's Healthcare, has already sparked interest because of the unexpected position of federal regulators. Those regulators on Jan. 24 joined the U.S. solicitor general"s amicus brief urging the Supreme Court to overturn lower court rulings that ERISA does apply to church-affiliated defined benefit plan sponsors. Arguments will be heard March 27, and a decision is expected before the Supreme Court term ends in June. This article originally appeared in the February 6, 2017 print issue as, "Employer groups happy with high court nominee". ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravantefor, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2017. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Nina Novak at 202-362-8552. * * * End of Transmission * * *