/raid1/www/Hosts/bankrupt/CAR_Public/170405.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, April 5, 2017, Vol. 19, No. 68
Headlines
6D GLOBAL: NY Court Dismisses 2nd Amended Shareholders' Complaint
500.COM LIMITED: Court Grants Final OK to "Fragala" Settlement
967 LEXINGTON: "Molina" Suit Seeks Overtime, Spread-of-Hours Pay
ALEXANDER, AL: Court Certifies Arrestees Class in "Foster" Suit
AMAZON: Faces Class Action Over Undue Sales Tax Collection
ANHEUSER-BUSCH: Faces "Galvez" Suit Over Unpaid OT Wages
ARGOS THERAPEUTICS: Faces Securities Class Action in California
AUSTRALIA: Averts Christmas Island Asylum Seekers' Class Action
BRASSELER USA: BPP Suit Removed to N.D. Ill.
BRITISH COLUMBIA: Faces Class Action Over Government Ad Spending
BURGER BROTHERS: Final Approval of "Cruz" Suit Settlement Sought
CANADA: Indigenous Students File Sexual Abuse Lawsuit
CHAPEI LLC: Wang Seeks Certification of Employee Class Under FLSA
CHARTER COMMUNICATIONS: Faces "Hart" Suit Over False Ads
CHEVRON CORP: Gbarabe's Cert. Bid Denied; Hearing on April 14
CITIZEN CARE: "John" Claims Unpaid Overtime Wages
DEFENDERS INC: "McCoy" Seeks Unpaid Overtime Wages
EAST WINGERS: Faces "Alberto" Suit Over FLSA Violation
EASTERN MUSHROOM: Partial Summary Ruling Bid vs. Co-owner Denied
EATSA: Faces Class Action Over Inaccessible Ordering Function
ENAGIC USA: Makaron's Bid to Certify Denied; May Re-file Oct. 13
FKG OIL: Faces Discrimination Class Action in Illinois
FOLLETT CORP: "Williams" Sues Over Unpaid Overtime Wages
FONTERRA: Returns to Profitability Amid Investor Class Actions
GATEWAY ENERGY: Court Narrows Claims in "Hamlen" Suit
INSTACART: Settles Workers' Class Action for $4.6 Million
JEMSEK CLINIC: 4th Cir. Vacates Excessive Sanctions vs Blue Cross
JOHNSON & JOHNSON: Court Certifies Langan's Bath Case Class
KB SAND: Faces "Coate" Suit Over Non-Payment of Wages and OT Pay
LOMA RENTALS: Faces "Bragg" Suit Over Failure to Pay OT Pay
MARICOPA, AZ: Detainees' Bid to Enforce Amended Judgment Denied
MARS PETCARE: Sued Over Deceptive Prescription Dog Food Marketing
MCQUEEN & JORDAN: "Dobey" Seeks Unpaid Overtime Wages
MICROSOFT CORP: Faces Class Action Over Windows 10 Upgrade
NAVIENT SOLUTIONS: Ponce Moves for Class Certification Under TCPA
NPC INT'L: Faces "Collins" Suit Over FLSA Violation in Ill.
NY PORT AUTHORITY: "Holden" Alleges Frame up, Discrimination
PAYPAL INC: "Hodges" Sues Over Illegal Collection Calls
POLLACK & ROSEN: "Lee" Sues Over Deceptive Collection Letter
POWER DESIGN: Mayor Moves for Certification of Employees Class
PRIMORIS SERVICES: "Atkins" Suit Removed to W.D. La.
PURDUE PHARMA: Everett Sues Over OxyContin Pill Mills
RANGER CONSTRUCTION: Faces "Agripino" Suit Over Non-Payment of OT
SAMSUNG ELECTRONICS: 3rd Cir. Rejects Bid to Compel Arbitration
SARAR USA: "Lewis" Sues Over Failure to Pay Overtime Pay
SCRANTON, PA: 115 Landlords Join Rental Registration Fee Case
SIMON'S LAWN CARE: "Johnson" Seeks to Recover Overtime Wages
SOULCYCLE INC: Cody's Bid to Certify Class Taken Under Submission
TEMPUR SEALY: Faces "Buehring" Suit Over Securities Act Violation
TENNESSEE: Sued Over Insufficient Care for Diabetic Inmates
TEVA PHARMA: Plumbers & Pipefitters Files Anti-Trust Suit
TRIPLEPULSE INC: "Ayala" Sues Over TruBain Product False Ad
UNITED STATES: Government's Appeal in Tax-Refund Suit Sustained
VOLKSWAGEN AG: 1,200 Car Owners in Scotland File Emissions Case
WALGREEN CO: Faces "Forth" Suit in N.D. Ill.
WHEATFIELD, NY: Faces $5.9MM Class Action Over Toxic Waste Site
* Class Action Law Firms Lobby for Internet Privacy Rules
* Court to Hear Gold Mining Companies' Silicosis Appeal in May
* Israeli Courts to Implement New Class Action Filing Fees
* Wage-and-Hour Class Actions Among Biggest Risks for Employers
*********
6D GLOBAL: NY Court Dismisses 2nd Amended Shareholders' Complaint
-----------------------------------------------------------------
In the case captioned JOSEPH PUDDU; MARK GHITIS; VALERY BURLAK;
and ADAM BUTTER, Plaintiffs, v. 6D GLOBAL TECHNOLOGIES, INC., NYGG
(ASIA), LTD.; BENJAMIN TIANBING WEI A/K/A/BENJAMIN WEY; TEJUNE
KANG; MARK SZYNKOWSKI; TERRY MCEWEN; and NYG CAPITAL LLC D/B/A/NEW
YORK GLOBAL GROUP, Defendants, No. 15 Civ. 8061 (S.D.N.Y.), Judge
Robert W. Sweet of the U.S. District Court for the Southern
District of New York granted the motion filed by the 6D
defendants, 6D Global Technologies, Inc., Tejune Kang, Mark
Szynkowski, and Terry McEwen to dismiss the second amended
complaint (SAC) of plaintiffs Joseph Puddu, Mark Ghitis, Valery
Burlak, and Adam Butter.
The putative class action complaint was filed on October 13, 2015.
The SAC was filed on April 4, 2016. It alleged that the
defendants violated Section 10(b) of the Securities Exchange Act
of 1934, and Rule 10b-5 promulgated thereunder by the Securities
and Exchange Commission (SEC), and Section 20(a) of the Securities
Exchange Act. The 6D defendants moved to dismiss the SAC pursuant
to Rule 12(b)(6), Fed. R. Civ. P.
Judge Sweet found that the plaintiffs inadequately pled the
misrepresentation or omission of a material fact in the SAC. The
SAC alleged two misstatements or omissions that purportedly
rendered certain statements misleading:
-- First, according to the plaintiffs, 6D's public
disclosures listing its beneficial owners were misleading
because they failed to identify Benjamin Wey, who
purportedly "controlled" and/or "beneficially owned" 6D's
largest shareholder, NYGG (Asia), Ltd.
-- Second, according to the plaintiffs, 6D's bylaws, which
were attached to some of the company's SEC filings, were
misleading because they listed certain officerships but
failed to disclose that Wey was the "unofficial" CEO of
6D, as he "control(led] 6D's day-to-day business
operations, both through his own personal involvement and
through his staff at NYGG."
Judge Sweet found that the plaintiffs have not shown that there
was, indeed, an omission. The judge also found that, even taking
the plaintiffs' allegation that there was an omission as true, the
plaintiffs failed to "show, beyond mere speculation," that the
facts allegedly omitted were actually true. Further, the judge
found that the plaintiffs have not pled facts showing the 6D
defendants' motive or opportunity to commit fraud.
Judge Sweet pointed out that the 6D defendants had no duty to
disclose that Wey was the "unofficial CEO" of 6D. The judge also
noted that it was disclosed in public SEC filings that Wey was a
representative of 6D's largest if not controlling shareholder,
NYGG (Asia), and had interactions with 6D in that context. The
judge also explained that the absence of facts suggesting that the
plaintiffs believed Wey was a "liability" during some relevant
time period counters the inference that the 6D defendants had
"motive or opportunity" to commit fraud. The plaintiffs have also
not alleged that Kang, Szynkowski, or McEwen "benefitted in some
concrete and personal way from the purported fraud," as is
required by the "motive and opportunity" test.
Judge Sweet also found that the allegations of loss causation are
inadequate as no facts have been alleged by the plaintiffs to
establish that the non-disclosure of Wey's alleged ownership
caused the delisting or the loss.
The SAC was dismissed with prejudice.
A full-text copy of Judge Sweet's March 6, 2017 opinion is
available at https://is.gd/HiMsNE from Leagle.com.
Joseph Puddu, Mark Ghitis, Lead Plaintiffs, represented by
Jonathan Richard Horne -- jhorne@rosenlegal.com -- The Rosen Law
Firm, P.A., Phillip C. Kim -- pkim@rosenlegal.com -- The Rosen Law
Firm P.A..
Valery Burlak, Adam Butter, Plaintiffs, represented by Jonathan
Richard Horne, The Rosen Law Firm, P.A..
Marc Gross, Movant, represented by Joseph Peter Guglielmo --
jguglielmo@scott-scott.com
Charles Highsmith, Movant, represented by Phillip C. Kim, The
Rosen Law Firm P.A..
David Lee, Movant, represented by Adam M. Apton -- aapton@zlk.com
-- Levi & Korsinsky LLP.
Andrew Azer, Derek Strong, Movants, represented by Lesley Frank
Portnoy -- lportnoy@glancylaw.com -- Glancy Prongay & Murray LLP.
6D Global Technologies, Inc., Tejune Kang, Mark Szynkowski, Terry
Mcewen, Defendants, represented by Peter Nicholas Flocos --
peter.flocos@klgates.com -- K&L Gates LLP & Bernard John Casey --
dan.casey@klgates.com -- K&L Gates LLP.
500.COM LIMITED: Court Grants Final OK to "Fragala" Settlement
--------------------------------------------------------------
Judge John F. Walter of the U.S. District Court for the Central
District of California has issued a final judgment and order of
dismissal with prejudice in the case captioned JOSEPH FRAGALA,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
Plaintiff, v. 500.COM LIMITED, MAN SAN LAW, ZHENGMING PAN,
DEUTSCHE BANK SECURITIES INC., PIPER JAFFRAY & CO., AND
OPPENHEIMER & CO. INC., Defendants, No. 2:15-CV-01463-JFW (Ex)
(C.D. Cal.).
The Court previously issued an order preliminarily approving a
settlement and providing for notice of the proposed settlement,
dated November 1, 2016, on the application of the lead plaintiff
for approval of the settlement set forth in the stipulation of
settlement dated as of September 12, 2016.
Judge Walter found that 500.com has provided notice pursuant to
the Class Action Fairness Act of 2005.
Further, pursuant to Rule 23(a) and (b)(3) of the Federal Rules of
Civil Procedure, Judge Walter certified the action as a class
action for purposes of the settlement only, and certified as the
settlement class all persons (including, without limitation, their
beneficiaries) who purchased or otherwise acquired American
Depository Shares (ADSs) of 500.com between November 22, 2013 and
March 2, 2015, inclusive, excluding (i) those persons who timely
and validly request exclusion from the settlement class; and (ii)
the defendants and any entity in which the defendants have a
controlling interest, and the officers, directors, affiliates,
legal representatives, immediate family members, heirs,
successors, subsidiaries and/or assigns of any such individual or
entity in their capacity as such. For purposes of the final
judgment, the term "Defendants" means: 500.com Limited, Man San
Law and Zhengming Pan.
Judge Walter approved, pursuant to Rule 23 of the Federal Rules of
Civil Procedure, the settlement set forth in the stipulation and
found that the settlement is, in all respects, fair, reasonable
and adequate to, and is in the best interests of, the lead
plaintiff, the settlement class and each of the settlement class
members. The judge further found the settlement set forth in the
stipulation is the result of good faith, arm's-length negotiations
between experienced counsel representing the interests of the lead
plaintiff, settlement class members and defendants.
Except as to any individual claim of those persons who pursuant to
the notice, timely requested exclusion from the settlement class
before the December 30, 2016 deadline, the action and all claims
contained therein, as well as all of the released claims, were
dismissed with prejudice as against each and all of the
defendants.
Judge Walter also found that the proposed plan of allocation is a
fair and reasonable method to allocate the net settlement fund
among settlement class members and directed that the plaintiff's
counsel implement the plan of allocation in accordance with the
terms of the stipulation.
Judge Walter granted the plaintiff's counsel attorneys' fees of
25% of the settlement fund, or $625,000.00, and expenses in an
amount of $37,965.77 together with the interest earned thereon for
the same time period and at the same rate as that earned on the
settlement fund.
A full-text copy of Judge Walter's March 6, 2017 order is
available at https://is.gd/IbGkiV from Leagle.com.
Joseph Fragala, Min Joo, represented by Laurence M. Rosen --
lrosen@rosenlegal.com -- The Rosen Law Firm PA.
Liu Shaolin, represented by Shannon L. Hopkins -- shopkins@zlk.com
-- Levi and Korsinsky LLP, pro hac vice, JoAnne S. Jennings --
joanne.jennings@stblaw.com -- Simpson Thacher and Bartlett LLP,
Kolin Tang, Shepherd Finkelman Miller and Shah LLP & Nancy A.
Kulesa -- nkulesa@zlk.com -- Levi and Korsinsky LLP, pro hac vice.
LungHao Wei, represented by Ramzi Abadou --
ramzi.abadou@ksfcounsel.com -- Kahn Swick and Foti LLP.
500.com Limited, Man San Law, Zhengming Pan, represented by Chet
A. Kronenberg -- ckronenberg@stblaw.com -- Simpson Thacher and
Bartlett LLP, Colin Rolfs -- colin.rolfs@stblaw.com -- Simpson
Thacher and Bartlett LLP & JoAnne S. Jennings --
joanne.jennings@stblaw.com -- Simpson Thacher and Bartlett LLP.
967 LEXINGTON: "Molina" Suit Seeks Overtime, Spread-of-Hours Pay
----------------------------------------------------------------
Jorge Molina on behalf of himself and others similarly situated,
Plaintiff, v. 967 Lexington Ave. Corp. d/b/a Bella Blu Restaurant
and Enrique Proietti, Defendants, Case No. 1:17-cv-02204, (S.D.
N.Y., March 27, 2017), seeks damages in the amount of their unpaid
compensation, liquidated damages for minimum wage violations,
attorneys' fees and costs and such other legal and equitable
relief for violation of the Fair Labor Standards Act and New York
Labor Laws.
967 Lexington Ave. Corp. operates Bella Blu Restaurant located at
the Upper East Manhattan where Molina worked. He claims to have
been denied overtime and spread-of-hours pay.
Plaintiff is represented by:
D. Maimon Kirschenbaum, Esq.
JOSEPH & KIRSCHENBAUM LLP
32 Broadway, Suite 601
New York, NY 10004
Tel: (212) 688-5640
Fax: (212) 688-2548
ALEXANDER, AL: Court Certifies Arrestees Class in "Foster" Suit
---------------------------------------------------------------
The Hon. Royce C. Lamberth grants the Plaintiffs' motion for
conditional certification of a settlement class in the lawsuit
titled D'ANGELO FOSTER and AMANDA UNDER WOOD, on behalf of
themselves and Those similarly situated v. CITY OF ALEXANDER CITY
and WILLIE ROBINSON, in his official and individual capacities,
Case No. 3:15-cv-00647-RCL-WC (M.D. Ala.). The Class is defined
as:
All individuals who, on or between September 8, 2013, and
September 8, 2015, were arrested and jailed for their
failure to pay fines and court costs by the Alexander City
Police Department.
The Court also appoints the Plaintiffs' counsel Sara Zarnpierin,
Esq., Samuel Brooke, Esq., and Ivy Wang, Esq., of the Southern
Poverty Law Center and William F. Cavanaugh, Jr., Esq., of
Patterson Belknap Webb & Tyler as class counsel.
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=Dd8IkhzQ
The Plaintiffs are represented by:
Sara Zampierin, Esq.
Samuel Brooke, Esq.
SOUTHERN POVERTY LAW CENTER
400 Washington Avenue
Montgomery, AL 36104
Telephone: (334) 956-8200
Facsimile: (334) 956-8481
E-mail: sara.zampierin@splcenter.org
samuel.brooke@splcenter.org
- and -
Ivy Wang, Esq.
SOUTHERN POVERTY LAW CENTER
1055 St. Charles Avenue, Suite 505
New Orleans, LA 70130
Telephone: (504) 228-7279
Facsimile: (504) 486-8947
E-mail: ivy.wang@splcenter.org
- and -
William F. Cavanaugh, Jr., Esq.
PATTERSON, BELKNAP, WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036-0000
Telephone: (212) 336-2000
E-mail: wfcavanaugh@pbwt.com
AMAZON: Faces Class Action Over Undue Sales Tax Collection
----------------------------------------------------------
The law firm Consumer Law Group on March 27 announced the filing
of a proposed Canadian class action lawsuit against Amazon on
behalf of consumers who purchased certain goods from the online
retailer and who were charged sales tax (GST, HST, PST, QST and/or
RST) on items where no such sales tax was due under Canadian
and/or provincial legislation.
In general, goods that are classified as Zero-Rated Supplies (0%
tax), non-taxable, and/or tax-exempt from sales tax include such
items as basic groceries, certain baby supplies, etc.
The class action alleges that Amazon has been arbitrarily and
inconsistently: (i) charging and collecting sales tax on Zero-
Rated Supplies and (ii) misrepresenting that sales tax is due
under federal and/or provincial legislation, when it is not.
It is further alleged that the presence of the undue sales tax is
exceptionally inconspicuous, in that in order for a customer to
realize the overcharge they would need to: (a) closely inspect
their invoice, (b) be an expert in sales tax law, and (c) use
complex calculations.
Mr. Orenstein, one of the attorneys at Consumer Law Group, has
stated: "People should be entitled to trust that when a merchant,
especially one as large as Amazon, charges them sales tax on a
purchase, that such amounts are actually due under the applicable
tax legislation. It is the responsibility of sellers to
familiarize themselves with the tax laws of the country and of the
provinces in which they choose to operate."
The class action seeks damages in the amount of the undue sales
tax, interest on the money that was collected unlawfully, and
punitive damages.
Anyone who believes that they may have paid undue sales tax to
Amazon, should join this class action and tell their story by
completing the form that may be found at the law firm's website:
https://www.clg.org/Class-Action/List-of-Class-Actions/Amazon-
Undue-Sales-Tax-Collection-GST/HST/PST/QST/RST-Canadian-Class-
Action.
ANHEUSER-BUSCH: Faces "Galvez" Suit Over Unpaid OT Wages
--------------------------------------------------------
Azul Galvez, as an individual and on behalf of all others
similarly situated, Plaintiff v. Anheuser-Busch, LLC, a Missouri
Limited Liability Company and Does 1 through 10, Defendants, Case
No. 2:17-cv-00313 (E.D. Cal., March 23, 2017) seeks to recover
unpaid overtime wages under the Fair Labor Standards Act.
Plaintiff was employed by the Defendants as a non-exempt employee
at its brewery in Fairfield.
Anheuser-Busch Companies, LLC owns and operate a brewing company
headquartered in St. Louis, Missouri. [BN]
The Plaintiff is represented by:
Paul K. Haines, Esq.
Tuvia Korobkin, Esq.
Sean M. Blakely, Esq.
Haines Law Group, APC
2274 East Maple Ave.
El Segundo, CA 90245
Tel: (424) 292-2350
Fax: (424) 292-2355
Email: phaines@haineslawgroup.com
tkorobkin@haineslawgroup.com
sblakely@haineslawgroup.com
- and -
Hernaldo J. Baltodano, Esq.
Matthew K. Moen, Esq.
Baltodano & Baltodano LLP
733 Marsh Street, Suite 110
San Luis Obispo, CA 93401
Tel: (805) 322-3412
Fax: (805) 322-3413
Email: hjb@bbemploymentlaw.com
mkm@bbemploymentlaw.om
ARGOS THERAPEUTICS: Faces Securities Class Action in California
---------------------------------------------------------------
The Law Offices of Vincent Wong on March 26 announced that a class
action lawsuit has been commenced in the United States District
Court for the Middle District of North Carolina on behalf of
investors who purchased Argos Therapeutics, Inc. (NASDAQ:ARGS)
securities between February 7, 2014 and
February 21, 2017. According to the complaint, Argos issued
materially false and/or misleading statements, causing the stock
to trade at artificially inflated prices; following the release of
adverse information, shares of Argos plummeted, damaging
investors. In particular, the complaint alleges that Argos issued
materially false and/or misleading information regarding the
success and potential of its drug candidate AGS-003
(rocapuldencel-T).
AUSTRALIA: Averts Christmas Island Asylum Seekers' Class Action
---------------------------------------------------------------
Jane Lee, writing for The Age, reports that thousands of asylum
seekers who were detained on Christmas Island will no longer be
able to jointly sue the Commonwealth for false imprisonment, with
a Supreme Court judge halting a class action against the federal
government.
The class action was launched in 2014 on behalf of a now nine-
year-old Iranian girl referred to as AS, who was detained for
almost a year in total on Christmas Island, against then-
immigration minister Scott Morrison and the Commonwealth.
The girl arrived by boat with her parents on Christmas Island in
2013.
Her lawyers said that during her months in detention she developed
a dental infection, a stammer, separation anxiety and would wet
her bed. She and her family have been living in the community on
a temporary bridging visa since January 2015.
About 35,000 asylum seekers were detained on Christmas Island
between 2011 and 2014. It is unknown how many have signed on as
members of the class action.
Current immigration minister Peter Dutton and the Commonwealth
successfully applied to halt the class action, with Supreme Court
Justice Jack Forrest ruling on March 27 that the child's claim was
not representative of all the other asylum seekers' claims, which
were too different to be dealt with together.
"I am satisfied that there is a lack of commonality between the
claim of AS and those of other group members, and that her claim
does not provide an efficient or effective means of dealing with
the claims of group members," Justice Forrest said.
While AS had a personal injuries claim focused on the medical
treatment she was given in detention, Justice Forrest said that
that the members were held at different camps at the detention
centre, and would have claims about different things including
accommodation, or in the case of children, for educational
facilities.
"But the fundamental point is that the circumstances of the
detention of each group member is individual -- the only common
bond between the group members in relation to a personal injuries
claim is their confinement at the Detention Centre," he said.
While AS' lawyers had argued her claim would show systemic
failures in detention, the judge said "it is difficult to see how
that could have any real benefit to the group member."
This means that the girl will now be the only asylum seeker suing
the government for negligence, with the judge setting aside her
false imprisonment claim until after her trial is determined.
Justice Forrest took a swipe at AS' lawyers, class action
specialist law firm Maurice Blackburn, saying that they could have
used sample group members to broaden the number of claims made
against the Commonwealth beyond the child's case.
The judge rejected security company Serco's argument that the
class action was an "abuse of process", saying they had previously
been given permission to pursue the case from another judge.
AS' trial will begin in the Supreme Court on 26 April 26 and is
expected to take between six and eight weeks.
Maurice Blackburn principal Tom Ballantyne said "We will carefully
examine the decision and reasons of the court, and consider our
legal options for appeal."
Mr Ballantyne said they would continue to fight for the rights of
asylum seekers "who did not receive adequate care while in
immigration detention on Christmas Island. There is no excuse for
failing to provide appropriate treatment to people in immigration
detention."
The government still faces another class action on 1 May from
asylum seekers detained on Manus Island who added false
imprisonment to their claim after the Papua New Guinea Supreme
Court ruled their detention breached their constitution.
Fairfax Media has contacted Mr Dutton's office for comment.
BRASSELER USA: BPP Suit Removed to N.D. Ill.
--------------------------------------------
BPP, on behalf of itself and all others similarly situated,
Plaintiff v. Brasseler U.S.A. Dental, LLC and Endodontic Education
Seminars, L.L.C. d/b/a Real World Endo, Defendants, Case No. 1:17-
cv-02364 (E.D. Mo., February 7, 2017) was removed from the Eastern
District of Missouri, to the U.S. District Court for the Northern
District of Illinois (Chicago) on March 28, 2017.
Brasseler USA offers a comprehensive line of high-quality dental
and surgical instrumentation at competitive prices. [BN]
The Plaintiff is represented by:
Philip M. Horwitz, Esq.
640 Cepi Drive, Suite A
Chesterfield, MO 63005
Tel: (636) 536-9644
Status: (636) 778-1252
Email: pmhlth1@aol.com
- and -
Robert Schultz, Esq.
Ronald J. Eisenberg, Esq.
SCHULTZ AND ASSOCIATES, L.L.P.
640 Cepi Drive, Suite A
Chesterfield, MO 63005-1221
Tel: (636) 537-4645
Status: (636) 537-2599
Email: rschultz@sl-lawyers.com
reisenberg@sl-lawyers.com
The Defendants are represented by:
Timothy Charles Sansone, Esq.
Sandberg Phoenix & Von Gontard P.c.
600 Washington Ave., 15th Floor
St. Louis, MO 63101
Tel: (314) 231-3332
Email: tsansone@sandbergphoenix.com
- and -
Christine E. Czuprynski, Esq.
REED SMITH LLP
10 S. Wacker Drive, Suite 4000
Chicago, IL 60606-7507
Tel: (312) 207-6459
Status: (312) 207-6400
Email: cczuprynski@reedsmith.com
- and -
Laura J. Gust, Esq.
SANDBERG PHOENIX, P.C.
600 Washington Ave.
15th Floor
St. Louis, MO 63101-1313
Tel: (314) 231-3332
Status: (314) 241-7604
Email: lgust@sandbergphoenix.com
BRITISH COLUMBIA: Faces Class Action Over Government Ad Spending
----------------------------------------------------------------
Mike Hager, writing for The Globe and Mail, reports that British
Columbia's Auditor-General plans to meet with the minister in
charge of government advertising soon to figure out why the budget
for such taxpayer-funded publicity often swings wildly from year
to year and appears to spike in years before voters head to the
polls.
Carol Bellringer says she's looking forward to meeting with Andrew
Wilkinson, the minister in charge of government advertising, some
time in the next two weeks to discuss why spending on government
ads has appeared to climb significantly ahead of each of the past
three provincial elections, before free-falling the year or two
following the vote.
"The advertising on public services should remain stable,
regardless of whether it's an election year or not,"
Ms. Bellringer told The Globe and Mail. "If it's important to
tell a story in an election year, it's equally important to tell
that same story in a non-election year. . . . It's unusual that
the numbers would vary that much and I'd like to know why."
For example, data compiled by the government shows in the 2010-11
fiscal year, B.C. spent $15-million on such ads, but the bill
increased to more than $30-million in each of the next two years,
according to data released by the province. There was a
provincial election in 2013. The following year, ad spending fell
to $7-million.
There was a similar increase in the lead-up to the 2009 election,
when ad spending hit $28-million in the 2008-09 fiscal year, an
increase of more than 50 per cent from a year earlier. Spending
fell to just $3.6-million the following year.
And in the current year, despite only budgeting $8.5-million, the
province expects to spend about $16-million in the current fiscal
year, which ends March 31.
Government ad spending faced renewed scrutiny after a pair of
Vancouver lawyers launched a lawsuit against the provincial
government, on behalf of its citizens, in an attempt to stop the
government's pre-election advertising, which their lawsuit alleges
unfairly benefits the incumbent Liberal party.
The proposed class-action suit, filed in B.C. Supreme Court, seeks
to force the BC Liberals to pay taxpayers back some of the money
spent in the past year.
Mr. Wilkinson, a Vancouver MLA and also Minister of Advanced
Education, was unavailable to comment on the apparent spikes in
election spending, but a spokesperson sent a statement noting ad
budgets contrast and expand depending on matters of public
interest that arise.
"Over the course of the year, programs and services may be
developed or expanded as additional important priorities emerge,"
the statement said.
Mr. Wilkinson previously told The Globe that each government ad is
vetted by ministry staff, who ensure that it is fact-based, refers
to a program requiring participation from the public and is non-
partisan.
"Like so many things, the proof is in the pudding of what the
public actually see on TV," he said. "I don't apologize for
informing people about programs that they have funded with their
tax dollars."
He has dismissed the lawsuit as a pre-election political stunt and
said his office has created new policies surrounding these ads
following recommendations made by the Office of the Auditor-
General in 2014.
The Auditor-General said the ministry's policies may have changed,
but there is no process in place that allows an independent third
party to parse ads for partisanship.
"Can our office go in and take a look if we choose to? Absolutely.
At the moment, would it be the highest thing on my list of
priorities? No, it would not," said Ms. Bellringer. "I know that
isn't very satisfying to somebody's who is disturbed by it, but it
does take more than just taking a look at one ad and saying, 'Oh,
yes, that ad crosses the line.'"
She said a full audit would take months to complete, so she is
looking forward to discussing the matter with the minister.
BURGER BROTHERS: Final Approval of "Cruz" Suit Settlement Sought
----------------------------------------------------------------
The Plaintiffs in the lawsuit entitled MAURICIA CRUZ and KRISTINE
YOUNG, on behalf of themselves and all others similarly situated
v. BURGER BROTHERS RESTAURANT GROUP, INC., JEFF J. FROCCARO, an
individual, and JOHN FROCCARO, an individual, Case No. 2:14-cv-
03186-ARL (E.D.N.Y.), ask the Court to:
(1) finally certify the settlement class;
(2) grant final approval of the Settlement Agreement and
Release; and
(3) grant final approval of the Settlement under the Fair
Labor Standards Act.
A copy of the Notice of Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=viOyWJKh
The Plaintiffs are represented by:
Troy L. Kessler, Esq.
Garrett Kaske, Esq.
SHULMAN KESSLER LLP
534 Broadhollow Road, Suite 275
Melville, NY 11747
Telephone: (631) 499-9100
Facsimile: (631) 499-9120
E-mail: tk@shulmankessler.com
gkaske@shulmankessler.com
CANADA: Indigenous Students File Sexual Abuse Lawsuit
-----------------------------------------------------
Laura Glowacki, writing for CBC News, reports that in a case with
striking similarities to testimony made by residential school
survivors, two Indigenous adult women say they were repeatedly
sexually abused by clergy at a Catholic day school in Manitoba
they were forced to attend as children.
And now they've launched a lawsuit against the Archdiocese of St.
Boniface, as well as the two now-deceased men they say were
responsible, the province and other defendants.
Both women -- one now 67 and status Indian, the other a 63-year-
old Metis woman -- attended the same elementary school in
Bloodvein, Man., about 200 kilometres north of Winnipeg, from
about 1956 until the mid-1960s.
The complainants say the same two men fondled and raped them as
children beginning when they were seven and six, respectively.
"One of them was a priest. He held certain powers over them,"
said the plaintiffs' lawyer, Israel Ludwig. "They thought they
would be damned if they made a complaint."
The women's statement of claim names the Archdiocese of St.
Boniface, the Oblates of Mary Immaculate of Manitoba, the Province
of Manitoba, the Attorney General of Canada and the two alleged
perpetrators, Father Celien Gauthier and Brother Frederick Leach.
CBC News is not identifying the women because they claim to be
victims of child abuse. None of their allegations have been
proven in court, and a statement of defence has yet to be filed.
"The archdiocese takes the matters raised in the statement of
claim very seriously and wishes to express our deep concern for
all those involved," said a written statement from the Archdiocese
of St. Boniface, which covers a large area of southern and eastern
Manitoba that includes Bloodvein.
"The archdiocese immediately commenced an investigation of the
matter and does not believe that it had any involvement with the
St. Mary-Margaret Day School located in Bloodvein or with the
individuals named in the statement of claim."
St. Mary-Margaret was one of the names of the school, which was
founded in 1920. It was also known as Bloodvein River School and
St. Mary's School.
Mr. Ludwig argues Gauthier, a priest, was supervised by the
archdiocese.
According to the Saint-Boniface historical society, Leach -- who
received the Order of Canada in 1976 -- was a police officer and
magistrate in Berens River, Man., in addition to working at the
school.
CBC News has also contacted the Oblates of Mary Immaculate of
Manitoba for comment.
The plaintiffs say the province, along with church officials,
failed in their responsibility to protect student safety.
A spokesperson for the province declined to comment on the
"ongoing matter," saying only that the province has been served
with a statement of claim "which we will review to determine our
position."
The women in the case allege they were fondled and seriously
sexually assaulted multiple times each week. In some cases they
say they were abused in Gauthier's office and home, other times in
the classroom.
Their lawyer believes the two men named in the case were
predators.
"I wouldn't be surprised to find out there were others that
suffered, as well," said Mr. Ludwig.
He said as part of the class-action suit, he is looking for other
possible Indigenous victims who are either status or non-status
who attended the school from 1940 to 1980.
Possibility of a province-wide class action
The Bloodvein school was one of more than 20 known day schools
where abuse took place, Ludwig said. He has already brought
forward a handful of other similar cases, all of which are still
before the court.
So far, most of the allegations have to do with physical abuse
that went beyond the standards of the day, he said.
Although their experiences may be similar to those who suffered
abuse in residential schools, survivors of abuse at day schools
-- which students were compelled to attend, but from which they
returned home at night -- are not able to benefit from the
Residential School Settlement Agreement.
Mr. Ludwig, one of the first lawyers to represent residential
school survivors, hopes to launch a province-wide class-action
suit one day representing all victims of day schools.
Both women in the Bloodvein case say they have suffered their
entire lives because of the abuse they experienced as children.
They say the effects include alcohol addiction, anxiety, anger,
trust issues, sexual dysfunction and nightmares.
They said as a result of the abuse they endured, they were robbed
of a healthy childhood and have struggled to earn incomes, have
needed psychological and psychiatric treatment and have
experienced alienation from their spouses and children.
CHAPEI LLC: Wang Seeks Certification of Employee Class Under FLSA
-----------------------------------------------------------------
The Plaintiffs in the lawsuit captioned WEIGANG WANG and HAILONG
YU, on behalf of themselves and others similarly situated v.
CHAPEI LLC d/b/a Wok Empire, CHA LEE LO, and JOHN DOES #1-10, Case
No. 3:15-cv-02950-MAS-DEA (D.N.J.), move the Court for an order:
(1) granting collective action status, under the Fair Labor
Standards Act;
(2) ordering the Defendants to produce a Microsoft Excel data
file containing contact information for all those
individuals, who have worked for the Defendants as a
non-managerial employee between April 24, 2012 and the
date this Court decides this Motion;
(3) authorizing that notice of this matter be sent to members
of the putative class;
(4) authorizing equitable tolling of the statute of limitation
pending the expiration of the opt-in period; and
(5) ordering the Defendants to post the approved Proposed
Notice in conspicuous locations at the location where the
Prospective Collective Action Members worked, or are now
working.
A copy of the Notice of Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=E36IaiUn
The Plaintiffs are represented by:
Michael Taubenfeld, Esq.
FISHER TAUBENFELD LLP
225 Broadway, Suite 1700
New York, NY 10007
Telephone: (212) 571-0700
Facsimile: (212) 505-2001
E-mail: michael@fishertaubenfeld.com
- and -
John Troy, Esq.
TROY LAW, PLLC
41-25 Kissena Boulevard, Suite 119
Flushing, NY 11355
Telephone: (718) 762-1324
Facsimile: (718) 762-1342
E-mail: johntroy@troypllc.com
CHARTER COMMUNICATIONS: Faces "Hart" Suit Over False Ads
--------------------------------------------------------
Elizabeth Hart and Le'Roy Roberson, individually and on behalf of
all others similarly situated, Plaintiffs v. Charter
Communications, Inc. and Spectrum Management Holding Company LLC,
Defendants, Case No. 8:17-cv-00556-DOC-RAO (C.D. Cal., March 28,
2017) seeks relief for past and ongoing fraudulent, deceptive and
unfair business practices by Defendants.
The Complaint states that Defendants promised that consumers could
obtain high Internet speeds as advertised in Defendants' various
subscription plans. Defendants knew they could not deliver on
their promises, however, because they leased to many consumers
older-generation modems and wireless routers that were incapable
of supporting the promised Internet speeds. Defendants also failed
to provide an appropriate network and infrastructure that could
have enabled consumers with newer modems and wireless routers to
achieve the advertised Internet speeds, says the complaint.
Indeed, both Defendants' "WiFi" and wired Internet speeds
consistently, if not always, performed far below the advertised
speeds. Instead of admitting their structural inability to fulfill
their promises, Defendants continued to advertise that their
wireless Internet services supported the same speeds as wired
connections that are not hampered by modem and wireless router
capabilities and network limitations.
Charter Communications is an American telecommunications company,
which offers its services to consumers and businesses under the
branding of Charter Spectrum.[BN]
The Plaintiffs are represented by:
Jamin S. Soderstrom, Esq.
Spderstrom Law PC
3 Park Plaza, Suite 100
Irvine, CA 92614
Tel: (949) 667-4700
Fax: (949) 424-8091
Email: jamin@soderstromlawfirm.com
- and -
Douglas L. Mahaffey, Esq.
Mahaffey Law Group, PC
20162 SW Birch Street, Suite 300
Newport Beach, CA 92660
Tel: (949) 833-1400
Fax: (949) 263-8736
Email: dougm@mahaffeylaw.com
CHEVRON CORP: Gbarabe's Cert. Bid Denied; Hearing on April 14
-------------------------------------------------------------
The Hon. Susan Illston entered an order in the lawsuit entitled
NATTO IYELA GBARABE v. CHEVRON CORPORATION, Case No. 3:14-cv-
00173-SI (N.D. Cal.):
-- denying the Plaintiff's motion for class certification;
-- denying the Plaintiff's motion to admit the Verde/Physalia
"far-field" sediment sample analyses;
-- denying the Plaintiff's motion to substitute a new
fisheries expert; and
-- granting the Defendant's motions in limine to strike and
exclude the report and testimony of Professor Jasper
Abowei, and to exclude the socio-economic report and
testimony by the authors of the Onyoma Research Group.
A case management conference is scheduled for April 14, 2017, at
3:00 p.m.
After careful consideration of the voluminous record in this case,
the Court concludes that the Plaintiff has not met his burden to
demonstrate that this case should be certified as a class action
pursuant to Rules 23(a) and (b)(3) of the Federal Rules of Civil
Procedure.
"Plaintiff has failed to show through any evidence that causation
can be proven on a classwide basis, and much of the evidence
submitted has been shown to be unreliable. Furthermore, the Court
concludes that plaintiff has not demonstrated typicality, adequacy
or superiority, and the proposed class definition suffers from
numerous deficiencies," Judge Illston opines.
On January 16, 2012, an explosion occurred on the KS Endeavor
drilling rig, which was drilling for natural gas in the North Apoi
Field, five nautical miles off of the coast of Nigeria. Plaintiff
Natto Iyela Gbarabe is a fisherman, who resides in the Niger Delta
region of southern Nigeria.
On January 13, 2014, six plaintiffs (Natto Iyela Gbarabe, Fresh
Talent, Elder Endure Humphrey Fisei, Matthew Kingdom Mieseigha,
Foster Ogola1, Chris Wilfred Itonyo) filed this lawsuit claiming
to represent 65,000 people throughout eight Local Government Areas
of Bayelsa State, Nigeria.
The fourth amended complaint is the operative complaint. The FAC
realleges that the Plaintiff suffered "personal loss by way of an
almost total loss of yield in the waters customarily fished by
plaintiff after the KS Endeavor rig explosion and 46-day fire, as
well as damage to fishing equipment," and that "Plaintiff further
suffered health issues from the effects of the polluted air and
water caused by the gas rig explosion of the KS Endeavour, which
included diarrhea and vomiting."
The FAC alleged a class consisting of:
All residents of the coastal, estuarine and adjacent river
or creek-situated areas of the Ekeremor, Southern Ijaw,
Brass and Nembe Local Government Areas, State of Bayelsa,
Federal Republic of Nigeria who, as of January 16, 2012 and
thereafter, used the land, rivers, waterways, ponds, inlets,
estuaries and adjacent oceanic waters for the purpose of
fishing and/or farming to provide food and livelihood and
who sustained articulable damage and/or diminution to said
activities as a result of the explosion of defendant's
exploratory gas rig as detailed herein.
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=UjdkB7JT
CITIZEN CARE: "John" Claims Unpaid Overtime Wages
-------------------------------------------------
Lisette John, on behalf of herself and on behalf of all others
similarly situated, Plaintiff, v. Citizen Care Home Health, Inc.
and Kudy Adelakun, Defendants, Case No. 4:17-cv-00944 (S.D. Tex.,
March 27, 2017), seeks minimum and overtime wage compensation for
all hours worked and an equal amount as liquidated damages,
reasonable and necessary attorneys' fees, costs and expenses of
this action and such other and further relief for violation of the
Fair Labor Standards Act.
Defendants provide home care services to elderly and/or invalid
clients where Plaintiff was employed as a Provider. John seeks
unpaid overtime pay, mostly from off-the-clock work. [BN]
The Plaintiff is represented by:
Robert R. Debes, Jr., Esq.
SHELLIST LAZARZ SLOBIN LLP
11 Greenway Plaza, Suite 1515
Houston, TX 77046
Telephone: (713) 621-2277
Facsimile: (713) 621-0993
Email: bdebes@eeoc.net
DEFENDERS INC: "McCoy" Seeks Unpaid Overtime Wages
--------------------------------------------------
Chester McCoy, Benjamin Causey and DeMarcus Haile, individually,
and on behalf of all of those similarly situated Plaintiffs, v.
Defenders, Inc. d/b/a Protect Your Home d/b/a Home Defender d/b/a
True Home Security, Defendant, Case No. 1:17-cv-01668, (S.D.
Miss., March 27, 2017), seeks to recover unpaid overtime
compensation, liquidated damages, pre and post-judgment interest
and reasonable attorney's fees and costs pursuant to the Fair
Labor Standards Act.
Defendant install home security systems and repair services to
consumers throughout the United States.
McCoy worked as a technician for Defendant from approximately 2011
until June 2015. Causey worked as a technician/field manager for
Defendant until approximately November 2013. Haile worked as a
technician for Defendant from approximately September 2015 until
he was terminated in May 2016 for voicing out his complaints. All
were paid piece rate compensation in exchange for work performed,
thus were not compensated for overtime work. [BN]
Plaintiff is represented by:
Macy D. Hanson, Esq.
THE LAW OFFICE OF MACY D. HANSON, PLLC
102 First Choice Drive
Madison, MS 39110
Telephone: (601) 853-9521
Facsimile: (601) 853-9327
Email: macy@macyhanson.com
EAST WINGERS: Faces "Alberto" Suit Over FLSA Violation
------------------------------------------------------
Jose Alberto, et al., individually and on behalf of others
similarly situated, Plaintiffs v. East Wingers Inc. (d/b/a Best
Wingers) and Kunj Patel, Defendants, Case No. 1:17-cv-02176 (S.D.
N.Y., March 24, 2017) seeks to recover unpaid minimum and overtime
wages under the Fair Labor Standards Act.
Plaintiff were employed by Defendants as delivery workers.
Defendant owns, operates or controls a chicken wing outlet located
at 711 Second Avenue, New York, NY 10016 under the name "Best
Wingers". [BN]
The Plaintiff is represented by:
Michael Faillace, Esq.
Michael Faillace & Associates, P.C.
60 East 42nd Street, Suite 2540
New York, NY 10165
Tel: (212) 317-1200
Fax: (212) 317-1620
Email: Faillace@employmentcompliance.com
EASTERN MUSHROOM: Partial Summary Ruling Bid vs. Co-owner Denied
----------------------------------------------------------------
In the case captioned IN RE MUSHROOM DIRECT PURCHASER ANTITRUST
LITIGATION, Master File No. 06-0620 (E.D. Pa.), Judge Thomas N.
O'Neill, Jr., of the U.S. District Court for the Eastern District
of Pennsylvania denied the motion filed by certain defendants for
partial summary judgment with respect to the plaintiffs' claims
against the defendant, John Pia.
The long-running antitrust litigation, which has been certified as
a class action, arises out of the plaintiffs' claim that the
defendants acted in violation of Sections 1 and 2 of the Sherman
Act and Section 7 of the Clayton Act by conspiring "to set
artificially-inflated prices" for fresh agaricus mushrooms, and
through the implementation of a supply control scheme related to
the production of mushrooms.
Pia was a 50% co-owner and secretary/treasurer of Kaolin Mushroom
Farms, a mushroom grower and a member of the Eastern Mushroom
Marketing Cooperative (EMMC). Pia was also a 50% co-owner and
president of South Mill Mushroom Sales, Inc., a mushroom
distribution entity. Additionally, Pia was the president of the
EMMC in 2000, when it came into being.
The plaintiffs contended that during Pia's tenure as president,
"the EMMC implemented the price-fixing agreements at issue here,
including setting the prices to be charged and implementing the
first price fix in February 2001." The plaintiffs contended that
their claim against Pia is that he "personally participated in and
furthered the EMMC's conspiracy to fix prices and restrict the
supply of mushrooms."
Certain defendants, however, argued that "[i]n order to hold an
individual . . . liable under the Sherman Act, plaintiffs must
show that Pia knowingly participated in actions he knew to be
anti-competitive" and that because the evidence shows that Pia
relied on counsel, who "blessed" the creation of the EMMC and its
operations, summary judgment must be granted in his favor. Pia
contended "that his reliance on counsel left him with no inkling
he (or other members of the EMMC) were violating the Sherman Act .
. . ."
The plaintiffs responded that that none of the cases cited by
certain defendants support Pia's "claim that Plaintiffs must prove
that he specifically knew that the conduct in which he
participated violated the antitrust laws."
Judge O'Neill agreed with the plaintiffs. The judge stated that
to withstand the defendants' motion, the plaintiffs do not have to
show that Pia knew the EMMC's alleged efforts to fix mushroom
distribution prices or to control supply were in violation of the
antitrust laws. The judge explained that "a violation of the
Sherman Act does not require proof of specific intent. . ." and
that while "a defendant's state of mind or intent is an element of
a criminal antitrust offense" the "general rule" is that a civil
antitrust offense can be "established by proof of either an
unlawful purpose or an anticompetitive effect."
A full-text copy of Judge O'Neill's March 6, 2017 order is
available at https://is.gd/u7gZOq from Leagle.com.
WM. ROSENSTEIN & SONS CO., Plaintiff, represented by ADAM M.
MOSKOWITZ -- amm@kttlaw.com -- KOZYAK TROPIN & THROCKMORTON,
ANDREW WILLIAM KELLY -- akelly@odrlaw.com -- ODOM & DES ROCHES
LLP, BARRY L. REFSIN -- brefsin@hangley.com -- HANGLEY ARONCHICK
SEGAL & PUDLIN, BRUCE E. GERSTEIN -- bgerstein@garwingerstein.com
-- GARWIN GERSTEIN AND FISHER L.L.P., DAVID C. RAPHAEL, JR. --
draphael@ssrllp.com -- SMITH SEGURA & RAPHAEL LLP, DAVID P. SMITH
-- dsmith@ssrllp.com -- SMITH SEGURA & RAPHAEL LLP, JOHN GREGORY
ODOM -- jodom@odrlaw.com -- ODOM & DES ROCHES LLP, JONATHAN M.
GERSTEIN -- jgerstein@garwingerstein.com -- GARWIN GERSTEIN &
FISHER LLP, KEVIN LANDAU -- klandau@tcllaw.com -- TAUS, CEBULASH &
LANDAU, LLP, NOAH SILVERMAN -- nsilverman@garwingerstein.com --
GARWIN GERSTEIN & FISHER LLP, SCOTT W. FISHER --
sfisher@garwingerstein.com -- GARWIN GERSTEIN AND FISHER LLP,
STUART E. DE SROCHES -- stuart@odrlaw.com -- ODOM & DES ROCHES
LLP, SUSAN C. SEGURA -- ssegura@ssrllp.com -- SMITH SEGURA &
RAPHAEL LLP, TAL J. LIFSHITZ -- tjl@kttlaw.com -- KOZYAK TROPIN &
THROCKMORTON & THOMAS A. TUCKER RONZETTI -- tr@kttlaw.com --
KOZYAK TROPIN & THROCKMORTON.
ASSOCIATED GROCERS, INC., Plaintiffs, represented by ADAM M.
MOSKOWITZ, KOZYAK TROPIN & THROCKMORTON, BARRY L. REFSIN, HANGLEY
ARONCHICK SEGAL & PUDLIN, DAVID L. PATRON, PHELPS DUNBAR LLP,
DAVID C. RAPHAEL, JR., SMITH SEGURA & RAPHAEL LLP, JONATHAN M.
GERSTEIN, GARWIN GERSTEIN & FISHER LLP, SCOTT W. FISHER, GARWIN
GERSTEIN AND FISHER LLP, SUSAN C. SEGURA, SMITH SEGURA & RAPHAEL
LLP, TAL J. LIFSHITZ, KOZYAK TROPIN & THROCKMORTON, BRENT B.
BARRIERE, PHELPS DUNBAR LLP & SUSIE MORGAN, PHELPS DUNBAR LLP.
DIVERSIFIED FOODS & SEASONINGS, INC., Plaintiff, represented by
ADAM M. MOSKOWITZ, KOZYAK TROPIN & THROCKMORTON, BARRY L. REFSIN,
HANGLEY ARONCHICK SEGAL & PUDLIN, DAVID C. RAPHAEL, JR., SMITH
SEGURA & RAPHAEL LLP, JONATHAN M. GERSTEIN, GARWIN GERSTEIN &
FISHER LLP, SCOTT W. FISHER, GARWIN GERSTEIN AND FISHER LLP, SUSAN
C. SEGURA, SMITH SEGURA & RAPHAEL LLP & TAL J. LIFSHITZ, KOZYAK
TROPIN & THROCKMORTON.
M. ROBERT ENTERPRISES, INC., Plaintiff, represented by ADAM M.
MOSKOWITZ, KOZYAK TROPIN & THROCKMORTON, BARRY L. REFSIN, HANGLEY
ARONCHICK SEGAL & PUDLIN, DAVID L. PATRON, PHELPS DUNBAR LLP,
DAVID C. RAPHAEL, JR., SMITH SEGURA & RAPHAEL LLP, JONATHAN M.
GERSTEIN, GARWIN GERSTEIN & FISHER LLP, SCOTT W. FISHER, GARWIN
GERSTEIN AND FISHER LLP, SUSAN C. SEGURA, SMITH SEGURA & RAPHAEL
LLP, SUSIE MORGAN, PHELPS DUNBAR LLP, TAL J. LIFSHITZ, KOZYAK
TROPIN & THROCKMORTON & BRENT B. BARRIERE, PHELPS DUNBAR LLP.
M.L. ROBERT, II, L.L.C., Plaintiff, represented by ADAM M.
MOSKOWITZ, KOZYAK TROPIN & THROCKMORTON, BARRY L. REFSIN, HANGLEY
ARONCHICK SEGAL & PUDLIN, BRENT B. BARRIERE, PHELPS DUNBAR LLP,
DAVID L. PATRON, PHELPS DUNBAR LLP, DAVID C. RAPHAEL, JR., SMITH
SEGURA & RAPHAEL LLP, JONATHAN M. GERSTEIN, GARWIN GERSTEIN &
FISHER LLP, SCOTT W. FISHER, GARWIN GERSTEIN AND FISHER LLP, SUSAN
C. SEGURA, SMITH SEGURA & RAPHAEL LLP, SUSIE MORGAN, PHELPS DUNBAR
LLP & TAL J. LIFSHITZ, KOZYAK TROPIN & THROCKMORTON.
MARKET FAIR, INC., Plaintiff, represented by ADAM M. MOSKOWITZ,
KOZYAK TROPIN & THROCKMORTON, BARRY L. REFSIN, HANGLEY ARONCHICK
SEGAL & PUDLIN, DAVID C. RAPHAEL, JR., SMITH SEGURA & RAPHAEL LLP,
JONATHAN M. GERSTEIN, GARWIN GERSTEIN & FISHER LLP, SCOTT W.
FISHER, GARWIN GERSTEIN AND FISHER LLP, SUSAN C. SEGURA, SMITH
SEGURA & RAPHAEL LLP, TAL J. LIFSHITZ, KOZYAK TROPIN &
THROCKMORTON, BRENT B. BARRIERE, PHELPS DUNBAR LLP, DAVID L.
PATRON, PHELPS DUNBAR LLP & SUSIE MORGAN, PHELPS DUNBAR LLP.
PUBLIX SUPER MARKETS, INC., Plaintiff, represented by ADAM M.
MOSKOWITZ, KOZYAK TROPIN & THROCKMORTON, ALBERTO RODRIGUEZ, VANEK
VICKERS & MASINI PC, BARRY L. REFSIN, HANGLEY ARONCHICK SEGAL &
PUDLIN, DAVID P. GERMAINE, VANEK VICKERS & MASINI PC, JOSEPH M.
VANEK, VANEK VICKERS & MASINI PC, PAUL E. SLATER, SPERLING &
SLATER PC, SUSAN C. SEGURA, SMITH SEGURA & RAPHAEL LLP, TAL J.
LIFSHITZ, KOZYAK TROPIN & THROCKMORTON, ERIC L. BLOOM, HANGLEY
ARONCHICK SEGAL & PUDLIN & MOIRA E. CAIN-MANNIX, MARCUS & SHAPIRA.
EASTERN MUSHROOM MARKETING COOPERATIVE, INC., Defendant,
represented by DONALD M. BARNES, PORTER WRIGHT MORRIS & ARTHUR
LLP, H. LADDIE MONTAGUE, JR., BERGER & MONTAGUE PC, MARTIN I.
TWERSKY, BERGER & MONTAGUE, P.C., TERRI A. PAWELSKI, STEVENS &
LEE, WILLIAM A. DESTEFANO, STEVENS & LEE, JENNIFER E. MACNAUGHTON,
BERGER MONTAGUE PC, JOSEPH R. LOVERDI, DILWORTH PAXSON LLP &
RUDOLPH GARCIA.
KAOLIN MUSHROOM FARMS, INC., Defendant, represented by H. LADDIE
MONTAGUE, JR., BERGER & MONTAGUE PC, TERRI A. PAWELSKI, STEVENS &
LEE, WILLIAM A. DESTEFANO, STEVENS & LEE, JENNIFER E. MACNAUGHTON,
BERGER MONTAGUE PC, JOSEPH R. LOVERDI, DILWORTH PAXSON LLP, MARTIN
I. TWERSKY, BERGER & MONTAGUE, P.C. & RUDOLPH GARCIA.
TO-JO FRESH MUSHROOMS, INC., Defendant, represented by H. LADDIE
MONTAGUE, JR., BERGER & MONTAGUE PC, TERRI A. PAWELSKI, STEVENS &
LEE, WILLIAM A. DESTEFANO, STEVENS & LEE, JENNIFER E. MACNAUGHTON,
BERGER MONTAGUE PC, JOSEPH R. LOVERDI, DILWORTH PAXSON LLP, MARTIN
I. TWERSKY, BERGER & MONTAGUE, P.C. & RUDOLPH GARCIA.
CARDILE MUSHROOMS, INC., Defendant, represented by H. LADDIE
MONTAGUE, JR., BERGER & MONTAGUE PC, TERRI A. PAWELSKI, STEVENS &
LEE, WILLIAM A. DESTEFANO, STEVENS & LEE, JOSEPH R. LOVERDI,
DILWORTH PAXSON LLP, MARTIN I. TWERSKY, BERGER & MONTAGUE, P.C. &
RUDOLPH GARCIA.
CARDILE BROS. MUSHROOMS PACKAGING, Defendant, represented by H.
LADDIE MONTAGUE, JR., BERGER & MONTAGUE PC, TERRI A. PAWELSKI,
STEVENS & LEE, WILLIAM A. DESTEFANO, STEVENS & LEE, JOSEPH R.
LOVERDI, DILWORTH PAXSON LLP, MARTIN I. TWERSKY, BERGER &
MONTAGUE, P.C. & RUDOLPH GARCIA.
MONTEREY MUSHROOMS, INC., Defendant, represented by H. LADDIE
MONTAGUE, JR., BERGER & MONTAGUE PC, TERRI A. PAWELSKI, STEVENS &
LEE, WILLIAM A. DESTEFANO, STEVENS & LEE, JENNIFER E. MACNAUGHTON,
BERGER MONTAGUE PC, JOSEPH R. LOVERDI, DILWORTH PAXSON LLP, MARTIN
I. TWERSKY, BERGER & MONTAGUE, P.C. & RUDOLPH GARCIA.
PHILLIPS MUSHROOMS FARMS, LP., Defendant, represented by H. LADDIE
MONTAGUE, JR., BERGER & MONTAGUE PC, TERRI A. PAWELSKI, STEVENS &
LEE, WILLIAM A. DESTEFANO, STEVENS & LEE, JENNIFER E. MACNAUGHTON,
BERGER MONTAGUE PC, JOSEPH R. LOVERDI, DILWORTH PAXSON LLP, MARTIN
I. TWERSKY, BERGER & MONTAGUE, P.C. & RUDOLPH GARCIA.
FRANKLIN FARMS, INC., Defendant, represented by JAMES J. RODGERS,
DILWORTH PAXSON, TERRI A. PAWELSKI, STEVENS & LEE, DAVID
FITZGIBBON, DILWORTH PAXSON LLP, JOSEPH R. LOVERDI, DILWORTH
PAXSON LLP & RUDOLPH GARCIA.
MODERN MUSHROOM FARMS, INC., Defendant, represented by H. LADDIE
MONTAGUE, JR., BERGER & MONTAGUE PC, TERRI A. PAWELSKI, STEVENS &
LEE, WILLIAM A. DESTEFANO, STEVENS & LEE, JENNIFER E. MACNAUGHTON,
BERGER MONTAGUE PC, JOSEPH R. LOVERDI, DILWORTH PAXSON LLP, MARTIN
I. TWERSKY, BERGER & MONTAGUE, P.C. & RUDOLPH GARCIA.
SHER-ROCKEE MUSHROOM FARM, Defendant, represented by H. LADDIE
MONTAGUE, JR., BERGER & MONTAGUE PC, TERRI A. PAWELSKI, STEVENS &
LEE, WILLIAM A. DESTEFANO, STEVENS & LEE, JENNIFER E. MACNAUGHTON,
BERGER MONTAGUE PC, JOSEPH R. LOVERDI, DILWORTH PAXSON LLP, MARTIN
I. TWERSKY, BERGER & MONTAGUE, P.C. & RUDOLPH GARCIA.
C & C CARRIAGE MUSHROOM CO., Defendant, represented by H. LADDIE
MONTAGUE, JR., BERGER & MONTAGUE PC, TERRI A. PAWELSKI, STEVENS &
LEE, WILLIAM A. DESTEFANO, STEVENS & LEE, JENNIFER E. MACNAUGHTON,
BERGER MONTAGUE PC, JOSEPH R. LOVERDI, DILWORTH PAXSON LLP, MARTIN
I. TWERSKY, BERGER & MONTAGUE, P.C. & RUDOLPH GARCIA.
JOHN PIA, Defendant, represented by H. LADDIE MONTAGUE, JR.,
BERGER & MONTAGUE PC, TERRI A. PAWELSKI, STEVENS & LEE, WILLIAM A.
DESTEFANO, STEVENS & LEE, JENNIFER E. MACNAUGHTON, BERGER MONTAGUE
PC, JOSEPH R. LOVERDI, DILWORTH PAXSON LLP, MARTIN I. TWERSKY,
BERGER & MONTAGUE, P.C. & RUDOLPH GARCIA.
JOHN DOES 1-100, Defendant, represented by MARTIN I. TWERSKY,
BERGER & MONTAGUE, P.C..
BROWNSTONE MUSHROOM FARMS, INC., Defendant, represented by TERRI
A. PAWELSKI, STEVENS & LEE, H. LADDIE MONTAGUE, JR., BERGER &
MONTAGUE PC, JENNIFER E. MACNAUGHTON, BERGER MONTAGUE PC, MARTIN
I. TWERSKY, BERGER & MONTAGUE, P.C., RUDOLPH GARCIA & WILLIAM A.
DESTEFANO, STEVENS & LEE.
COUNTRY FRESH MUSHROOM CO., Defendant, represented by TERRI A.
PAWELSKI, STEVENS & LEE, H. LADDIE MONTAGUE, JR., BERGER &
MONTAGUE PC, JENNIFER E. MACNAUGHTON, BERGER MONTAGUE PC, MARTIN
I. TWERSKY, BERGER & MONTAGUE, P.C., RUDOLPH GARCIA & WILLIAM A.
DESTEFANO, STEVENS & LEE.
CREEKSIDE MUSHROOMS LTD., Defendant, represented by BARBARA T.
SICALIDES, PEPPER HAMILTON LLP & WILLIAM A. DESTEFANO, STEVENS &
LEE.
ROBERT A. FERANTO, JR., Defendant, represented by TERRI A.
PAWELSKI, STEVENS & LEE, H. LADDIE MONTAGUE, JR., BERGER &
MONTAGUE PC, JENNIFER E. MACNAUGHTON, BERGER MONTAGUE PC, MARTIN
I. TWERSKY, BERGER & MONTAGUE, P.C., RUDOLPH GARCIA & WILLIAM A.
DESTEFANO, STEVENS & LEE.
FOREST MUSHROOM INC., Defendant, represented by TERRI A. PAWELSKI,
STEVENS & LEE, H. LADDIE MONTAGUE, JR., BERGER & MONTAGUE PC,
JENNIFER E. MACNAUGHTON, BERGER MONTAGUE PC, MARTIN I. TWERSKY,
BERGER & MONTAGUE, P.C., RUDOLPH GARCIA & WILLIAM A. DESTEFANO,
STEVENS & LEE.
GINO GASPARI & SONS, INC., Defendant, represented by TERRI A.
PAWELSKI, STEVENS & LEE, H. LADDIE MONTAGUE, JR., BERGER &
MONTAGUE PC, JENNIFER E. MACNAUGHTON, BERGER MONTAGUE PC, MARTIN
I. TWERSKY, BERGER & MONTAGUE, P.C., RUDOLPH GARCIA & WILLIAM A.
DESTEFANO, STEVENS & LEE.
GIORGI MUSHROOM COMPANY, Defendant, represented by JACQUELINE P.
RUBIN, PAUL WEISS RIFKIND WHARTON GARRISON LLP, TERRI A. PAWELSKI,
STEVENS & LEE, H. LADDIE MONTAGUE, JR., BERGER & MONTAGUE PC,
JOSHUA SARNER, SARNER & ASSOCIATES, MARTIN I. TWERSKY, BERGER &
MONTAGUE, P.C., MOSES SILVERMAN, PAUL WEISS RIFKIND WHARTON &
GARRISON LLP, RUDOLPH GARCIA & WILLIAM A. DESTEFANO, STEVENS &
LEE.
GIORGIO FOODS, INC., Defendant, represented by JACQUELINE P.
RUBIN, PAUL WEISS RIFKIND WHARTON GARRISON LLP, TERRI A. PAWELSKI,
STEVENS & LEE, H. LADDIE MONTAGUE, JR., BERGER & MONTAGUE PC,
JOSHUA SARNER, SARNER & ASSOCIATES, MARTIN I. TWERSKY, BERGER &
MONTAGUE, P.C., MOSES SILVERMAN, PAUL WEISS RIFKIND WHARTON &
GARRISON LLP, RUDOLPH GARCIA & WILLIAM A. DESTEFANO, STEVENS &
LEE.
HARVEST FRESH FARMS, INC., Defendant, represented by TERRI A.
PAWELSKI, STEVENS & LEE, WILLIAM A. DESTEFANO, STEVENS & LEE, H.
LADDIE MONTAGUE, JR., BERGER & MONTAGUE PC, MARTIN I. TWERSKY,
BERGER & MONTAGUE, P.C. & RUDOLPH GARCIA.
JM FARMS, INC., Defendant, represented by DANIEL RICHARD FUNK,
CONNER & WINTERS LLP, JASON S. TAYLOR, CONNER & WINTERS LLP,
FRANCESCO P. TRAPANI, Kreher & Trapani LLP & WILLIAM A. DESTEFANO,
STEVENS & LEE.
KITCHEN PRIDE MUSHROOMS, Defendant, represented by BRIAN KINT,
HAUSFELD LLP, F. BRENDEN COLLER, COZEN O'CONNOR, KEVIN T. KERNS,
COZEN O'CONNOR, MARTIN I. TWERSKY, BERGER & MONTAGUE, P.C., NEILL
C. KLING, HARKINS CUNNINGHAM LLP & WILLIAM A. DESTEFANO, STEVENS &
LEE.
LEONE PIZZINI AND SON, INC., Defendant, represented by TERRI A.
PAWELSKI, STEVENS & LEE, H. LADDIE MONTAGUE, JR., BERGER &
MONTAGUE PC, MARTIN I. TWERSKY, BERGER & MONTAGUE, P.C., RUDOLPH
GARCIA & WILLIAM A. DESTEFANO, STEVENS & LEE.
LOUIS M. MARSON, JR., INC., Defendant, represented by TERRI A.
PAWELSKI, STEVENS & LEE, WILLIAM A. DESTEFANO, STEVENS & LEE, H.
LADDIE MONTAGUE, JR., BERGER & MONTAGUE PC, JENNIFER E.
MACNAUGHTON, BERGER MONTAGUE PC, MARTIN I. TWERSKY, BERGER &
MONTAGUE, P.C. & RUDOLPH GARCIA.
LRP-M MUSHROOMS LLC, Defendant, represented by TERRI A. PAWELSKI,
STEVENS & LEE, H. LADDIE MONTAGUE, JR., BERGER & MONTAGUE PC,
MARTIN I. TWERSKY, BERGER & MONTAGUE, P.C., RUDOLPH GARCIA &
WILLIAM A. DESTEFANO, STEVENS & LEE.
M.D. BASCIANI & SONS, INC., Defendant, represented by DONNA M.
ALBANI, LAW OFFICES OF DONNA M. ALBANI, MARTIN I. TWERSKY, BERGER
& MONTAGUE, P.C., THOMAS K. SCHINDLER, SCHINDLER LAW GROUP LLC &
WILLIAM A. DESTEFANO, STEVENS & LEE.
MARIO CUTONE MUSHROOM CO., INC., Defendant, represented by JOEL I.
FISHBEIN, LITCHFIELD CAVO LLP, MARTIN I. TWERSKY, BERGER &
MONTAGUE, P.C. & WILLIAM A. DESTEFANO, STEVENS & LEE.
MASHA & TOTO, INC., Defendant, represented by WILLIAM A.
DESTEFANO, STEVENS & LEE.
MUSHROOM ALLIANCE, INC., Defendant, represented by AMY R. RICHTER,
MATTHEW J. BORGER, KLEHR HARRISON HARVEY BRANZBURG L.L.P., MARTIN
I. TWERSKY, BERGER & MONTAGUE, P.C. & WILLIAM A. DESTEFANO,
STEVENS & LEE.
OAKSHIRE MUSHROOM FARM, INC., Defendant, represented by TERRI A.
PAWELSKI, STEVENS & LEE, H. LADDIE MONTAGUE, JR., BERGER &
MONTAGUE PC, JENNIFER E. MACNAUGHTON, BERGER MONTAGUE PC, MARTIN
I. TWERSKY, BERGER & MONTAGUE, P.C., RUDOLPH GARCIA & WILLIAM A.
DESTEFANO, STEVENS & LEE.
SOUTH MILL MUSHROOM SALES, INC., Defendant, represented by TERRI
A. PAWELSKI, STEVENS & LEE, H. LADDIE MONTAGUE, JR., BERGER &
MONTAGUE PC, JENNIFER E. MACNAUGHTON, BERGER MONTAGUE PC, MARTIN
I. TWERSKY, BERGER & MONTAGUE, P.C., RUDOLPH GARCIA & WILLIAM A.
DESTEFANO, STEVENS & LEE.
UNITED MUSHROOM FARMS COOPERATIVE, INC., Defendant, represented by
TERRI A. PAWELSKI, STEVENS & LEE, H. LADDIE MONTAGUE, JR., BERGER
& MONTAGUE PC, MARTIN I. TWERSKY, BERGER & MONTAGUE, P.C., RUDOLPH
GARCIA & WILLIAM A. DESTEFANO, STEVENS & LEE.
W&P MUSHROOM INC., Defendant, represented by WILLIAM A. DESTEFANO,
STEVENS & LEE.
NATIONAL COUNCIL OF FARMER COOPERATIVES, Movant, represented by
JAMES A. BACKSTROM, JAMES A. BACKSTROM, COUNSELLOR AT LAW.
BASCIANI FOODS, INC., Movant, represented by LISANNE L. MIKULA,
DIORIO SERENI, MARK A. SERENI, DIORIO & SERENI, LLP & THOMAS K.
SCHINDLER, SCHINDLER LAW GROUP LLC.
EATSA: Faces Class Action Over Inaccessible Ordering Function
-------------------------------------------------------------
NBC Bay Area reports that a San Francisco-based food company proud
of its tech-savvy features was recently slapped with a federal
class action lawsuit for failing to provide adequate services to
customers with visual impairments, according to a report.
Eatsa, which features an automated, human-free system that allows
customers to select their quinoa dish of choice on their
smartphones or in-store iPads before delivering the plate through
a cubbyhole, violated a civil rights law with its inaccessible
ordering function and serving feature, according to Recode.
The lawsuit, which was filed in New York, indicated that Eatsa did
not adequately use technology features already available, such as
dictating technology, to assist customers with vision problems,
Recode reported. Eatsa also does not allow customers to insert
headphones into the audio jack of the iPads it uses as ordering
kiosks or utilize any audible features for the food delivery
process, the lawsuit claimed.
Eatsa locations do staff actual humans in the event that a
customer requires assistance, but the lawsuit argued that one of
the ways in which a customer can request assistance comes with a
feature only available on the ordering platform. That feature is
inaccessible to customers with visual issues, the lawsuit stated.
Eatsa responded to the lawsuit and said that it was "surprised,"
according to Recode.
"We are surprised by this action by DRA," Eatsa said in a
statement. "We are strong supporters of the rights of the
visually impaired and have served many visually impaired customers
since we opened our first Eatsa in 2015. In fact, every Eatsa
location is staffed with Hosts that provide personalized ordering
and pickup assistance to visually impaired customers, should they
desire additional assistance, and all of our technology is
designed to be compatible with the appropriate assistance
features. We regret that the DRA did not spend time with Eatsa's
staff before taking legal action and hope to bring them
satisfaction through a more detailed demonstration and
understanding of our service. We truly think there is some error
in their understanding of the Eatsa technology and service and
look forward to working through this amicably so we can continue
providing a great service to all of our customers."
ENAGIC USA: Makaron's Bid to Certify Denied; May Re-file Oct. 13
----------------------------------------------------------------
The Honorable Dean D. Pregerson denied without prejudice the
motion to certify class filed in the lawsuit captioned EDWARD
MAKARON v. ENAGIC USA, INC., Case No. 2:15-cv-05145-DDP-E (C.D.
Cal.).
The Court sets October 13, 2017, as the last day to file a Motion
re: Class Certification and continues the scheduling conference to
January 8, 2018, at 11:00 a.m.
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=W6zOnKkS
The Plaintiff is represented by:
Todd M. Friedman, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
324 S. Beverly Dr., #725
Beverly Hills, CA 90212
Telephone: (877) 206-4741
Facsimile: (866) 633-0228
E-mail: tfriedman@attorneysforconsumers.com
The Defendant is represented by:
Dwight M. Francis, Esq.
GARDERE WYNNE SEWELL LLP
2021 McKinney Avenue, Suite 1600
Dallas, TX 75201
Telephone: (214) 999-4264
Facsimile: (214) 999-3264
E-mail: dfrancis@gardere.com
FKG OIL: Faces Discrimination Class Action in Illinois
------------------------------------------------------
Noddy A. Fernandez, writing for Madison Record, reports that a
disabled man and a civil rights organization have filed a class
action lawsuit against MotoMart, citing alleged discrimination for
lack of accommodations for patrons with disabilities.
DeMaurion Davis and Access Now Inc., individually and on behalf of
all others similarly situated, filed a complaint on Feb. 28 in the
U.S. District Court for the Southern District of Illinois against
FKG Oil Company, doing business as MotoMart, alleging the
defendant violated Title III of the Americans with Disabilities
Act.
According to the complaint, the plaintiff alleges MotoMart failed
to provide accessible parking lots and paths of travel for
disabled customers.
As a result, Davis alleges he suffered harm for not being able to
access the property and purchase its goods, services and
accommodation.
The plaintiffs allege the defendant discriminated against them by
repeatedly denying persons with mobility disability full, equal
and safe access to its facility.
The plaintiffs request a trial by jury and seeks an order
certifying this as a class action, naming plaintiffs as class
representatives and appointing their counsel as class counsel.
They also seek an award for costs of this action and such other
relief the court deems appropriate.
The plaintiffs are represented by Matthew H. Armstrong of
Armstrong Law Firm LLC in St. Louis and Benjamin J. Sweet and
Stephanie Goldin -- sgoldin@carlsonlynch.com -- of Carlson Lynch
Sweet, Kilpela & Carpenter LLP in Pittsburgh.
U.S. District Court for the Southern District of Illinois case
number 3:17-cv-00217
FOLLETT CORP: "Williams" Sues Over Unpaid Overtime Wages
--------------------------------------------------------
Angela Williams and Tom Colban, on behalf of themselves and all
others similarly situated, Plaintiffs, v. Follett Corporation and
Follett Higher Education Group, Inc., Defendants, Case No. 1:17-
cv-02318 (N.D. Ill., March 27, 2017), seeks to recover regular and
overtime wages and an additional and equal amount as liquidated
damages, pre-judgment interest and post-judgment interest,
equitable and injunctive relief, reasonable incentive awards to
compensate them for the time and effort spent, attorneys' fees and
costs of the action and such other injunctive and equitable relief
under the Fair Labor Standards Act.
Follett is headquartered in Illinois and operates at least 1,200
campus bookstores and over 1,600 virtual stores across the
continent. Williams was an assistant manager in the Defendants'
store located in Tulsa, Oklahoma while Colban was assigned to New
Brunswick, New Jersey, Suffern, New York, Montclair, New Jersey
and Jersey City, New Jersey stores. [BN]
The Plaintiff is represented by:
Ryan F. Stephan, Esq.
STEPHAN ZOURAS, LLP
205 N. Michigan Avenue, Suite 2560
Chicago, IL 60601
Telephone: (312) 233-1550
Facsimile: (312) 233-1560
Email: rstephan@stephanzouras.com
- and -
Gregg I. Shavitz, Esq.
Camar R. Jones, Esq.
SHAVITZ LAW GROUP, P.A.
1515 S. Federal Highway
Boca Raton, FL 33432
Telephone: (561) 447-8888
Facsimile: (561) 447-8831
Email: gshavitz@shavitzlaw.com
cjones@shavitzlaw.com
FONTERRA: Returns to Profitability Amid Investor Class Actions
--------------------------------------------------------------
Jamie Gray, writing for the NZ Herald, reports that Fonterra is
now "running its own race" in Australia after last year's milk
price implosion, the co-operative's managing director across the
Tasman, Rene Dedoncker says.
For years Fonterra has lost money in Australia and the last two
have been particularly difficult as the co-op was forced to match
its larger Aussie competitor, Murray Goulburn's, high milk price.
But now, Australia, long the co-op's problem child, has emerged
from the milk price debacle with a modest return to profitability.
Fonterra does not break out its earnings for Australia, but in its
latest interim report, Oceania, which lumps together Australia and
New Zealand, registered normalised earnings before net finance
costs and tax of $74 million, against a loss of $38 million in the
previous corresponding period.
"Overall, the signs are good. We are back in turnaround. We are
seeing for the first time trading results that are modest yet
positive, whereas in the last two to three years we have had some
significant losses," he said.
Fonterra's problem last year was that, while it could see that
Aussie milk prices were defying gravity, part of its supply
agreement with Bonlac Milk meant that it had to match Murray
Goulburn's milk price.
The resulting aggressive pricing environment meant all the Aussie
processors struggled to maintain margins.
The bubble burst in April last year when Murray Goulburn slashed
its A$5.60 per kilogram of milk solids farmgate milk price, which
meant Fonterra could follow suit.
The impact was devastating for many Australian farmers and
Dedoncker says he has spent much of the last six months talking
over the issues with farmer groups, and individual farmers.
He acknowledged the cut had caused "enormous pain" for the sector.
The milk price implosion is now the subject of a Senate inquiry
and Murray Goulburn has attracted class action law suits from
disaffected investors.
In addition, the consumer watchdog, The Australian Competition and
Consumer Commission (ACCC), is investigating last year's price
cuts by Murray Goulburn and Fonterra.
These days Fonterra has cut its own path, offering a A$5.20/kg
milk price, well over the Murray Goulburn price that it is
contractually obliged to match.
"The milk price bubble that burst over here gave us the
opportunity to set our own agenda.
"It means that we have been given a chance here to restore faith.
We have taken that and the farmers are responding," Dedoncker
said.
Up until last year's price cuts, Fonterra had been transforming
the business and selling off non-performing assets.
Dedoncker said many of the hard yards were done by his
predecessor, Judith Swales, but that he now had the opportunity to
"operationalise" all the choices made by the co-op.
"We set our own milk price -- not one linked to our competitor --
and that today stands up as one of the best milk prices in the
market.
"Our view is that if you want an enduring and sustainable business
then you have to have a milk price that is a reflection of the
market, and that's a combination of global forces and the
portfolio mix that you have here," he said.
Australia is Fonterra's second biggest milk pool after New
Zealand. Milk collection is growing and already represents close
to 20 per cent of Australia's total milk supply.
Dedoncker said the Darnum, Victoria, infant formula joint venture
with China's Beingmate, was performing well.
Chairman John Wilson talked about the possibility of replicating
Fonterra-style structures abroad and Dedoncker said the co-op is
in discussion with Bonlac over different models for the future.
"I can't comment specifically on where that will land," Dedoncker
said.
Michael Harvey, Rabobank's senior analyst -- dairy, farm inputs --
said Fonterra and all the other processors had been put under
pressure by the aggressive pricing over the last year or so and
that the price decline had been a big challenge for the sector,
coming as it did toward the end of a hot and dry season.
As it stands, prices for Aussie farmers are barely at break even,
but he expects farms to return to profitability in 2017/8.
GATEWAY ENERGY: Court Narrows Claims in "Hamlen" Suit
-----------------------------------------------------
Judge Vincent L. Briccetti of the U.S. District Court for the
Southern District of New York granted in part, and denied in part,
Gateway Energy Services Corporation's motion to dismiss the case
captioned ROBERT HAMLEN, Plaintiff, v. GATEWAY ENERGY SERVICES
CORPORATION, Defendant, No. 16 CV 3526 (VB) (S.D.N.Y.).
Robert Hamlen brought a putative class action on May 11, 2016,
against Gateway Energy Services Corporation claiming violations of
the New Jersey Consumer Fraud Act (NJCFA), N.J. STAT. ANN. section
56:8-1 (West); breach of contract; breach of the implied covenant
of good faith and fair dealing; and unjust enrichment, alleging
that Gateway used deceptive pricing practices to charge thousands
of New Jersey customers higher rates for natural gas. On July 6,
2016, the defendant filed the instant motion to dismiss.
Judge Briccetti dismissed Hamlen's NJCFA claim.
Hamlen claimed Gateway made false, deceptive, and misleading
statements related to its variable-rate plan. Specifically,
Hamlen argued Gateway misled him to believe its rates would "be
competitive with other suppliers in the market and that the prices
would in fact reflect [defendant's] wholesale costs as well as
market conditions."
Judge Briccetti, however, found that the contract expressly
authorizes Gateway to set its rate "based on [its] own evaluation
of a number of factors that affect the total price of . . .
natural gas to a customer," and expressly disclaims that the rate
would be lower than competitors' rates. The judge held that the
fact that Gateway exercised its discretion to set rates higher --
even substantially higher -- than the wholesale market or other
retail providers is not a sufficiently "substantial aggravating"
circumstance to state a valid NJCFA claim.
Judge Briccetti also dismissed Hamlen's breach of contract claim.
Hamlen claimed that Gateway breached the contract because it
failed to "set its variable rates based on factors disclosed in
the cont[r]act, in particular, [defendant's] cost for natural
gas," and other market conditions.
Judge Briccetti found that Hamlen provided only conclusory
allegations that Gateway failed to base its rates on its cost for
natural gas or market conditions. The judge also found that
Hamlen's non-conclusory allegations do not plausibly suggest
Gateway failed to evaluate its natural gas costs and market
conditions in setting the price it charged.
Judge Briccetti also dismissed Hamlen's unjust enrichment claim
because Hamlen did not contest Gateway's argument that New Jersey
law does not allow such claims when a valid contract governs the
relationship.
Judge Briccetti, however, declined to dismiss Hamlen's claim for
breach of the implied covenant of good faith and fair dealing.
The judge found that Hamlen sufficiently alleged that Gateway
acted in bad faith by exercising its discretion to charge
unreasonable rates to profiteer off its customers, who reasonably
expected to pay Gateway competitive prices for natural gas.
A full-text copy of Judge Briccetti's March 6, 2017 opinion and
order is available at https://is.gd/AeB29N from Leagle.com.
Robert Hamlen, Plaintiff, represented by Antonino B. Roman --
aroman@fbfglaw.com -- Finkelstein Blankinship, Frei- Pearson &
Garber, LLP, Todd Seth Garber -- tgarber@fbfglaw.com --
Finkelstein Blankinship, Frei- Pearson & Garber, LLP & Douglas
Gregory Blankinship -- gblankinship@fbfglaw.com -- Finkelstein
Blankinship, Frei- Pearson & Garber, LLP.
Gateway Energy Services Corporation, Defendant, represented by
Steven Miles Lucks -- slucks@fishkinlucks.com -- Fishkins Lucks
LLP, Andrew M. Edison -- andrew.edison@emhllp.com -- Edison,
McDowell & Hetherington LLP, Coleman B. Conkling --
cole.conkling@emhllp.com -- Edison, McDowell & Hetherington LLP &
Michael D. Matthews -- matt.matthews@emhllp.com -- Edison,
McDowell & Hetherington LLP.
INSTACART: Settles Workers' Class Action for $4.6 Million
---------------------------------------------------------
eMarketer reports that on-demand grocery delivery startup
Instacart has agreed to pay $4.6 million to settle a class-action
suit that claims the company failed to reimburse workers for
business expenses. That was just one of its 18 violations.
According to Re/code, the settlement is just a "drop in the bucket
for Instacart, which closed a new $400 million investment" that
values the company at around $3 billion.
JEMSEK CLINIC: 4th Cir. Vacates Excessive Sanctions vs Blue Cross
-----------------------------------------------------------------
The United States Court of Appeals for the Fourth Circuit vacated
the judgment of the district court adopting the bankruptcy court's
sanctions order in the case captioned BLUE CROSS BLUE SHIELD OF
NORTH CAROLINA, Plaintiff-Appellant, v. JEMSEK CLINIC, P.A.;
JOSEPH G. JEMSEK, M.D., an individual, Defendants-Appellees, No.
16-1030 (4th Cir.), relating to In Re: JEMSEK CLINIC, P.A.; JOSEPH
JEMSEK, Debtors.
In September 2006, Blue Cross and Blue Shield Association and its
member entities, including Blue Cross Blue Shield of North
Carolina ("Blue Cross NC") sued Dr. Joseph Jemsek and the Jemsek
Clinic in North Carolina state court. In its complaint, Blue
Cross NC asserted several state-law claims, including breach of
contract and fraud. Blue Cross NC estimated that from 2000 to
2005, Jemsek received more than $10 million in improper payments
for fraudulently "upcoding" many of his treatments and improperly
billing Blue Cross NC.
Jemsek responded by filing for Chapter 11 bankruptcy for himself
and on behalf of his clinic. He then removed Blue Cross NC's suit
to the bankruptcy court, where it continued as an adversary
proceeding. On January 24, 2007, Jemsek filed his answer,
affirmative defenses, and nine counterclaims. Seven of Jemsek's
counterclaims alleged essentially the same underhanded practices
at issue in the nationwide class action styled Love v. Blue Cross
and Blue Shield Ass'n, No. 03-21296-CIV (S.D. Fla. filed May 22,
2003), in which he is a putative class member. The remaining two
counterclaims, asserting defamation and tortious interference with
a business relationship, related to statements Blue Cross NC
allegedly made about Jemsek's practice to the North Carolina
Medical Board and the Centers for Disease Control and Prevention.
In total, Jemsek claimed he suffered at least $20 million in
damages.
On April 27, 2007, a few days before discovery began in the North
Carolina bankruptcy proceedings, the Love parties reached a
tentative settlement in Florida. Under the terms of the
settlement agreement, the Blue Cross companies agreed to pay $130
million and change their business practices. In exchange, the
Love plaintiffs released their claims against the Blue Cross
companies. On May 31, 2007, the Love court preliminarily approved
the settlement and enjoined the plaintiffs from litigating any
released claims pending final approval. The injunction applied to
Jemsek's first seven counterclaims.
In November 2009, after a nearly two-year hiatus in the North
Carolina bankruptcy proceedings, Jemsek filed a motion for
sanctions against Blue Cross NC. The bankruptcy court granted the
motion, finding that Blue Cross NC purposefully avoided informing
the court and Jemsek about the Love settlement and the May 31
injunction.
The bankruptcy court dismissed Blue Cross NC's claims with
prejudice and ordered it to pay Jemsek a total of $1.29 million in
attorneys' fees and costs. This included nearly all of the
attorneys' fees and costs Jemsek incurred in the bankruptcy
proceedings and while defending against Blue Cross NC in Florida,
including the appellate litigation.
On appeal, the Fourth Circuit found that Blue Cross NC did not
violate the Love court's injunction by pursuing its claims against
Jemsek because Blue Cross NC was not one of the signatory medical
societies or releasing parties covered by the injunction. The
Fourth Circuit held, however, that the bankruptcy court could
reasonably infer that Blue Cross NC acted in bad faith in failing
to inform the court of the Love court's injunction earlier.
Nevertheless, the Fourth Circuit did not think that Blue Cross
NC's conduct called for the most extreme sanction available. The
appellate court held that although Blue Cross NC certainly wasted
the time and resources of Jemsek and, most importantly, the
bankruptcy court, the latter court erred when it determined that
it could sanction Blue Cross NC for Jemsek's loss of his
counterclaims. The Fourth Circuit found that dismissal with
prejudice was unduly severe.
The Fourth Circuit also found that the court abused its discretion
by awarding fees related to discovery before May 31, 2007 because
Jemsek incurred these expenses before the Love court preliminarily
approved the settlement and enjoined litigation of the released
claims. The appellate court also found that Jemken's expenses
related to the Florida and Eleventh Circuit litigation are not
fairly attributable to Blue Cross NC's misconduct.
A full-text copy of the Fourth Circuit's March 3, 2017 order is
available at https://is.gd/Fz79rh from Leagle.com.
ARGUED: Christopher Grafflin Browning, Jr. --
chris.browning@troutmansanders.com -- TROUTMAN SANDERS LLP,
Raleigh, North Carolina, for Appellant.
William D. Blakely -- wblakely@polsinelli.com -- POLSINELLI PC,
Washington, D.C., for Appellees.
ON BRIEF: J. Nick Phillips, TROUTMAN SANDERS LLP, Atlanta,
Georgia, for Appellant.
Lauren P. Desantis-Then, Washington, D.C., Mit S. Winter,
POLSINELLI PC, Kansas City, Missouri, for Appellees.
JOHNSON & JOHNSON: Court Certifies Langan's Bath Case Class
-----------------------------------------------------------
The Hon. Jeffrey Alker Meyer entered an order in the combined
cases styled HEIDI LANGAN, on behalf of herself and all others
similarly situated v. JOHNSON & JOHNSON CONSUMER COMPANIES, INC.,
Case Nos. 3:13-cv-1470 (JAM) and 3:13-cv-1471 (JAM) (D. Conn.):
-- denying the cross-motions for summary judgment in both
cases;
-- denying the motions to exclude the expert testimony of Dr.
Elizabeth Howlett, and Colin Weir;
-- denying the motion to certify the class in
Case No. 13-cv-1470; and
-- granting the motion to certify the class in
Case No. 13-cv-1471. The class is defined as:
All purchasers of the Aveeno(R) Baby Brand Wash and Shampoo
until November of 2012 and Aveeno(R) Baby Brand Calming
Comfort Bath baby wash until November of 2013, beginning on
the following dates in the following states: in Alaska from
January 25, 2011 in California, Connecticut, Delaware, the
District of Colombia, Illinois, New York and Wisconsin from
January 25, 2010; in Florida, Hawaii, Massachusetts, and
Washington from January 25, 2009; in Arkansas and Missouri
from January 25, 2008; in Michigan, New Jersey, and Vermont
from January 25, 2007; in Rhode Island from January 25,
2003; and in any additional states which the Court
determines to have sufficiently similar law to Connecticut
without creating manageability issues, who purchased the
Products primarily for personal, family or household
purposes. Specifically excluded from this Class are: the
Defendant, the officers, directors and employees of
Defendant; any entity in which Defendant has a controlling
interest; any affiliate, legal representative of Defendant;
the judge to whom this case is assigned and any member of
the judge's immediate family; and any heirs, assigns and
successors of any of the above persons or organizations in
their capacity as such.
"I conclude that the proposed class is ascertainable and that all
other certification requirements are satisfied, and therefore I
will certify the proposed class for the Bath Case," Judge Meyer
stated.
The combined cases concern when a company may lawfully call its
products "natural." Plaintiff Heidi Langan has brought two
putative class actions alleging deceptive marketing practices in
the well-known Aveeno line of products, produced by Defendant
Johnson & Johnson. In one case (the Sun Case), she challenges the
Defendant's claim as displayed on product labels that its
sunscreens contain "100% naturally-sourced sunscreen ingredients."
In the other case (the Bath Case), she challenges the labeling
claim that Aveeno baby washes use a "Natural Oat Formula."
Copies of the same Order filed in the two cases are available at
no charge at:
* http://d.classactionreporternewsletter.com/u?f=yKlUXk2s
* http://d.classactionreporternewsletter.com/u?f=8gwOTfxb
KB SAND: Faces "Coate" Suit Over Non-Payment of Wages and OT Pay
----------------------------------------------------------------
Ray Coate, individually and on behalf of all others similarly
situated, Plaintiff v. K.B. Sand, Inc., Chance Mitchell and Haley
Mitchell, Defendants, Case No. 5:17-cv-00333-M (S.D. N.Y., March
24, 2017) seeks payment of unpaid wages and overtime pay under the
Fair Labor Standards Act.
KB Sand is a trucking company. Plaintiff was employed as
commercial driver by the Defendant. [BN]
The Plaintiff is represented by:
Noble K. McIntyre, Esq.
McIntyre Law PC
8601 S. Western Avenue
Oklahoma City, OK 73139
Tel: (405) 917-5250
Fax: (405) 917-5405
Email: noble@mcintyrelaw.com
- and -
Clif Alexander, Esq.
Austin W. Anderson, Esq.
Anderson2X, PLLC
819 N. Upper Broadway
Corpus Christi, TX 78401
Tel: (361) 452-1279
Fax: (361) 452-1284
Email: clif@a2law.com
austin@a2xlaw.com
LOMA RENTALS: Faces "Bragg" Suit Over Failure to Pay OT Pay
-----------------------------------------------------------
Duward Bragg, individually and on behalf of all others similarly
situated, Plaintiffs v. Loma Rentals, L.L.C. and Douglas Farrell,
Defendants, Case No. 3:17-cv-00852 (N.D. Tex., March 24, 2017) is
brought against the Defendants for failure to pay overtime
compensation for all hours worked over 40 each workweek in
violation of the Fair Labor Standards Act.
Plaintiff was employed as a Gate Guard for Loma Rentals. During
his employment, Plaintiff was misclassified as an independent
contractor, says the complaint.
Loma Rentals, LLC offers oil and gas equipment rental, production
testing, flowback and gate guard services in Texas, Louisiana and
Oklahoma. [BN]
The Plaintiff is represented by:
Clif Alexander, Esq.
Austin W. Anderson, Esq.
Lauren E. Braddy, Esq.
Anderson2X, PLLC
819 N. Upper Broadway
Corpus Christi, TX 78401
Tel: (361) 452-1279
Fax: (361) 452-1284
Email: clif@a@2xlaw.com
austin@a2xlaw.com
lauren@a2xlaw.com
MARICOPA, AZ: Detainees' Bid to Enforce Amended Judgment Denied
---------------------------------------------------------------
Judge Neil V. Wake of the U.S. District Court for the District of
Arizona has denied the plaintiffs' motion to enforce the Fourth
Amended Judgment and for additional relief in the case captioned
Fred Graves, Isaac Popoca, on their own behalf and on behalf of a
class of all pretrial detainees in the Maricopa County Jails,
Plaintiffs, v. Paul Penzone, Sheriff of Maricopa County; Bill
Gates, Steve Gallardo, Denny Barney, Steve Chucri, and Clint L.
Hickman, Maricopa County Supervisors, Defendants, No. CV-77-00479-
PHX-NVW (D. Ariz.).
Pretrial detainees held in the Maricopa County Jail brought a
class action in 1977 against the Maricopa County Sheriff and the
Maricopa County Board of Supervisors seeking injunctive relief for
alleged violations of their civil rights. On March 27, 1981, the
parties entered into a consent decree that addressed and regulated
aspects of the County jail operations as they applied to pretrial
detainees.
On January 10, 1995, upon stipulation of the parties, the 1981
consent decree was superseded by the Amended Judgment, which
subsequently went through further amendments. After multiple
rounds of evidentiary hearings and detailed findings of fact and
conclusions of law, it became plain that in order for the
defendants to bear their burden of proof, the prospective relief
must include concrete, demonstrable requirements that would show
the correction of constitutional violations was systemic and
consistent, i.e., institutionalized. In the Revised Fourth
Amended Judgment, specific constitutional deficiencies were
identified, and specific remedies tailored to address those
deficiencies were ordered.
On February 15, 2017, oral argument was heard regarding the
following pending motions and the defendants' proof of compliance
with the Revised Fourth Amended Judgment:
(1) Defendants' Report and Supplemental Report of Data
Collected and Summarized regarding Defendants'
compliance with Paragraph 5 of the Revised Fourth
Amended Judgment;
(2) Plaintiffs' Motion to Enforce Fourth Amended Judgment
and for Additional Relief; and
(3) Plaintiffs' Motion for Evidentiary Hearing.
Collectively, the defendants' compliance reports and the
plaintiffs' motions disputed whether the Revised Fourth Amended
Judgment should be terminated, whether additional prospective
relief under the Prison Litigation Reform Act is required, and
whether another evidentiary hearing is required to decide those
issues.
Judge Wake denied the plaintiffs' motion for a further evidentiary
hearing, pointing out that the parties have been provided multiple
opportunities to submit evidence regarding the defendants'
compliance with the Revised Fourth Amended Judgment.
Judge Wake also found that rather than seeking enforcement of the
Revised Fourth Amended Judgment, the plaintiffs were actually
seeking new injunctive relief to resolve longstanding problems
outside the scope of the class action. The plaintiffs asked the
Court to order the defendants to ensure that patients are timely
transferred to the Arizona State Hospital or, alternatively, order
the defendants to "better utilize the county-operated Desert Vista
psychiatric facility or form contracts with other psychiatric
facilities that can provide appropriate care." In addition, the
plaintiffs sought an order that the defendants identify and
transfer patients in need of inpatient care to Desert Vista or
other facilities not only for court-ordered evaluations, but also
for longer periods of treatment.
Judge Wake found that the plaintiffs' arguments, couched as a
motion to enforce the Revised Fourth Amended Judgment, seek
remedies that were not ordered in Paragraph 5 of the Revised
Fourth Amended Judgment. The judge explained that the Court has
previously considered the issues, evidence, and expert opinions
the plaintiffs presented in their Motion to Enforce the Revised
Fourth Amended Judgment. Upon reconsideration, the judge held
that the 2014 evidence, supplemented by 2015 evidence, does not
show that prospective relief in addition to that ordered in
Paragraph 5 of the Revised Fourth Amended Judgment is
constitutionally required. Therefore, the plaintiffs' motion was
denied.
As to the defendants' compliance, Judge Wake found that the
defendants have demonstrated compliance with the following
subparagraphs of Paragraph 5(a) of the Revised Fourth Amended
Judgment: (1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11),
(12), (13), (14), (15), (16), (18), (19), (21), (30), and (31).
However, the judge also found that the defendants have not
demonstrated compliance with the following subparagraphs of
Paragraph 5(a) of the Revised Fourth Amended Judgment: (17), (20),
(22), (23), (24), (25), (26), (27), (28), and (29).
A full-text copy of Judge Wake's March 1, 2017 order is available
at https://is.gd/jwVIkH from Leagle.com.
Fred Graves, Isaac Popoca, are represented by:
Margaret Winter, Esq.
Daniel Joseph Pochoda, Esq.
Eric Balaban, Esq.
Gabriel Eber, Esq.
Kathleen E. Brody, Esq.
ACLU
125 Broad Street, 18th Floor
New York, NY 10004
Tel: (212)549-2500
-- and --
Theodore C. Jarvi, Esq.
LAW OFFICES OF THEODORE JARVI
1050 E. Southern Avenue, Suite G-3
Tempe, AZ 85282
Tel: (480)838-6566
Paul Penzone, Bill Gates, Steve Gallardo are represented by:
Michele Marie Iafrate, Esq.
IAFRATE & ASSOCIATES
-- and --
Sherle Rubin Flaggman, Esq.
MARICOPA COUNTY ATTORNEYS OFFICE -
CIVIL SERVICES DIVISION
301 West Jefferson Street, Suite 800
Phoenix, AZ 85003
Tel: (602)506-3411
Denny Barney, Steve Chucri, Clint L Hickman are represented by:
Michele Marie Iafrate, Esq.
IAFRATE & ASSOCIATES
Todd Wilcox, Dr is represented by:
Stephen C. Clark, Esq.
JONES WALDO HOLBROOK & MCDONOUGH
170 S. Main Street, Suite 1500
Salt Lake City, UT 84101-1644
Tel: (801)521-3200
Fax: (801)328-0537
MARS PETCARE: Sued Over Deceptive Prescription Dog Food Marketing
-----------------------------------------------------------------
Beth Velliquette, writing for Reflector.com, reports that some of
the largest pet food suppliers in the country have been
overcharging pet owners by charging more for prescription dog food
when it doesn't actually include any medicine, according to a
Greenville lawyer who is working on a class-action lawsuit against
those pet food manufacturers.
Lynwood Evans, Esq. -- lpe@wardandsmith.com -- a lawyer at Ward
and Smith P.A.'s Greenville office, is working on the lawsuit
along with other Ward and Smith attorneys in Willmington, as well
as attorneys in San Francisco, Minneapolis and Atlanta.
The lawsuit, filed in U.S. District Court in the Northern District
of California last fall, is a class-action lawsuit and was filed
against Mars Petcare U.S. Inc.; Royal Canin U.S.A. Inc.; Nestle
Purina Petcare Co.; Hill's Pet Nutrition Inc.; Petsmart Inc.;
Medical Management International Inc, which does business as
Banfield Pet Hospital; and BluePearl Vet. LLC.
The lawsuit claims that the prescription dog foods include: Hill's
Prescription Diet, Purina Pro Plan Veterinary Diets, Royal Canin
Veterinary Diet and Iams Veterinary Formula.
The suit claims that the dog food companies sell prescription dog
foods that do not actually contain any medicine or other
ingredients that would require a prescription.
"In selling prescription pet food, defendants are taking advantage
and betraying the trust of vulnerable pet owners concerned about
the health of their pets, and are preying on the known
propensities of consumers to love their pets and trust their
vets," the suit states.
Their marketing and labeling is deceptive, collusive and in
violation of federal antitrust law and various state consumer-
protection laws, the suit states.
The ingredients in the prescription dog food are the same as non-
prescription dog food, but pet owners are paying much more for it
than non-prescription food, Mr. Evans said.
For example, a 25-pound bag of prescription dog food could cost up
to $100, he said.
"When you tell someone that a prescription is required, that means
something to consumers," Evans said. "They believe it's necessary
for their pet's health. They're willing to pay the price
difference between the non-prescription and the prescription food,
when in reality there are no drugs in the food and they're
basically the same as the non-prescription food."
The lawsuit claims that the Banfield Pet Hospital has about 900
veterinary centers in PetSmart's 1,145 stores in the United
States. It is the largest veterinary chain in the United States
and employs about 3,200 vets, according to the lawsuit.
Mars owns about 79 percent of Banfield Pet Hospital, and PetSmart
owns about 21 percent, according to the lawsuit. Mars also owns
Blue Pearl Vet Hospital, which has 50 locations and 600
veterinarians.
The food companies are connected to the veterinary hospitals that
prescribe the food, Evans said.
"They manufacture the food. They are dictating the prescriptions
requirements. They are employing the vets who prescribe the food,
which is more expensive," he said.
The lawsuit began in eastern North Carolina, and several of the
plaintiffs live in the region. Other plaintiffs live in eight
other states, he said.
"The idea was born here," Mr. Evans said.
Because Ward and Smith is taking on some of the largest dog food
manufacturers in the world, it has added other law firms in other
states, with different types of expertise, to work on the lawsuit,
he said.
The lawsuit demands that the pet food companies be ordered to stop
further deceptive distribution, marketing and or sales practices
with respect to prescription pet food; that they disgorge all or
part of their ill-gotten profits for the benefit of the plaintiffs
and class members; award three-fold damages, pay compensatory,
statutory, exemplary and punitive damages and pay attorney fees.
People who have purchased the prescribed pet foods during the past
three years may be eligible to join the class action lawsuit. Call
844-321-9425 for more information.
MCQUEEN & JORDAN: "Dobey" Seeks Unpaid Overtime Wages
-----------------------------------------------------
Katrina Dobey, on behalf of herself and FLSA Collective
Plaintiffs, Plaintiff, v. McQueen & Jordan Enterprises, Inc. and
Conrad Graham, Defendants, Case No. 1:17-cv-01675, (E.D. N.Y.,
March 27, 2017), seeks to recover unpaid overtime, unpaid minimum
wages, liquidated damages, statutory penalties and attorneys' fees
and costs pursuant to the New York Labor Law and the Fair Labor
Standards Act.
Dobey was hired by the Defendants to work as a cleaner for their
cleaning business located at 128-07 235th Street, Laurelton, NY
11422. [BN]
Plaintiff is represented by:
C.K. Lee, Esq.
Anne Seelig, Esq.
LEE LITIGATION GROUP, PLLC
30 East 39th Street, Second Floor
New York, NY 10016
Tel: (212) 465-1188
Fax: (212) 465-1181
MICROSOFT CORP: Faces Class Action Over Windows 10 Upgrade
----------------------------------------------------------
Nick Heath, writing for TechRepublic, reports that Microsoft faces
a multi-million dollar, class action lawsuit from US citizens who
claim they lost data or suffered 'damage to software or hardware'
after upgrading to Windows 10.
The case, filed on March 24, is seeking for Microsoft to pay more
than $5m in damages, excluding costs and interest, to the 100-plus
members of the class action suit.
"Many consumers have had their existing software and data rendered
inoperable by the Windows 10 installation," according to the
filing, made to the US District Court for the Northern District of
Illinois.
"As a result of its failure to exercise reasonable care, defendant
distributed an operating system that was liable to cause loss of
data or damage to hardware."
The complaints relate to the free Windows 10 upgrade that
Microsoft offered to Windows 7 and 8 users until July 2016, one
year after Windows 10's launch.
The court documents cite specific cases where residents of
Illinois been affected. In one instance, plaintiff
Howard Goldberg attempted to download the Windows 10 upgrade, but
after three attempts "Goldberg's computer was damaged, and Windows
10 was not actually downloaded and functional", the filing says.
Microsoft told Mr. Goldberg he would have to pay for assistance as
his machine was out of warranty, the document claims, and he had
to pay a third party to make his PC usable.
Another plaintiff, Stephanie Watson, lost data after her machine
was upgraded to Windows 10, the filing states, and "had to
purchase a replacement machine in order to have a fully
functioning computer".
The lawsuit seeks damages for all Illinois residents who suffered
loss of data or damage to their computer within 30 days of a
Windows 10 upgrade. The suit goes as far as saying that "consumers
have had their hard drive fail because of the Windows 10
installation".
The filing also raises the issue of plaintiffs being upgraded to
Windows 10 without knowingly accepting the upgrade.
"A great number of people have installed the Windows 10 system
inadvertently or without full realization of the extent of the
download," the document states.
"The Windows 10 system often installs itself without any action
being taken by the consumer. The first the consumer knows of the
installation is a message on the computer screen, 'DO NOT TURN OFF
YOUR COMPUTER WHILE WINDOWS 10 IS BEING DOWNLOADED'."
Responding to the suit, a Microsoft spokesperson said: "Customers
had the option not to upgrade to Windows 10.
"If a customer who upgraded during the one year program needed
help with the upgrade experience, we had numerous options
including free customer support and 31 days to roll back to their
old operating system. We believe the plaintiffs' claims are
without merit."
Last year, a US small claims court ruled that Microsoft should pay
$10,000 to Teri Goldstein, a travel agent based in Sausalito,
California, who said an unwanted Windows 10 upgrade made her PC
unstable.
NAVIENT SOLUTIONS: Ponce Moves for Class Certification Under TCPA
-----------------------------------------------------------------
The Plaintiff in the lawsuit entitled ALFRED PONCE, Individually
and On Behalf of All Others Similarly Situated v. NAVIENT
SOLUTIONS, INC., Case No. 2:17-cv-00551-PA-AFM (C.D. Cal.), asks
the Court to certify a class consisting of:
All persons within the United States who received any
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.
The lawsuit is brought over alleged violations of the Telephone
Consumer Protection Act.
Mr. Ponce also asks the Court to appoint him as Class
Representative, and his attorneys as Class Counsel.
The Court will commence a hearing on December 18, 2017, at 1:30
p.m., to consider the Motion.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=sxONwNcr
The Plaintiff is represented by:
Todd M. Friedman, 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
NPC INT'L: Faces "Collins" Suit Over FLSA Violation in Ill.
-----------------------------------------------------------
Tony Collins, et al., for themselves and all others similarly
situated, Plaintiffs v. NPC International, Inc., Defendant, Case
No. 3:17-cv-00312 (S.D. Ill., March 24, 2017) seeks to redress
Defendant's systematic policy and practice of paying its delivery
drivers hourly wages below minimum in violation of the Fair Labor
Standards Act and Illinois Minimum Wage Law.
Plaintiff Collins works as a delivery driver for Defendant in
Illinois.
NPC is the largest Pizza Hut franchisee in the United States and
operates more than 1,240 Pizza Hut restaurants across the country,
including the stores where each Plaintiff was employed.
The Plaintiffs are represented by:
Michael Marrese, Esq.
C. Ryan Morgan, Esq.
Morgan & Morgan, P.A.
20 North Orange Avenue, 14th Floor
P.O. Box 4979
Orlando, FL 32802
Tel: (407) 420-1414
Fax: (407) 245-3401
- and -
Jeremiah Frei-Pearson, Esq.
Todd S. Garber, Esq.
Chantal Khalil, Esq.
Finkelstein, Blankinship, Frei-Pearson & Garber, LLP
445 Hamilton Avenue, Suite 605
White Plains, NY 10601
Tel: (914) 298-3281
Fax: (914) 824-1561
NY PORT AUTHORITY: "Holden" Alleges Frame up, Discrimination
------------------------------------------------------------
Cornell Holden and Miguel Mejia on behalf of themselves and all
others similarly situated, Plaintiffs, v. The Port Authority Of
New York and New Jersey, The Port Authority Police Department
(PAPD) and Michael Opromalla, Shaun Kehoe, John Tone and John Doe
Officers l-4, sued in their individual capacities and official
capacities as officers of the Port Authority Police Department,
Defendants, Case No. 1:17-cv-02192, (S.D. N.Y., March 27, 2017),
seeks compensatory and punitive damages together with interest and
costs for violation of the Fourth and Fourteenth Amendments to the
United States Constitution. The suit also seeks reasonable
attorneys' fees and costs and such other and further relief.
PAPD officers allegedly target and wrongly arrest men perceived as
gay and/or gender non-conforming, on baseless charges including
public lewdness and exposure, falsely claiming that they were
engaged in illegal conduct at restroom urinals. PAPD officers
often pretend to use urinals next to targeted individuals in men's
restrooms. Plaintiff allege that they were framed by the police
and charged with public lewdness.[BN]
Plaintiff is represented by:
Thomas Patrick Lane, Esq.
Michael S. Elkin, Esq.
Ross M. Kramer, Esq.
Dorian S. Thomas, Esq.
WINSTON AND STRAWN LLP
200 Park Avenue
New York, NY 10166
Tel: (212) 294-6700
- and -
William Gibney, Esq.
Kimberly Forte, Esq.
Cynthia Cami-Cook, Esq.
THE LEGAL AID SOCIETY
199 Water Street
New York, NY 10038
Tel: (212) 577-3300
PAYPAL INC: "Hodges" Sues Over Illegal Collection Calls
-------------------------------------------------------
Jenni Hodges, individually and on behalf of all others similarly
situated, Plaintiff, v. Paypal, Inc. and Does 1 through 10,
inclusive, Defendant, Case 2:17-cv-00642 (E.D. Cal., March 27,
2017) seeks actual damages, statutory damages for willful and
negligent violations, costs and reasonable attorney's fees and
such other and further relief under the Telephone Consumer
Protection Act.
Defendant contacted Plaintiff on her cellular telephone number in
an effort to collect an alleged debt owed from Plaintiff using an
automatic telephone dialing system. Defendant's calls constituted
calls that were not for emergency purposes. [BN]
Plaintiff is represented by:
Todd M. Friedman, Esq.
Meghan E. George, Esq.
Adrian R. Bacon, Esq.
Thomas E. Wheeler, 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
Email: tfriedman@toddflaw.com
mgeorge@toddflaw.com
abacon@toddflaw.com
twheeler@toddflaw.com
POLLACK & ROSEN: "Lee" Sues Over Deceptive Collection Letter
------------------------------------------------------------
Tamyka M. Lee, on behalf of herself and all others similarly
situated, Plaintiff, v. Pollack & Rosen, P.A. and Joseph F. Rosen,
Case No. 0:17-cv-60610, (S.D. Fla., March 27, 2017), seeks
statutory damages, attorney's fees, litigation expenses and costs
of suit and such other or further relief under the Fair Debt
Collection Practices Act.
Joseph F. Rosen is a lawyer and a principal of the law firm
Pollack & Rosen, P.A., currently in the business of collecting
debts. Lee incurred an alleged debt to Memorial Regional Hospital
for medical services of which Defendants were tasked to collect.
In violation of Sec. 1692g(a)(4) and 1692e of the Fair Debt
Collection Practices Act, Defendants' collection letter did not
include a statement that if the consumer notifies the debt
collector in writing within the thirty-day period that the debt,
or any portion thereof, is disputed, the debt collector will
obtain verification of the debt or a copy of a judgment against
the consumer and a copy of such verification or judgment will be
mailed to the consumer by the debt collector. [BN]
Plaintiff is represented by:
Donald A. Yarbrough, Esq.
Post Office Box 11842
Fort Lauderdale, FL 33339
Telephone: (954) 537-2000
Facsimile: (954) 566-2235
Email: donyarbrough@mindspring.com
- and -
O. Randolph Bragg, Esq.
HORWITZ, HORWITZ & ASSOCIATES
25 East Washington Street, Suite 900
Chicago, IL 60602
Tel: (312) 372-8822
Email: rand@horwitzlaw.com
POWER DESIGN: Mayor Moves for Certification of Employees Class
--------------------------------------------------------------
The Plaintiffs move the Court to conditionally certify a
representative class in the lawsuit titled JUAN MAYOR, VICTOR F.
PEREYRA, JORGE MOLINA, RODOLFO ROMAN, FILIPPO MOLINA, ALEXANDER
URREA, ENRIQUE RUBI, and other similarly situated individuals v.
POWER DESIGN, INC., Defendant/Cross-Plaintiff and E&C ALLIANCE
ELECTRICAL INC. f/k/a E&C ALLIANCES SVCS INC., CLAUDIA TOQUICA and
EDWARD CRUZ, Defendants/Cross-Defendants, Case No. 1:16-cv-25176-
JEM (S.D. Fla.), and permit court-supervised notification.
The complaint alleges that the Plaintiffs, as well as other
similarly situated employees, have been damaged as a result of the
Defendants' failure to properly compensate them and such other
similarly situated individuals for all hours worked, in violation
of the Fair Labor Standards Act.
All current and former employees, who are, were or have worked in
excess of 40 hours per week without being properly compensated at
a rate of time and a half, or have not been paid the statutorily
mandated minimum wage, and employed by the Defendants within the
three year period prior to the filing of the lawsuit, should be
provided notification of the pendency of this action and of their
right to opt-into this action should they file a notice of consent
with the clerk of the Court, the Plaintiffs contend.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=ihJd1N4v
The Plaintiffs are represented by:
Andres Rivera-Ortiz, Esq.
SAENZ & ANDERSON, PLLC
20900 N.E. 30th Avenue, Suite 800
Miami, FL 33180
Telephone: (305) 503-5131
Facsimile: (888) 270-5549
E-mail: andres@saenzanderson.com
Defendant/Cross-Plaintiff POWER DESIGN, INC., is represented by:
Ignacio J. Garcia, Esq.
Vanessa A. Patel, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
100 North Tampa Street, Suite 3600
Tampa, FL 33602
Telephone: (813) 289-1247
Facsimile: (813) 289-6530
E-mail: iggy.garcia@ogletreedeakins.com
vanessa.patel@ogletreedeakins.com
PRIMORIS SERVICES: "Atkins" Suit Removed to W.D. La.
----------------------------------------------------
Terrance Atkins, et al., individually and on behalf of all others
similarly situated, Plaintiffs v. Primoris Services Corporation
and Primoris Energy Services Corporation, Defendants, (Case No.
2:17-cv-00454, December 14, 2016) was removed from the Southern
District of Texas, to the U.S. District Court for the Western
District of Louisiana (Lake Charles) on March 27, 2017.
The Plaintiffs seeks to recover payment of overtime wages.
Primoris provides a wide range of construction, fabrication,
maintenance, replacement, water and wastewater and engineering
services to major public utilities, petrochemical companies,
energy companies, municipalities and other customers.
The Plaintiffs are represented by:
Robert R Debes, Jr., Esq.
Ricardo J Prieto, Esq.
ShellistLazarzSlobin
11 Greenway Plaza Ste 1515
Houston, TX 77046
Tel: (713) 621-2277
Email: bdebes@eeoc.net
rprieto@eeoc.net
The Defendants are represented by:
Christopher Glenn Morris, Esq.
Baker Donelson et al (BR)
450 Laurel St 20th Fl
Baton Rouge, LA 70801
Tel: (225) 381-7000
Fax: (225) 343-3612
Email: cmorris@bakerdonelson.com
- and -
Elizabeth Ann Liner, Esq.
Baker Donelson et al (BR)
450 Laurel St 20th Fl
Baton Rouge, LA 70801
Tel: (225) 381-7036
Fax: (225) 382-0236
Email: bliner@bakerdonelson.com
- and -
Karen Denise Smith, Esq.
Baker Donelson (HOU)
1301 McKinney Ste 3700
Houston, TX 77010
Tel: (713) 650-9700
Fax: (713) 650-9701
Email: kasmith@bakerdonelson.com
- and -
Phyllis GuinCancienne, Esq.
Baker Donelson et al (BR)
450 Laurel St 20th Fl
Baton Rouge, LA 70801
Tel: (225) 381-7000
Fax: (225) 343-3612
Email: pcancienne@bakerdonelson.com
PURDUE PHARMA: Everett Sues Over OxyContin Pill Mills
-----------------------------------------------------
The Seattle Times reports that GIVE Everett Mayor Ray Stephanson
and the Everett City Council credit for boldness. Inspired by a
stellar work of journalism about the irresponsible makers of
OxyContin, the city filed a groundbreaking lawsuit to recoup costs
of the epidemic.
City of Everett vs. Purdue Pharma is based on a new legal theory
that -- if it is successful -- other cities should consider. The
federal lawsuit alleges the corporation was willfully blind to
pill mills that pumped the potent narcotic straight into the black
market. Purdue denies this.
A Los Angeles Times investigation last year connected the dots
between one pill mill near Los Angeles and an enterprising drug
dealer who flooded Everett's streets with 80 milligram OxyContin
tabs, at $80 a pop. The dealer actually wore a diamond pendant
tracing the "OxyContin trail" from L.A. to the Seattle area in
green gems.
The story documented extensive internal Purdue monitoring of pill
mills which weren't forwarded to federal agents, even as the
corporation racked up massive profits. That conduct, coupled with
the excruciating toll of the opioid epidemic and ensuing heroin
epidemic in Snohomish County, inspired Stephanson and company to
act.
At the peak of the opioid epidemic, one in five of the heroin
overdoses statewide occurred in Snohomish County. In the county
jail, 50 or 60 people are detoxing at any given moment. The rate
of heroin treatment admissions for teenagers utterly skyrocketed
in the past decade.
Purdue's lawyers are already arguing that Oxycontin's sales are
"multiple layers removed" from heroin overdoses in Everett, so
they shouldn't have to help pay for the mess. Well, if a
corporation is deemed a person for campaign spending purposes,
then they are also responsible to better their community.
The lawsuit, filed in U.S. District Court in Seattle, is still in
the early stages, and the unprecedented nature of it makes it an
unsure bet. Purdue has already settled class-action lawsuits,
including with Washington state, over deceptive marketing
practices related to OxyContin, and the corporation has been sued
and sued by the families of overdose victims. But Everett is
apparently the first city in the country to sue on an allegation
that the corporation knew, or should have known, it was feeding
the black market.
Purdue asked a federal judge, Ricardo Martinez, to dismiss the
case, generating headlines around the country, in one ravaged town
after another.
Not surprisingly, Everett's lawyers have heard from at least a
half dozen other cities.
RANGER CONSTRUCTION: Faces "Agripino" Suit Over Non-Payment of OT
-----------------------------------------------------------------
Juan Agripino, et al., individually and on behalf of others
employees similarly situated, Plaintiffs v. Ranger Construction,
Inc. and Satwant K. Kaler, individually, Defendants, Case No.
1:17-cv-02238 (N.D. Ill., March 23, 2017) seeks payment of
overtime wages for hours worked in excess of 40 hours in a
workweek and all earned prevailing wages pursuant to Fair Labor
Standards Act and Illinois Minimum Wage Law.
Plaintiffs were construction workers of the Defendants.
Ranger Construction is a major road building, site work, asphalt
paving, and excavation contractor serving the central and
southeast areas of Florida.[ BN]
The Plaintiffs are represented by:
Raisa Alicea, Esq.
Consumer Law Group, LLC
6232 N. Pulaski, Suite 200
Chicago, IL 60646
Tel: 312-800-1017
Email: ralicea@yourclg.com
SAMSUNG ELECTRONICS: 3rd Cir. Rejects Bid to Compel Arbitration
---------------------------------------------------------------
In the case captioned DAVID W. NOBLE, individually and on behalf
of others similarly situated, v. SAMSUNG ELECTRONICS AMERICA,
INC., Appellant, No. 16-1903 (3rd Cir.), the United States Court
of Appeals for the Third Circuit affirmed the district court's
order denying the motion to compel arbitration.
David Noble filed a complaint in the United States District Court
for the District of New Jersey on behalf of himself and others
similarly situated, alleging six causes of action based on (1) the
New Jersey Consumer Fraud Act (NJCFA), (2) common law fraud, (3)
negligent misrepresentation, (4) breach of an express warranty,
(5) breach of the implied warranty of merchantability, and (6)
unjust enrichment. All of those claims arose out of what is said
to be Samsung's "fraudulent and deceptive marketing and pricing"
related to the battery life of the Smartwatch.
Samsung moved to compel arbitration on all of Noble's individual
claims and to dismiss his class claims, citing a purported
arbitration clause, which appears on the 97th page of a "Health
and Safety and Warranty Guide."
The district court held that Samsung had not provided reasonable
notice of the arbitration provision and, consequently, Noble could
not be treated as if he had assented to it. In short, there was
no meeting of the minds and no binding contract under New Jersey
law. Although the Court recognized that the Guide was readily
available, the issue was whether the clause itself was "readily
ascertainable or unreasonably hidden." The court determined that
the clause was unreasonably hidden and that Samsung's motion thus
had to be denied.
On appeal, the Third Circuit refused to presume that consumers
read or had notice of the purportedly binding agreement. The
Third Circuit held that the district court correctly concluded
that there was no mutual assent here because Noble lacked
reasonable notice of the arbitration provision.
A full-text copy of the Third Circuit's March 3, 2017 opinion is
available at https://is.gd/ySTKA5 from Leagle.com.
S. Gale Dick, [ARGUED], Cohen & Gresser, 800, Third Avenue, New
York, NY 10022, Samuel P. Moulthrop -- smoulthrop@riker.com --
Stephanie R. Wolfe -- swolfe@riker.com -- Riker Danzig Scherer
Hyland & Perretti, One Speedwell Avenue, Headquarters Plaza,
Morristown, NJ 07962, Counsel for Appellant.
Rachel M. Clattenburg, [ARGUED], Scott L. Nelson, Public Citizen
Litigation Group, 1600, 20th Street, N.W., Washington, DC 20009,
Joseph J. DePalma -- jdepalma@litedepalmacom -- Lite DePalma
Greenberg, 570, Broad Street, Suite 1201, Newark, NJ 07102,
Benjamin D. Elga, Cuneo Gilbert & LaDuca, 16, Court Street, Suite
1012, Brooklyn, NY 11241, Counsel for Appellee.
SARAR USA: "Lewis" Sues Over Failure to Pay Overtime Pay
--------------------------------------------------------
Connell Lewis, et al., on behalf of themselves and all others
similarly situated, Plaintiffs v. Sarar USA Inc., et al.,
Defendants, Case No. 1:17-cv-02181 (S.D. N.Y., March 26, 2017) is
brought against the Defendants for failure to pay overtime
compensation for all hours worked over 40 each workweek in
violation of the Fair Labor Standards Act.
Plaintiffs are misclassified as exempt from coverage of overtime
provisions of the FLSA, says the complaint.
The Defendant owns and operates Sarar retail and outlet stores
(collectively, the "Stores") which offer, among other things,
men's apparel to customers at approximately 19 locations in the
United States. [BN]
The Plaintiffs are represented by:
Justin R. Marino, Esq.
J.R. Stevenson, Esq.
Stevenson Marino LLP
75 Maiden Lane, Suite 402
New York, NY 10038
Tel: (212) 939-7228
(212) 939-7588
Fax: (212) 531-6129
(212) 531-6129
Email: jmarino@stevensonmarino.com
jrs@stevensonmarino.com
SCRANTON, PA: 115 Landlords Join Rental Registration Fee Case
-------------------------------------------------------------
Jim Lockwood, writing for The Times-Tribune, reports that more
than 100 Scranton landlords recently joined a pending class-action
lawsuit that challenges the city's rental registration fees as
arbitrary and excessive, and seeks refunds.
The city's revision of rental registration rules in 2014, imposing
fees of $150 per building, $50 per unit and inspections, spurred a
lawsuit in 2015 in Lackawanna County Court from landlord Adam
Guiffrida.
His lawsuit claims the city set arbitrary, high fees and imposed
unwarranted inspections on only those few landlords who complied
and registered their properties. Law requires that such fees are
only supposed to cover administrative costs and not raise extra
cash for city coffers, the suit contends.
Mr. Guiffrida, who is not opposed to having to pay "reasonable"
rental registration fees, sued to force the city to refund
overcharges to anyone who paid the fees in 2014-15.
For example, in 2014, the city collected $527,344 in fees, but the
salaries of the two rental inspectors totaled $75,027, the lawsuit
said.
In March 2016, a judge certified the complaint as a class action,
which means all property owners who paid the fees would be
entitled to share in any recovery, without having to file
individual lawsuits.
The city responded in November by adopting a new rental
registration overhaul focused on getting more properties
registered; eliminating arbitrary, mandatory inspections;
providing a family exemption; and scrapping a $150 per-building
fee, but keeping the $50 per-unit fee.
Implementation and enforcement of these new rules has been on hold
because the lawsuit remains unresolved, Mr. Guiffrida said.
During discussions about the lawsuit, the city also provided to
Mr. Guiffrida's attorney, Paul Batyko of Moosic, a color-coded
spreadsheet list of 5,500 owners of rental units. Mr. Batyko
determined that 1,267 of those paid registration fees in 2014-15.
This group would be the potential class of plaintiffs.
Earlier this month, Mr. Batyko sent notices to the 1,267 landlords
alerting them that if they want to be eligible for potential
refunds, they must formally "opt in" as a class-action plaintiff
with the court by a deadline of May 19.
As of March 24, 115 landlords filed opt-in letters in court.
Mr. Guiffrida said in a phone interview that the city in its most-
recent overhaul arbitrarily maintained the $50 per unit fee, and
also allowed for improper attempts to collect unpaid fees from
tenants. He said he believes the city is stalling as a delay
tactic to wear him down.
"The case is dragging," Mr. Guiffrida said. "That's the city's
method of defending this case, to drag it out to bleed me
financially."
Efforts to reach city solicitor Jessica Boyles were unsuccessful.
Mr. Batyko said that because the city's cost of running the
registration program remains undetermined, a potential fee
reimbursement also remains undetermined. It's also not certain
that fees would end up reimbursed, but a step in the process is
for landlords to opt in to the class of plaintiffs, he said.
"We believe very strongly that they're going to be due a refund,"
Mr. Batyko said. "We don't know what the refund will be, because
we don't know what the proper level is."
SIMON'S LAWN CARE: "Johnson" Seeks to Recover Overtime Wages
------------------------------------------------------------
Elijah Johnson, individually, and on behalf of all others
similarly situated, Plaintiffs, v. Simon's Lawn Care, Inc. and
A.J. Simon, individually, Defendants, Case No. 2:17-cv-00171 (M.D.
Fla., March 27, 2017) seeks to recover unpaid overtime
compensation, liquidated damages and reasonable attorney's fees
and costs pursuant to the Fair Labor Standards Act.
Defendant operates a landscaping business where Plaintiff worked
as a foreman. [BN]
The Plaintiff is represented by:
Maria R. Alaimo, Esq.
VILES & BECKMAN, LLC
6350 Presidential Court, Suite A
Fort Myers, FL 33919
Telephone: (239) 334-3933
Facsimile: (239) 334-7105
Email: maria@vilesandbeckman.com
SOULCYCLE INC: Cody's Bid to Certify Class Taken Under Submission
-----------------------------------------------------------------
The Honorable Michael W. Fitzgerald takes under submission the
Plaintiff's motion for class certification submitted in the
lawsuit entitled Rachel Cody, etc. v. SoulCycle, Inc., Case No.
2:15-cv-06457-MWF-JEM (C.D. Cal.).
According to the Court's civil minutes, the Courtroom Deputy Clerk
distributed the Court's tentative ruling prior to the case being
called. Case called, and counsel made their appearance. The
Court heard oral argument from counsel and took the matter under
submission.
A copy of the Civil Minutes is available at no charge at
http://d.classactionreporternewsletter.com/u?f=W61Jctcv
The Plaintiffs are represented by:
Dorian S. Berger, Esq.
OLAVI DUNNE LLP
1880 Century Park East, Suite 815
Los Angeles, CA 90067
Telephone: (213) 516-7900
Facsimile: (213) 516-7910
E-mail: dberger@olavidunne.com
- and -
Nicholas R. Diamand, Esq.
Katherine C. Lubin, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
250 Hudson Street, 8th Floor
New York, NY 10013
Telephone: (212) 355-9500
Facsimile: (212) 355-9592
E-mail: ndiamand@lchb.com
kbenson@lchb.com
The Defendant is represented by:
Shirli Fabbri Weiss, Esq.
Keara M. Gordon, Esq.
Chelsea N. Mutual, Esq.
DLA PIPER LLP (US)
401 B Street, Suite 1700
San Diego, CA 92101-4297
Telephone: (619) 699-2700
Facsimile: (619) 699-2701
E-mail: shirli.weiss@dlapiper.com
keara.gordon@dlapiper.com
chelsea.mutual@dlapiper.com
TEMPUR SEALY: Faces "Buehring" Suit Over Securities Act Violation
-----------------------------------------------------------------
David Buehring, individually and on behalf of all others similarly
situated, Plaintiff v. Tempur Sealy International, Inc., Scott L.
Thompson and Barry A. Hytinen, Defendants, Case No. 1:17-cv-02169
(S.D. N.Y., March 24, 2017) is brought on behalf of all those who
purchased Tempur Sealy common stock between July 28, 2016 and
January 27, 2017, inclusive (the "Class Period"), seeking damages
for violation of the Securities Exchange Act of 1934.
The Compliant says that each Defendant is liable as a participant
in a fraudulent scheme and course of business that operated as a
fraud or deceit on purchasers of Tempur Sealy common stock by
disseminating materially false and misleading statements and/or
concealing material adverse facts. Specifically, the scheme (1)
deceived the investing public regarding Tempur Sealy's financial
performance, business, products, operations, prospects and the
intrinsic value of Tempur Sealy common stock; (ii) enabled
corporate insiders of Tempur Sealy to sell over $8.2 million of
Tempur Sealy common stock to the unsuspecting public at
artificially inflated prices; and (iii) caused Plaintiff and the
Class to purchase Tempur Sealy publicly-traded stock at
artificially inflated prices.
Defendant Tempur Sealy develops, manufactures and distributes
bedding products worldwide. [BN]
The Plaintiff is represented by:
W. Scott Holleman, Esq.
Johnson & Weaver, LLP
99 Madison Avenue, 5th Floor
New York, NY 10016
Tel: (212) 802-1486
Fax: (212) 602-1592
Email: scotth@johnsonandweaver.com
- and -
Frank J. Johnson, Esq.
Johnson & Weaver, LLP
600 West Broadway, Suite 1540
San Diego, CA 92101
Tel: (619) 230-0063
Fax: (619) 255-1856
Email: frankj@johnsonandweaver.com
TENNESSEE: Sued Over Insufficient Care for Diabetic Inmates
-----------------------------------------------------------
Open Minds reports that in January 2017, inmates at the Trousdale
Turner Correctional Center in Tennessee sued the state and
CoreCivic (formerly called Corrections Corporation of America),
which operates the prison. Their lawsuit alleged that
understaffing led to inadequate medical care for inmates with
diabetes. The complaint was filed by three inmates incarcerated
at the Trousdale Turner facility. The plaintiffs seek class-
action status for the complaint because they allege that about 60
inmates at the Trousdale Turner facility have diabetes.
The Tennessee Department of Correction (TDOC) responded to the
complaint in early February 2017.
TEVA PHARMA: Plumbers & Pipefitters Files Anti-Trust Suit
---------------------------------------------------------
Plumbers & Pipefitters Local 178 Health & Welfare Trust Fund, on
behalf of itself and all others similarly situated, Plaintiff, v.
Teva Pharmaceuticals USA, INC., Upsher-Smith Laboratories, Inc.,
Par Pharmaceutical, Inc. and Lannett Company, Inc., Defendants,
Case No. 2:17-cv-00973 (E.D. Pa., March 27, 2017), seeks damages,
injunctive relief, and all other relief available under federal
antitrust laws, state antitrust laws, state consumer protection
laws and Section 1 and 3 of the Sherman Act.
The action accuses Defendants of conspiring to fix, maintain,
and/or stabilize the prices of generic Baclofen tablets. Plaintiff
indirectly purchased, paid, and/or provided reimbursement for
these products made by one or more Defendants at supracompetitive
prices.
Baclofen is a muscle relaxer and an antispastic agent that is used
to treat muscle spasms, cramping, and tightness, muscle symptoms
of certain muscular disorders and spinal cord injuries and
diseases. It is used primarily as a treatment for multiple
sclerosis.
Plumbers & Pipefitters Local 178 Health & Welfare Trust Fund,
located in Springfield, Missouri, is a local union that provides
health care and other benefits to its members who reside in
Missouri as well as other locations throughout the United States.
Lannett is a Delaware corporation that has its principal place of
business in Philadelphia, Pennsylvania. Lannett is a distributor
of generic drugs.
Par is a Delaware corporation with its principal place of business
in Chestnut Ridge, New York.
Upsher-Smith Laboratories, Inc. is a Minnesota corporation with
its principal place of business at 6701 Evenstad Drive, Maple
Grove, Minnesota 55369.
Teva Pharmaceuticals Curacao N.V. develops, manufactures and
distribute generic pharmaceutical products.
Plaintiff is represented by:
Michael D. Hausfeld, Esq.
Sathya S. Gosselin, Esq.
Jeannine M. Kenney, Esq.
HAUSFELD LLP
1700 K Street, NW
Washington, DC 20006
Tel: (202) 540-7200
Fax: (202) 540-7201
Email: mhausfeld@hausfeld.com
mhausfeld@hausfeld.com
sgosselin@hausfeld.com
- and -
Gary I. Smith, Jr., Esq.
Brent W. Landau, Esq.
HAUSFELD LLP
325 Chestnut Street, Suite 900
Philadelphia, PA 19106
Tel: (215) 985-3270
Fax: (215) 985-2371
Email: gsmith@hausfeld.com
blandau@hausfeld.com
- and -
Michael P. Lehmann, Esq.
Bonny E. Sweeney, Esq.
Christopher L. Lebsock, Esq.
Stephanie Y. Cho, Esq.
HAUSFELD LLP
600 Montgomery Street, Suite 3200
San Francisco, CA 94111
Tel: (415) 633-1908
Fax: (415) 358-4980
Email: mlehmann@hausfeld.com
bsweeney@hausfeld.com
clebsock@hausfeld.com
- and -
Lee Albert, Esq.
Gregory B. Linkh, Esq.
GLANCY PRONGAY & MURRAY LLP
122 E. 42nd Street, Suite 2920
New York, NY 10168
Telephone: (212) 682-5340
Fax: (212) 884-0988
Email: lalbert@glancylaw.com
glinkh@glancylaw.com
- and -
Frank R. Schirripa, Esq.
Daniel B. Rehns, Esq.
HACH ROSE SCHIRRIPA & CHEVERIE LLP
185 Madison Avenue
New York, NY 10016
Tel: (212) 213-8311
Email: fschirripa@hrsclaw.com
drehns@hrsclaw.com
TRIPLEPULSE INC: "Ayala" Sues Over TruBain Product False Ad
-----------------------------------------------------------
Krista Ayala and Dejuan Dangerfield, individually and on behalf of
all others similarly situated, Plaintiffs v. Triplepulse, Inc.
d/b/a Trubrain, Inc. d/b/a Trubrain, Defendant, Case No. BC655048
(Cal. Super., March 23, 2017) alleges that the Defendant's
"TruBrain Drinks and Capsules" products are not in fact "Natural"
nor "Nutritional Supplements", but rather contain synthetic
ingredients Oxiracetam and Piracetam.
Defendants are the manufacturer, distributors, advertisers and
sellers of truBrain Drinks and Capsules within the State of
California, via its online website.[BN]
The Plaintiff is represented by:
Abbas Kazerounian, Esq.
Jason A. Ibey, Esq.
Kazerouni Law Group, APC
245 Fischer Avenue, Unit D1
Costa Mesa, CA 92626
Tel: (800) 400-6808
Fax: (800) 520-5523
Email: ak@kazlg.com
jason@kzlg.com
- and -
Joshua B. Swigart, Esq.
Hyde & Swigart
2221 Camino Del Rio South, Suite 101
San Diego, Ca 92108-3551
Tel: (619) 233-7770
Fax: (619) 297-1022
Email: josh@westcoastlitigation.com
UNITED STATES: Government's Appeal in Tax-Refund Suit Sustained
---------------------------------------------------------------
In the case captioned ROBB EVANS & ASSOCIATES, LLC, AS RECEIVER,
ETC., Plaintiff, Appellee, v. UNITED STATES OF AMERICA, Defendant,
Appellant. ROBB EVANS & ASSOCIATES, LLC, AS RECEIVER, ETC.,
Plaintiff, Appellant, v. UNITED STATES OF AMERICA, Defendant,
Appellee, Nos. 15-2540, 15-2552 (1st Cir.), the United States
Court of Appeals for the First Circuit sustained the government's
appeal, rejected the cross-appeal, reversed the judgment of the
district court, and remanded for entry of judgment dismissing the
tax-refund suit.
The tax-refund suit has its genesis in the efforts of Robb Evans &
Associates, LLC, a court-appointed receiver, acting on behalf of a
class of defrauded persons, to collect judgments previously
rendered against a network of interlocking corporations and their
proprietors, John and Richard Puccio. The judgments entered were
in the amount of $259,085,983 against the corporations and in the
amount of $256,527,000 against the Puccios. Robb Evans, however,
was only able to recoup less than $2,500,000. Endeavoring to
boost this total, Robb Evans filed a tax-refund claim for
$9,387,235.
In June of 2011, the Internal Revenue Service denied the tax-
refund claim. Robb Evans responded by bringing the tax-refund
suit. The government moved to dismiss, arguing among other things
that Robb Evans, who stands in the taxpayers' shoes, was not
entitled to the benefit of U.S.C. section 1341(a) because it never
appeared to the taxpayers that they had an unrestricted right to
the funds fraudulently obtained from the underlying plaintiffs.
The district court denied the government's motion to dismiss.
Although it agreed that the taxpayers never appeared to have an
unrestricted right to the funds reported as income, it nonetheless
concluded that, as a matter of equity, "the fraudulent conduct of
the Puccios should not be imputed to [the Receiver]."
Accordingly, the court held that the government was obligated to
honor the refund request. The court, however, limited the amount
of the refund by holding that it must be based on the amount the
receiver had actually collected and deposited into the Qualified
Settlement Fund, not on the full amount of taxes paid by the
taxpayers during the relevant years.
The parties jointly moved for the entry of final judgment,
reserving their rights to appeal, which the district court granted
without substantive comment, relying on the reasoning laid out in
its prior decision on the motion to dismiss. Timely appeals
followed.
The government's principal argument is that the district court
erred in allowing Robb Evans access to the balm of section 1341(a)
because the taxpayers never appeared to have an unrestricted right
to the reported income.
The First Circuit held that Robb Evans, standing in the taxpayers'
place and stead, is collaterally estopped from asserting that the
taxpayers satisfied the requirements of section 1341(a). The
First Circuit pointed out that the class action judgments against
the taxpayers have already become final, and that it has been
conclusively determined that the taxpayers procured the funds at
issue through fraud. Thus, the appellate court concluded that the
taxpayers could not have thought that they had an unrestricted
right to the funds.
Further, the First Circuit held that the district court erred in
concluding that Congress could not have intended to impute the
taxpayers' fraud to the receiver and thus deny relief to fraud
victims. The appellate court stated that the text of the statute
at issue does not support such a generous construction.
In its cross-appeal, Robb Evans advanced the theory that the class
action imposed a constructive trust on all monies that the
taxpayers procured by fraud from the underlying plaintiffs. Robb
Evans' thesis was that the government took that money from the
taxpayers subject to the constructive trust and must return it
now.
The district court deemed this argument waived, noting that Robb
Evans had neglected to make it before the magistrate judge. The
First Circuit likewise held that Robb Evans did not advance the
constructive trust theory at the appropriate time -- and that
omission constituted a waiver.
A full-text copy of the First Circuit's March 3, 2017 ruling is
available at https://is.gd/BDS7yE from Leagle.com.
Paul A. Allulis, Attorney, Tax Division, United States Department
of Justice, with whom Caroline D. Ciraolo, Principal Deputy
Assistant Attorney General, Tax Division, United States Department
of Justice, Teresa E. McLaughlin, and Gilbert S. Rothenberg,
Attorneys, Tax Division, and Carmen M. Ortiz, United States
Attorney, were on brief, for the United States.
David J. Vendler -- dvendler@mpplaw.com -- with whom Morris Polich
& Purdy LLP, Gregory S. Duncan -- greg@lawyerduncan.com -- Stephen
G. Hennessy, Joseph S. Tusa, and Tusa P.C. were on brief, for Robb
Evans & Associates, LLC.
VOLKSWAGEN AG: 1,200 Car Owners in Scotland File Emissions Case
---------------------------------------------------------------
Martin Williams, writing for Herald Scotland, reports that
Volkswagen is facing a legal claim of an estimated GBP5 million
from at least 1200 car owners in Scotland in what is expected to
be the biggest civil class action in the country's history over
the emissions scandal that has hit the firm.
Thompsons Solicitors, one of the main law firms behind the action
said they hoped to bring the first test cases within the next six
months as the German car firm have refused to consider coming to
any settlement with those affected.
While paying GBP12.3 billion to settle claims in the US and buy
back polluting cars, VW's UK boss said there was "no legal basis"
for similar claims in Britain, insisted to MPs on the transport
select committee that he "misled nobody" and that his company did
not set up cars to cheat emissions regulations.
He insisted that fewer than half of the UK vehicles caught up in
the Volkswagen emissions scandal had been fixed. Around 470,000 of
the 1.2m vehicles fitted with software to cheat environmental
tests had been dealt with, he said.
But he was attacked for failing to give answers to straight
answers, repeatedly using phrases such as "to the best of my
knowledge" and "I can't recall" and the committee chairman Louise
Ellman accused him of failing to tell Parliament the whole truth
about the diesel emissions scandal. It's an allegation Mr Willis
refutes.
The row surrounds the use of a defeat device to cheat on emission
tests, which allowed VW to claim the cars had better green
credentials and than was actually the case.
The civil case will also argue that without the cheat device, the
car's fuel efficiency and performance will drop and that the
customer will lose out with a car that is worth less when it comes
to be resold.
While VW accepts that 8.5 million vehicles in Europe were fitted
with software that could detect when they were being tested for
emissions, Mr Willis says cars affected showed no change in fuel
consumption and, from all the data he had seen, there had been no
detrimental effect to the residual value of vehicles.
The car company denies that the software amounts to a "defeat
device" under EU law or in the UK.
Patrick McGuire of Thompsons Solicitors, which has 800 of the
claims, with an estimated 400 with other solicitors, said that
they took on another 100 cases as a result of Mr Willis's
performance before the MPs.
"The attitude of Volkswagen publicly, with his boss's performance
in the committee is reflected entirely in how they are dealing
with this in the legal sphere, which is to say that their lawyers
are taking a very aggressive attitude to this," he said.
"At the moment their solicitors are not engaging in any meaningful
conversation, they have put the shutters down and our only option
is to pursue the course we are doing which is to say getting the
first test cases to court.
"On the current trajectory, if all the cases were to be litigated
in the Scottish courts because of the attitude of Volkswagen, then
it would be by some distance the largest civil class action in the
history of the Scottish court system.
"Mr Willis said something along the lines of we are repairing
vehicles at pace, customers are very happy with what they are
doing, they are all being rest assured. There's not a word of
truth in that.
"Every single client that I have that is affected by this is not
remotely happy by the response of Volkswagen.
"His performance resulted in more than 100 people phoning our
offices, so angered by what he was saying.
"Very few of them have been offered a technical fix, they have
been told nothing about what is involved in it, and to describe
them as happy with Volkswagen's response is a flight of fancy at
best."
In the UK around 1.2 million diesel engine cars are affected by
the emissions scandal.
Of the UK vehicles affected by the crisis, there were estimated to
be 508,276 Volkswagen cars, 393,450 Audis, 131,569 Skodas, 79,838
VW commercial vehicles and 76,773 Seats.
Mr McGuire (below) said there was a clear breach of consumer laws
and expects compensation is a matter of when, not if.
"It is about how fair they are prepared to be, how painless they
are prepared to make this for their customers, who at the moment
they don't seem to give a damn about," he said.
"The basic case is that they were told their vehicles would have a
certain level of fuel efficiency, performance, green attributes, a
certain resale value when they come to be sold. Those attributes
were only capable through the cheat advice, and when that is
fixed, none of these key elements will be present in their
vehicles.
"The fuel efficiency will be less, the performance will be less,
they will be more expensive to run, they will be less green and
they will be worth less when they come to resell them.
"Mr Willis claims the law is different in America . It is slightly
different, but the reality is that the sale of goods law, our
consumer protection law is clear, it is more than sufficiently
robust for any lawyer to look at this and say the actual base
claim is as close to a certainty as you can get."
He believed that they reason they are settling in America is that
the market is smaller -- but a similar European settlement would
cost the company too much money, so they are fighting it.
"That's a decision they will come to regret," Mr McGuire says.
A VW spokesman said: "Compensation is usually payable for any loss
or detriment caused by a fault.
WALGREEN CO: Faces "Forth" Suit in N.D. Ill.
--------------------------------------------
Dorothy Forth, et al., on behalf of themselves and all others
similarly situated, Plaintiffs v. Walgreen Co. and Walgreens Boots
Alliance, Inc., Defendants, Case No. 1:17-cv-02246 (N.D. Ill.,
March 23, 2017) seeks to recover damages for the harm caused by
Walgreens' fraudulent and deceptive price scheme to artificially
inflate the "usual and customary" prices reported and used to
charge Plaintiffs and members of the Class for purchases of
certain generic prescription drugs at Walgreens pharmacies.
Walgreen is an American pharmaceutical company which operates the
second-largest chain in the United States. [BN]
The Plaintiffs are represented by:
Susan M. Coler, Esq.
Melissa Wolchansky, Esq.
Amy E. Boyle, Esq.
Halunen Law
1650 IDS Center
80 S. 8th Street
Minneapolis, MN 55402
Tel: 612-605-4098
Fax: 612-605-4099
Email: coler@halunenlaw.com
wolchansky@halunenlaw.com
boyle@halunenlaw.com
- and -
Erin Green Comite, Esq.
Scott+Scott, Attorneys at Law, LLP
156 S. Main Street
P.O. Box 192
Colchester, CT 06415
Tel: 860-531-2632
Email: ecomite@scott.com
- and -
Joseph P. Guglielmo, Esq.
Scott+Scott, Attorneys at Law, LLP
The Helmsey Building
230 Park Avenue, 17th Floor
New York, NY 10169
Tel: 212-223-4478
Email: jguglielmo@scott-scott.com
- and -
Andrew A. Lemmon, Esq.
Lemmon Law Firm LLC
P.O. Box 904
15058 River Road
Hahnville, LA 70057
Tel: 985-783-6789
Fax: 985-783-1333
Email: andrew@lemmonlawfirm.com
- and -
Daniel K. Bryson, Esq.
Jeremy R. Williams, Esq.
Whitefield, Bryson & Mason, LLP
900 W. Morgan Street
Raleigh, NC 27603
Tel: 919-600-5000
Fax: 919-600-5035
Email: Dan@wbmllp.com
Jeremy@wbmllp.com
- and -
Michael S. Brandner, Jr., Esq.
Brandner Law Firm, LLC
1100 Poydras St., Suite 1502
New Orleans, LA 70163
Tel: (504) 552-5000
Fax: (504) 521-7550
Email: Michael@BrandnerLawFirm.com
- and -
Joseph S. Tusa, Esq.
Tusa P.C.
P.O. Box 566
Southold, NY 11971
Tel: (631) 407-5100
Email: joseph.tusapc@gmail.com
WHEATFIELD, NY: Faces $5.9MM Class Action Over Toxic Waste Site
---------------------------------------------------------------
Jeff Rusack, writing for WKBW, reports that the Town of Wheatfield
and eight companies are being sued for their role in dumping and
storing toxic waste, some from the Love Canal Superfund site, in a
now abandoned dump on the Wheatfield- North Tonawanda border.
Right now, 67 people who live or have lived near the old Niagara
Sanitation Site on Nash Road are a part of a class action lawsuit.
Dozens more are expected to join within the next 30 days.
They believe the toxic waste that was dumped in the property
adjacent to them was not properly stored and spread through runoff
onto their property.
The suit calls for the defendants to pay for medical expenses,
property damage, and relocation.
The neighbors apart of the suit are asking for over $5.9 billion
in damages. Some believe they are sick because of their contact
with the contaminants from the old dump. The lawsuit sites one
neighbor who has lived on Forbes Road his whole life dealing with
severe liver disease and cancer. That man also believes his
children were born with birth defects because of the toxins.
The lawsuit lists 20 toxins that were dumped at the site,
including Arsenic, PAHs and PCBs.
The law firm hired a chemical expert to test the homes, they said
they found high levels of dioxin. Dioxins cause cancer according
to the World Health Organization.
The DEC says they will investigate the site of the old dump and
its immediate perimeter, this year, to see if it is possible that
toxins spread to the neighborhood.
In 2015, the DEC said the area represents "a significant threat to
the environment and public health." It said there was not enough
signage or fencing marking the area.
The Town of Wheatfield just agreed to put up a fence around the
site with help from the state.
Town Supervisor Robert Cliffe, says "nothing has come to his
attention" yet in regards to a lawsuit against the town.
The lawyers representing the neighbors say they hope this lawsuit
can protect the community and eliminate the danger.
* Class Action Law Firms Lobby for Internet Privacy Rules
---------------------------------------------------------
Conor Dougherty, writing for New York Times, reports that now that
Republicans are in charge, the federal government is poised to
roll back regulations limiting access to consumers' online data.
States have other ideas.
As on climate change, immigration and a host of other issues, some
state legislatures may prove to be a counterweight to Washington
by enacting new regulations to increase consumers' privacy rights.
Illinois legislators are considering a "right to know" bill that
would let consumers find out what information about them is
collected by companies like Google and Facebook, and what kinds of
businesses they share it with. Such a right, which European
consumers already have, has been a longtime goal of privacy
advocates.
Two other proposals face a crucial Illinois House committee vote
this week. One would regulate when consumers' locations can be
tracked by smartphone applications, and another would limit the
use of microphones in internet-connected devices like mobile
phones, smart TVs and personal assistants like Amazon's Echo.
Should they be passed into law, these rules could end up guiding
the rights of consumers far beyond Illinois -- because they would
provide a model for other states, and because it would be
difficult for technology companies with hundreds of millions of
users to create a patchwork of state- and country-specific
features to localize their effects.
Congress is pushing to overturn regulations imposed by the Federal
Communications Commission under the Obama administration that
limit the collection of data by broadband providers like AT&T and
Comcast. The Senate approved the rollback and the House is
expected to follow this week.
Congressional Republicans argue that the rules would add an
unneeded and confusing layer of regulation and that they fail to
distinguish between broadband providers and content companies like
Facebook and Google. They also assert, more broadly, that such
regulation is onerous and stifles innovation.
Illinois is not the only place where state legislators are
asserting themselves in the opposite direction.
California and Connecticut, for instance, recently updated laws
that restrict government access to online communications like
email, and New Mexico could follow soon. Last year, Nebraska and
West Virginia passed laws that limit how companies can monitor
employees' social media accounts, while legislators in Hawaii,
Missouri and elsewhere are pushing similar bills for employees, as
well as for students and tenants.
"More and more, states have taken the position that, if Congress
is not willing or able to enact strong privacy laws, their
legislatures will no longer sit on their hands," said Chad Marlow,
a lawyer at the American Civil Liberties Union.
Online privacy is the rare issue that draws together legislators
from the left and the far right. At the state level, anyway, some
of the progress has come from a marriage between progressive
Democrats and libertarian-minded Republicans, who see privacy as a
bedrock principle, Mr. Marlow said.
States have often been a kind of regulatory laboratory. Be it tax
cuts, emission regulations, gay rights or gun laws, advocates on
both the left and the right have long worked at the state level to
push agendas that Washington is too busy or hostile to handle.
In the case of online privacy, consumer groups and civil liberties
advocates had a friendly ear in many quarters of the Obama
administration. Now they face a White House and a Congress that
are looking to roll back regulations, not create them.
But federal blockage can create local opportunities.
"What you're seeing is this growing recognition of the
intrusiveness of these technologies, and some efforts -- not to
regulate them out of existence, but to regulate them in ways that
allow people who care about this to preserve their own privacy,"
said David Vladeck, a professor at Georgetown Law School, and the
former director of the Federal Trade Commission's consumer
protection bureau. "So what's going to happen is California is
going to supplant Congress, and it's going to be augmented by
states like Illinois, Minnesota and even Texas in efforts to
protect consumer privacy."
In Illinois, the "right to know" legislation recently cleared the
Senate Judiciary Committee, paving the way for a full vote
sometime in the next few weeks. Technology companies and their
trade organizations are lobbying fiercely against it.
"I think I created 30 jobs when I filed this bill," said Michael
Hastings, a Democratic state senator who sponsored the measure.
Mr. Hastings said lobbyists representing companies including
Microsoft, Apple, Lyft and Amazon had visited his office to talk
about amending the bill. Several technology trade groups,
including the Internet Association and NetChoice, have pushed
publicly against the legislation.
In an interview, Carl Szabo, senior policy counsel at NetChoice,
said the law could add a burden of compliance costs and legal fees
on essentially any company with a website that collects
information, even routine things like creating email lists or
giving online support to customers.
"Hiring attorneys to write privacy policies, coming up with terms
of service -- that will be a real burden for small businesses," he
said.
Illinois also has another dimension: class-action lawyers. Almost
a decade ago the state passed a trailblazing law, the Biometric
Information Privacy Act, that regulates the collection of things
like facial scans, voice data and thumbprints. This has given
rise to a series of potentially expensive lawsuits against
Facebook, Google and others.
Last year, lobbyists for Facebook failed in a push for an
amendment that would have weakened the biometric law by exempting
photo-tagging technologies that are now commonly used on social
media.
In the interim, however, lawyers at Edelson PC, a Chicago-based
class-action firm that has become notorious among tech companies
for its prolific filing of privacy suits, have gone on offense
with a lobbying campaign of their own. Firm lawyers have also
helped found a new nonprofit group, the Digital Privacy Alliance,
as an advocate for privacy legislation in Illinois and elsewhere.
"We were forced to get involved politically because once we
started winning a lot of cases in court, they all went on the
offensive," said Jay Edelson, founder of Edelson PC. "It's
important because the Trump administration is doing so much to
roll back privacy rights, so there is going to be a huge shift to
state lawmakers and state attorneys general."
* Court to Hear Gold Mining Companies' Silicosis Appeal in May
--------------------------------------------------------------
Pete Lewis, writing for GroundUp, reports that the appeal by the
country's biggest gold mining companies against last year's
decision by the South Gauteng High Court to allow sick gold miners
to fight for compensation as a group is to be heard in the Supreme
Court of Appeal in May.
The Court ruled in May last year that some 100 representatives of
mineworkers affected by silicosis and TB could bring a class
action against 80 gold mining operators and mining houses.
The Occupational Lung Disease Working Group, (OLDWG), consisting
of the chief executives of the largest gold producers -- African
Rainbow Minerals, Anglo American SA, AngloGold Ashanti, Gold
Fields, Harmony, and Sibanye -- has appealed the decision.
If the Supreme Court upholds the certification by the High Court,
OLDWG will likely appeal to the Constitutional Court.
The mining companies' strategy is to use appeals to delay any
trial on the merits of the case for as long as possible while they
manage a negotiation process away from judicial oversight. This
process brings together senior negotiators and administrators from
the Departments of Labour, Health, and Mineral Resources, the five
biggest mining trade unions and the gold producers.
The process began under the auspices of the Presidential Task Team
on Distressed Mining Communities set up by acting President
Kgalema Motlanthe and now under the custodianship of Minister Jeff
Radebe, who in turn has entrusted it operationally to Deputy
Minister of Mineral Resources, Godfrey Oliphant.
The mines have commissioned the large International law firm
Bowman Gillfillan's John Brand to facilitate this complicated and
cumbersome settlement process. The objective is an out-of- court
financial settlement with the claimants' legal representative,
with the money to be used to set up a 10 to 15 year Trust Fund.
The fund would pay "top-ups" to workers who have been compensated
by the Department of Health for silicosis and/or TB contracted on
the mines in terms of the Occupational Diseases in Mines and Works
Act (ODIMWA).
The fund would also be used to help the Department of Health
identify and find eligible sick workers through the "one-stop
shops" in gold mining and rural areas, and process their claims.
Through the Ku-Riha project, the fund would also help the
Department sort out the colossal mess which is the Mining
Compensation Fund with a backlog of around 100,000 unpaid claims
for silicosis and TB.
And, crucially, all future mineworkers would be brought under the
Compensation for Occupational Injuries and Diseases Act (COIDA)
and the Department of Labour, instead of ODIMWA and the Department
of Health.
This shift is to take place without any loss of benefits under
ODIMWA. These include lifetime free medical examinations for
silicosis/TB, and benefit payouts for these diseases on the basis
of heart and lung autopsies when miners die, of any cause, during
or after their mine service. These benefits do not currently
apply under COIDA.
The move to COIDA would improve the paltry level and type of
benefits provided to mineworkers by ODIMWA, by entitling some of
them to lifetime pensions, payouts to dependents when they die,
and higher compensation in general. But it would also tie them
into a cast-iron "no fault" compensation system, which would close
the door on any future civil litigation for damages for employer
negligence causing silicosis and TB.
As far as OLDWG is concerned, the creation of the Trust Fund
implies moving silicosis and TB liability from ODIMWA to COIDA for
the future, and the sick workers dropping their class action suit.
The main stakeholders in the negotiation appear to agree on the
main points above.
After discussions with unions and government last year, OLDWG was
confident that the move to COIDA could be achieved by the end of
2016. That deadline has come and gone, and has not been replaced
by a new estimate. However, the normal procedure for mining-
related legislation is that a draft bill is discussed between the
Department of Mineral Resources and the Chamber of Mines, after
which it is gazetted for public comment for 30 days, and then goes
to NEDLAC for finalisation. Current amendments to the Mines
Safety and Health Act -- much less complex than the Working Group
proposal -- have been there for two years, while a badly-drafted
amendment to COIDA in 2012 never saw the light of day. From
NEDLAC, the Cabinet considers the draft bill, and refers it to
Parliament for deliberation, in this case involving the Labour and
Health portfolio committees.
In addition, according to Paul Benjamin, the labour lawyer
assisting the Minister of Health on this issue, a socio-economic
impact study must also be completed for major labour legislation
of this kind. So the whole process would take years, perhaps even
as long as the miners' class action hearings on the merits of the
case for damages, should these ever take place.
So far, the first step, a draft bill, is conspicuous by its
absence.
The question of how long it will take is crucial because the death
rate of the sick workers involved in the litigation is high, and
their claims will die with them, unless the Trust Fund settlement
is expedited.
OLDWG has stated that is "possible" by the end of 2017, and that
it may include settlement for dependents of claimants who die
without receiving anything, despite the fact that OLDWG has
appealed the ruling to this effect along with every other aspect
of judgment on the class action certification by the South Gauteng
High Court. Death of claimants without settlement was the main
reason why their lawyers settled for R464 million for 4,365 former
mineworkers with silicosis in the Qubeka versus Anglo American and
Anglogold case in 2016, establishing the Qhubeka Trust to pay out
the workers in that litigation. Similarly, in Blom versus Anglo
American in 2013, the first-ever private settlement of a silicosis
damage suit in South Africa, 23 silicotic former mineworkers were
paid out an undisclosed sum with no admission of liability on the
part of Anglo, again because they were dying fast.
Delays to compensation for mineworkers are built into the complex
negotiations under way. If the "top-up" payouts by the Trust are
to be combined with compensation via ODIMWA, this would greatly
extend the period of waiting for financial relief.
GroundUp put this question to Alan Fine of Russell and Associates,
the public relations firm hired by OLDWG to liaise with the media
and public over its silicosis/TB class action resolution strategy.
"Payouts of the 'top-up' will be dependent on proof of compensable
illness, but claimants will not necessarily have to go through the
entire ODIMWA award process," he said. This implies that the "top
up" may be paid to claimants before they receive -- at some
unspecified future time -- what they are owed under ODIMWA. "Down
payment" would seem a more appropriate term in this instance than
"top-up".
Fine also said that OLDWG and the Chamber of Mines had put tens of
millions of rands into the Ku-Riha project and the one-stop shops,
into funding staff positions in the Mines Compensation
Commissioner's office in the Department of Health, and had
seconded a chief operating officer, project manager, and medical
staff to the Commissioner's office, as well as financing
digitalisation of hundreds of thousands of mineworkers' records,
and assisting with one- stop shops to find and help claimants.
"The combined effect of this has been to triple the rate of
payments to claimants between the years 2014-6," he said.
This statement should be interpreted however with caution, because
to this day, there are still only two "one-stop shops" up and
running, with others promised in Burgersfort and Kuruman not yet
operational. Worse, Dr Barry Kistnasamy, the Mines Compensation
Commissioner, told the Parliament's portfolio committee on Health
on 7 September 2016, that it would take 19 years to get through
the backlog of unpaid medically certified claims sitting at the
Commissioner's office. And, he said, compensation would cost not
tens, but hundreds of millions of rands -- his estimate to the
Committee was R500 million.
Graham Briggs, former CEO of Harmony, speaking at the recent
International Mining Indaba in Cape Town, said that although an
academic study had estimated the number of potential claimants at
280,000, the figure was likely too high. He did not explain which
study he was referring to, and exactly how it was flawed, or
perhaps outdated because of death of potential beneficiaries from
their occupational disease. Even an estimate of 100,000 was too
high, he said.
This suggests that the amount of money the mines are considering
putting into the Trust Fund will be based on a very conservative
estimate of the number of eligible claimants, rather than on what
the in-principle criteria should be for payouts irrespective of
the actual number of claimants who come forward. A court would
consider, for each claimant, factors like income lost both by
former mineworkers and by those who care for them due to their
disease, and medical and transport costs already incurred, as well
as pain and suffering. That is the crucial difference between a
negotiated settlement out of court, and a court determination of
damages.
The snail's pace at which the ODIMWA machinery is being fixed
despite OLDWG's limited financial and other assistance, and
similarly halting progress on identifying beneficiaries because of
the slow roll-out of one-stop shops suggest that the number of
ultimate beneficiaries identified will be a small proportion of
those who are sick and dying.
The immense backlog in silicosis/TB benefit disbursement is not
the only backlog in social security money owed to ex-mineworkers.
The other is the matter of mineworkers' provident fund payouts. On
30 May 2014, Deputy Minister Oliphant estimated that the Mining
Industry Pension Fund, negotiated by the NUM with the Chamber of
Mines in the 1980s, had accumulated R30 billion in unpaid pension
and provident fund payments for around 200,000 retired or
retrenched mineworkers. Pilot projects were underway to find the
mineworkers, Olifant said, but cautioned that despite inquiries to
TEBA (which possesses 1.5 million records of African ex-
mineworkers going back decades) and a public radio campaign in the
Eastern Cape, Limpopo, Kwazulu, the North West Province, Botswana,
Mozambique and Swaziland which yielded 25,500 responses, less than
one hundred back-payments of provident fund benefits had been
made. He promised to redouble efforts to reduce the backlog, in a
mirror image of the same situation around the silicosis/TB issue.
Huge numbers of living ex-mineworkers and their families therefore
continue to wait to be paid what they are owed in social security
benefits due to rampant disease and long service in the gold
mines. They are the descendants (literally in many cases) of
people from all over the region who built modern industrialised
South Africa. They are owed a lot of money by the mines and by
the South African state. It is to be hoped that neither will
sneak out of the restaurant after their century-long slap-up meal
of profit, foreign exchange, and fiscal treasure, without settling
the bill.
* Israeli Courts to Implement New Class Action Filing Fees
----------------------------------------------------------
Hamodia reports that filing a class action suit in Israel will
soon become harder to do -- because it will cost money. Until
now, there has been no fee for filing; but Minister of Justice
Ayelet Shaked has decided that fees of 24,000 shekels and 12,000
shekels will be implemented depending on whether the case is in a
district court and magistrates court, according to Globes.
The reason for the new fee is to discourage class action suits,
which have been clogging the courts with frivolous cases. A
recent study showed that about half of the class action requests
in Israel have little or no chance of coming to trial and end in
dismissal.
Initially, Shaked sought a much higher fee, 50,000-62,000 shekels.
The more moderate amount was the final product of discussions that
included the Israel Bar Association, Ministry of Justice legal
advisor Erez Kaminitz, and the Manufacturers Association of
Israel.
In fact, the law is less stringent than it sounds, since only half
of the fees will be charged upon filing; the other half will be
paid if and when the evidence in the case is presented to the
court. They usually never get that far, since most such cases are
either settled out of court or the class action is denied.
Non-profit organizations and class actions filed against the state
will be exempt from the fee.
Before the new fees go into effect, though, they need approval
from both the Knesset Constitution, Law, and Justice Committee and
Minister of Finance Moshe Kahlon.
* Wage-and-Hour Class Actions Among Biggest Risks for Employers
---------------------------------------------------------------
Jon Hyman, Esq. -- jhyman@meyersroman.com -- of Meyers, Roman,
Friedberg & Lewis, in an article for Workforce, reports that in
AT&T Mobility v. Concepcion, the United States Supreme Court held
that a business could compel a group of individuals to waive their
right to file a class-action lawsuit and instead arbitrate their
collective dispute. Employers rejoiced, believing that they
finally had the weapon they needed to battle the scourge of wage-
and-hour class actions.
The National Labor Relations Board, however, had different ideas.
In its seminal 2012 decision, D.R. Horton Inc., the NLRB held that
an arbitration agreement violated the National Labor Relations
Act's protections for employee concerted activity. The facts are
pretty straightforward. The employer required all of its
employees, as a condition of their employment, to sign a master
arbitration agreement, under which they agreed:
To submit all disputes and claims relating to their employment to
final and binding arbitration.
That the arbitrator "may hear only . . . individual claims," and
"does not have authority to fashion a proceeding as a class or
collective action or to award relief to a group or class of
employees in one arbitration proceeding."
To waive "the right to file a lawsuit or other civil proceeding
relating to . . . employment with the Company."
The NLRB concluded that the agreement "unlawfully restricts
employees' Section 7 right to engage in concerted action for
mutual aid or protection," and held that the employer "violated
Section 8(a)(1) by requiring employees to waive their right to
collectively pursue employment-related claims in all forums,
arbitral and judicial."
In the four years since they decided D.R. Horton, the NLRB has
invalidated too many similar arbitration agreements and class-
action waivers to count, and further expanded D.R. Horton to make
it nearly impossible for any class-action waiver to pass muster.
The board has even gone so far as to invalidate agreements that
expressly carve out the right for employees to pursue claims with
state and federal administrative agencies such as the NLRB.
In the board's opinion, even those agreements are illegal because
rank-and-file employees aren't lawyers and aren't capable of
reading and understanding the agreement: "Viewed from an
employee's perspective . . . it would take 'specialized legal
knowledge' to determine whether employees' right to file Board
charges is permitted or precluded by these caveats."
On appeal, however, not all federal circuit courts have been kind
to D.R. Horton. The 5th Circuit overturned D.R. Horton itself,
while other circuits have sided with the NLRB on this important
issue.
Now, however, the Supreme Court is poised to have the final say.
It has agreed to hear the appeal of three cases, which should put
this issue to bed once and for all.
In NLRB v. Murphy Oil USA (5th Cir., holding that the "corporation
did not commit unfair labor practices by requiring employees to
sign its arbitration agreement or seeking to enforce that
agreement in federal district court."); Lewis v. Epic Systems (7th
Cir., holding that an arbitration agreement that "precludes
employees from seeking any class, collective, or representative
remedies to wage-and-hour disputes" violates the NLRA); and Morris
v. Ernst & Young LLP (9th Cir., agreeing with Lewis, holding that
"an employer violates the National Labor Relations Act by
requiring employees to sign an agreement precluding them from
bringing, in any forum, a concerted legal claim regarding wages,
hours, and terms and conditions of employment."), the justices
agreed to decide whether agreements to require employees to forgo
class actions or collective proceedings, and instead resolve
employment disputes via individual arbitration, violate the NLRA.
How the Supreme Court decides this issue is of critical importance
to employers. Wage-and-hour class actions are one of the biggest
risks that employers face.
The law that governs the payment of minimum wage and overtime in
the country, the Fair Labor Standards Act, is more than 70 years
old. It shows every bit of its age.
Over time it's been amended again and again, with regulation upon
regulation piled on. What we are left with is an anachronistic
maze of rules and regulations in which one would need a Ph.D. in
FLSA (if such a thing existed) just to make sense of it all.
Since most employers are experts in running their businesses but
not necessarily experts in the ins and outs of the intricacies of
the Fair Labor Standards Act, they are fighting a compliance
battle they cannot hope to win. And the prize for noncompliance
is the cost of defending a class-action lawsuit.
Employers desperately need the Supreme Court to overturn D.R.
Horton so that they can recapture a key weapon against the wage-
and-hour class actions.
*********
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
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