/raid1/www/Hosts/bankrupt/CAR_Public/170509.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, May 9, 2017, Vol. 19, No. 92
Headlines
A-MACULATE CLEANING: Faces Adriana Suit Over Unpaid OT Wages
ANDY PUZDER: Faces Class Suit for Illegal Wage Fixing
ANTHERA PHARMA: Plaintiffs, Law Firms Battle for Lead in Suit
AFFILIATE ASSET: "Baxter-Albright" Sues Over FDCPA Violation
ALL AMERICAN: Faces "Acosta" Suit Over Unpaid Overtime Pay
AMERICAN LIFELINE: ARcare Suit Alleges TCPA Violation
ATLANTA AIRPORT RESTAURANTS: "Blair" Sues Over Unpaid Wages
AUDI: Faces Class Action Emission Tests Defeat Devices
AVON SIGNS: Faces "Conejo" Suit Over Unpaid OT Wages
AZ COMPASSIONATE: Customer's FACTA Class Action Can't Proceed
BANGKOK THAI: "Chia" Suit Alleges FLSA, NY Labor Law Violations
BLACKROCK INVESTMENTS: Seeks Dismissal of Investors' Class Action
BUDGET RENT-A-CAR: Roadblock Remains for Class Action
BURMAX LLC: "Stacy" Sues for Damages in Violation of TCPA
CAPITAL MANAGEMENT: Faces "Macias" Suit Over Unpaid Wages, OT Pay
CAPITAL ONE: "Gajewski" Files Suit Under TCPA, Wis. Consumer Act
CAREY COUNSELING: Faces "Fitch" Suit Over Unpaid Wages and OT Pay
CARIBBEAN CRUISE: $15MM Atty Fee Award Could Spur More TCPA Suits
CEDAR RAPIDS, IOWA: DOT Can Turn Off Traffic Camera, Judge Says
CENTOR US: ARcare Files Suit Over Unauthorized Fax Ads
CHARLOTTE SCHOOL: Seeks Dismissal of Accreditation Class Actions
CHARTER COMMUNICATIONS: Anderson Sues Over Telemarketing Calls
CITIZENS FINANCIAL: "Chee" Suit Alleges Securities Act Violation
CITIZENS INC: Pomerantz LLP Files Securities Class Action
CONAGRA: Judge Tosses Class Action Over Cooking Spray
COSTCO WHOLESALE: Faces "Armstrong" Suit Removed to D.Or.
FITBIT INC: Stock Drop Not Caused by Misrepresentations
FEDEX GROUND: Faces "Armijo" Suit Over Unpaid Overtime Pay
FLINT, MI: Plaintiffs Fight CAFA's Current in Water Suits
GALLAGHER'S FAMOUS: "Beauchamp" Alleges Labor Law Violations
GENESIS JUNGLES: Fernandez, et al. Allege FLSA Violation
GREAT HEALTHWORKS: "Boyer" Suit Removed to S.D. Cal.
HEADQUARTER AUTO: Faces "Couch" Suit Over TPCA Violation in Fla.
HIGHER ONE HOLDINGS: Faces "Edelman" Class Suit in Pa.
HUMANA AT HOME: "Cruz" Sues Over Unpaid Overtime Wages
IDAHO: Lawsuit Over Lousy Public Defense Reinstated
IMPACT MARKETING: Faces "Alves" Suit Over TCPA Violations
INVENTURE FOODS: Asks Court to Dismiss Potato Chips Suit
KANDI TECHNOLOGIES: New Lead Plaintiff Bid Deadline on May 15
LEASE SUPERVISORS: Faces "Farrell" Suit Alleging ERISA Violation
LIONBRIDGE TECH: Faces Shareholders Class Action Over Merger Deal
MAGNOLIA HEALTH: Settles Employees' ADA Class Action for $325,000
MAXIM HEALTHCARE: Faces "Benson" Suit for FLSA and Labor Code
MEDICIS PHARMACEUTICAL: Partial Deal OK'd for Solodyn Class Suit
MIDWEST MANUFACTURING: Faces "Bradley" Suit Over Unpaid OT Wages
MILLERCOORS: Averts Deceptive Advertising Class Action
MILWAUKEE BUCKS: Settles Former Dancer's Wage Class Action
MOUNT REAL: Tribunal Approves $43MM Class Action Settlement
MUTUAL FUND SERIES: Robbins Geller Files Shareholders' Suit
MYLAN NV: Judge Appoints Warren Burns to Lead EpiPen Class Action
NETGEAR: Faces Class Action Over Defective DOCSIS 3.0 Modem Model
NORTH STATE AVIATION: Faces "Doe" Suit Over WARN Act Violations
PALMER RECOVERY: Faces "Goins" Suit Over TCPA, FDCPA Violations
PART AUTHORITY: "Balarezo" Sues Over Unpaid Minimum, OT Pay
PENN BOWER: Faces "Garrido" Suit Over Unpaid Overtime Wages
PEOPLES TRUST: To Plead or to Concede, That Should Be The Question
PL MARKETING: Faces "Fitzgerald" Suit Over Unpaid Overtime Pay
QUEENSLAND: Flood Victims Entitled to Compensation
RADY CHILDREN'S: Seeks Reprieve From Court for TCPA Class Action
RIO RANCHO: Violated Students' 4th Amendment Rights, Suit Says
SHENZEN SUNSHINE: Faces Class Action Over Drone Products
SQUARE INC: R. White Asks 9th Cir. to Revive Discrimination Suit
STEPHENS INSTITUTE: Faces Class Action Over Student Bed Licenses
UBER: Hit With New Class Action for Shortchanging Drivers
UNITED STATES: Appeals Court Paves Way for Veterans' Suit
UNITED STATES: Court Authorizes Veterans' Benefits Class Action
WAL-MART: Faces "Duckworth" Suit Over Defective Mainstays Patio
WELLS FARGO: Alexander Bacon Files Suit Alleging TCPA Violation
WEST VIRGINIA: Contamination Suit Settlement Documents Made Public
WEST VIRGINIA: Lawyers Asserts Settlement Has Substantial Benefits
WORLD WIDE MEDICAL: "Hives" Sues Over TCPA Violations
* Court Confirms No Right to Jury on Attorneys' PAGA Claims
* Donovan Litigation Attorney Comments on H.R. 985
* Eversheds Sutherland Comments on Future of US and UK Arbitration
* Zuckerman Law Attorney Discusses Arbitration Agreement Issues
*********
A-MACULATE CLEANING: Faces Adriana Suit Over Unpaid OT Wages
------------------------------------------------------------
Adriana Maria De Oliveira SA, and all others similarly situated,
Plaintiff v. A-Maculate Cleaning Service, Inc. and Bernadete
Freedman, Defendants, Case No. 1:17-cv-211400-KMW (S.D. Fla.,
April 13, 2017) is brought against the Defendant for failure to
pay overtime compensation pursuant to the Fair Labor Standards
Act.
Defendants willfully and intentionally refused to pay Plaintiff's
overtime wages as required by the Fair Labor Standards Act as
Defendants knew of the overtime requirements of the Fair Labor
Standards Act and recklessly failed to investigate whether
Defendants' payroll practices were in accordance with the FLSA.
Plaintiff worked as a cleaner in Defendants' commercial cleaning
company.
Located in Boca Raton, Florida, A Maculate Cleaning Service Inc.
offers building maintenance services.[BN]
The Plaintiff is represented by:
J.H. Zidell, Esq.
J.H. Zidell, P.A.
300 71st Street, Suite 605
Miami Beach, FL 33141
Tel: (305) 865-6766
Fax: (305) 865-7167
Email: ZABOGADO@AOL.COM
ANDY PUZDER: Faces Class Suit for Illegal Wage Fixing
-----------------------------------------------------
According to a class-action lawsuit filed in a California superior
court, President Trump's first pick for secretary of labor Andy
Puzder allegedly ran an illegal wage-fixing scheme in his fast-
food chain, Carl Karcher Enterprises (CKE).
While Puzder, CEO of CKE, has called his Carl's Jr. restaurants
"independent businesses," one former and one current shift leader
allege that they are franchises, and that CKE and its franchises
have colluded with one another under "no hire" agreements to
suppress wages and prevent managers from moving between
restaurants.
The lawsuit further aims to demonstrate that CKE, which owns
Carl's Jr., Green Burrito, Red Burrito, and Hardee's, prevents its
workers from thriving in the free market. Due to restrictions
stated in a preliminary franchising agreement, CKE franchise
workers are unable to threaten to leave their jobs for another CKE
restaurant job that pays a higher wage. A specialized system at
CKE restaurants encourages internal promotions, which lessens
managers' bargaining power.
In testimony given before Congress, Puzder stated that the CKE
franchisees make independent employment and management decisions.
While CKE CEO Puzder has publicly stated that his chains embrace
the free market, the lawsuit alleges that the no hire agreement
worsens working conditions and prevents franchises from hiring
freely in the market.
The lawsuit states, "[Puzder and CKE] cannot eschew
responsibilities under labor and employment laws by embracing a
'free market' model of independent franchisees, while restraining
free competition to the detriment of thousands of workers."
While the lawsuit was filed in the California courts, federal
statutes also apply to the case. The federal Sherman Antitrust Act
prohibits rival companies within the same sector to collude to fix
wages. Individuals charged for violation of this federal law for
illegal restraint of trade could face a USD1 million fine and up
to 10 years in federal prison.
The class-action lawsuit claims that the no hire policy suppresses
working conditions and keeps wages down in order for CKE to make
more money. The suit aims to end the no hire agreement and seeks
restitution and damages for former and current CKE restaurant
managers. [GN]
ANTHERA PHARMA: Plaintiffs, Law Firms Battle for Lead in Suit
-------------------------------------------------------------
John Myers at Legal News Line reports two plaintiffs and law firms
are battling it out in court to be named the lead in a class
action lawsuit filed against a pharmaceutical company.
In Brian Clevlen's class action against Anthera Pharmaceuticals
and a group of individual defendants, two plaintiffs -- the
Roberts Investor Group and Uresomir Corak -- have filed motions
with the U.S. District Court Northern District of California to be
named, along with their representation, as the lead plaintiffs and
counsel in the lawsuit.
The lawsuit has its origins in a complaint filed by Clevlen
arguing hat the defendants issued false statements regarding the
company's business and operations. Clevlen alleged that the
defendants caused him and others monetary damages by artificially
inflating the price of the company's common stock, by refusing to
disclose to stockholders that patients were not responding to its
CHABLIS-SC1 treatment for systemic lupus erythematosus.
In the memorandum written on behalf of the Roberts Group, the
organization's representation argues that it is the most adequate
plaintiff based on its loss of USD168,553.82, which was suffered
as a result of the defendants' alleged wrongful conduct.
The memorandum goes on to assert that these losses indicate that
the Roberts Investment Group has the largest financial stake in
the lawsuit. In addition, it claims that the investment group's
representation, Lifshitz and Miller LLP, should be made legal
counsel because "because the firm possesses extensive experience
in the prosecution of securities class actions and will adequately
represent the interests of all class members."
Meanwhile, Corak asserts that as the plaintiff who lost
approximately USD869,253.28 as a result of the alleged fraud, he
has suffered larger financial damages and is in the best position
to be made lead plaintiff and his representation Levi and
Korsinsky should be made lead counsel.
Both plaintiffs also argue that they both qualify for the role of
lead plaintiff according to the requirements set by the Federal
Rules of Civil Procedure which establishes that someone is
qualified to be lead plaintiff if they meet the following
criteria: has either filed the complaint or made a motion in
response to a notice and in the determination of the court, has
the largest financial interest in the relief sought by the class
and otherwise satisfies the requirements of Rule 23 of the Federal
Rules of Civil Procedure.
In addition, both plaintiffs argue that they should qualify
because they meet the requirements of Rule 23 of the Federal Rules
procedure, which states "(a) of the Federal Rules of Civil
Procedure(1) the class is so numerous that joinder of all members
is impracticable; (2) there are questions of law or fact common to
the class; (3) the claims or defenses of the representative
parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect
the interests of the class." [GN]
AFFILIATE ASSET: "Baxter-Albright" Sues Over FDCPA Violation
------------------------------------------------------------
Aisha Baxter-Albright, on behalf of herself and all others
similarly situated, Plaintiff v. Affiliate Asset Solutions, LLC, a
Delaware Limited Liability Company and Pendrick Capital Partners,
LLC, Defendants, Case No. 9:17-cv-80466-RLR (S.D. Fla., April 13,
2017) seeks payment of damages and attorneys' fees for violation
of the Fair Debt Collection Practices Act.
Defendants sought to collect from Plaintiff an alleged debt
incurred by Plaintiff for personal, family or household purposes;
more specifically, the debt at issue was a delinquent medical
debt.
On November 8, 2016, Defendant Affiliate, acting as an agent for
Defendant Pendrick, sent a demand letter to Plaintiff seeking to
collect an alleged debt owned by Defendant Pendrick. The Demand
Letter falsely and misleadingly states that Plaintiff must dispute
the debt in writing or Defendant Affiliate could assume the debt
was valid, despite the clear wording of 15 U.S.C. 1692g(a)(3),
which contains no writing requirement in order for the consumer to
dispute the debt, the complaint asserts.
Defendant Affiliate Asset Solutions, LLC is a Delaware Limited
Liability Company engaged in the business of collecting consumer
debts, which operates from offices located at 145 Technology
Parkway NW, Suite 100, Peachtree Corners, Georgia 30092.
Defendant Pendrick Capital Partners, LLC is a Delaware Limited
Liability Company which operated from offices located at 1714
Hollinwood Drive, Alexandria, Virginia 22307 and is engaged in the
business of purchasing debt in default and attempting to collect
upon the defaulted debt.[BN]
The Plaintiff is represented by:
Leo W. Desmond, Esq.
Desmond Law Firm, P.C.
5070 Highway A1A, Suite D
Vero Beach, FL 32963
Tel: 772-231-9600
Fax: 772-231-0300
Email: lwd@desmondlawfirm.com
ALL AMERICAN: Faces "Acosta" Suit Over Unpaid Overtime Pay
----------------------------------------------------------
Jerry Acosta, Jr. and Modestine Smith Thorpe, individually and all
others similarly situated, Plaintiffs v. All American Home Care,
LLC, Defendant, Case No. 2:17-cv-01656-PBT (E.D. Pa., April 11,
2017) seeks to recover overtime compensation pursuant to the Fair
Labor Standards Act.
Plaintiffs and Class Members were paid an hourly rate and AAHC did
not properly compensate Plaintiffs and Class Members for hours
worked over 40 in a workweek, says the complaint.
Defendant is a provider of integrated healthcare services,
offering home care and health services to individuals. Plaintiffs
provide home care support to elderly and disabled clients of the
Defendant.[BN]
The Plaintiffs are represented by:
Richard M. Simins, Esq.
Jackson E. Warren, Esq.
Montgomery McCracken Walker & Rhoads LLP
123 South Broad Street
Philadelphia, PA 19109
Tel: (215) 772-1500
Fax: (215) 772-7407
Email: rsimins@mmwr.com
jwarren@mmwr.com
- and -
Sarah R. Schalman-Bergen, Esq.
Camille Fundora, Esq.
Berger & Montague, P.C.
1622 Locust Street
Philadelphia, PA 19103
Tel: (215) 875-3000
Fax: (215) 875-4604
Email: sschalman-bergen@bm.net
cfundora@bm.net
AMERICAN LIFELINE: ARcare Suit Alleges TCPA Violation
-----------------------------------------------------
ARcare, Inc., an Arkansas Corporation, on behalf of itself and all
others similarly situated, Plaintiff, v. American Lifeline, Inc.
d/b/a Florajen Defendant, Case No. 3:17-cv-00313 (W.D. Wis., April
27, 2017), challenges Defendant's alleged policy and practice of
faxing advertisements without obtaining Plaintiff's prior express
permission beforehand in violation of the Telephone Consumer
Protection Act.
Defendant American Lifeline, Inc. d/b/a Florajen is a company that
sells probiotic supplements.[BN]
The Plaintiff is represented by:
Shpetim Ademi, Esq.
John D. Blythin, Esq.
Mark A. Eldridge, Esq.
Denise L. Morris, Esq.
ADEMI & O'REILLY, LLP
3620 East Layton Ave.
Cudahy, WI 53110
Tel: (414) 482-8000
Fax: (414) 482-8001
E-mail: sademi@ademilaw.com
jblythin@ademilaw.com
meldridge@ademilaw.com
dmorris@ademilaw.com
- and -
Randall K. Pulliam, Esq.
CARNEY BATES & PULLIAM, PLLC
519 West 7th Street
Little Rock, AK 72201
Phone: (501) 312-8500
Fax: (501) 312-8505
E-mail: rpulliam@cbplaw.com
ATLANTA AIRPORT RESTAURANTS: "Blair" Sues Over Unpaid Wages
-----------------------------------------------------------
Chaunt Blair, on behalf of herself and all those similarly
situated who consent to representation, Plaintiff v. Atlanta
Airport Restaurants, LLC d/b/a Malone's, a Georgia Corporation and
Ashiq A. Delawalla, an individual, Defendants, Case No. 1:17-cv-
01297-ELR (N.D. Ga., April 11, 2017) seeks to recover minimum
hourly wage pursuant to the Fair Labor Standards Act.
Atlanta Airport Restaurants, LLC is engaged in the restaurant
business. Plaintiff was employed by Defendants as a server at
Defendants' restaurant.[BN]
The Plaintiff is represented by:
Kimberly N. Martin, Esq.
Thomas F. Martin, Esq.
Martin & Martin, LLP
P.O. Box 1070
Tucker, GA 30085
Tel: (404) 313-5538
Email: kimberlymartinlaw@gmail.com
tfmartinlaw@msn.com
AUDI: Faces Class Action Emission Tests Defeat Devices
------------------------------------------------------
Kevin Robinson at Pensecola News Journal reports that Volkswagen
made international headlines in 2015 when regulators discovered a
"defeat device" designed to cheat emissions tests in roughly
590,000 of the car manufacturer's diesel vehicles.
What's been less widely publicized is that in 2016, California
regulators uncovered a second, separate defeat device believed to
affect more than 200,000 gasoline-powered vehicles produced by
Audi, a VW subsidiary.
The discovery has launched a new round of class-action
lawsuits, and three Pensacola attorneys are now representing
approximately 100 Floridians who were allegedly duped by Audi.
"It's kind of like Groundhog's Day," said attorney John Kuder,
Esq. -- jpkuder@pensacolalaw.com -- of McDonald Fleming Moorhead,
who is representing clients in both a 2016 lawsuit against VW and
a suit filed against Audi on April 19.
Kuder, along with fellow attorneys Samuel Bearman, Esq. --
sbearman@bearmanlaw.com -- of The Law Office if Samuel Bearman and
Artice McGraw, filed a class-action lawsuit on behalf of dozens of
people who have purchased Audi A6, A8, Q5, Q7, S4, S5, S6 and S7
models since 2008. Kuder said those are the models that are
currently known to be equipped with defeat devices, but there
could be additional affected vehicles that have not been
identified.
Mark Clothier, a spokesman for Audi, declined to comment for this
story.
The defeat device allegedly allowed impacted vehicles to sense
when they were in a test environment, most commonly a "vehicle
treadmill" where the vehicles could accelerate while remaining
stationary.
The lawsuit alleges if a vehicle was left to run continuously
without input on the steering wheel, it entered a "dyno
calibration" mode that caused the vehicle to "shift gears
prematurely to maintain artificially low engine revolutions and,
therefore, fewer emissions."
In real-world operating conditions where a driver was turning the
steering wheel, the vehicle's transmission would operate normally,
creating greater overall levels of carbon dioxide and providing
poorer-than-advertised fuel efficiency, the lawsuit claims.
The suit alleges Audi committed false advertising and consumer
fraud, as the company charged customers a "substantial premium"
for vehicles they were misled to believe were "(U.S.
Environmentally Protection Agency) compliant and environmentally
friendly."
The plaintiffs are seeking remedies, including a free
replacement program for their vehicles, along with damages, costs
and attorney fees.
Audi's parent company, VW, ultimately agreed to pay USD4.3 billion
in civil and criminal penalties after the discovery of a
different defeat device in its line of "clean diesel" vehicles.
Although VW settled with some customers and implemented a buyback
program for affected vehicles, many people, including
approximately 140 clients represented by the trio of local
attorneys, opted out of the settlement and are seeking to take
their individual cases before a judge.
Throughout the litigation process and despite VW's numerous public
apologies and promises to "make things right," the company never
disclosed the Audi defeat devices, according to Kuder.
"They kept the (diesel defeat device) secret for a long time and
they got found out," Kuder said. "Then they kept another secret
for as long as they could and got found out. It makes me wonder
how many other secrets are out there." [GN]
AVON SIGNS: Faces "Conejo" Suit Over Unpaid OT Wages
----------------------------------------------------
Miguel Navarrete Conejo, individually on behalf of all similarly
situated, Plaintiff v. Avon Signs, LLC and Sohil Zulfikar
Maknojia, Defendants, Case No. 4:17-cv-01131 (S.D. Tex., April 12,
2017) seeks to recover unpaid overtime compensation, liquidated
damages and attorney's fees for violation of the Fair Labor
Standards Act.
Plaintiff was employed by the Defendants as a sign
installer/general laborer.
Avon Signs, LLC is in the Signs and Advertising Specialties
business.[BN]
The Plaintiff is represented by:
Josef F. Buenker, Esq.
Vijay A. Pattisapu, Esq
The Buenker Law Firm
2060 North Loop West, Suite 215
Houston, TX 77018
Tel: 713-868-3388
Fax: 713-683-9940
Email: jbuenker@buenkerlaw.com
AZ COMPASSIONATE: Customer's FACTA Class Action Can't Proceed
-------------------------------------------------------------
Jimmy H. Koo, writing for Bloomberg BNA, reports that a medical
marijuana dispensary customer failed to convince a federal court
that his payment card receipt revealing the card expiration date
was harmful enough to pursue a class action (Llewellyn v. AZ
Compassionate Care Inc., 2017 BL 134818, D. Ariz., No. CV-16-
04181-PHX-DGC, 4/24/17).
Allegations that the receipt revealed too much information in
violation of the Fair and Accurate Credit Transactions Act,
without more, doesn't implicate traditional privacy interests, the
U.S. District Court for the District of Arizona held April 24.
The case serves as a reminder that federal trial courts are more
strictly demanding proof of harm even for cases in which the
governing statute allows for specific payment of damages per
individual violation. The legal issues surrounding proof of harm
in statutory damages cases has largely been settled by the U.S.
Supreme Court. That has played out in lower federal courts on a
case-by-case basis, but the trend has been to disallow more
statutory damages claims.
Judge David G. Campbell said that under the U.S. Supreme Court's
ruling in Spokeo v. Robins, "a bare procedural violation, divorced
from any concrete harm" is insufficient to satisfy standing. In
the only federal appeals court opinion after Spokeo to address
standing to allege a FACTA claim, the U.S. Court of Appeals for
the Seventh Circuit held in Meyers v. Nicolet Restaurant of De
Pere LLC that "without a showing of injury apart from the
statutory violation, the failure to truncate a credit card's
expiration date is insufficient to confer Article III standing."
Judgment of Congress
According to plaintiff Jason Llewellyn's class action complaint,
at some point after Dec. 3, 2006, AZ Compassionate Care Inc.,
doing business as TruMed, printed receipts with the full
expiration date and the last four digits of customers' debit
cards. FACTA requires that receipts don't show expiration dates or
any more than the last five digits of card numbers.
Plaintiff sued for violation of FACTA. The Arizona dispensary
moved to dismiss the action, alleging that the plaintiff hasn't
suffered an injury in fact and lacks standing to bring suit. The
court agreed.
Under Spokeo, an injury may actually exist even if it is
intangible, but to determine whether an intangible injury is
concrete, courts must consider the judgment of Congress, the court
said. Congress amended FACTA with the Credit and Debit Card
Receipt Clarification Act "'to ensure that consumers suffering
from any actual harm to their credit are protected while
simultaneously limiting abusive lawsuits,'" the court said.
"Congress itself found that mere printing of the expiration date
does not create a risk of identity theft," the court said,
granting TruMed's motion to dismiss.
TruMed didn't immediately respond to Bloomberg BNA's email request
for comment.
Chant & Company and Davis Miles McGuire Gardner PLLC represented
the plaintiff. Jennings Strouss & Salmon PLC represented TruMed.
BANGKOK THAI: "Chia" Suit Alleges FLSA, NY Labor Law Violations
---------------------------------------------------------------
CHAN-CHONG CHIA a/k/a Michael Chia and FRANK THAI, on behalf of
themselves and others similarly situated, Plaintiff, v. BANGKOK
THAI CUISINE, INC. d/b/a Bangkok Thai Cuisine, GREEN PAPAYA THAI
RESTAURANT, INC. d/b/a Bangkok Thai Cuisine; TAI VIEM MA; CHAU XAO
MA; IRENE MA; DAVID MA; MICHAEL MA; RICHARD MA; ALEX SETO;
ANDY SHE, Defendants, Case No. 1:17-cv-02539 (E.D.N.Y., April 27,
2017), alleges that Defendants have willfully and intentionally
committed widespread violations of the Fair Labor Standards Act
and the New York Labor Law by engaging in a pattern and practice
of failing to pay their employees, including Plaintiffs, minimum
wage for each hour worked, overtime for all hours worked in excess
of 40 in each workweek, and spread-of-hours for all hours worked
in excess of ten in each workday.
Plaintiff was employed as a server.[BN]
The Plaintiffs are represented by:
John Troy, Esq.
TROY LAW, PLLC
41-25 Kissena Boulevard Suite 119
Flushing, NY 11355
Tel: (718) 762-1324
Fax: (718) 762-1342
E-mail: johntroy@troypllc.com
BLACKROCK INVESTMENTS: Seeks Dismissal of Investors' Class Action
-----------------------------------------------------------------
Cara Bayles and Carmen Germaine, writing for Law360, report that
BlackRock Investments LLC asked a San Francisco judge on April 26
to toss a putative class action alleging the asset management firm
misrepresented to investors the risks associated with exchange-
traded funds, arguing at a hearing that the claims were time-
barred under securities law.
BlackRock told California Superior Court Judge Curtis Karnow that
under the Securities Act of 1933, shareholders only had a year to
file suit after alleged prospectus omissions. But the proposed
class waited until January to bring claims stemming from two 2015
flash crashes, during which plaintiffs who put stop-loss orders on
their ETFs automatically sold them, even though their prices soon
recovered.
Judge Karnow had previously ruled that publicly available reports
about the risks of flash crashes -- so-called storm warnings --
could start the statute-of-limitations clock on investors'
knowledge. But he also held that it was theoretically possible
that BlackRock "clouded" investors' understanding of the risks
with rosy statements that confused them.
BlackRock said that after a flash crash in 2010, plenty of reports
and news articles warned of the risks associated with stop-loss
orders on ETFs, and those would have put the investors on notice
of any related issues that may have been omitted from BlackRock's
prospectuses. Attorney Seth Schwartz, Esq. --
seth.schwartz@skadden.com -- of Skadden Arps Slate Meagher & Flom
LLP countered the investors' allegations that his client hid storm
warnings in its marketing materials, saying an omission wouldn't
have concealed the issues so many in the industry were talking
about.
"The only question would be, would a reasonable investor have been
sidetracked by the clouds. . . . For better or worse the law such
as it is seems pretty clear that as a matter of law, for the
public risk we're talking about, it would have to be something
like outright disavowals," he said, adding the storm warnings
"were there for people who cared to look at them."
He added that after experiencing the 2010 crash, no reasonable
shareholder could "come away from that and think, 'Ah ha, I can
reasonably gamble with a stop-loss order . . . with no risk of
taking a bath again in a flash crash.'"
Class counsel Reed Kathrein -- reed@hbsslaw.com -- of Hagens
Berman Sobol Shapiro LLP said he was "stunned" by BlackRock's
briefing on the issue and the notion that a Wall Street Journal
article could put stockholders on notice.
Judge Karnow wanted to know how much ignorance an investor could
cultivate.
"Is it your view that you can have an investor that, to coin a
phrase, buries his head in sand, doesn't read the Wall Street
Journal, lives in a shack on the Shetland Islands, invests
blindly, could still have a claim?" he asked. "I would have
thought a reasonable investor, which is our touchstone, is not
someone who's disconnected from the rest of the planet. He has to
have some awareness of what's going on in the world."
Mr. Kathrein said that unlike single-company stocks, a fund was
more difficult to research and predict. In order to trigger a duty
to investigate, he said, an investor had to experience a monetary
harm, saying, "Once a plaintiff is in injury, that's when the
plaintiff has to look. Most of them don't subscribe to the Wall
Street Journal."
He said BlackRock had admitted investors needed more education on
using stop-losses, and that the company was the one with the
knowledge, not the investors.
"They are sitting there, knowing their investors may not be
aware," he said. "If they know that is a risk, they should put it
in the prospectus."
On April 25, the U.S. Securities and Exchange Commission announced
that BlackRock had agreed to pay a $1.5 million penalty to settle
the government's allegations that it failed to obtain an exemption
for its exchange-traded fund of Russian securities.
BlackRock is represented by Raoul Kennedy, Esq. --
raoul.kennedy@skadden.com -- Seth Schwartz, Esq. --
seth.schwartz@skadden.com -- Jeremy Berman, Esq. --
jeremy.berman@skadden.com -- and Eben Colby, Esq. --
eben.colby@skadden.com -- of Skadden Arps Slate Meagher & Flom
LLP.
The proposed class is represented by Reed Kathrein, Peter Borkon
and Steve Berman of Hagens Berman Sobol Shapiro LLP.
The case is Garth Jensen et al. v. iShares Trust et al., case
number CGC16552567, in the California Superior Court for the
County of San Francisco.
BUDGET RENT-A-CAR: Roadblock Remains for Class Action
-----------------------------------------------------
Vlad Calina, Esq., at Stikeman Elliott LLP, in an article for
Lexology, wrote that in Vaugeois v. Budget Rent-A-Car of B.C.
Ltd., the British Columbia Court of Appeal upheld the dismissal of
a certification application, providing thoughtful commentary on
what will advance the access to justice, judicial economy and
behavioural goals of class proceedings.
Background and Procedural History
The defendants offered rental vehicles to consumers in British
Columbia. The representative plaintiff alleged that the defendants
conspired to improperly charge (or over-charged) consumers for
auto body and window repair costs. The certification judge held
that the pleadings disclosed three causes of action: civil
conspiracy; unjust enrichment; and deceptive acts or practices
contrary to the Business Practices and Consumer Protection Act.
The certification judge dismissed the certification application
for failing to meet the preferability criterion, finding that
common issues were overwhelmed by individual issues and that, if
the action were certified, "there would only be a mirage of
judicial economy."
On appeal, the plaintiff claimed that the certification judge
erred in his analysis of the access to justice, judicial economy
and behavioural modification aims of a class action and, when
properly assessed, these three factors weighed in favour of
certification.
Discussion
First, the Court affirmed that a class action would not advance
the aims of judicial economy, because "the litigation will not
finally determine claims, either way" (emphasis in original).The
Court highlighted that Vaugeois was distinctive in that "not only
will success for the class fail to significantly advance the cause
of any individual plaintiff but it can also be said that dismissal
of the class action will not finally determine the claim of any
class member."
Second, the Court held that the purpose of the access to justice
criterion would not be served in this case, primarily based on the
finding at certification that separate liability hearings were
"inevitable" and "a class proceeding 'would merely be a prelude to
many individual trials'." The Court affirmed the certification
finding that proceedings in the Provincial Court would be a
suitable alternative to a class proceeding.
Third, the Court held that the certification judge did not err by
relying on the hypothetical prospect that the BPCPA Director could
take action against the defendants, even though there was no
evidence of such action being pending. The Court held that
certification judges "may fairly proceed on the assumption that
the officers of the Legislature will use the tools at their
disposal to protect consumers and effect behaviour modification as
necessary."
Take-Away:
Judicial Economy: The fact a class action will not finally
determine claims either way (i.e., either if the plaintiffs are
successful or if the class action is dismissed) must be weighed in
assessing whether certification will serve the end of judicial
economy.
Access to Justice: The fact that separate liability hearings are
"inevitable" may be fatal to the argument that a class action
advances access to justice. Independently, the small claims
procedure available through the provincial courts may represent
the preferable forum for resolution of class members' claims even
if relief that is unique to the Supreme Court (e.g., injunctive
relief, or punitive damages) is unavailable in the provincial
court.
Behavioural Modification: A class action may not always be
necessary in order to bring about meaningful behavioural
modification. The Courts are entitled to proceed on an assumption
that the government, where such legal tools exist, will use the
tools at their disposal to protect consumers and effect
behavioural modification. [GN]
BURMAX LLC: "Stacy" Sues for Damages in Violation of TCPA
---------------------------------------------------------
Rebecca Stacy, individually and on behalf of all others similarly
situated, Plaintiff v. Burmax, LLC, Next Phase Marketing and Jeff
Richards, Defendants, Case No. 3:17-cv-00756-CAB-KSC (S.D. Cal.,
April 14, 2017) seeks damages, injunctive relief and other legal
or equitable remedies resulting from illegal actions of Defendants
in negligently, knowingly and/or willfully contacting Plaintiff on
Plaintiff's cellular telephone in violation of the Telephone
Consumer Protection Act.
Plaintiff received numerous telephone calls on her cellular
telephone from Defendants, in which Defendants utilized a pre-
recorded voice and automatic telephone dialing systems ("ATDS").
Burmax, LLC is a professional contractor servicing the recycling
community.
Next Phase Marketing LLC is in the Advertising Consultant
business.[BN]
The Plaintiff is represented by:
Kevin Lemieux, Esq.
Joshua Swigart, Esq.
Hyde and Swigart
2221 Camino Del Rio South, Suite 101
San Diego, CA 92108
Tel: (619) 233-7770
Fax: (619) 297-1022
Email: kevin@westcoastlitigation.com
josh@westcoastlitigation.com
- and -
Abbas Kazerounian, Esq.
Kazerouni Law Group, APC
245 Fischer Avenue, Suite D1
Costa Mesa, CA 92626
Tel: (800) 400-6808
Fax: (800) 520-5523
Email: ak@kzlg.com
CAPITAL MANAGEMENT: Faces "Macias" Suit Over Unpaid Wages, OT Pay
-----------------------------------------------------------------
Angel Macias, individually and on behalf of others similarly
situated, Plaintiff v. Capital Management Amityville, Inc.,
Checkers Drive-In Restaurants, Inc., Enrique "Rick" Silva, Peter
O'Hara and Victoria Umanzor, Defendants, Case No. 1:17-cv-02213
(E.D. N.Y., April 12, 2017) is brought against the Defendants to
recover unpaid minimum wage, overtime and liquidated damages
pursuant to the Fair Labor Standards Act and New York Labor Law.
Plaintiff was employed as a food preparer.
Franchisee Defendants own, operate or control a fast food
restaurant located at 800 Broadway, Amityville, NY 11701,
operating under the trade name "Checkers".[BN]
The Plaintiff is represented by:
Saul D. Zabell, Esq.
Daniel A. Johnson, Esq.
Zabell & Associates, P.C.
1 Corporate Drive, Suite 103
Bohemia, NY 11716
Tel: (631) 589-7242
Fax: (631) 563-7475
Email: SZabell@laborlawsny.com
CAPITAL ONE: "Gajewski" Files Suit Under TCPA, Wis. Consumer Act
----------------------------------------------------------------
JENNIFER GAJEWSKI, Individually and on Behalf of All Others
Similarly Situated, Plaintiff, v. CAPITAL ONE BANK (USA), N.A.,
Defendant, Case No. 17-cv-601 (E.D. Wis., April 27, 2017), was
brought for damages, and other legal and equitable remedies,
resulting from the alleged illegal actions of Defendant in
negligently, knowingly and/or willfully placing telephone calls to
Plaintiff's and Class members' cellular telephones without their
prior express written consent within the meaning of the Telephone
Consumer Protection Act. Defendant has also allegedly violated
the Wisconsin Consumer Act.
Capital One Bank (USA), National Association offers financial
products and services to consumers, small businesses, and
commercial clients in the United States, Canada, and the United
Kingdom.[BN]
Shpetim Ademi, Esq.
John D. Blythin, Esq.
Mark A. Eldridge, Esq.
Denise L. Morris, Esq.
ADEMI & O'REILLY, LLP
3620 East Layton Ave.
Cudahy, WI 53110
Tel: (414) 482-8000
Fax: (414) 482-8001
E-mail: sademi@ademilaw.com
jblythin@ademilaw.com
meldridge@ademilaw.com
dmorris@ademilaw.com
CAREY COUNSELING: Faces "Fitch" Suit Over Unpaid Wages and OT Pay
-----------------------------------------------------------------
Edward Fitch, on behalf of himself and all others similarly
situated, Plaintiff v. Carey Counseling Center, Inc. and Robert
Vaughn, Defendants, Case No. 1:17-cv-01066-JDB-egb (W.D. Tenn.,
April 13, 2017) is brought against the Defendants for failure to
pay minimum wages and overtime pay in violation of the Fair Labor
Standards Act.
Plaintiff worked as a Residential Technician and Lead Residential
Technician. During his employment, Plaintiff worked hours for
which he was not properly compensated, including being denied
minimum wages and overtime compensation, says the complaint.
Defendant Carey is a nonprofit corporation licensed in the state
of Tennessee which owns and operated four residential facilities
in Northwest Tennessee.[BN]
The Plaintiff is represented by:
Jenni Bryant, Esq.
Jimmy Bewley, Esq.
James Bewley Law PLLC
300 10th Ave South
Nashville, TN 37203
Tel: 615-988-9411
Email: jbewley@JBLfirm.com
jbryant@JBLfirm.com
- and -
Peter F. Klett, Esq.
Joshua Burgener, Esq.
Dickinson Wright PLLC
424 Church Street, Suite 1401
Nashville, TN 37219
Tel: 615-244-6538
Email: pklett@dickinsonwright.com
jburgener@dickinsonwright.com
ccaldwell@dickinsonwright.com
CARIBBEAN CRUISE: $15MM Atty Fee Award Could Spur More TCPA Suits
-----------------------------------------------------------------
Sara Mcleary at Cook County Record reports a federal judge's
decision awarding at least USD15 million to lawyers who secured a
USD56 million settlement in a class action against a cruise line
and others who allegedly masked telemarketing calls as non-profit
political surveys, marks one of the largest such payouts to
attorneys under the federal Telephone Consumer Protection Act.
But while the settlement and fee award could prove attractive to
other litigants seeking a big payday, it could also prompt a
response from federal regulators and lawmakers to change the law,
as well, said a lawyer whose practice involves telecommunications
law.
Earlier this year, Caribbean Cruise Line settled a years-long case
alleging they had violated the TCPA, agreeing to pay up to USD76
million in damages. Of that, the plaintiffs' attorneys sought
USD24.5 million in fees, but the defendants and one class member
objected.
Judge Matthew F. Kennelly of the U.S. District Court for the
Northern District of Illinois decided April 6 to allow the
attorneys who brought the case, from the Chicago firms of Edelson
P.C. and Loevy & Loevy, to collect anywhere from USD15 million to
USD18.9 million in fees, depending on how many claimants come
forward to collect their share of the settlement.
"That's very significant and certainly will open the eyes wider of
the collective plaintiff's bar and those that bring class
actions," said David Klein, managing partner of Klein Moynihan
Turco in New York. "As you may be aware, the TCPA has been a
vehicle that the plaintiff's bar has taken advantage of in recent
years, since updates to the TCPA's regulations which make it quite
onerous to comply with. In the telemarketing and text message
marketing space, [the TCPA] is very nuanced and convoluted, and
it's hard to comply with, particularly by virtue of the fact that
various jurisdictions differ over their interpretations and how
they rule."
Although there is concern that this large attorney award might
lead to an increase in class action suits under the TCPA, Klein
said some are taking action to prevent that.
"There are numerous petitions pending before the (Federal
Communications Commission) to reconsider or at the very least
provide additional guidance on the TCPA regulations themselves,"
Klein said. "Do I think these kinds of cases are going to
continue? Certainly.
"But I think the Trump administration has probably issued an edict
to the FCC to cut back on how crazy the TCPA has become in terms
of the litigation that's mounted against private industry, and
those that are endeavoring to use telemarketing to promote their
goods and services. So I don't think the TCPA class action space
is going to continue to grow much more significantly than it
already has."
The USD76 million settlement against Caribbean Cruise Line, though
significant, is not the largest one to have come out of TCPA
litigation, according to Klein.
"It's worth noting that each violation of the TCPA, meaning per
call or per text, is a USD500 violation, up to USD1,500 per call,
per text, if it's willful and knowing," he said. "And in the state
of Connecticut, one (improper) call or text can cost as much as
USD20,000." [GN]
CEDAR RAPIDS, IOWA: DOT Can Turn Off Traffic Camera, Judge Says
---------------------------------------------------------------
B.A Morelli at The Gazette reports that a Polk County District
Court judge affirmed Iowa Department of Transportation orders to
turn off or move several speed cameras around Iowa, including in
Cedar Rapids where motorists receive more than 100,000 tickets a
year and the city splits millions of dollars with a private
vendor.
The 15-page ruling released marks the first setback for traffic
cameras in Iowa, where state legislators have threatened
unsuccessfully to ban the technology and numerous class action
lawsuits have been denied.
Around the country, cameras have been a controversial topic with
cash-strapped law enforcement agencies leaning on automated
traffic camera technology to combat traffic violations and patrol
dangerous, hard-to-enforce roads, such as the S-curve in Cedar
Rapids. They say the cameras make roads safer, while critics
contend they are simply a cash cow.
In Iowa, a state versus home rule debate bubbled up as cities
installed cameras over the past decade, and the Iowa DOT enacted
administrative rules to regulate the cameras in February 2014 as
the cameras remained unaddressed in state code.
In March 2015, the Iowa DOT ordered nine of 34 camera locations
around the state be turned off, and another three moved or
modified, stating they didn't improve the safety of the highway
system. After losing an appeal to the Iowa DOT director, the
cities of Cedar Rapids, Des Moines and Muscatine -- three of six
cities in Iowa with traffic cameras on state highways or
interstates -- sued in June 2015 to keep the cameras on.
At the heart of the case was whether the Iowa DOT had the final
say over tools used on primary highways or if local cities could
decide their approach to enforcement.
Judge Scott E. Rosenberg ruled on five main arguments, including
whether Iowa DOT traffic camera rules were established properly,
if they were logical, if the Iowa DOT overstepped the will of the
Iowa Legislature, and who has the authority over camera use.
Rosenberg sided with the Iowa DOT on all fronts.
"Based on state law providing the IDOT with the authority to
regulate safety on primary highways, the Iowa Legislature has
provided the IDOT with the authority to regulate ATEs (automated
traffic enforcement devices)," Rosenberg wrote.
Cedar Rapids, which generated USD4.7 million in fiscal 2016 from
traffic cameras, has the most prolific traffic camera program in
the state and was most impacted by the Iowa DOT order, which
called for two of the four cameras on Interstate 380 to be shut
off and the other two moved closer in to the S-curve. Furthermore,
the traffic camera location at First Avenue E and 10th Street SE,
which has speed and red light detection, was to be modified so
only a portion of the speed camera remained operational.
City officials estimated in 2015 Cedar Rapids would lose USD2.2
million of the USD3 million in net revenue it generated at the
time if it complied with the Iowa DOT decision. An executive with
GATSO USA, the vendor for Cedar Rapids' traffic camera program,
estimated it would cost USD22,000 per I-380 location to remove and
reinstall the cameras elsewhere, and up to USD70,000 to erect a
new truss to mount the cameras.
A key issue in the lawsuit was a so-called 1,000 foot rule, which
was created as part of the 2014 rules and forbade speed cameras
within 1,000 feet of a speed limit change because it didn't give
motorists enough time to slow down. Three locations in Cedar
Rapids have been out of compliance with that rule.
The cities contended the rule was illogical because the cameras
promote safety and reduce crashes and removing the cameras would
make the locations less safe. The cities also called the process
to create the 2014 rules flawed.
The judge sided with the Iowa DOT that the 1,000 foot rule is a
"logical outgrowth" of public input meetings about the traffic
cameras, and the cameras so close to speed limit changes could, in
fact, increase danger.
"It is possible that ATEs will result in unfamiliar drivers
braking too quickly or frequently, causing greater risk for
accidents," Rosenberg wrote.
The Iowa DOT applauded the ruling on April 27.
"The department has always said automated enforcement is a safety
countermeasure that can work effectively in certain locations, and
I think this backs it up," said Steve Gent, Iowa DOT director of
traffic and safety.
Cedar Rapids Mayor Ron Corbett said attorneys are going to review
the decision before taking any action, but noted the traffic
cameras remain on and enforced in Cedar Rapids.
"This is a joint effort with other cities," Corbett said. "Each
city will be reviewing and then we will decide next steps. There
have been several lawsuits on the issue, not every case goes in
your favor. This is the first one that hasn't. My fear has always
been the same. Speed kills, but nobody ever thinks it will be them
in the accident."
Officials in Des Moines and Muscatine did not immediately respond
to messages seeking comment.
The question now is what happens to the cameras and the fines that
have been issued since the Iowa DOT ordered the cameras off. Legal
scholars have said cities risk having to repay the fines collected
by leaving the cameras on after they've been ordered off.
Rosenberg did not address reimbursement in his ruling.
Legal experts had predicted, whichever way the judge ruled, that
the case would likely be appealed to the Iowa Supreme Court.
Iowa DOT spokeswoman Andrea Henry noted the cities have 30 days to
file an appeal, but said she didn't know if an appeal is
forthcoming. She said she doesn't anticipate cameras being removed
before the 30-day appeal window expires.
Jim Larew, an attorney who has filed several class action lawsuits
calling the cameras unconstitutional, also applauded the outcome
of the case.
"Our clients applaud this ruling," Larew said in an email. "They
believe that vehicle owners are being wrongfully prosecuted by
cities using traffic camera equipment that the IDOT, more than two
years ago, properly ordered the cities to remove." [GN]
CENTOR US: ARcare Files Suit Over Unauthorized Fax Ads
------------------------------------------------------
ARcare, Inc., an Arkansas Corporation, on behalf of itself and all
others similarly situated Plaintiff, v. Centor US Holding, Inc;
and Centor, Inc., Defendant, Case No. 3:17-cv-00891-JGC (N.D.
Ohio, April 27, 2017), challenges Defendant's alleged policy and
practice of faxing advertisements without obtaining Plaintiff's
prior express permission beforehand in violation of the federal
Telephone Consumer Protection Act.
Defendant Centor US Holdings, Inc. is a company that supplies
pharmacies with plastic containers for packaging drugs.[BN]
The Plaintiff is represented by:
David P. Meyer, Esq.
Matthew R. Wilson, Esq.
Michael J. Boyle, Jr., Esq.
MEYER WILSON CO., LPA
1320 Dublin Road, Ste. 100
Columbus, OH 43215
Phone: (614) 224-6000
Fax: (614) 224-6066
E-mail: Email: dmeyer@meyerwilson.com
Email: mwilson@meyerwilson.com
Email: mboyle@meyerwilson.com
- and -
Randall K. Pulliam, Esq.
CARNEY BATES & PULLIAM, PLLC
519 West 7th Street
Little Rock, AR 72201
Phone: (501) 312-8500
Fax: (501) 312-8505
E-mail: rpulliam@cbplaw.com
CHARLOTTE SCHOOL: Seeks Dismissal of Accreditation Class Actions
----------------------------------------------------------------
Karen Sloan, writing for Law.com, reports that the Charlotte
School of Law has fired back in court against students and recent
graduates who allege they should have been informed sooner of the
school's shaky accreditation status that prompted the federal
government to pull their access to student loans late last year.
The school, which in November was formally reprimanded by the
accrediting body of the American Bar Association for substandard
admissions practices, has now moved to dismiss all three federal
class actions brought by Charlotte Law students. Those suits were
filed after the U.S. Department of Education's in December decided
to stop issuing loans to Charlotte Law students, a situation that
has decimated Charlotte Law's enrollment and pushed the school to
the brink of collapse.
The three motions to dismiss, which are similar, but differ
depending on the specific claims alleged in each class action,
argue that Charlotte was bound to keep its preliminary
accreditation results confidential under ABA rules, and that any
harm to students was inflicted by the Education Department
instead. The school alleges that each class action fails to state
a valid claim, in part because their breach of contract and unjust
enrichment claims are actually claims of educational malpractice,
which North Carolina law doesn't recognize.
"[Charlotte School of Law] had no reason to expect that the ABA's
limited findings of noncompliance would result in severe
consequences for enrolled students, much less that the [Education
Department] inexplicably would use interim findings within an
ongoing accreditation process to deny recertification to
participate in federal student loan programs," reads the motion to
dismiss in Barchiesi v. Charlotte School of Law, the first
response to be filed by the school.
The motion to dismiss in Levy v. Charlotte School of Law, filed
eight days later, called the discontinuance of federal student
loans to the school an "extreme and politically charged action."
The school has yet to file a motion to dismiss in a fourth federal
lawsuit brought by an individual student, Leah Ash, but filed the
last of the three class action motions on April 21.
Student lawsuits aren't the only legal challenge facing the
beleaguered law school. North Carolina Attorney General Josh
Stein has opened an investigation into whether Charlotte violated
the state's consumer protection laws, according to a report in
Politico.
Charlotte Law's problems came to a head in July 2016 when the
ABA's accreditation committee informed the school that it was out
of compliance with its law school standards and ordered remedial
action, including a disclosure to students that it was on
probation, according to court papers. But the ABA's council of
the Section of Legal Education and Admissions to the Bar, which
has the final word on accreditation matters, stayed that probation
and public disclosure until November, when it formally reprimanded
the school for its admissions practices. The council also ordered
the school at that time to inform students of its probationary
status.
The Education Department announced the following month that it was
ending the school's federal loan eligibility in response to the
shortcomings identified by the ABA.
The first student class action, Krebs v. Charlotte School of Law,
was filed the next day. The various complaints allege that
Charlotte harmed students by not disclosing the fact that the ABA
identified accreditation problems as early as 2014 in a bid to
prevent students from enrolling there or transferring out.
"In some circumstances, plaintiffs and the putative class have
been damaged and left without the ability to sit for, take and
pass the bar exam, to become licensed practicing attorneys, to
obtain financial assistance for completion of their education and
or graduated with a degree from [Charlotte School of Law] that is
worth less than what was expected and bargained for had [the
school] maintained its ABA accreditation," reads the second
amended complaint in Levy.
But the school counters in its motions to dismiss that it remains
fully accredited by the ABA to this day, and that ABA rules
maintain that accreditation reviews remain confidential until a
final decision is announced by the council. Moreover, it argues
that the plaintiffs were not harmed by the timing of the probation
disclosure because they were already enrolled or had graduated at
the time the council made that final decision. Those students had
access to a wealth of information about graduate employment rates
and admissions data through the disclosures the ABA requires every
school to make annually, the school's motions to dismiss claim.
"This is the type of information that prospective law students use
to determine whether to attend an institution?not technical
documents exchanged between a school and the ABA that are part of
an ongoing process designed to enhance school quality and
designated by the ABA as confidential," reads the motion to
dismiss in Barchiesi.
The plaintiffs in Barchiesi are thus far the only ones to file a
reply to Charlotte's motion to dismiss. That reply argues that the
school's conduct runs afoul of North Carolina's Unfair and
Deceptive Trade Practices Act.
"By failing and refusing to disclose the ABA's adverse findings,
admittedly material information, defendants collected millions of
dollars from unsuspecting students, including plaintiffs, who
would have avoided the failing institution had they known the
truth," reads that response motion filed April 10.
Charlotte filed a reply on April 24, calling the plaintiffs'
response "long on invective and short on relevant law."
CHARTER COMMUNICATIONS: Anderson Sues Over Telemarketing Calls
--------------------------------------------------------------
CHRISTOPHER ANDERSON, individually and on behalf of classes of
similarly situated individuals, Plaintiff, v. CHARTER
COMMUNICATIONS, INC., d/b/a SPECTRUM, a Delaware corporation,
Defendant, Case No. 1:17-cv-03181 (N.D. Ill., April 27, 2017),
alleges that Defendant violated federal law by placing unsolicited
telemarketing calls using an automatic telephone dialing system to
the cellular telephones of thousands of consumers nationwide in an
effort to market its cable television, internet, and telephone
services.
Defendant provides cable television, internet, and telephone
services.[BN]
The Plaintiff is represented by:
Myles McGuire, Esq.
Paul T. Geske, Esq.
Eugene Y. Turin, Esq.
MCGUIRE LAW, P.C.
55 W. Wacker Dr., 9th Floor
Chicago, IL 60601
Phone: {312) 893-7002
Fax: {312) 275-7895
E-mail: eturin@mcgpc.com
mmcguire@mcgpc.com
pgeske@mcgpc.com
CITIZENS FINANCIAL: "Chee" Suit Alleges Securities Act Violation
----------------------------------------------------------------
WOH CHEN CHEE, Individually and On Behalf of All Others Similarly
Situated, Plaintiff, v. CITIZENS FINANCIAL GROUP, INC., BRUCE VAN
SAUN, ERIC W. ABOAF, JOHN J. FAWCETT, and JOHN F. WOODS,
Defendants, Case No. 1:17-cv-03079 (S.D.N.Y., April 27, 2017),
alleges that Defendants made materially false and/or misleading
statements, as well as failed to disclose material adverse facts
about the Company's business, operations, and prospects in
violation of the U.S. Securities and Exchange Act. Specifically,
Defendants failed to disclose that: (i) Company employees were
falsifying information related to the Citizens Checkup program;
(ii) as a result, the Company's reported Citizens Checkup figures
were inflated; and (iii) as a result of the foregoing, Defendants'
statements about Citizens' business, operations, and prospects,
were false and misleading and/or lacked a reasonable basis.
CITIZENS FINANCIAL GROUP, INC. offers banking products and
services through its two operating segments: Consumer Banking and
Commercial Banking.[BN]
The Plaintiff is represented by:
Jeremy A. Lieberman, Esq.
J. Alexander Hood II, Esq.
Hui Chang, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Tel: 212-661-1100
Fax: 212-661-8665
E-mail: jalieberman@pomlaw.com
ahood@pomlaw.com
hchang@pomlaw.com
- and -
Patrick V. Dahlstrom, Esq.
POMERANTZ LLP
10 South La Salle Street, Suite 3505
Chicago, IL 60603
Phone: (312) 377-1181
Fax: (312) 377-1184
E-mail: pdahlstrom@pomlaw.com
CITIZENS INC: Pomerantz LLP Files Securities Class Action
---------------------------------------------------------
Pomerantz LLP disclosed that a class action lawsuit has been filed
against Citizens, Inc., and certain of its officers. The class
action, filed in United States District Court, Western District of
Texas, is on behalf of a class consisting of investors who
purchased or otherwise acquired Citizens securities, seeking to
recover compensable damages caused by defendants' violations of
the Securities Exchange Act of 1934.
If you are a shareholder who purchased Citizens securities between
March 11, 2015 and March 8, 2017, both dates inclusive, you have
until May 15, 2017 to ask the Court to appoint you as Lead
Plaintiff for the class. A copy of the Complaint can be obtained
at www.pomerantzlaw.com. To discuss this action, contact Robert S.
Willoughby at -- rswilloughby@pomlaw.com -- or 888.476.6529 (or
888.4-POMLAW), toll free, ext. 9980. Those who inquire by e-mail
are encouraged to include their mailing address, telephone number,
and number of shares purchased.
Citizens, Inc. operates primarily as an insurance holding company.
The Company, through its subsidiaries, offers a wide range of
insurance products and services, including life and health and
property and casualty insurance.
The Complaint alleges that throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operational and compliance policies.
Specifically, Defendants made false and/or misleading statements
and/or failed to disclose that: (i) the Company's brokers and
pitchbooks falsely claim that most of the funds from its insurance
policies are directly invested in U.S. Treasury Bond; (ii) funds
from the Company's insurance policies are funneled into continuous
open market purchases that have inflated the Company's stock
price; and (iii) as a result of the foregoing, Citizens' public
statements were materially false and misleading at all relevant
times.
On March 8, 2017, Seeking Alpha published a report alleging that
despite Citizen's promises of 'outsized 'guaranteed' returns
backed by U.S. Treasury bonds,' the Company's funds are 'not
invested in U.S. Treasuries and [Citizen's] policies appear
designed to prop up Citizen's stock price.' The Seeking Alpha
report further stated that '[b]ecause most of the [Company's]
returns to existing policyholders are driven by funds contributed
by new policyholders, Citizens displays some characteristics that
appear analogous to a Ponzi scheme.
On this news, Citizens' share price fell USD0.45, or over 5% over
the next two trading days, to close at USD8.00 on March 9, 2017.
The Pomerantz Firm, with offices in New York, Chicago, Florida,
and Los Angeles, is acknowledged as one of the premier firms in
the areas of corporate, securities, and antitrust class
litigation. Founded by the late Abraham L. Pomerantz, known as the
dean of the class action bar, the Pomerantz Firm pioneered the
field of securities class actions. Today, more than 80 years
later, the Pomerantz Firm continues in the tradition he
established, fighting for the rights of the victims of securities
fraud, breaches of fiduciary duty, and corporate misconduct. The
Firm has recovered numerous multimillion-dollar damages awards on
behalf of class members. [GN]
CONAGRA: Judge Tosses Class Action Over Cooking Spray
-----------------------------------------------------
Dee Thompson at Legal Newsline reports a class action lawsuit
filed regarding the advertising of cooking sprays has been
dismissed by a federal judge.
The case was filed Feb. 6 but quickly dismissed because the
plaintiff couldn't prove USD75,000 was in question -- a threshold
for plaintiffs to meet in order to establish federal jurisdiction.
U.S. District Judge Steven Merryday, then asked to reconsider his
decision, did not change his mind and closed the case March 2.
The lawsuit originally was filed in U.S. District Court for the
Middle District of Florida Feb. 6, by
TruthinadvertisingEnforcers.com against Conagra Brands Inc.
alleging misleading advertising, fraudulent inducement, negligent
misrepresentation, and fraudulent concealment.
The complaint alleged Conagra was deceptive because it displayed
on its cooking spray the word "butter" very conspicuously and the
word "flavored" in a much smaller, less conspicuous way. There is
no butter in the ingredients list, the plaintiff says.
Thus, it alleges, Conagra's cooking spray didn't sufficiently
disclose that butter is not actually in its cooking spray and
consumers paid more for a product that didn't have butter in it.
To allege federal diversity jurisdiction correctly, the amount in
controversy must be greater than USD75,000. According to the first
order dismissing the case, "The "PAM" butter and Publix butter
cooking sprays typically cost between USD1.50 and USD3.
"The plaintiff's compensatory damages are minuscule; certainly not
more than USD75,000," the court ruled.
Even though the case was dismissed two weeks after it was filed,
on Feb. 24, a motion for miscellaneous relief, specifically for
relief from the order dismissing complaint and its included orders
was filed by TruthInAdvertisingEnforcers.com.
In it, the plaintiff alleged Conagra's actions were particularly
egregious and there was no "legal certainty" that the amount in
controversy would be insufficient to establish diversity, among
other arguments. The plaintiff also waived compensatory damages
but said punitive damages could reach the threshold.
An order denying that motion was filed March 2, concluding, "The
plaintiff cannot 'waive' compensatory damages in an attempt to
evade the due process requirement."
*Nonetheless, the order said, "an award of punitive damages
exceeding compensatory damages by a multiple in the tens of
thousands is unreasonable and disproportionate to the harm
allegedly suffered by the plaintiff, and would almost certainly
violate due process. Accordingly, the motion for relief denied as
futile." [GN]
COSTCO WHOLESALE: Faces "Armstrong" Suit Removed to D.Or.
---------------------------------------------------------
Desmond R. Armstrong, individually and on behalf of all others
similarly situated, Plaintiff v. Costco Wholesale Corporation and
Nice-Pak Products, Inc., Defendants, Case No. 15-cv-2909 (E.D.
N.Y., March 27, 2017) was removed from the United States District
Court for the Eastern District of New York to the U.S. District
Court for the District of Oregon on April 11, 2017, and assigned
Case No. 3:17-cv-00567-HZ.
Costco Wholesale Corporation operates membership warehouses based
on the concept that offering its members low prices on a limited
selection of nationally branded and private-label products in a
wide range of merchandise categories will produce high sales
volumes and rapid inventory turnover.[BN]
The Plaintiff is represented by:
Mark S. Reich
Robbins Geller Rudman & Dowd, LLP
58 South Service Road, Suite 200
Melville, NY 11747
Tel: (302) 295-5310
Fax: (302) 654-7530
The Defendants are represented by:
James M. Bergin
Morrison &Foerster
250 West 55th Street
New York, NY 10019
Tel: (212) 468-8000
Fax: (212) 468-7900
FITBIT INC: Stock Drop Not Caused by Misrepresentations
-------------------------------------------------------
Matthew Guarnaccia at Law360 reports that Fitbit Inc. on April 26
urged a California federal judge to throw out an investor class
action accusing the company of artificially inflating its stock
price by hiding problems with its fitness tracking technology,
saying the alleged losses are easily explained by factors other
than fraud.
Fitbit Inc. said in a motion for summary judgment that the
shareholders erroneously relied upon so-called corrective
disclosures, which supposedly revealed that the company made false
statements regarding the accuracy of heart rate monitoring
features on a pair of its devices, inflating the price of its
stock. The shareholders alleged that the disclosures, which
include a consumer class action and a television news report from
Indianapolis, caused the stock to revert back to a non-inflated
level.
But in its motion April 26 , Fitbit argued that these disclosures
contained no new information, as all of the alleged problems with
the heart rate trackers were "readily accessible to the market"
through consumer and media reviews, and online forums, among
others.
"There is no reason for an investor to credit an unverified
allegation by a litigant seeking damages, over at least seventeen
media reviews and hundreds of user reports on sites such as
Amazon.com, all concluding that the devices' heart rate tracking
feature was inaccurate or inconsistent," Fitbit said.
Additionally, Fitbit said a stock price drop in January 2016 cited
by the proposed class as stemming from the consumer lawsuit should
actually be attributed to a negative market reaction to the
release of a new product. The announcement of its Blaze fitness
tracker was actually new information, Fitbit said, and analysts
expressed disappointment with a lack of new fitness tracking
features in the device, causing the drop.
Another downturn in February, the same day as the Indianapolis
television report, actually stemmed from the release of
disappointing first quarter 2016 financial projections, Fitbit
claimed. The company also said that on the day the proposed
consumer class filed an amended complaint in May, its stock
actually finished higher at the end of the day than when it
started, contrary to assertions by the investors.
Investor Brian Robb filed suit in January 2016, claiming Fitbit
misled investors both before and after its 2015 initial public
offering by telling the public its devices use technologies and
algorithms that "accurately measure and analyze user health and
fitness metrics" despite knowing the products had problems.
The shareholder suit came shortly after the consumer complaint
cited by the company, which claimed the heart rate tracking
technology in its fitness watches was "wildly inaccurate" and
didn't work properly during intense exercise. News of the consumer
class action and subsequent revelations caused Fitbit's stock to
drop from a high of USD30.96 on Jan. 5, 2016, to USD13.99 by May
19, the complaint said.
In addition to the company, the securities suit named Fitbit
President, Chairman and CEO James Park, Chief Financial Officer
William R. Zerella and Chief Technology Officer Eric N. Friedman,
as well as the underwriters of the IPO.
U.S. District Judge Susan Illston in May appointed five individual
investors claiming a collective USD3.1 million loss as lead
plaintiff. Institutional shareholders had objected, but the judge
said there's no law in the Ninth Circuit that required her to
treat the individuals separately rather than as a group for the
purposes of appointing the biggest loser.
A motion to dismiss from Fitbit was denied in October, when Judge
Illston said the shareholders' claims were strong enough to
survive at that point. The company then moved for partial
reconsideration, but that bid was denied in January.
In early March, the investors asked to certify a pair of classes,
consisting of those who purchased Fitbit shares in its June 2015
IPO and those who invested between the IPO and May 19, 2016. The
motion is currently pending.
Counsel for the parties did not immediately respond April 27 to a
request for comment.
The shareholders are represented by Brian P. Murray --
bmurray@glancy.com -- and Garth Spencer -- gspencer@glancylaw.com
-- of Glancy Prongay & Murray LLP and Jeremy A. Lieberman --
jlieberman@pomlaw.com -- Murielle J. Steven Walsh --
mstevenwalsh@pomlaw.com -- and Aatif Iqbal -- aiqbal@pomlaw.com --
of Pomerantz LLP.
Fitbit is represented by Jordan Eth -- jeth@mofo.com -- Anna
Erickson White -- awhite@mofo.com -- Philip T. Besirof --
pbesirof@mofo.com -- and Mark David McPherson --
mmcpherson@mofo.com -- of Morrison & Foerster LLP.
The case is Robb v. Fitbit Inc. et al., case number 3:16-cv-00151,
in the U.S. District Court for the Northern District of
California. [GN]
FEDEX GROUND: Faces "Armijo" Suit Over Unpaid Overtime Pay
----------------------------------------------------------
Jaime Loree Armijo, on behalf of herself and all others similarly
situated, Plaintiff v. Fedex Ground Package System, Inc., a
foreign company, Defendant, Case No. 1:17-cv-00440 (D.N.M., April
11, 2017) seeks to recover overtime pay, mandatory liquidated
damages and attorneys' fees for violation of New Mexico's Overtime
Law.
Plaintiff worked as a pickup and deliver contractor.
FedEx Ground Package System, Inc. operates a freight, shipping and
delivery services company.[BN]
The Plaintiff is represented by:
Christopher P. Bauman, Esq.
Cynthia L. Weisman, Esq.
Bauman, Dow & Stambaugh, P.C.
P.O. Box 30684
Albuquerque, NM 87190
Tel: (505) 883-3191
Fax: (505) 883-3194
Emai: cpb@bdsfirm.com
cw@bdsfirm.com
- and ?
Harold L. Lichten, Esq.
Matthew Thomson, Esq.
Lichten & Liss-Riordan, P.C.
729 Boyston Street, Suite 2000
Boston, MA 02116
Tel: 617-994-5800
Fax: 617-994-5801
Email: hlichten@llrlaw.com
mthomson@llrlaw.com
- and -
Shanon J. Carson, Esq.
Sarah R. Schalman-Bergen, Esq.
Berger & Montague, P.C.
1622 Locust Street
Philadelphia, PA 19103
Tel: 215-875-3053
Email: scarson@bm.net
Sschalman-bergen@bm.net
- and -
Jordan Lewis, Esq.
Jordan Lewis, P.A.
4473 N.E. 11th Avenue
Fort Lauderdale, FL 33334
Tel: 954-616-8995
Fax: 954-206-0374
Email: Jordan@jml-lawfirm.com
FLINT, MI: Plaintiffs Fight CAFA's Current in Water Suits
---------------------------------------------------------
Amanda Bronstad, in an article for The National Law Review, asked,
"Is the Flint water crisis a local calamity or a national
controversy with far-reaching implications?"
The answer, already subject to two rounds of appellate jockeying
before the U.S. Court of Appeals for the Sixth Circuit, could
ordain who has the upper hand in dozens of class actions against
public officials and engineering firms stemming from the discovery
of tainted drinking water in Flint, Michigan.
From the start, the cases faced numerous hurdles. But so far,
they've been mired in jurisdictional battles that test the "local
controversy" exception to the Class Action Fairness Act. The 2005
law, known as CAFA, expanded federal jurisdiction for class
actions and made it easier for defendants to remove cases to
federal court.
A Sixth Circuit panel concluded a number of Flint-related class
actions aren't covered by the exception, sticking plaintiffs
lawyers in federal court, which is generally seen as a more
defense-friendly forum. The decision, along with a series of
dismissals, have left the Flint class actions treading water.
"It is true that the injuries were suffered by Flint residents in
Flint, Michigan," wrote Judge Julia Smith Gibbons in an April 25
decision. "However, it is not local in the way Congress
contemplated in CAFA. It was the alleged conduct of primarily out-
of-state defendants that caused plaintiffs' injuries. And the
class actions filed surrounding the Flint water crisis will have
long-lasting implications for interstate commerce and will be felt
far beyond the Flint, Michigan region."
Gibbons struck a different chord than a Sixth Circuit panel
considering similar issues last year in Mason v. Lockwood, Andrews
& Newnam.
"Though the Flint Water Crisis captured the attention of the
nation, its infamy does not make it any less local," wrote Judge
Richard Allen Griffin for the majority in the earlier decision
upholding a remand order to Michigan's Genesee County Circuit
Court. "Indeed, it defies common sense to say a suit by Flint
residents against those purportedly responsible for injuring them
through their municipal water service is not a 'local
controversy.'"
Circuit Judge Raymond Kethledge dissented, finding in part that
the plaintiffs failed to provide enough evidence about whether
potential class members were Michigan citizens.
While both Sixth Circuit decisions included broad language on the
nature of a local versus a national controversy, they turned on
close parsing of the four statutory prongs laid out in CAFA's
"local controversy" exception. They require that more than two-
thirds of the proposed class members and at least one defendant
are residents of the state, that the principal injuries all took
place in the state, and that no "other class actions" with similar
allegations has been filed in the prior three years.
Engineering firm Lockwood, Andrews & Newnam (LAN), based in
Houston, has petitioned the U.S. Supreme Court to reverse the
Sixth Circuit's Mason holding. Ariel Lavinbuk, a partner at
Washington's Robbins, Russell, Englert, Orseck, Untereiner &
Sauber, wrote in a March 9 cert petition that the ruling conflicts
with decisions in six other circuits and, if left unchanged, "will
encourage the very gamesmanship that Congress enacted CAFA to
prevent."
The Sixth Circuit's latest ruling, however, is a blow for
plaintiffs attorneys, and comes on top of the dismissals of four
other Flint class actions by a federal judge in Ann Arbor,
Michigan, most recently in February.
Ted Leopold, a partner in Cohen Milstein Sellers & Toll's Palm
Beach Gardens, Florida, office who represented the plaintiffs
before the Sixth Circuit in this week's decision, acknowledged his
team faces a "whole juggernaut of various jurisdictional issues."
The firm also is handling one of the four dismissed cases. But he
remained optimistic.
"Once we filter through the procedural issues, we will look
forward to litigating the case on the merits," Leopold said. "We
feel very confident on those issues."
Cheryl Bush of Bush Seyferth Paige in Troy, Michigan, who
represented Veolia Water North America Operating Services, the
defendant in this week's case, referred calls to a company
spokeswoman, who declined to comment.
Flood of Suits
Government officials in 2014 temporarily shifted Flint's water
supply from Lake Huron to the Flint River, despite studies warning
that its corrosive nature could risk lead from old pipes leaching
into the drinking water. Hundreds of suits have been brought on
behalf of residents, most of them individual cases involving
medical problems or property damages.
The class actions, brought by prominent plaintiffs firms such as
New York's Napoli Shkolnik and Washington's Cohen Milstein, assert
a host of broader allegations that include professional negligence
and violations of the U.S. Constitution and the Michigan Consumer
Protection Act.
Plaintiffs lawyers gained some traction in state court when U.S.
District Judge John O'Meara of the Eastern District of Michigan in
Mason remanded their case to state court by relying on CAFA's
"local controversy" exception, and the Sixth Circuit affirmed.
That momentum shifted with the Sixth Circuit's ruling in Davenport
v. Lockwood, Andrews & Newnam. Plaintiffs had relied on the Mason
decision. But the Sixth Circuit, taking up an issue of first
impression, drew a distinction from its earlier holding: Unlike in
Mason, which was one of the first class actions brought over the
Flint water crisis, the Davenport case failed the last prong of
the "local controversy" exception, the panel determined. Put
simply, the exception didn't apply because "multiple class
actions" were pending by the time Davenport was filed in July
2016.
"There is no dispute that there have been other class actions
filed and that they involve similar factual allegations against
many of the same defendants as those present here," wrote Judge
Gibbons. "The sole question is whether these 'other class actions'
are such for CAFA purposes."
Rough Waters
So far, plaintiffs aren't faring well in the federal cases before
O'Meara.
Class actions filed in federal court alleged violations of the
U.S. Constitution such as due process and equal protection. Last
year, O'Meara dismissed one of the cases, concluding that he
lacked jurisdiction to hear federal claims that are precluded by
the U.S. Safe Drinking Water Act. In February, O'Meara dismissed
three other cases.
The Sixth Circuit has consolidated appeals in two of the cases,
both of which were filed against various individual public
officials. Plaintiffs attorneys argued that the act, which gives
the federal government the authority to regulate drinking water,
doesn't pre-empt constitutional violations and that their claims
should be revived. The Natural Resources Defense Council and the
ACLU Fund of Michigan filed an amicus brief in support of
plaintiffs asserting that the constitutional claims are necessary
to compensate residents for past harms, like exposure to disease
and depressed home values.
"We still have this period of time, this extensive period of time,
when people who lived in Flint received poisoned water and did so
because, we argue, of discrimination, and because of violations of
the Constitution by government officials," said plaintiffs
attorney Samuel Bagenstos, a professor at the University of
Michigan Law School, who is handling one of the appeals.
Oral arguments in both cases are set for June 15. [GN]
GALLAGHER'S FAMOUS: "Beauchamp" Alleges Labor Law Violations
------------------------------------------------------------
Christian Beauchamp, on behalf of himself and others similarly
situated, Plaintiff, v. GALLAGHER'S FAMOUS, LLC and DEAN POLL,
Defendant, Case No. 1:17-cv-03109 (S.D.N.Y., April 27, 2017),
alleges that throughout his employment, Plaintiff was paid an
hourly rate that is lower than federal and New York State minimum
wage.
Defendant owns Gallagher's Steakhouse. Plaintiff was employed as
a server.[BN]
The Plaintiff is represented by:
D. Maimon Kirschenbaum, Esq.
Lucas C. Buzzard, Esq.
JOSEPH & KIRSCHENBAUM LLP
32 Broadway, Suite 601
New York, NY 10004
Phone: 212 688 5640
Fax: 212 688 2548
GENESIS JUNGLES: Fernandez, et al. Allege FLSA Violation
--------------------------------------------------------
RUDI PEREZ FERNANDEZ, WILFREDO MENDOZA ESTREMERA, ABDIEL MENDOZA
RODRIGUEZ ESTREMERA, and all others similarly situated under 29
U.S.C. 216(b), Plaintiff, vs. GENESIS JUNGLES LLC, BARBARA MEDINA,
HARRY NELSON, Defendants, Case No. 1:17-cv-21584-UU (S.D. Fla.,
April 27, 2017), alleges that that the Defendants have employed
several other similarly situated employees like Plaintiffs who
have not been paid overtime and/or minimum wages for work
performed in excess of 40 hours weekly from the filing of this
complaint back three years in violation of the Fair Labor
Standards Act.
Plaintiff RUDI PEREZ FERNANDEZ worked for Defendants as a
construction worker.[BN]
The Plaintiffs are represented by:
J.H. Zidell, Esq.
J.H. ZIDELL, P.A.
300 71st Street, Suite 605
Miami Beach, FL 33141
Tel: (305) 865-6766
Fax: (305) 865-7167
E-mail: zabogado@aol.com
GREAT HEALTHWORKS: "Boyer" Suit Removed to S.D. Cal.
----------------------------------------------------
The case captioned Jean Boyer, individually and on behalf of all
others similarly situated, Plaintiff v. Great Healthworks, Inc.,
et al., Defendants, Case No. 37-2017-00008453-CU-MC-CTL, filed on
March 9, 2017, was removed from San Diego Superior Court to the
U.S. District Court for the Southern District of California on
April 12, 2017, and assigned Case No. 3:17-cv-00734-JAH-WVG.
Great HealthWorks provides exceptional, science-based health and
wellness products.[BN]
The Plaintiff is represented by:
Shannon Z. Petersen, Esq.
Mark G. Rackers, Esq.
Lisa S. Yun, Esq.
Sheppard, Mullin, Richter & Hampton LLP, ALLP
501 West Broadway, 19th Floor
San Diego, CA 92101
Tel: 619-338-6500
Fax: 619-234-3815
Email: sptersen@sheppardmullin.com
mrackers@sheppardmullin.com
lyun@sheppardmullin.com
HEADQUARTER AUTO: Faces "Couch" Suit Over TPCA Violation in Fla.
----------------------------------------------------------------
Alex R. Couch, individually and on behalf of all others similarly
situated, Plaintiff v. Headquarter Auto Group of Central Florida,
LTD., d/b/a Headquarter Hyundai, a Florida limited partnership,
Defendant, Case No. 6:17-cv-00665-PGB-GJK (M.D. Fla., April 13,
2017) seeks damages for violation of the Telephone Consumer
Protection Act.
The complaint says the Plaintiff received a random, unsolicited,
prerecorded call on his cellular telephone from Headquarter
Hyundai, offering him a free oil change in exchange for looking at
their new cars in the interim. All he had to do was press "1" to
get a call back to schedule a time slot.
Headquarter Auto Group of Central Florida is an automotive
dealer.[BN]
The Plaintiff is represented by:
Scott D. Owens, Esq.
Scott D. Owens, P.A.
3800 S. Ocean Dr., Suite 235
Hollywood, FL 33091
Tel: (954) 589-0588
Fax: (954) 337-0666
Email: scott@scottdowens.com
HIGHER ONE HOLDINGS: Faces "Edelman" Class Suit in Pa.
------------------------------------------------------
Shaya Edelman, individually and on behalf of all others similarly
situated, Plaintiff v. Higher One Holdings, Inc., Wex Bank, Inc.,
Customers Bancorp, Inc., Defendants, Case No. 2:17-cv-01700-RBS
(E.D. Pa., April 13, 2017) seeks monetary damages, restitution and
declaratory relief arising from Defendants' unfair and
unconscionable practices of automatically creating bank accounts
for college students, depositing students' financial aid funds
into these newly created Higher One accounts, deceptively and at
time coercively, preventing students from opting-out of such
accounts and assessing deceptive and unusual bank fees on student
accounts.
Higher One, which is not a bank, partnered with WEx Bank and/or
Customers Bancorp to provide checking account and debit card
services to students.[BN]
The Plaintiff is represented by:
Charles E. Schaffer, Esq.
Levin Sedrab & Berman
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Tel: (877) 882-1011
Fax: (215) 592-4663
Email: cschaffer@lfsblaw.com
- and -
Charles LaDuca, Esq.
Cuneo Gilbert & Laduca, LLP
4725 Wisconsin Avenue, NW, Suite 200
Washington, DC 20016
Tel: (202) 789-3960
Fax: (202) 789-1813
Email: charles@cuneolaw.com
- and -
Matthew Prewill, Esq.
Cuneo Gilbert & Laduca, LLP
16 Court Street, Suite 1012
Brooklyn, NY 11241
Tel: (202) 789-3960
Fax: (202) 789-1813
Email: mprewitt@cuneolaw.com
- and -
Michael McShane, Esq.
Ling Y. Kuang, Esq.
Audet & Partners, LLP
711 Van Ness Ave., Suite 500
San Francisco, CA 94102
Tel: (415) 568-2555
Fax: (415) 568-2556
Email: mmcshane@audetlaw.com
lkuang@audetlaw.com
HUMANA AT HOME: "Cruz" Sues Over Unpaid Overtime Wages
------------------------------------------------------
Harry Cruz, individually and on behalf of all others similarly
situated, Plaintiff v. Humana At Home 1, Inc. and Humana, Inc.,
Defendants, Case No. 0:17-cv-60716-WPD (S.D. Fla., April 11, 2017)
seeks to recover overtime pay pursuant to the Fair Labor Standards
Act.
Plaintiff was employed by Defendant as a Personal Health Coach and
worked over 40 hours per workweek.
Defendant operates in interstate commerce by, among other things,
providing managed care services to Medicare beneficiaries in
multiple states across the country including Florida.[BN]
The Plaintiff is represented by:
Jeremiah J. Talbott, Esq.
Jeremiah J. Talbott, P.A.
900 East Morena Street
Pensacola, FL 32503
Tel: (850) 437-9600
Fax: (850) 437-0906
Email: jjtalbott@talbottlawfirm.com
- and -
Sean Culliton, Esq.
Sean Culliton, LLC
150 John Knox Road
Tallahassee, FL 32303
Tel: (850) 385-9455
Fax: (813) 441-1999
Email: Sean.Cullinton@gmail.com
- and -
John C. Davis, Esq.
Law Office of John C. Davis
Tallahassee, FL 32303
Tel: (850) 222-4770
Fax: (850) 222-3119
Email: john@johndavislaw.net
IDAHO: Lawsuit Over Lousy Public Defense Reinstated
---------------------------------------------------
Idaho News reports that the Idaho Supreme Court says a lawsuit
over Idaho's faulty public defense system can move forward against
all the defendants except one: Idaho Gov. C.L. "Butch" Otter.
The high court's ruling on April 28 reinstates the class-action
lawsuit brought by four Idaho residents who said they were denied
the right to a fair trial because of Idaho's underfunded and
faulty public defense system.
A lower court judge dismissed the case after the judge said he
believed it would violate the separation of powers to require
adequate state funding.
The American Civil Liberties Union-Idaho promptly appealed on
behalf of the plaintiffs.
The Idaho Supreme Court said the ACLU does have the right to sue
the state government over the problems. But the justices said the
governor shouldn't be named as a defendant because he wasn't the
cause. [GN]
IMPACT MARKETING: Faces "Alves" Suit Over TCPA Violations
---------------------------------------------------------
Terri Alves, individually and on behalf of all others similarly
situated, Plaintiff v. Impact Marketing Specialists, Inc. and Does
1 through 10, inclusive and each of them, Defendants, Case No.
2:17-cv-02812 (C.D. Cal., April 13, 2017) seeks damages and other
legal remedies resulting from the illegal actions of Impact
Marketing Specialists, Inc. in negligently, knowingly and/or
willfully contacting Plaintiff on Plaintiff's cellular telephone
in violation of the Telephone Consumer Protection Act and National
Do-Not-Call provisions.
Defendant used an "automatic telephone dialing system" to place
its call to Plaintiff seeking to solicit its services, says the
complaint.
Defendant Impact Marketing Specialists, Inc. is an online
marketing company.[BN]
The Plaintiff is represented by:
Todd M. Friedman, Esq.
Adrian R. Bacon, Esq.
Meghan E. George, Esq.
Law Offices of Todd M. Friedman, P.C.
21550 Oxnard St., Suite 780
Woodland Hills, CA 91367
Tel: 877-206-4741
Fax: 866-633-0228
Email: tfriedman@toddflaw.com
abacon@toddflaw.com
mgeorge@toddflaw.com
INVENTURE FOODS: Asks Court to Dismiss Potato Chips Suit
--------------------------------------------------------
Des Thompson at Legal Newsline reports that Inventure Foods Inc.
has filed a motion to dismiss a class action lawsuit brought by
two plaintiffs who allege the defendant's Boulder Canyon potato
chips contain sugar and the label is deceptive.
The original lawsuit was filed Feb. 8, in U.S. District Court for
the Southern District of Illinois. Plaintiffs Shannon Burton and
Michelle Blair say they are health-conscious and checked the
nutrition label on the potato chips at the time of purchase,
specifically looking for how much sugar was in the product.
The suit says they both purchased Inventure's Canyon Cut Avocado
Oil Sea Salt & Cracked Pepper Chips. They objected to the fact
that the label on the chips bag indicated there was no sugar in
the chips but evaporated cane juice is listed as an ingredient.
Even though the plaintiffs only purchased that one variety of
potato chip, they allege there was deceptive labeling in eight
other brands of Boulder Canyon chips.
However, the motion states, "Plaintiffs do not allege a plausible
basis, such as testing results, for the court to presume that the
final products, in fact, contain sugar. The plaintiffs do not
allege that the sugar disclosure in the nutrition facts panel of
any product is false. And the plaintiffs do not allege Inventure
violated any Food and Drug Administration regulations or the Food,
Drug, and Cosmetic Act."
According to the motion to dismiss, in regard to the brand of
chips they actually purchased, "the plaintiffs seem to assume the
final product they purchased contained sugar, they do not allege
any basis for their apparent belief that the nutrition facts panel
falsely described the chips as having zero grams of sugar. The
plaintiffs conclude that use of the term 'evaporated cane juice'
and the FDA-mandated sugar disclosure 'misled' them to think the
chips contained less sugar than they actually did."
The motion states that Inventure was not notified pre-filing -- To
recover for breach of express warranty under Illinois or Missouri
law, a plaintiff must establish that she provided the defendant
with notice of the alleged breach "within a reasonable time after
she discover[ed] or should have discovered [it]," the defense
argued.
The motion to dismiss also argues that Inventure Foods did not act
deceptively in stating on the nutrition label that there were zero
grams of sugar, and said it's false to presume that the cane juice
listed on the ingredients label was present in the final product,
explaining: "It is equally plausible and infinitely more likely
that any evaporated cane juice used in the product was not present
in any measurable amount in the final product because of some
effect of the cooking process or because a nominal amount was used
as an ingredient."
The motion to dismiss was filed by attorney Troy A. Bozarth of
Hepler Broom LLC in Edwardsville, Illinois. Other defense
attorneys are Perrie Weiner and Katherine Page of DLA Piper in San
Diego. [GN]
KANDI TECHNOLOGIES: New Lead Plaintiff Bid Deadline on May 15
-------------------------------------------------------------
Econotimes reports that Hagens Berman Sobol Shapiro LLP alerts
investors in Kandi Technologies Group, Inc. (NASDAQ:KNDI) to the
expanded class period in the pending securities class action. The
expanded class period is November 15, 2013 through and including
March 13, 2017. The Lead Plaintiff deadline is May 15, 2017.
If you purchased or otherwise acquired securities of KNDI between
November 15, 2013 and March 13, 2017 and suffered losses contact
Hagens Berman Sobol Shapiro LLP. For more information visit:
https://www.hbsslaw.com/cases/KNDI
or contact Reed Kathrein, who is leading the firm's investigation,
by calling 510-725-3000 or emailing -- KNDI@hbsslaw.com. --
On March 13, 2017, KNDI announced that investors should no longer
rely on previously issued financial statements for the years ended
December 31, 2015 and 2014 and for the first three quarters for
the year ended December 31, 2016. The Company explained it would
restate those previously issued financial statements and that
investors should also not rely on management's and the associated
auditor's reports on internal controls for the year ended December
31, 2015. This news drove the price of KNDI shares down almost 7%
to close at USD4.05 on March 14, 2017.
On March 16, 2017, KNDI filed its Annual Report on Form 10-K
restating previously issued financial statements for the years
ended December 31, 2015 and 2014 and for the first three quarters
for the years ended December 31, 2015 and 2016. The Company
reported restatements of several of accounts that include accounts
receivable, notes receivable, accounts payable, and others. This
news drove the price of KNDI shares approximately 8.6% to close at
USD3.70 on March 16, 2017.
"We're focused on the damages suffered by investors caused by the
Company's admittedly false historical financial reports," said
Hagens Berman partner Reed Kathrein.
Whistleblowers: Persons with non-public information regarding KNDI
should consider their options to help in the investigation or take
advantage of the SEC Whistleblower program. Under the new SEC
whistleblower program, whistleblowers who provide original
information may receive rewards totaling up to 30 percent of any
successful recovery made by the SEC. For more information, call
Reed Kathrein at 510-725-3000 or email KNDI@hbsslaw.com
About Hagens Berman
Hagens Berman is a national investor-rights law firm headquartered
in Seattle, Washington with offices in 10 cities. The Firm
represents investors, whistleblowers, workers and consumers in
complex litigation. More about the Firm and its successes can be
found at www.hbsslaw.com. cFor the latest news visit our newsroom
or follow us on Twitter at @classactionlaw. [GN]
LEASE SUPERVISORS: Faces "Farrell" Suit Alleging ERISA Violation
----------------------------------------------------------------
TY FARRELL on behalf of himself and a class of persons similarly
situated, Plaintiff, vs. LEASE SUPERVISORS, LLC and O'RYAN
COMPANIES BENEFIT PLAN - LEASE SUPERVISORS, Defendant, Case No.
7:17-cv-00085 (W.D. Tex., April 27, 2017), claims that Defendants
breached their fiduciary duties to Plaintiff and the other
participants and beneficiaries of the Plan in violation of
Employee Retirement Income Security Act in a variety of ways,
especially in connection with the timeliness of the Plan's
contributions. And, Plaintiff claims that the Defendants are
obliged, under ERISA, to make good to the Plan the loss it has
suffered as a result of their fiduciary breaches.
The O'Ryan Companies Benefit Plan - Lease Supervisors is a 401(k)
plan established by Lease Supervisors, LLC as a benefit for its
employees to permit tax-advantaged savings for retirement and
other long-term goals.[BN]
The Plaintiff is represented by:
William S. Hommel, Jr., Esq.
HOMMEL LAW FIRM
1404 Rice Road, Suite 200
Tyler, TX 75703
Phone: 903-596-7100
Fax: 469-533-1618
LIONBRIDGE TECH: Faces Shareholders Class Action Over Merger Deal
-----------------------------------------------------------------
Robbins Geller Rudman & Dowd LLP disclosed that a class action has
been commenced on behalf of an institutional investor on behalf of
stockholders of Lionbridge Technologies, Inc. (LIOX) on January
27, 2017, in connection with an Agreement and Plan of Merger dated
December 12, 2016, by and among Lionbridge, LBT Acquisition, Inc.
and LBT Merger Sub, Inc., under which Lionbridge stockholders
received USD5.75 per share in cash and Lionbridge became a wholly
owned subsidiary of H.I.G. Capital L.L.C. (the "Merger"). This
action was filed in the United States District Court for the
District of Delaware and is captioned Laborers' Local #231 Pension
Fund v. Cowan, et al., No. 17-cv-00478.
If you wish to serve as lead plaintiff, you must move the Court no
later than 60 days from today. If you wish to discuss this action
or have any questions concerning this notice or your rights or
interests, please contact plaintiff's counsel, Darren Robbins of
Robbins Geller at 800/449-4900 or 619/231-1058, or via e-mail at
djr@rgrdlaw.com. Any member of the putative class may move the
Court to serve as lead plaintiff through counsel of their choice,
or may choose to do nothing and remain an absent class member.
The complaint charges Lionbridge, its Board of Directors (the
"Board"), and H.I.G. Capital L.L.C. and its affiliates LBT
Acquisition, Inc. and LBT Merger Sub, Inc. (collectively "HIG")
with violations of the Securities Exchange Act of 1934 ("1934
Act"). Lionbridge considers itself the world's leading
globalization company, providing translation and localization,
digital marketing, global content management, and application
testing services to the world's top brands.
The complaint alleges that defendants misled Lionbridge
stockholders as to crucial information about the Company's
prospects and value in order encourage them to accept the Merger.
On January 31, 2017, defendants caused the Company to file with
the SEC a Definitive Proxy Statement (the "Proxy Statement"), in
which the members of the Board recommended that stockholders vote
their shares in favor of the Merger Agreement. The Proxy
Statement disclosed management projections that contemplated
revenue growth over the next several years of less than 3.9% per
year. Those projections were inconsistent not only with the
Company's average revenue growth of about 7% per year from 2011 to
2015, but also with the defendants' actual strategic plans for the
Company. On February 28, 2017, a majority of Lionbridge
stockholders voted in favor of the Merger Agreement. Later that
day, Lionbridge and HIG completed the Merger. The preparation and
dissemination of the false and misleading Proxy Statement, in
violation of Sections 14(a) and 20(a) of the 1934 Act, thus
induced stockholder action which resulted in substantial harm to
plaintiff and other Lionbridge stockholders.
Plaintiff seeks damages and injunctive and equitable relief on
behalf of holders of Lionbridge stock on January 27, 2017. The
plaintiff is represented by Robbins Geller, which has extensive
experience in prosecuting investor class actions including actions
involving financial fraud.
Robbins Geller is widely recognized as the leading law firm
advising and representing U.S. and international investors in
securities litigation and portfolio monitoring. With 200 lawyers
in 10 offices, Robbins Geller has obtained many of the largest
securities class action recoveries in history. For the third
consecutive year, the Firm ranked first in both the total amount
recovered for investors and the number of securities class action
recoveries in ISS's SCAS Top 50 Report. Robbins Geller attorneys
have shaped the law in the areas of securities litigation and
shareholder rights and have recovered tens of billions of dollars
on behalf of the Firm's clients. Robbins Geller not only secures
recoveries for defrauded investors, it also implements significant
corporate governance reforms, helping to improve the financial
markets for investors worldwide.[GN]
MAGNOLIA HEALTH: Settles Employees' ADA Class Action for $325,000
-----------------------------------------------------------------
Business Management Daily reports that Magnolia Health Corp. in
Visalia, California, has agreed to settle charges that its
policies violated the ADA. According to a complaint filed with
the EEOC, the company required employees to be completely free of
medical restrictions.
As a result, Magnolia never engaged in the required interactive
accommodation process when applicants revealed disabilities after
receiving conditional job offers, and fired employees when doctors
restricted their activities.
The EEOC had attempted to resolve the matter through its
conciliation process. When that failed, it filed a lawsuit on
behalf of disabled employees. Magnolia elected to settle instead
of enduring expensive litigation.
Under the settlement, Magnolia will pay the affected workers
$325,000 and modify its policies to meet the ADA's requirements.
The company must establish a system to track all disability-
related complaints and share them directly with the EEOC.
MAXIM HEALTHCARE: Faces "Benson" Suit for FLSA and Labor Code
-------------------------------------------------------------
Loretta Jean Benson, an individual on behalf of herself and others
similarly situated, Plaintiff v. Maxim Healthcare Services, Inc.
and Does 1 to 10 inclusive, Defendants, Case No. 2:17-cv-00771
(E.D. Cal., April 12, 2017) is brought against the Defendants for
failing to include the value of per diem benefits in the regular
rate of pay when calculating overtime wages and failing to pay all
wages owing at the termination of employment pursuant to Fair
Labor Standards Act and California Labor Code.
Maxim is a staffing company and through its travel nursing
division "TravelMax" employs hourly healthcare professionals for
short-term travel assignments at healthcare providers throughout
the United States. Plaintiff was employed as a healthcare
professional. [BN]
The Plaintiff is represented by:
Matthew B. Hayes, Esq.
Kye D. Pawlenko, Esq.
Hayes Pawlenko LLP
595 E. Colorado Blvd., Suite 303
Pasadena, CA 91101
Tel: (626) 808-4357
Fax: (626) 921-4932
Email: mhayes@helpcounsel.com
kpawlenko@helpcounsel.com
MEDICIS PHARMACEUTICAL: Partial Deal OK'd for Solodyn Class Suit
----------------------------------------------------------------
If You Purchased Solodyn and/or Its Generic Equivalent Partial
Settlements of a Class Action Lawsuit May Affect Your Rights.
Partial settlements have been reached in a class action lawsuit
involving the antibiotic drug Solodyn. The lawsuit claims that
Medicis Pharmaceutical Corp., Valeant Pharmaceuticals
International, Inc., Impax Laboratories, Inc., Lupin Limited,
Lupin Pharmaceuticals Inc., and Sandoz Inc. (the "Defendants")
violated state competition (i.e. antitrust and consumer
protection) and unjust enrichment laws by agreeing not to compete
with each other and keeping lower-cost generic versions of Solodyn
off the market. The Defendants deny this. No one is claiming that
Solodyn is unsafe or ineffective.
What Do The Settlements Provide?
To settle the lawsuit, Lupin Pharmaceuticals Inc. and Lupin
Limited ("Lupin Defendants") and Sandoz Inc. ("Sandoz") have each
agreed: (a) that they would be willing to provide certain
witnesses that Plaintiffs could call and a declaration that the
Plaintiffs could use during the Solodyn case involving the overall
End-Payor Class, other Plaintiffs, and the Non-Settling
Defendants; and (b) to deposit USD625,000 and USD1.75 million,
respectively, into Settlement Funds. If the Settlements are
approved by the Court and become final, the Settlement Funds,
inclusive of interest, will be used to: (1) pay for costs and
expenses incurred or to be incurred by Counsel in continuing the
lawsuit against Medicis Pharmaceutical Corp., Valeant
Pharmaceuticals International, Inc., and Impax Laboratories, Inc.
(the "Non-Settling Defendants"); (2) cover taxable costs and taxes
payable on the Settlement Funds; (3) pay for notice and other
expenses; and (4) pay for service awards not to exceed USD10,000
to the class representatives in recognition of their efforts to
date on behalf of the Classes. Any remainder in the Settlement
Funds, after the payment of the above expenses, shall be
distributed to the End-Payor Class for the Lupin Settlement and
the End-Payor Class for the Sandoz Settlement in a manner approved
by the Court at the conclusion of the litigation. The Settlement
Agreements, available at the website www.SolodynCase.com contain
more details. These Settlements involve only the Lupin Defendants
and Sandoz. The case will continue against the Non-Settling
Defendants.
Who Is Included In The Classes?
Generally, you are included in the Classes if you purchased, paid
and/or provided reimbursement for some or all of a Solodyn and/or
its generic equivalent prescription in the United States and its
territories, including Puerto Rico, in tablet form, from July 23,
2009, onward. Certain third-party payors are also members of the
Classes.
You are NOT a member of the Classes if: you paid a "flat co-
payment" for all of your prescription drug purchases regardless of
whether they are brand or generic; you are one of the Defendants
or an officer, director, manager, employee, subsidiary, or
affiliate of any Defendant(s); you purchased only directly from
Defendants or for resale purposes; you purchased or received
Solodyn or its generic equivalent only through a Medicaid program;
you are the judge in this lawsuit or a member of the judge's
immediate family; and/or you previously excluded yourself from the
overall End-Payor Class.
Your Rights And Options
If you are a Class Member, you have the right to exclude yourself
(to opt-out) from one or both of the Settlements no later than
June 12, 2017. You may also comment on or object to one or both of
the proposed Settlements. To do so, you must act by June 12, 2017.
The Court will hold a hearing tentatively set for 3:00 p.m. on
November 27, 2017, to consider whether the Settlements and all of
their terms are fair, reasonable, and adequate. Please check the
website for updates.
MIDWEST MANUFACTURING: Faces "Bradley" Suit Over Unpaid OT Wages
----------------------------------------------------------------
Maurice D. Bradley, individually and on behalf of all others
similarly situated, Plaintiff v. Midwest Manufacturing, Inc.,
Defendant, Case No. 2:17-cv-00165-JMS-DKL (S.D. Ind., April 13,
2017) is brought against the Defendant for failure to pay overtime
wages pursuant to Fair Labor Standards Act.
Plaintiffs worked at a facility that produced home construction
and home improvement products.
Midwest Manufacturing, Inc. manufactures building materials in the
Midwest.[BN]
The Plaintiff is represented by:
Robert P. Kondras, Jr., Esq.
Hunt, Hassler, Kondras & Miller LLP
100 Cherry Street
Terre Haute, IN 47807
Tel: (812) 232-9691
Fax: (812) 234-2881
Email: kondras@huntlawfirm.net
- and -
Robert J. Hunt, Esq.
Gibbon Legal Group, P.C.
3091 E. 98th St., Ste. 280
Indianapolis, IN 46280
Tel: (317) 706-1100
Fax: (317) 623-8503
Email: rob@gibbonslegalgroup.com
MILLERCOORS: Averts Deceptive Advertising Class Action
------------------------------------------------------
Justin Kendall, writing for BrewBound, reports that Boston Beer
Co. founder Jim Koch has taken a lot of flak for his New York
Times op-ed provocatively titled "Is it last call for craft beer?"
Mr. Koch recently made an appearance on CNN to defend his
arguments.
Host Michael Smerconish opened the segment by holding up a number
of beers from brands such as Goose Island, Elysian, Breckenridge
and Terrapin, which he incorrectly claimed were all owned by
Anheuser-Busch InBev (Terrapin is actually owned by MillerCoors).
Then he introduced Koch, who was wearing his trademark blue jean
Samuel Adams shirt with a beer in hand and was flanked by a pair
of Boston Lager six packs. Mr. Koch called on the global beer
giants -- ABI and MolsonCoors -- to disclose their ownership of
the brands on their packaging.
"I wrote that op-ed because i was frustrated with the lack of
effective antitrust enforcement in the U.S. beer industry,"
Mr. Koch said. "I have watched while our Department of Justice
allowed two big foreign companies to come into the United States,
a buy up 90 percent of U.S. beer production, and now that same
Department of Justice is allowing those two big global brewers to
buy up craft brewers."
Mr. Koch then pleaded with President Donald Trump to help the
"independent American craft brewers" as well as the beer
wholesalers and Teamsters "get a better deal because your
administration is about to sign off on a bad economic deal."
When Mr. Smerconish pointed out that Boston Beer isn't a small
brewing company, Mr. Koch shot back that his company is "1/100th"
the size of ABI.
"While we've been the most successful craft brewery, we're still,
like, the tallest pygmy," Mr. Koch said.
Mr. Koch said he wrote the op-ed because felt a responsibility to
speak up on behalf of 5,000-plus small and independent craft
brewers.
"I think a beer drinker shouldn't have to hire a private detective
to figure out who actually makes the beer that they're drinking,"
Mr. Koch said.
Deceptive Advertising Lawsuit Against MillerCoors Dismissed
MillerCoors has deflected a class-action lawsuit that claimed the
beer company deceived consumers by marketing Foster's Lager as an
import brand, despite the fact that it is produced domestically,
according to Food & Beverage Legal News.
The lawsuit alleged that consumers were deceived by the packaging
of Foster's Lager, which features Australian symbolism -- a red
kangaroo and the Southern Cross. The lawsuit also claimed that
the company's website, which uses the sound of a didgeridoo and
features the brand's "How to speak Australian" marketing campaign
as well as the "Australian for beer" slogan, perpetuated the
notion that the beer was made abroad.
However, the court dismissed the lawsuit noting that the packaging
clearly states the beer's origin, which is required and was
approved by the Alcohol and Tobacco Tax and Trade Bureau: "brewed
and packaged under the supervision of Foster's Australia LTD.
Melbourne, Australia by Oil Can Breweries, Albany GA and Fort
Worth TX."
MillerCoors is the latest to score a victory in a deceptive
advertising case, joining Red Stripe and Sapporo.
Meanwhile, a trio of California consumers are pursuing a class
action lawsuit against Craft Brew Alliance for allegedly using
"false and deceptive advertising" to dupe consumers into believing
that Kona Brewing Co. products are made in Hawaii when they are
brewed in New Hampshire, Oregon, Washington as well as at City
Brewing in Tennessee.
Kona labels feature the following disclosure on origin: "KONA
BREWING COMPANY CO KONA HI * PORTLAND, OR * WOODINVILLE, WA *
PORTSMOUTH, NH * MEMPHIS TN FRESH, RESPONSIBLE, ALWAYS ALOHA."
An amended complaint in the Kona case was filed on April 7.
The University of Texas of the Big 12 Conference and Ohio State
University of the Big 10 have raked in millions of dollars by
allowing alcohol sales during college football games. However, the
Southeastern Conference (SEC) is standing pat with its policy of
not allowing booze sales in the general seating areas of its
football stadiums, according to the Tuscaloosa News.
"The conference has a policy that says that we're not selling
alcohol in the general seating area," SEC Commissioner
Greg Sankey reportedly said during the April 24 Associated Press
Sports Editors Southeast Region meeting. "Now, you can agree or
disagree with that policy, but that's the policy. The basis for
changing that or maintaining it is one that's developed in the
conversation."
Mr. Sankey also refuted the notion that alcohol sales would
increase attendance.
"I think we were at like 98 percent ticket sales in football," he
said. "So is that one-percent margin a trade that we're going to
make?"
Minnesota Distributor Needham Sues Summit
Summit Brewing Company is in the midst of a lawsuit after the beer
company allegedly wrongfully terminated its distribution agreement
with Minnesota-based Needham to sign with J.J. Taylor
Distributing, according to KAAL-TV.
Summit, the second-largest Brewers Association-defined craft
brewery in Minnesota, allegedly hired a former J.J. Taylor
president and manager as the beer company's chief sales officer,
according to the TV station. The Stillwater-based wholesaler
alleges in the lawsuit that the chief sales officer "made it one
of his life's missions" to move Summit's distribution rights to
J.J. Taylor.
Summit reportedly revoked Needham's distribution rights after the
wholesaler "inadvertently distribut(ed) beer to two retail
accounts that were located a short distance from the border" of
its territory, and the beer maker reportedly took issue with "some
of the senior Needham's stock in the family-controlled
distribution company" being transferred to the senior Needham's
sons who are also part of the business.
Needham has reportedly requested a jury trial and is seeking more
than $50,000 in damages.
A Summit spokesman didn't return a message for comment from
Brewbound.
Foursquare Examines Cannabis' Effect on Foot Traffic in Oregon
Foursquare recently looked at how legalized recreational marijuana
in Oregon has affected its users' foot traffic. In Oregon, liquor
store traffic actually increased 5 to 10 percent during a 12-month
period between 2015 and 2016. However, Oregon actually lagged
behind the rest of the country, which saw its liquor store visits
double.
Bars, clubs, lounges and breweries experienced a 3 percent
increase in foot traffic as well, Foursquare found.
A few caveats to the data: Foursquare is only tracking foot
traffic, not sales. And Brewers Association chief economist Bart
Watson cautioned Brewbound to keep in mind that Foursquare users
may not be representative of the general population, even with the
company normalizing its findings against the U.S. census data.
Mr. Watson added that there may be other variables explaining the
trend found by Foursquare: "off premise seems to be affected more
than on-premise."
"They have zero causal linkage here to marijuana -- the data is
interesting, but this isn't a smoking gun," Watson wrote.
"Economy, demographics, etc. will matter here too."
Iron Heart Canning Profiled
Bloomberg recently published a profile on mobile canning
operations featuring Iron Heart Canning, which is responsible for
most of the mobile canning business along the eastern seaboard
inland to Ohio.
According to the profile, Iron Heart operates 22 trucks that
service about 250 brewers. The company has the ability to fill up
to 563,000 cans a day -- or 642,000 barrels of beer a year.
"We're really allowing breweries to do more volume and get a much
faster market penetration than they would have otherwise," Iron
Heart founder Tyler Wille told the outlet. "In markets that we're
not in, you don't see near the level of cans on the shelf or near
the level of breweries."
The problem for Iron Heart: The more successful its clients are,
the more clients they lose. Notable casualties include Long Trail,
Night Shift and Trillium.
Beer By Design Seeking a New Partner; Colorado Brewpub for Sale
Northglenn, Colo.-based Beer By Design Brewery is seeking new
business partners. In a post on the Brewers Association's message
board, the brewery announced that after three years, one of the
co-owners is looking to "pursue other endeavors and leave the
company."
"The BBD Brewery is looking for someone who wishes to take an
active part in the day to day operation of the brewery alongside
the existing partner," the ad reads. "We have a well established
account base in Colorado and have a production capacity to break
into a larger wholesale market without expansion."
The brewery has an annual capacity of about 8,000 barrels, and the
company is capable of kegging and bottling beer.
The ad asks interested parties to contact Vance Sabbe at 303-517-
2202 or at vsabbe@beerbydesign.com.
Meanwhile, an unnamed 23-year-old brewpub with 15,000 barrels of
capacity in a Colorado mountain town is also for sale. One of the
business partners is reportedly looking to retire.
"Building, bottling line, and all equipment is included in the
sale," the ad reads. "A true 'turn-key' operation in a historic
downtown area. Beer is distributed throughout Colorado and 4 other
states currently."
Calls placed to the listed real estate agent were not returned as
of press time.
MILWAUKEE BUCKS: Settles Former Dancer's Wage Class Action
----------------------------------------------------------
Bruce Vielmetti, writing for Milwaukee Journal Sentinel, reports
that the Milwaukee Bucks have agreed to pay up to $250,000 to
settle a class-action lawsuit filed against the team by a former
dancer who claimed she and other dancers were underpaid in
violation of federal and state labor and wage laws.
Lauren Herington, an Illinois resident, sued the Bucks in
September 2015, and the case has been in discovery and settlement
talks ever since. She danced for the team during the 2013-'14
season, before the team's purchase by current owners Wes Edens and
Marc Lasry from longtime owner Herb Kohl.
Ms. Herington's suit claimed that Bucks dancers spent hours in
training, wardrobe maintenance, practice and dancing at games. In
addition, they appeared at charity events and posed for a
calendar. It said the payments -- $65 for games, $30 for practice
and $50 for special events -- often led to the dancers earning
less than minimum wage some weeks.
The settlement proposal would pay Herington $10,000, her attorneys
$115,000 and give her and 40 other women who were employed as
dancers from September 12, 2012, to July 31, 2015, the chance to
"opt in" to the settlement and receive payments based on their
particular hours worked during the covered period.
Women who choose not to apply for their share of the settlement
balance of $125,000 would retain any individual claims they might
have against the Bucks. A quarter of the pro-rated shares of any
nonparticipating dancers would be distributed to those who opt-in,
and the balance would return to the Bucks.
Affected dancers would have 60 days to return opt-in forms that
would be sent out after the settlement plan is approved. The
lawyers and a professional settlement administration firm in
Minnesota would handle the payments, half of which would be taxed
as income and the other half treated as interest.
"We are proud to have helped Ms. Herington and the other Milwaukee
Bucks dancers recover their unpaid wages in this case," attorney
Ryan Stephan said. "The settlement provides for more than five
hours of pay per week for Ms. Herington and each of the other
class members.
"We hope the NBA and other professional sports teams take note and
pay these hardworking women properly for all their time, talent
and commitment."
In its statement, the Bucks said, "While we deny the allegations
of the claims made in the lawsuit, we have agreed to settle the
matter to avoid a lengthy and costly litigation process. We
greatly value the contributions of our dancers, and all our
employees, and treat them fairly and in compliance with federal
and state law."
At $250,000, the Bucks are getting away relatively cheap in the
world of cheerleader labor suits. In 2015, the Tampa Bay
Buccaneers paid $825,000 to settle similar claims. The Oakland
Raiders paid $1.24 million in a suit brought by Raiderettes, and a
claim against the Cincinnati Bengals cost it $255,000. The suit
against the Bucks was the first raising the issues against an NBA
team.
The federal judge in the case must give final approval to the
proposed settlement.
MOUNT REAL: Tribunal Approves $43MM Class Action Settlement
-----------------------------------------------------------
CTV Montreal reports that a tribunal has approved a $43 million
settlement for 1,100 investors who lost their life savings in the
Mount Real financial scandal.
The former investment company was shut down in 2005 and former CEO
Lino Matteo, along with four other executives, were charged with
hundreds of violations of Quebec's Securities Act three years
later.
About 1,600 people lost $130 million because the company was
essentially operating as a Ponzi scheme, offering people between
eight and 12 percent return on their investment.
Instead the company collapsed, and the victims who lost their life
savings filed a class action lawsuit against the accounting firms
that should have keep a close watch on the company.
Last fall an out-of-court settlement was reached between Mount
Real's auditors and security trustees, with no admission of
liability.
Investors had until February 14, 2017 to file a claim, which gets
them back roughly 50 cents on the dollar, while lawyers will get
about 20 percent of the $43 million payment.
Janet Watson, one of the victims who spearheaded the lawsuit, is
satisfied she's not left completely penniless.
"In the case of the Mount Real creditors, we followed all the
rules. I think the majority of our financial advisors were
registered and Mount Real was listed on the Stock Exchange. It
was being auditing by well-known auditing firms, so we pretty much
followed all the rules and we still got stung," said Watson.
The law firm of Trudel, Johnston, and Lesperance is still
reviewing claims to ensure everyone is eligible.
Some tax repercussions also have to be taken into account.
But by September, the victims should start receiving their
cheques.
MUTUAL FUND SERIES: Robbins Geller Files Shareholders' Suit
-----------------------------------------------------------
Robbins Geller Rudman & Dowd LLP disclosed that a class action has
been commenced on behalf of purchasers of Class A, Class C and
Class I shares of the Catalyst Hedged Futures Strategy Fund during
the period between November 1, 2014 and April 28, 2017. This
action was filed in the Eastern District of New York and is
captioned Emerson, et al. v. Mutual Fund Series Trust, et al., No.
17-cv-02565.
If you wish to serve as lead plaintiff, you must move the Court no
later than 60 days from today. If you wish to discuss this action
or have any questions concerning this notice or your rights or
interests, please contact plaintiffs' counsel, Darren Robbins of
Robbins Geller at 800/449-4900 or 619/231-1058, or via e-mail at
djr@rgrdlaw.com. If you are a member of this class, you can view
a copy of the complaint as filed at
http://www.rgrdlaw.com/cases/catalyst/. Any member of the
putative class may move the Court to serve as lead plaintiff
through counsel of their choice, or may choose to do nothing and
remain an absent class member.
The complaint charges the registrant for the Fund, certain of the
Fund's executive officers and/or trustees, the investment advisor
to the Fund, Catalyst Capital Advisors, LLC ("Catalyst Advisors"),
and the underwriter for the ongoing offering of Fund shares with
violations of the Securities Act of 1933. The Fund is a mutual
fund that invests primarily in long and short call and put options
on Standard & Poor's 500 Index (the "S&P 500") futures contracts
and in cash and cash equivalents. It is part of the Mutual Fund
Series Trust, an open-end investment management company.
In August 2013, the Fund was converted from a hedge fund to a
mutual fund, which allowed Catalyst Advisors to raise capital for
the Fund from ordinary retail investors and the general public.
While hedge funds are generally limited to high net-worth
individuals and institutional investors who are presumed to be
more sophisticated in analyzing investment strategies and risks,
mutual funds are much more extensively regulated to limit the
amount of risk mutual funds can take on and provide enhanced
registration and disclosure obligations.
The complaint alleges that after the Catalyst Futures Fund was
reorganized as a mutual fund, defendants marketed and sold shares
of the Fund as a low-risk, low-volatility investment with minimal
correlation to the U.S. equity market. The Prospectuses for the
Fund stated that the Fund "places a strong focus on risk
management that is intended to provide consistency of returns and
to mitigate the extent of losses . . . . [T]he Fund employs
strict risk management procedures to adjust portfolio exposure as
necessitated by changing market conditions." The complaint
alleges that these statements and others like them in the Fund's
Prospectuses and Registration Statements issued in connection with
the offerings of Fund shares were inaccurate statements of
material fact because they did not disclose that the Catalyst
Futures Fund continued to invest as if it were a hedge fund,
taking massive directional bets against U.S. stock market indices
through complex derivative instruments, thereby exposing investors
to the heightened risk of loss of capital.
Then, in February 2017, the Catalyst Futures Fund experienced a
sudden drop in the net asset value ("NAV") of Fund shares, with
the Fund losing USD600 million in value in a matter of days.
Between February 2 and February 15, 2017, the NAV for the Fund's
Class A shares fell from USD10.59 per share to USD8.98 per share,
a decline of more than 15%. Around this same time, several media
organizations began reporting on the erosion in Fund value,
characterizing the loss as a "'melt-down'" and stating that the
Fund was "'blowing up.'" According to the complaint, it was
eventually revealed that the Catalyst Futures Fund had taken out
massive option contracts that effectively "shorted" the S&P 500,
meaning that the Fund had made a directional bet that the general
equity market would not rise significantly in value. As the
market rallied around the time these options were set to expire in
mid-February 2017, the Fund experienced rapidly accelerating
losses, as it had little time for the market to reverse itself and
for the bet to return to profitability. As these undisclosed
risks materialized, the Fund's investors suffered hundreds of
millions of dollars in losses, with the value of Fund assets
plummeting over USD1 billion since the beginning of 2017. Between
February 2, 2017 and March 15, 2017, the NAV of the Fund's Class A
shares, Class C shares and Class I shares has declined
approximately 21%, or USD2.22 per share, USD2.16 per share and
USD2.23 per share, respectively.
Plaintiffs seek to recover damages on behalf of all purchasers of
Catalyst Futures Fund shares during the Class Period (the
"Class"). The plaintiffs are represented by Robbins Geller, which
has extensive experience in prosecuting investor class actions
including actions involving financial fraud.
Robbins Geller is widely recognized as the leading law firm
advising and representing U.S. and international investors in
securities litigation and portfolio monitoring. With 200 lawyers
in 10 offices, Robbins Geller has obtained many of the largest
securities class action recoveries in history. For the third
consecutive year, the Firm ranked first in both the total amount
recovered for investors and the number of securities class action
recoveries in ISS's SCAS Top 50 Report. Robbins Geller attorneys
have shaped the law in the areas of securities litigation and
shareholder rights and have recovered tens of billions of dollars
on behalf of the Firm's clients. Robbins Geller not only secures
recoveries for defrauded investors, it also implements significant
corporate governance reforms, helping to improve the financial
markets for investors worldwide. [GN]
MYLAN NV: Judge Appoints Warren Burns to Lead EpiPen Class Action
-----------------------------------------------------------------
Burns Charest on April 27 disclosed that a federal judge in Kansas
has appointed Dallas lawyer Warren T. Burns and two other
attorneys to lead a nationwide class action against Mylan NV and
other defendants over pricing practices involving the EpiPen
allergy treatment. Mr. Burns is a partner at Burns Charest LLP, a
litigation boutique with offices in Dallas and New Orleans.
Mylan, the U.S. distributor of EpiPens, sparked outrage after
raising the price of its life-saving product from $100 in 2008 to
more than $600 by 2016. EpiPens offer a life-saving dose of
epinephrine (adrenaline) to children and adults suffering acute
allergic reactions. Congress and federal agencies have since
opened investigations into EpiPen pricing.
"This suit is about taking a stand for Americans who suffer life-
threatening conditions," Mr. Burns said. "We intend to send a
message to Mylan and other companies that preying on the weak and
the sick is no longer an accepted method of padding their bottom
line."
According to the complaint filed in U.S. District Court before
Senior Judge John W. Lungstrum, Mylan coerced consumers into
buying EpiPen two-packs at exaggerated prices. Mylan also used
patent lawsuits and administrative actions to delay the entry of
competitors that might have undercut its prices. The plaintiffs
claim those actions violate state antitrust and consumer
protection laws, as well as the federal RICO racketeering statute.
Joining Burns as co-lead counsel for the plaintiffs' committee are
Lynn Sarko of Seattle's Keller Rohrback L.L.P. and Rex A. Sharp of
Rex A. Sharp, P.A., in Prairie Village, Kansas.
"What we are seeing is a fraudulent scheme designed to maintain
high corporate profits," Mr. Burns said. "At the same time it was
raking in cash, Mylan was forcing American children and adults to
choose between purchasing an overpriced drug or risking death.
This just can't be how business is conducted in America."
Mylan and other defendants have filed a motion to dismiss the
plaintiffs' suit. Burns expects the court to decide that motion
by July, potentially leading to discovery this summer into Mylan's
secret pricing practices and decisions.
"This is an important case for all Americans," Mr. Burns said.
"This is a test case for whether Americans can put effective stops
on runaway drug pricing."
The case is In re: Mylan EpiPen Litigation, 2:16-cv-02711-JWL-KGG,
in the U.S. District Court for the District of Kansas.
Burns Charest -- http://www.burnscharest.com-- is a Dallas and
New Orleans-based trial law firm with a national practice
representing consumers and businesses. The firm represents
clients in large, complex class actions; antitrust claims; oil and
gas royalty disputes; environmental pollution cases; and asbestos
exposure claims.
NETGEAR: Faces Class Action Over Defective DOCSIS 3.0 Modem Model
-----------------------------------------------------------------
Jeff Baumgartner, writing for Multichannel News, reports that
Netgear is facing a class action lawsuit centered on allegations
that a DOCSIS 3.0 modem model from the vendor suffers from a
"serious defect" that results in high spikes in network latency
and degraded Internet connections.
Schubert Jonckheer & Kolbe said it filed the suit April 14 in the
U.S. District Court for the Northern District of California. The
suit is focused on the CM700, a DOCSIS 3.0-certified modem that
uses the Intel Corp. Puma 6 chipset that can bond up to 32
downstream channels and up to eight upstream channels.
In response, a Netgear official said it's the company's policy to
not provide public comment on pending litigation, "but for the
sake of our customers, we would like them to know that we have
full confidence in the CM700 cable modem."
The suit against Netgear shares similarities with another class
action filed against Arris that centers on the SURFboard SB6190, a
D3.0 modem that also uses Intel silicon. Arris declined comment
on the suit, but announced last year it was working with Intel on
a firmware fix.
"Netgear and other cable modem manufacturers shipping modems with
the defect should recall the affected models and issue refunds,"
Noah Schubert, a partner at Schubert Jonckheer & Kolbe, said in a
statement.
The firm said it is also investigating whether other cable modems
containing the Puma 6 chipset, including modems from Linksys,
Cisco, Hitron, and Arris, also suffer from the same alleged
network latency defect.
In the Netgear suit, the firm claims that the problem stems from
Netgear's decision to swap out Broadcom silicon with Intel's Puma
6.
NORTH STATE AVIATION: Faces "Doe" Suit Over WARN Act Violations
---------------------------------------------------------------
John Doe, individually and on behalf of all others similarly
situated, Plaintiff v. North State Aviation, LLC, Defendant, Case
No. 1:17-cv-00346 (M.D. N.C., April 12, 2017) seeks to recover
damages against the Defendant for failure to provide its workers
with the 60-day advance notification required under the Federal
Worker Adjustment and Retraining Notification Act (the "WARN
Act").
NS Aviation, LLC is in the Airports, Flying Fields, and Services
business.[BN]
The Plaintiff is represented by:
Jean Sutton Martin, Esq.
Law Office of Jean Sutton Martin PLLC
2018 Eastwood Road, Suite 225
Wilmington, NC 28403
Tel: (910) 292-6672
Fax: (888) 316-3489
Email: jean@jsmlawoffice.com
- and -
Joseph G. Sauder, Esq.
Matthew D. Schelkopf, Esq.
McCune Wright Arevalo LLP
555 Lancaster Avenue
Berwyn, PA 19312
Tel: (610) 200-0580
Email: jgs@mccunewright.com
mds@mccunewright.com
PALMER RECOVERY: Faces "Goins" Suit Over TCPA, FDCPA Violations
---------------------------------------------------------------
Amber Goins, on behalf of herself others similarly situated,
Plaintiff v. Palmer Recovery Attorneys, PLLC f/k/a Palmer, Reifler
& Associates, Defendant, Case No. 6:17-cv-00654-GAP-KRS (M.D.
Fla., April 11, 2017) seeks to recover damages for violation of
the Telephone Consumer Protection Act and Fair Debt Collection
Practices Act.
The complaint says Defendant used an automatic telephone dialing
system or an artificial or prerecorded voice to make calls to
Plaintiff's cellular telephone number in an attempt to collect a
debt that she did not owe.
Defendant is a debt collector.[BN]
The Plaintiff is represented by:
Aaron D. Radbil, Esq.
Greenwald Davidson Radbil PLLC
106 East Sixth Street, Suite 913
Austin, TX 78701
Tel: (512) 322-3912
Fax: (516) 961-5684
Email: aradbil@gdrlawfirm.com
- and -
Michael L. Greenwald, Esq.
James L. Davidson, Esq.
Jesse S. Johnson, Esq.
Greenwald Davidson Radbil PLLC
5550 Glades Road, Suite 500
Boca Raton, FL 33431
Tel: (561) 826-5477
Fax: (561) 961-5684
Email: mgreenwald@gdrlawfirm.com
jdavidson@gdrlawfirm.com
jjhonson@gdrlawfirm.com
PART AUTHORITY: "Balarezo" Sues Over Unpaid Minimum, OT Pay
-----------------------------------------------------------
Nestor Balarezo, on behalf of himself and others similarly
situated, Plaintiff v. Part Authority Inc. d/b/a Parts Authority,
et al., Defendants, Case No. 1:17-cv-02212 (E.D. N.Y., April 12,
2017) seeks to recover unpaid minimum wages and unpaid overtime
compensation pursuant to the Fair Labor Standards Act and New York
Labor Law.
Defendants failed to compensate Plaintiff and members of the FLSA
Collective at one and one-half times the employee's wage for all
hours worked in excess of 40 during any workweek, says the
complaint.
Plaintiff worked as a general laborer on behalf of Defendants.
Defendant Parts Authority is an automotive and truck parts
company.[BN]
The Plaintiff is represented by:
Jacob Aronauer, Esq.
The Law Offices of Jacob Aronauer
225 Broadway, Suite 307
New York, NY 10007
Tel: (212) 323-6980
Fax: (212) 233-9238
Email: jaronauer@aronauerlaw.com
PENN BOWER: Faces "Garrido" Suit Over Unpaid Overtime Wages
-----------------------------------------------------------
Elmer Garrido, individually and on behalf of all others similarly
situated, Plaintiff v. Penn Bower, Inc. and Jonathan Richardson,
Defendants, Case No. 2:17-cv-02457 (D.N.J., April 11, 2017) seeks
to recover unpaid overtime compensation, liquidated damages, costs
and attorneys' fees for violation of the Fair Labor Standards Act
and New Jersey Wage and Hour Laws and Regulations.
Plaintiff performed manual labor for the Defendants.
Penn-Bower Inc. is in the Commercial and Office Building
Contractors business.[BN]
The Plaintiff is represented by:
Jason T. Brown, Esq.
JTB Law Group, LLC
155 2nd Street, Suite 4
Jersey City, NJ 07302
Tel: (201) 630-0000
Fax: (855) 582-5297
Email: jtb@jtblawgroup.com
PEOPLES TRUST: To Plead or to Concede, That Should Be The Question
------------------------------------------------------------------
Vlad Calina, Esq., at Stikeman Elliott LLP, in an article for
Lexology, wrote that in Bernstein v. Peoples Trust Company, the
Court transmitted "a salutary message . . . to Class Counsel that
they should not over-plead their case and that they should make
appropriate admissions or concessions."
Background
The representative plaintiff successfully certified a class action
on behalf of all consumers in Ontario who purchased or acquired a
prepaid payment card sold or issued by Peoples Trust Company
between October 1, 2007 and April 30, 2014. The parties were
unable to agree on costs. The defendants contested the quantum of
costs sought by the plaintiff for the certification motion on the
grounds that it was not fair and reasonable based on the outcome,
as the class definition was found to be overbroad (by including
members whose claims were presumptively statute-barred).
Discussion
The Court regarded certification as a "total success" for the
representative plaintiff even though the class definition was
revised to accommodate the limitation period because "that is not
an uncommon successful outcome." At the same time, the Court found
that plaintiff had had not made reasonable concessions on the
limitations issue. The Court cautioned counsel to avoid over-
pleading a case or taking too uncompromising a stance:
In the class action context, over-pleading the class size, class
period, and adding redundant causes of action and claims and not
making concessions is a frequent phenomenon. And it is a
problematic phenomenon because over-pleading and not making
concessions virtually ensures that there will be a contested
certification motion -- and an expensive one -- that simply
aggravates the access to justice problems that class action
procedure was designed to ameliorate.
And, over-pleading ignores the changing landscape of the
developments of class action jurisprudence where the risks of not
achieving certification have at least diminished, making it
unnecessary to plead everything in hope that something will be
certifiable. Certainly, class counsel should not over-plead to
provoke a contested certification motion in order to finance the
class action.
In the result, the Court found that "the refusal to admit or
lengthening of the hearing was quite modest" but still considered
the outcome "enough here to warrant that a very small portion of
the costs be payable to the plaintiff in the cause." The Court
awarded the plaintiff the costs that it had sought, with a modest
portion payable in the cause rather than within 30 days in order
to reflect its dissatisfaction.
Take-Away:
In determining an appropriate award of costs and whether costs
should be awarded in the cause, the courts will take into account
the extent to which over-pleading or unnecessarily lengthened the
certification motion. [GN]
PL MARKETING: Faces "Fitzgerald" Suit Over Unpaid Overtime Pay
--------------------------------------------------------------
Torey Fitzgerald, individually and on behalf of all others
similarly situated, Plaintiff v. P.L. Marketing, Inc., Defendant,
Case No. 2:17-cv-02251 (W.D. Tenn., April 13, 2017) is brought
against the Defendants for failure to pay overtime wages in
violation of the Fair Labor Standards Act.
Defendant willfully violated the FLSA by failing to pay Plaintiff
for all hours worked over 40 each workweek, says the complaint.
P.L. Marketing, Inc. has assisted the sales and marketing of
Corporate Brand consumer products for one of the nation's largest
grocery retailers.[BN]
The Plaintiff is represented by:
Michael L. Russell, Esq.
Emily S. Emmons, Esq.
Gilbert Russell McWherter Scott Bobbitt PLC
341 Cool Springs Boulevard, Suite 230
Franklin, TN 37067
Tel: (615) 354-1144
Email: mrussell@gilbertfirm.com
eemmons@gilbertfirm.com
- and -
C. Andrew Head, Esq.
Donna L. Johnson, Esq.
Head Law Firm, LLC
White Provision, Suite 305
1170 Howell Mill Road, N.W.
Atlanta, GA 30318
Tel: (404) 924-4151
Fax: (404) 796-7338
Email: ahead@headlawfirm.com
djohnson@headlawfirm.com
QUEENSLAND: Flood Victims Entitled to Compensation
--------------------------------------------------
Tony Moore at Brisbane Times reports that lawyers behind a second
class action seeking damages for victims of the 2011 Queensland
floods say there has been an influx of new clients.
Lawyer Michael Gillis -- mjd@gdlaw.com -- the principal of Gillis
Delaney Lawyers, which is leading the second class action, told
Fairfax Media on April 28 about 60 people, "or about six per day"
had contacted the firm to discuss joining the class action in the
past week.
Many say their homes are still worth AUD100,000 less than they
were in December 2010 before the January 2011 floods.
This second class action is for people whose land or house values
reduced as a result of the flood but did not receive any physical
damage to the land or home.
It is called a "pure economic loss" class action and it is based
on a claim on a lost development opportunity on riverside land in
Ipswich by Phil Hassid.
David Stark, who in 2011 and 2012 was the spokesperson for up
to 1000 people affected by the January 2011 floods, believes it is
fair for people whose properties have lost value to consider Mr
Hassid's claim.
"If employees of the state government have mismanaged Wivenhoe and
caused people to have suffered economic loss -- be it damage or
'pure economic loss', or both -- then those people should be
compensated to put them back into the situation they were in
before," Mr Stark said.
"That's my position."
Mr Stark had four feet of water through his Fairfield home in the
January 2011 floods and now lives at Buderim on the Sunshine
Coast.
He lost AUD150,000 on the value of his Fairfield home when he sold
it in 2014 and a valuer explained to him about AUD30,000 was a
"general contraction in the market."
"So about AUD120,000 was due to the flood," Mr Stark said.
Mr Stark said it was fair for a person to make a claim if the
value of their land or home reduced in value and it was not linked
to physical damage.
"Yes, land values have returned since the flood. But the people
who got flooded, their values haven't returned to the levels that
the non-flooded areas got," he said.
"So anyone who has been flooded, has suffered a long-term loss due
to the flood.
"And I am strongly of the opinion that ... the floods would not
have happened if they (Seqwater dam engineers) had followed the
manual which they wrote.
"So I think that people who suffered economic loss -- whether it
is 'pure economic loss' or whether it is associated with physical
damage to their properties -- have lost.
"And it wasn't their fault, it was caused by negligence."
A Crime and Corruption Commission Inquiry in August 2012 found no
misconduct by the three dam engineers running Wivenhoe and
Somerset dams.
Mr Stark said he has been contacted by Gillis Delaney Lawyers and
emailed "at least 400" people.
"But of those, maybe 350 of them, would be unaffected by this new
class action, because they would be adequately covered by the
Maurice Blackburn class action," he said.
Michael Gillis said a 2016 Geoscience Australia report showed
about 17,100 homes in Ipswich and Brisbane were inundated in the
January 2011 floods.
He said about two-thirds of those who had contacted the firm lived
in Ipswich, where real estate prices has not recovered as
significantly as they had in Brisbane.
"So in a week we have been contacted by 60 people saying that
'Hey, I've suffered a loss'," Mr Gillis said.
"Now these are people who say that I had my land valued in
December 2010 -- or shortly before at AUD350,000 -- and now they
say it is saying it only worth AUD220,000."
He said the Geoscience Australia report charted the reduction in
property prices in Ipswich and Brisbane before and after the 2011
floods.
"They essentially show a rise through until December 2010," he
said.
"And then a significant drop both in Brisbane -- and especially in
Ipswich -- for homes that were inundated by water as a result of
the January 2011 floods."
More than 6800 Queenslanders are already represented by the
first Queensland floods class action, which has been researched by
Maurice Blackburn Layers and is set to go to trial on October 3,
2017.
The new class action goes to a preliminary court hearing on May
3.[GN]
RADY CHILDREN'S: Seeks Reprieve From Court for TCPA Class Action
----------------------------------------------------------------
John Meyers at Legal Newsline reports that a children's hospital
facing a class action lawsuit, alleging violating the Telephone
Consumer Protection Act, is seeking a reprieve from U.S. District
Court of the Southern District of California.
Rady Children's Hospital San Diego has filed a memorandum of
points and authorities in support of its motion for a stay, motion
to strike the class allegations, or in the alternative, motion to
dismiss the plaintiffs' complaint in Taneesha Crooks and Anthony
Brown, individually and on behalf of all others similarly
situated, v. Rady Children's Hospital San Diego.
The initial complaint revolved around allegations that the
hospital communicated with the defendants through unlawful means,
causing them to experience anxiety, embarrassment, stress and
invasion of their privacy. These unlawful acts allegedly were
caused by incessant calls from the hospital's automatic calling
system (ATDS).
Crooks and Brown allege that after they incurred a debt to Rady
Children's Hospital, the hospital began calling their cell phones
using an ATDS and continued to make calls even after both
plaintiffs sent a cease and desist letter to the hospital. In
addition the plaintiffs have filed a class action on behalf of all
citizens who received an automated call from Rady Children's.
The hospital has countered with a memorandum arguing that key
provisions of the Telephone Consumer Protection Act are currently
in question and will likely be undermined by the anticipated
decision in a pending court case, ACA International v. FCC.
This case is a consolidated action challenging one of the Federal
Communications Commission's (FCC) rulings that interpreted the
TCPA. The FCC's ruling is currently on appeal before the U.S.
Court of Appeals for the District of Columbia.
Despite the fact the court has not issued a decision in ACA
International v. FCC, the hospital's representation argues that a
stay and a dismissal of the class action allegations would be in
the interest of judicial economy. The defendant argues this would
prevent hardship to both parties by helping to ensure that they
would not be forced to endure the challenges, such as discovery
and preparation for the trial, that would be required, should the
case move forward based on a law, that may soon be declared
invalid by the court of appeals.
In addition, the defendant's representation has also requested the
court dismiss the plaintiff's complaint on grounds that it fails
to state a claim.
According to the argument made by the defense in the memorandum,
in order to state a claim the plaintiff must allege the defendant
called a cell phone number, using an ATDS and without the
recipient's prior express consent. According to the memorandum,
the plaintiff's allegations do not demonstrate any of these
things.
The move for dismissal cites the plaintiffs' claim they were
receiving targeted calls from Rady Children's Hospital, which it
argues contradicts their assertion that they were contacted by an
ATDS. This, in turn, means that the plaintiffs have failed to
plead plausible facts to support their allegations, which is cause
for the court to dismiss the complaint, the defendant argues. [GN]
RIO RANCHO: Violated Students' 4th Amendment Rights, Suit Says
--------------------------------------------------------------
Madeline Schmitt at KRQE reports a class action lawsuit recently
filed in Sandoval County District Court claims Rio Rancho Public
Schools violated students' fourth amendment rights.
The suit stems from an April 2015 incident in which a student went
to her teacher, telling him someone stole USD210 from her.
Rio Rancho Middle School Principal Lynda Kitts went to the
classroom, and according to the lawsuit, had students put their
heads down on their desks. The thief was told he or she could fess
up without consequences, but no one came forward.
All the students in the class were then taken to the cafeteria.
There, security officers and Assistant Principal BJ Hartford
searched each student.
The lawsuit claims students were forced to turn out their pockets,
take off their shoes and were patted down.
Later in the day, the suit says, girls from the class were asked
to pull their bras and shirts away from their chests to see if any
money would fall out.
The USD210 was never found.
"This type of search is really concerning both legally and just
kind of ethically," Micah McCoy, with ACLU New Mexico, said.
The ACLU is not involved in the case, but McCoy said while courts
have ruled that students in school have weaker fourth amendment
rights than the average citizen in the interest of school safety,
this situation appears to have been particularly invasive.
"What are we teaching our children by showing that this is how we
solve problems by force and by public humiliation?" he said.
KRQE News 13 reached out to the two attorneys behind the lawsuit,
but neither responded to requests for comment.
Rio Rancho Public Schools said it does not comment on pending
litigation.
The lawsuit names RRPS, the school board, RRPS Superintendent Sue
V. Cleveland, RRMS principal and assistant principal and the
security officers involved. The suit does not name the teacher.
Parents News 13 spoke with were disturbed by the allegations.
"As a parent I would be extremely upset if my daughter came home
and told me that happened to her," Stephanie Vaughn said.
"They had better be glad one of mine wasn't in there, because
that's just rude, that's not right," Shauna Gonzales said. [GN]
SHENZEN SUNSHINE: Faces Class Action Over Drone Products
--------------------------------------------------------
Louie Torres, writing for Legal Newsline, reports that four
consumers have filed a class action lawsuit against drone
manufacturers, alleging fraud and negligent misrepresentation.
Allan Black, Christopher Jones, Roger Watts and Robert Matos
Rivera filed a complaint, individually and on behalf of all others
similarly situated, March 27 in U.S. District Court for the
Central District of California against Shenzen Sunshine Technology
Development Ltd, Acumen Robot Intelligence Inc., Sam Tsu, doing
business as Onagofly, and Does 1-100, alleging they misrepresented
the actual technical specifications of their drone products.
According to the complaint, the plaintiffs were misled into buying
a drone that was advertised to feature a 15 megapixel Sony camera
when the resolution of the camera is significantly lower. The
plaintiffs allege the defendants deceived consumers into
purchasing their drone by labeling it with false features.
The plaintiffs seek trial by jury, actual damages, restitution,
disgorgement, punitive damages, court costs, interest and all
further relief the court grants. They are represented by attorney
Kirk J. Wolden of Carter Wolden Curtis in Sacramento, California.
U.S. District Court for the Central District of California Case
number 2:17-cv-02370-BRO-JEM
SQUARE INC: R. White Asks 9th Cir. to Revive Discrimination Suit
----------------------------------------------------------------
Ryan Boysen, writing for Bankruptcy Law360, reports that
bankruptcy attorney Robert White has asked the Ninth Circuit for
another shot at his class allegations that Square Inc.
discriminatorily prohibited prostitutes, bookies, bankruptcy
lawyers and others from using its online payment service, saying
the Spokeo precedent calls for a state court retrial.
Robert White's proposed class action had been tossed twice by a
California federal court last year, on the grounds that Mr. White
could not sue under the state's Unruh anti-discrimination law
since he never signed up for Square, Law360 relates.
But the California lawyer told the appeals court on April 27 that
the U.S. Supreme Court's landmark May 2016 ruling in Spokeo Inc.
v. Robins means the federal court never had the jurisdiction to
hear his case in the first place -- and that even if the court
did, Square's ban on bankruptcy lawyers is exactly the type of
behavior the Unruh Civil Rights Act is meant to prevent, according
to Law360.
"Square Inc.'s conduct is the legal equivalent of its posting a
warning on its website stating 'no bankruptcy lawyers allowed,'"
White said in his opening appellate brief, Law360 relates. "Even
though posting such a warning evidences only arbitrary
occupational discrimination, that specialized type of
discriminatory conduct violates [the Unruh Act] in just the same
way that Square Inc.'s posting signs saying 'Whites only,' 'No
Irish need apply,' or 'Jews are unwanted here' would."
The lawyer had first sued Square in 2015, arguing that since most
of the banned businesses on the company's so-called Bad List were
entirely legal, Square was in violation of Unruh, Law360 says.
In his appeal, Mr. White repeated many of the same arguments and
cases District Judge Jon S. Tigar explicitly rejected last year
when he dismissed the suit with prejudice, according to Law360.
Mr. White, for example, again referenced a 1926 California
appellate decision called Hutson v. Owl Drug Co., which found that
a black woman who was mistreated by employees at a drugstore need
not pay to have standing to sue under Unruh, Law360 points out.
"Hutson involved a black woman who was refused service at a soda
fountain, called a racial epithet, and then physically assaulted .
. . By contrast, White has not even attempted to obtain services
from Square," Judge Tigar had written, Law360 cites.
Nonetheless, Mr. White told the Ninth Circuit on April 27 that the
"Unruh Act must and should be construed liberally." According to
Law360, he said he has exhausted his options, having already had
his attorney ask Square to change the policy in a letter, and
argued that signing up for the service under false pretenses would
constitute fraud.
"What more can or should White have done consistent with state law
to obtain standing?" Mr. White said, according to Law360.
"Nothing."
Besides stating his case on the merits, Mr. White said Spokeo --
handed down months after his suit was dismissed with prejudice --
means a California federal court should have never been able to
rule on his proposed class action in the first place.
Spokeo held that plaintiffs must allege concrete harm to bring
statutory claims in federal court and that courts must also
consider the judgment of Congress in evaluating suits that toe the
line.
"The second amended complaint does not allege any such injury in
fact," Mr. White said, according to Law360, "since it specifically
fails to allege that White ever lost either clients or business
income because he didn't become a Square Seller."
Furthermore, there is "no basis for the court's concluding
Congress has ever made any judgment" that federal law should
govern "such an exotic category of actionable discrimination as
the unique made-in-California-for-Californians notion of arbitrary
occupational discrimination" is, Mr. White added, Law360 says.
Mr. White said that the case had "only wound up in the district
court" because of the Class Action Fairness Act, expanded federal
jurisdiction for many types of class action, but that the Spokeo
decision draws a clear line as to the limits of CAFA.
Since the California federal court lacks jurisdiction, Mr. White
said, "this case should be remanded to the district court with
instructions for that district court to enter a dismissal without
prejudice so as to permit this case to be immediately refiled in
state court."
Square declined to comment, and Mr. White did not respond to a
request for comment, according to Law360.
Mr. White is represented by William N. McGrane of McGrane LLP.
Square is represented by David H. Kramer, Sara E. Rowe and Colleen
Bal of Wilson Sonsini Goodrich & Rosati PC.
The case is White v. Square Inc., case number 16-17137, in the
U.S. Court of Appeals for the Ninth Circuit.
STEPHENS INSTITUTE: Faces Class Action Over Student Bed Licenses
----------------------------------------------------------------
Wadi Reformado, writing for Northern California Record, reports
that a San Francisco university is facing a class-action suit over
its Student Bed Licenses.
Bennett Goldberg and Linda Kuckuk filed a complaint for penal
fines on March 30 in the San Francisco County Superior Court
against Stephens Institute.
According to the complaint, the plaintiffs allege that their late
daughter attended the defendant's university prior to her death in
2015 and stayed in the defendant's residential units. The
plaintiffs hold Stephens Institute responsible because the
defendant's Student Bed Licenses violated the Rent Ordinance.
The plaintiffs seek an amount of no less than $5 million,
certification of the class, and all legal fees. They are
represented by William McGrane of McGrane PC in San Francisco.
San Francisco County Superior Court Case number CGC17-557866
UBER: Hit With New Class Action for Shortchanging Drivers
---------------------------------------------------------
Joel Rubin at Los Angeles Times reports that the hits keep coming
for Uber -- and not the good kind.
The embattled ride-share company, already buffeted by a barrage of
lawsuits and public-relations crises, is being sued again. This
time, a driver is alleging that the Silicon Valley behemoth's fare
structure deliberately shortchanges drivers.
In the complaint, filed in U.S. District Court in Los Angeles,
attorneys for the plaintiff say they seek to have the case
designated as a class-action on behalf of all Uber drivers in
California.
At the center of the lawsuit is Uber's use of upfront pricing.
Introduced in major markets last year, the feature provides
passengers with the cost of their ride before they summon a car.
Uber pitched the fare model as a way to increase transparency and
address anger over unexpected rate surges when demand for rides
spiked.
There's no complicated math and no surprises: Passengers can just
sit back and enjoy the ride," the company said in a press
statement.
However, according to the lawsuit, Uber also took the change as an
opportunity to pull off "an active, extensive, methodical
scheme . . . to defraud drivers."
The lawsuit alleges that Uber essentially calculates two fares for
each ride -- one charged to the passenger and a cheaper one used
to determine the driver's pay. Uber, according to the suit, then
can pocket the difference.
The lawsuit claims that the discrepancy between the two prices
violates the terms of an agreement Uber drivers must sign,
specifying that they will receive the amount charged to passengers
minus a percentage the company keeps.
In California, Uber generally takes 25%.
To bolster their claims, attorneys Bobby Saadian and Daniel Miller
-- representing driver Sophano Van -- allowed The Times to review
photos of receipts that drivers and passengers received from three
rides.
In one, a rider paid USD54.80 to be brought from the Fairfax
district in Los Angeles to LAX. But Uber used a fare of USD43.55
when calculating the amount it forwarded to the driver, which came
to USD32.89.
The Times could not independently verify that the receipts
corresponded to the same ride, although the route and times
appeared to match.
A spokeswoman for Uber declined to comment on the lawsuit. She
acknowledged that the calculations used to determine what
passengers are charged and what drivers are paid can differ.
"Riders agree to a fare upfront, while drivers earn based on the
actual length of the journey plus applicable surge and
promotions," the spokeswoman wrote in a statement to The Times.
"There are times when the two differ, and as we've noted before,
the rider fare is often lower than what a driver earns for the
same trip."
Uber's software algorithms calculate the fare charged to riders
based primarily on the distance of the trip and an estimated time
it will take, as well as factors such as how many drivers are in
the area at the time, the company said when it unveiled upfront
pricing.
But Uber's programs can overestimate or underestimate the distance
or duration of a ride, leading to passenger fares that are out of
line with the reality, according to the company.
The lawsuit is only the latest legal trouble for the company.
For years, Uber has been fighting class-action lawsuits that seek
to redefine the employment status of drivers in California and
elsewhere from independent contractors to full-fledged employees.
A ruling against the company would upend a crucial underpinning of
its business model, as it would have to pay drivers benefits and
reimburse them for gas and other expenses.
A USD100-million settlement proposed by the company was rejected
last year by a federal judge in San Francisco as insufficient.
And Uber has been in damage-control mode over a sexual harassment
allegation from a former employee that led users to drop the
service's app from their phones. Google also has sued over alleged
theft of trade secrets, and Uber's senior vice president of
engineering recently resigned for not disclosing another sexual
harassment accusation. [GN]
UNITED STATES: Appeals Court Paves Way for Veterans' Suit
---------------------------------------------------------
Robert Storace at Connecticut Law Tribune reports a decision by
the U.S. Court of Appeals for the Federal Circuit has paved the
way for attorneys to -- for the first time ever -- bring class
action lawsuits on behalf of veterans.
April 26's 3-0 landmark ruling by the federal circuit in
Washington, D.C., revolved around a Connecticut veteran, but its
implication will affect attorneys and veterans nationwide.
"For a long time, veterans were the only group of people not
allowed to bring class action suits because their claims were
funneled, by law, through the CAVC [U.S. Court of Appeals for
Veterans Claims]. Attorneys can now file class actions on behalf
of veterans because of what this court did," said Mario Gazzola, a
law student intern with the Yale Law School Veterans Legal
Services Clinic. "This allows groups action in seeking group
justice. The ruling has definitely opened up a lot of avenues for
vets to get redress for legal issues."
Gazzola was one of several students, professors and lawyers from
Yale Law School who handled the case -- Monk v. Secretary of
Veterans Affairs -- since the inception.
At issue is Conley Monk Jr., a 68-year-old Marine Corps Vietnam
veteran, who filed a 2015 lawsuit, prepared by the Yale clinic, in
CAVC on behalf of himself and thousands of similarly situated
veterans. The 20-page class suit sought to compel the secretary of
the Department of Veterans Affairs to promptly decide initial
disability compensation appeals that have been pending more than
one year when the case involves a veteran, like Monk, facing
medical or financial hardships. CAVC denied the request, stating
it lacked the authority to hear class actions.
But, in the 18-page ruling, the federal circuit wrote: "We hold
that the Veterans Court has the authority to certify a class for a
class action and to maintain similar aggregate resolution
procedures. We reverse the judgment of the Veterans Court and
remand for further proceedings consistent with this opinion."
The federal circuit added, "We see no reason why the Veterans
Court cannot use class actions to promote efficiency, consistency,
and fairness in its decisions."
While the case started with Monk, who has since had his discharge
upgraded to general and received a lump sum of USD300,000 in back
benefits and USD3,000 a month for disability benefits, the issue
is larger than Monk now, Gazzola told the Connecticut Law Tribune
on April 28.
"This affects many, many veterans," said Gazzola, who noted the
Government Accountability Office reports that more than 427,000
veterans face an average delay of three years appealing the denial
of benefits before they receive a decision. About 81,000 veterans
face an average delay of five years.
Gazzola, a 25-year-old senior who said the clinic will stay with
the case, said the next step is for a briefing later this year in
front of the Washington, D.C., headquarters of CAVC. "We will file
a motion for class certification and in that motion we will have
to argue why it's proper for a class. We'll have to estimate how
many are in the class. I'd say now it's tens of thousands of
people."
Working with Gazzola on the case were fellow law student interns
and clinic members Jordan Goldberg, Jacob Bennett, Julia Shu,
Jessi Purcell and John Giammatteo. Also assisting on the matter
were Michael Wishnie, director of the clinic; Aaron Wenzloff, a
supervising attorney from Yale; and Jason Parkin, formerly a
professor at Yale and clinic member and now a professor at
Columbia University.
Representing the government in front of the federal circuit was
Agatha Koprowski, who works for the U.S. Department of Justice in
the Commercial Litigation branch of the Civil Division. Koprowski
was not available for comment on April 28. [GN]
UNITED STATES: Court Authorizes Veterans' Benefits Class Action
---------------------------------------------------------------
In the summer of 2016, Lieff Cabraser filed an amicus brief on
behalf of Administrative Law Professors and Complex Litigation Law
Professors in Monk v. Shulkin in the United States Court of
Appeals for the Federal Circuit in support of Conley F. Monk,
Jr.'s petition to certify a class action over the claims of
thousands of veterans whose benefits claims had been delayed or
denied. Citing in part that amicus brief, on April 26, 2017, the
Court issued a precedential opinion holding, for the first time,
that the Veterans Courts have authority to certify classes in the
absence of an express Rule 23 or similar device to promote
efficiency and fairness.
Lieff Cabraser partner Jason Lichtman commented, "We were
privileged to represent these distinguished professors,
particularly Michael Sant'Ambrogio and Adam S. Zimmerman, whose
scholarship was the basis for the key arguments in the amicus
brief. This opinion affirms the important role that class actions
play in providing justice to those who would otherwise be denied
access the courts. It is particularly rewarding to be able to
secure this relief for those who have sacrificed so much for our
country."
This case involved an individual Vietnam veteran who suffered from
service-connected illnesses and sought to certify a class of those
like him who had been denied disability benefits. The Veterans
Courts through which such litigation must proceed held that they
lacked authority to certify a class.
The Federal Circuit court reversed the Veterans Court decision,
finding that such a court does indeed have the authority "to
certify a class for a class action and to maintain similar
aggregate resolution procedures," and remanded the case for
further proceedings in the lower court consistent with that
finding.
Background on the Litigation
Mr. Monk served in the Marine Corps during the Vietnam War. In
2012, he filed a disability benefits claim with the Department of
Veterans Affairs in Connecticut alleging service-related
post-traumatic stress disorder, diabetes, hypertension, and
strokes, which claim was denied in 2013.
Mr. Monk challenged this decision, and as part of his appeal as
his claim dragged on without a timely decision he requested that
the Veterans Court certify a class under a class action or similar
aggregate resolution procedure of all veterans who had applied for
VA benefits, filed a timely Notice of Disagreement (an appeal)
upon the denial of those benefits, and had not received a decision
within 12 months despite demonstrating medical or financial
hardship. Mr. Monk proposed that class members include "veterans
in all stages of the VA appeals process that otherwise met these
requirements, from those awaiting a Statement of the Case to those
awaiting Board adjudication."
Mr. Monk's action in seeking class treatment was based on further
allegations that the cases of members of the proposed class shared
questions of law and fact, including whether the VA delays in
rendering disability benefits claim decisions constituted a
violation of the veterans' due process rights. The Veterans Court
rejected the request for class treatment, and Mr. Monk appealed to
the Federal Circuit Court.
In reaching its decision finding that class treatment was
appropriate, the Circuit Court acknowledged that while the All
Writs Act, 28 U.S.C. Sec. 1651(a) applied to the case (and not
Federal Rule of Civil Procedure 23, the rule generally governing
the implementation of the class action mechanism), the aggregation
of claims under the All Writs Act was appropriate and bore ample
precedent. Among other support, the Court cited Second Circuit
authority noting that although Rule 23 did not apply, the
standards for determining whether a Rule 23 class action was
appropriate provided support for maintaining a class action: "We
see no principled reason why the Veterans Court cannot rely on the
All Writs Act to aggregate claims . . . ." The Court also cited
numerous other examples of statutory and case authority in support
of the finding that the Veterans Court has the authority to
aggregate claims for class action treatment.
The Court cited the law professor brief and adopted its argument
that class actions promote "efficiency, consistency, and fairness,
and improving access to legal and expert assistance by parties
with limited resources," and further noted that class
adjudications may foster the consistent adjudication of cases by
the Veterans Court by increasing its prospects for precedential
opinions, only a small number of which are typically issued each
year.
You can read a copy of the Federal Circuit Court's opinion in Monk
v. Shulkin, or read a copy of the amicus brief on behalf of
Administrative Law Professors and Complex Litigation Law
Professors.
WAL-MART: Faces "Duckworth" Suit Over Defective Mainstays Patio
---------------------------------------------------------------
Jason E. Duckworth, individually and on behalf of all others
similarly situated, Plaintiff v. Wal-Mart Stores, Inc. and Wal-
Mart Stores East, L.P., Defendants, Case No. 5:17-cv-00174-JMH
(E.D.Ky., April 12, 2017) seeks to recover damages for defective
Mainstays patio pursuant to the Kentucky Consumer Protection Act.
According to the complaint, Defendants knew or should have known
the Mainstays patio set was inherently defective in design and/or
manufacturing, was not fit for their intended and ordinary use,
was not merchantable and failed to perform in accordance with the
advertisements, marketing materials and warranties disseminated by
Defendants, or with the reasonable expectations of ordinary
consumers such as the Plaintiff and the proposed class.
Wal-Mart Stores, Inc., doing business as Walmart, is an American
multinational retail corporation that operates a chain of
hypermarkets, discount department stores and grocery stores.[BN]
The Plaintiff is represented by:
Jasper D. Ward IV, Esq.
Alex C. Davis, Esq.
Ashton Rose Smith, Esq.
Jones Ward PLC
The Pointe
1205 E. Washington St., Suite 111
Louisville, KY 40206
Tel: (502) 882-6000
Fax: (502) 587-2007
Email: jasper@jonesward.com
alex@jonesward.com
ashton@jonesward.com
WELLS FARGO: Alexander Bacon Files Suit Alleging TCPA Violation
---------------------------------------------------------------
ALEXANDER BACON, on behalf of himself and all others similarly
situated, Plaintiff, v. WELLS FARGO BANK, N.A., Defendant, Case
No. 1:17-cv-01505-CAP (N.D. Ga., April 27, 2017), alleges that
WELLS FARGO used an automatic telephone dialing system to initiate
calls to Plaintiff's cellular telephone number in order to collect
on allegedly past due or delinquent account(s), or alternatively,
to solicit him to open an account in violation of the Telephone
Consumer Protection Act.
Defendant, WELLS FARGO BANK, N.A. is a bank chartered under the
laws of the United States.[BN]
James M. Feagle, Esq.
Cliff R. Dorsen, Esq.
SKAAR & FEAGLE, LLP
2374 Main Street Suite B
Tucker, GA 30084
Phone: (404) 373-1970
Fax: (404) 601-1855
E-mail: jfeagle@skaarandfeagle.com
cdorsen@skaarandfeagle.com
- and -
Justin T. Holcombe, Esq.
Kris Skaar, Esq.
133 Mirramont Lake Drive
Woodstock, GA 30189
Phone: (770) 427-5600
Fax: (404) 601-1855
E-mail: kskaar@skaarandfeagle.com
jholcombe@skaarandfeagle.com
- and -
Alexander H. Burke, Esq.
Daniel J. Marovitch, Esq.
BURKE LAW OFFICES, LLC
155 N. Michigan Ave., Suite 9020
Chicago, IL 60601
Phone: (312) 729-5288
Fax: (312) 729-5289
E-mail: aburke@burkelawllc.com
dmarovitch@burkelawllc.com
WEST VIRGINIA: Contamination Suit Settlement Documents Made Public
------------------------------------------------------------------
Ken Ward Jr. at Charleston Gazette-Mail reports Kanawha Valley
residents, businesses and workers will be able to easily obtain
millions of dollars in payments from West Virginia American Water
Co. and Eastman Chemical for the contamination of the region's
drinking water supply, according to detailed class-action
settlement documents made public in federal court for the first
time late April 27 night.
Lawyers for companies and for the victims of the water crisis that
followed the January 2014 chemical spill at Freedom Industries
filed detailed descriptions of the complex terms of the USD151
million settlement. They asked U.S. District Judge John Copenhaver
Jr. to give the details his preliminary approval, a move that
would prompt public notice of the terms and the opportunity for
members of the class of plaintiffs to object or to opt out of the
deal.
The 220-page settlement document outlines the ability of residents
and businesses to obtain uniform settlement payments by filing
simple claim forms or potentially receive larger distributions by
providing receipts or other proof of money spent for things like
replacing hot water tanks or buying bottled water. The settlement
also provides additional payments to women who were pregnant at
the time of the spill, residents who had medical expenses, and
hourly-wage earners who lost money when businesses they worked in
closed during the water crisis.
For example, residential households that choose the simple claim
form will receive USD525 for the first resident and USD170 for
each additional resident. Businesses, non-profit organizations and
government entities that choose the simple form can receive
between USD6,250 and USD40,000, depending on their size, if they
were forced to close or partly close during the crisis, and
whether they are hotels. Other businesses, those that didn't have
to close, can receive flat payments of USD1,850.
"It's a very fair and adequate settlement for such a large class,"
said Stuart Calwell, a Charleston lawyer who was among those
representing the spill and water crisis victims. "It provides
monetary compensation to the residents and businesses who had to
endure that uncalled-for event."
The filing April 27 comes six months after the parties agreed --
on the eve of trial -- to general terms of a deal to resolve the
complicated case brought over the region's inability to use its
tap water during the "do not use" order period that followed the
contamination of the Elk River supply by a spill of Crude MCHM and
other chemicals from the Freedom Industries facility just 1.5
miles upstream from the water company intake.
Copenhaver had ordered that the detailed settlement documents be
filed by April 27, following a long series of closed-door meetings
that the judge has held with lawyers in the case since the
tentative settlement was reached and broad terms of the related
agreements with West Virginia American and Eastman were made
public in late October 2016.
In the case, lawyers for residents and businesses alleged that
West Virginia American did not adequately prepare for or respond
to the spill and that MCHM-maker Eastman did not properly warn
Freedom of the dangers of its chemical or take any action when
Eastman officials learned that the Freedom facility was in
disrepair. West Virginia American and Eastman continue to deny any
liability, and say the blame for the crisis rests with Freedom
Industries, which admitted to criminal pollution violations
related to the spill.
Under federal court rules, once the settlement documents are
filed, the judge will determine whether to preliminarily approve
the deal, a move that would then trigger public notice of the
terms and the ability for residents to object or opt-out of the
settlement. Details such as when the judge will rule or the
timeline for filing claims and receiving payment won't be known
until the judge issues his initial ruling on preliminary approval
of the settlement. Details about how to obtain claim forms will be
made public on a settlement website, www.wvwaterclaims.com or are
available by calling 1-855-829-8121.
"What we did today was take an important step forward in the
process of getting people paid," said Kevin Thompson, another of
the lawyers for residents and victims. "And that process is going
to result in USD151 million being distributed to the people as
soon as it can be." [GN]
WEST VIRGINIA: Lawyers Asserts Settlement Has Substantial Benefits
------------------------------------------------------------------
Ken Ward Jr. at Charleston Gazette-Mail reports payments in the
USD151 million settlement of a lawsuit over the January 2014 water
crisis provide "substantial benefits" to Kanawha Valley residents,
businesses and workers while avoiding the costs and risks of a
lengthy federal trial, lawyers said in asking a judge for approval
of the details of the deal.
Attorneys representing a class of 224,000 residents and 8,000
businesses urged U.S. District Judge John Copenhaver to give his
initial sign-off to the settlement, a move that would trigger an
official public notice and the ability for victims of the water
crisis to object to or opt out of the deal.
The judge's preliminary approval is the next step toward
residents, businesses and workers being able to file claims, for
the eventual final approval of the deal and for tens of thousands
of checks to be in the mail.
The class-action lawsuit was filed in the wake of the "do not use"
order for the regional water supply after the Jan. 9, 2014,
chemical spill at the Freedom Industries facility 1.5 miles
upstream from West Virginia American Water's drinking water intake
on the Elk River.
"The benefit of settlement now to the putative class members
exceeds the cost of continued and protracted litigation and avoids
the potential risks associated with a trial," the class lawyers
said in a legal brief filed in U.S. District Court in Charleston.
For example, the legal brief explains, by filing a simple claim
form that requires no proof of damages or expenses, each
residential household can be paid USD525 for the first resident
and USD170 for each additional resident. A family of four would
receive an estimated payment of USD1,035, the brief notes.
Businesses, nonprofit groups and governmental entities can receive
total compensation under the simple claim form process ranging
from USD1,875 to USD40,000. Additional payments will go to
pregnant women and residents with medical expenses.
And any resident or business can try to obtain a larger payment if
they can submit documentation of expenses for things like
replacing hot water tanks, buying bottled water or lost business.
Workers can be paid for hourly wages they lost if their place of
employment had to close.
Claim forms and other information will be available on a website,
www.wvwaterclaims.com, once the judge gives his approval.
Information also will be available by calling a court-appointed
claims administrator at 855-829-8121.
"Avoiding the unnecessary and unwarranted expenditure of resources
and time would benefit all parties, as well as the busy court,"
the legal brief said. "The proposed settlement provides an
expeditious route to recovery for the settlement class that
heavily outweighs the cost, uncertainty and various other risks
associated with continued litigation."
Lawyers for the water crisis victims filed their legal brief
shortly after filing a joint motion with West Virginia American
Water Co. and Eastman Chemical Co. asking Copenhaver for
preliminary approval of the settlement. The two sides filed their
220-page settlement agreement, six months after reaching a
tentative deal on the eve of trial.
In the case, lawyers for residents and businesses alleged that
West Virginia American did not adequately prepare for or respond
to the spill and that MCHM-maker Eastman did not properly warn
Freedom Industries of the dangers of its chemical or take any
action when Eastman officials learned that the Freedom facility
was in disrepair.
West Virginia American and Eastman continue to deny any liability,
and say the blame for the crisis rests with Freedom Industries,
which admitted to criminal pollution violations related to the
spill.
West Virginia American is paying USD126 million in the settlement
and Eastman is paying USD25 million. Attorneys for the residents
and businesses have generally asked Copenhaver to approve them
being paid the equivalent of 30 percent of the first USD100
million paid out of the settlement and 25 percent of the remaining
USD51 million. A more detailed request for legal fees and expenses
remains to be filed.
Technically, approval of the settlement also will require the
judge to approve a new "settlement class" that lawyers intend to
be made up of all plaintiffs from the existing federal class-
action case and a collection of state-court cases that made
similar allegations but were filed by different lawyers.
Potential members of that settlement class -- basically any
business or resident who received tap water from the Elk River
intake plant and any hourly wage earner whose employer closed
because of the spill -- can choose to object to the terms of the
deal or to opt out of it.
Deadlines for filing claims, objections or opting out have not yet
been announced.
The class counsel -- attorneys Stuart Calwell, Kevin Thompson and
Van Bunch -- said in their new legal brief that they remain
confident they would have prevailed at trial. Defense lawyers for
West Virginia American and Eastman, though, "are equally
confident," the class counsel said.
"The proposed settlement is the culmination of nearly three years
of hotly contested, full-bore litigation in this court," the brief
said. Over that time, the lawyers conducted more than 100
depositions, including 20 experts, and about 500,000 pages of
documents were exchanged during discovery. The extent of this
investigation and litigation allowed the parties "to uncover
sufficient evidence to make fully informed decisions and weigh the
pros and cons of various settlement options."
The brief also said "the amount of compensation available under
the proposed settlement is consistent with the best assessment of
the damages and losses relating to the plaintiffs' claims that are
to be settled, particularly given the costs of litigating the
claims individually."
It said most of the claims in the case were "negative-value
claims," meaning that litigating them would cost more than they
were worth and that it is just the sort of case that well-suited
for class-action certification.
It also said Copenhaver had "first-hand knowledge of the arm's
length nature of the negotiations," as the judge "held regular
conferences in chambers to monitor and propel the settlement
process."
The local group Advocates for a Safe Water System will discuss the
settlement, and lawyers will answer questions about it, at a
public meeting May 2 at 6 p.m. in the Appalachian Room of the
Geary Student Union, at the University of Charleston. [GN]
WORLD WIDE MEDICAL: "Hives" Sues Over TCPA Violations
-----------------------------------------------------
Latanya Hives, individually and on behalf of all others similarly
situated, Plaintiff v. World Wide Medical Services, Inc. and Does
1 through 10, inclusive and each of them, Defendants, Case No.
2:17-cv-00780 (E.D. Cal., April 12, 2017) seeks to recover damages
against the Defendant for negligently, knowingly and/or willfully
contacting Plaintiff on Plaintiff's cellular telephone in
violation of the Telephone Consumer Protection Act.
Defendant used an "automatic telephone dialing system" to place
its call to Plaintiff seeking to solicit its services.
Defendant, World Wide Medical Services, Inc. is a seller and
marketer of medical supplies and services.[BN]
The Plaintiff is represented by:
Todd M. Friedman, Esq.
Adrian R. Bacon, Esq.
Meghan E. George, Esq.
Law Offices of Todd M. Friedman, P.C.
21550 Oxnard St., Suite 780
Woodland Hills, CA 91367
Tel: 877-206-4741
Fax: 866-633-0228
Email: tfriedman@toddflaw.com
abacon@toddflaw.com
mgeorge@toddflaw.com
* Court Confirms No Right to Jury on Attorneys' PAGA Claims
-----------------------------------------------------------
Michael Kun at The National Law Review reports that persons who
live and work outside of California, including employment
attorneys and the most seasoned of human resources personnel, are
often confounded when they first learn about California's Private
Attorneys General Act ("PAGA"). And, for many, the first they
learn about PAGA is when a PAGA lawsuit has been filed against
their company.
The same series of questions and answers often follow:
A single individual can file a lawsuit against an employer
alleging that all employees were subjected to certain violations
of the California Labor Code?
Yes.
Even if there are thousands of employees?
Yes.
And the employee doesn't need to get a class certified to proceed?
Correct, because PAGA claims are considered "representative
claims," not "class claims." (Although courts are beginning to
rule more and more that PAGA claims cannot proceed to trial if
they are "unmanageable.")
And each employee can recover up to USD200 per pay period for each
Labor Code violation?
Yes. They can get up to USD100 for the first pay period, and
USD200 for each subsequent pay period.
So, hypothetically, if there were five different violations per
pay period, each employee could recover up to USD1000 per pay
period?
Yes.
But 75% of what employees recover must then be returned to the
state?
Generally, yes. It must go to the Labor and Workforce Development
Agency ("LWDA").
Why?
Because it's part of the statute -- 75% goes back to the LWDA.
But a plaintiff must arbitrate PAGA claims if he or she signed an
arbitration agreement, right?
Generally, no.
But PAGA claims are covered by class action waivers, right?
To date, the courts have held that they are not covered by class
action waivers.
Can PAGA lawsuits be removed to federal court under the Class
Action Fairness Act?
Generally, no, because PAGA claims aren't "class actions" per se.
They're "representative actions." However, if PAGA claims are
filed as part of a complainat that contains class claims, they
could still wind up in federal court if the class claims are
removable.
Little by little, the courts have answered these and other PAGA-
related questions. But at least one major question has remained --
are PAGA plaintiffs entitled to a jury trial?
While the appellate courts have yet to weigh in on this issue, the
trial courts are doing so as more and more PAGA cases are being
filed and as they approach trial. And, to date, they all appear to
conclude that a PAGA plaintiff is not entitled to a jury trial.
Several of these decisions are in cases we have handled, and we
are not at liberty to discuss them. However, another trial court
has recently reached the same conclusion. In Espinosa v. Bodycote
Thermal Processing, Inc., Judge John Shepard Wiley concluded that
PAGA plaintiffs are not entitled to a jury trial because PAGA
claims are equitable in nature.
While Judge Wiley's conclusion is consistent with the other courts
that have reviewed the issue, only time will tell whether the
California Courts of Appeal agree when the issue is inevitably
presented to them. For now, employers with operations in
California should take some comfort in knowing that PAGA claims
are likely to be tried to a judge and not to a jury. [GN]
* Donovan Litigation Attorney Comments on H.R. 985
--------------------------------------------------
Michael Donovan, Esq. of Donovan Litigation Group LLC, in an
article for Law360, says a book all lawyers, judges and
legislators should read is Professor Daniel Kahneman's eminently
accessible and elegantly humbling "Thinking Fast and Slow." Among
other things, the Nobel Prize winner details the countless biases,
deceits, illusions and fundamental faults of what we call "human
reasoning."
Practically all of these systemic defects of the human mind have a
direct or indirect application to the practice of law, legal
decision-making and legislating public policy. As the title
suggests, thinking fast is more likely than not the very worst way
to practice law, render a judicial decision or enact legislative
policy.
A perfect example of the worst kind of "thinking fast" is
reflected in H.R. 985, a bill passed by the House of
Representatives on March 9, 2017, without any hearings, studies,
surveys or even a single poll. The bill is an agglomeration of
several corporate wish-lists and lobbyist party favors.
Under the false guise of protecting consumers and American
competitiveness, the bill seeks to restrict class actions by
preventing federal courts from certifying "any personal injury or
economic loss" class action unless the lead plaintiff can show
that each and every class member has "suffered the same type and
scope of injury" as the named plaintiff. In other words, a case
cannot proceed as a class action in federal court without
satisfying this new, more restrictive definition of a "same
injury" class.
Remarkably, the proponents of H.R. 985 are the same corporate
interests and their legal counsel who lobbied for and successfully
enacted the Class Action Fairness Act in 2005 (CAFA). That law
significantly expanded federal jurisdiction over class actions by
altering diversity jurisdiction to include any class action where
a class member is a citizen of a state different from the
defendant and the aggregate claim for relief is likely to exceed
$5 million.
The problem the corporate lobbyists sought to correct was that of
state courts that were too readily certifying national class
actions. By expanding removal jurisdiction, the corporate
interests could at least eliminate nationwide class actions in
state courts and significantly reduce the threat posed by the
deceptively framed "judicial hellholes."
In the federal courts, according to the corporate lobbyists,
multi-nationals would have a better chance of surviving or fending
off a class action. In the years since CAFA, practically all
significant class actions have migrated to the federal courts.
Despite this, the threat perceived by corporate interests and
their counsel has not materially changed. Large class cases such
as the BP Oil Spill Litigation, the Chinese Drywall Litigation,
the GM Ignition Switch Litigation and the Wells Fargo False
Account Litigation are still being filed -- only this time
primarily litigated and resolved in federal courts. Hence, H.R.
985.
This is where "thinking fast" comes in. H.R. 985 does not
elaborate on the new "same type and scope of injury" standard for
a federal class action, the vagueness of which appears to be
intentional. Advocates for the bill claim the standard emanates
from the Supreme Court's Wal-Mart v. Dukes decision, which
reversed certification of a class of female workers who claimed
they were systematically underpaid or under-promoted because of
their sex.
But this explanation conflates the substantive merits element of
the Title VII discrimination claim with the procedural commonality
requirement of Rule 23. While the high court in Dukes
acknowledged an overlap for Title VII claims, it categorically did
not engraft the Title VII intent requirement on to the Rule 23
commonality test.
Title VII and class requirements, to be sure, were both discussed
in Dukes, but the two were not equated or combined. A grunting
steer and a leather couch both have hides but they are far
different when it comes to comfortable seating.
All persons familiar with class actions understand it is
impossible to define any class in which all members have suffered
the "same type and scope of injury." People purchase different
amounts of an artificially inflated stock at different times and
prices; they pay different amounts at different times and places
for the same model of defective car; they take different amounts
for different reasons of a defective or overpriced drug; and they
buy different amounts of a commodity whose price has been inflated
through a price-fixing conspiracy.
In all of these instances, however, the central issue of whether
the defendant engaged in a common course of conduct to inflate its
stock price, sell its defective car, market its defective or
overpriced drug, or charge supra-competitive prices in a true
market can be and has been answered in one proceeding for all of
the persons who transacted with the defendant in a defined time
frame.
The point, as even a cursory reading of Dukes reflects, is the
commonality of the defendant's conduct, not the sameness of the
victims' injuries.
Here again, "thinking fast" comes into play. If the new
substantive "same injury" standard of H.R. 985 were to become law,
the "thinking slow" question is: What impact would that have on
CAFA jurisdiction?
What if a lead plaintiff conceded in his or her state class action
complaint that not all members of the proposed class have the same
type and scope of injury as set forth under the new federal class
action standard? While current law might treat such a "class" as
sufficiently diverse to support federal jurisdiction, could it be
true that a class not meeting the "same injury" standard would
lack the standing or federal definitional requirements for CAFA
jurisdiction?
Is it possible -- again, "thinking slow" -- that H.R. 985 could
work a repeal and replacement of CAFA jurisdiction, thus returning
the bulk of personal injury and economic loss class actions to the
state courts, particularly those common law state courts that do
not have the same "case or controversy" standard as the federal
courts?
If H.R. 985 is, in truth, a repeal and replacement of CAFA
jurisdiction, do the proponents of the bill understand, realize or
appreciate that most class actions will then return to the state
courts, including the same national class actions they once sought
to remove to the federal courts? Is that what they really want?
Think about it, but think slow.
Michael D. Donovan is a founding member of Donovan Litigation
Group LLC, and has been involved in litigating numerous securities
and consumer justice class actions. He is the chair of the
Consumer Law Subcommittee of the ABA Litigation Section's Class
Actions and Derivative Suits Committee.
* Eversheds Sutherland Comments on Future of US and UK Arbitration
------------------------------------------------------------------
Lewis S. Wiener, Esq., and Francis X. Nolan, IV, Esq., at
Eversheds Sutherland (US) LLP, in an article for Lexology, wrote
that much has been said and written about the UK public's decision
in June 2016 to leave the European Union and the November 2016
election of President Donald Trump. It seems obvious that these
momentous events will have profound socio-economic consequences,
even if it is presently unclear how those consequences will play
out and where they will be most felt.
Perhaps less obvious is the impact these changes will have on
choices for resolving contractual disputes. In particular,
arbitration looks to be an unlikely winner in both cases, albeit
for different reasons.
In this article we examine the role of arbitration in the UK
before Brexit and separately in the context of limiting class
action proceedings in the U.S. before Trump, and the likely impact
of those political events on the use of arbitration (and of class
action waivers in the US) and conclude with a forecast of what
lies ahead.
I. The use of arbitration in the UK
A. Background
London is and has been for some time one of the most popular and
widely used jurisdictions or seats for international arbitration,
with strong legislative support in the form of the English
Arbitration Act 1996. The English Courts have developed a non-
interventionist approach, widely regarded as "arbitration
friendly" in their interpretation of that Act. In particular,
London is often considered the natural choice of jurisdiction or
seat where English law governs a contract. Further, there is a
considerable pool of experienced arbitrators, counsel, and experts
in London, which is also home to popular arbitration institutions,
such as the LCIA (London Court of International Arbitration) and
CIArb (Chartered Institute of Arbitrators).
B. Impact of Brexit on arbitration in the UK
Brexit is imminent. The British Prime Minister gave notice of the
UK's intention to withdraw from the EU (under Article 50 of the
Treaty on European Union) on March 29, 2017, with the approval of
the UK Parliament. Negotiations will now begin between the UK and
the rest of the EU to agree on a withdrawal agreement. The UK will
stop being an EU Member State on the earlier of a withdrawal
agreement being concluded or two years from the date of notice.
This two-year period can only be extended by the unanimous consent
of the UK and all other (remaining) EU Member States. Therefore
there is a prospect that the UK will exit the EU by the end of
March 2019 unless the Article 50 process is extended. More detail
about the implications of Brexit for businesses from a non-
political perspective can be found in our earlier Alert.
The Recast Brussels Regulation is a key EU instrument which, among
other things, provides for the mutual recognition and enforcement
of Court Judgments between EU Member States. The UK Government's
planned "Great Repeal Bill" will convert all EU law (at it applies
in the UK) into domestic law on the day the UK leaves the EU,
which should include the Recast Brussels Regulation. As a result,
EU Court Judgments should, post-Brexit, continue to be recognized
and enforced in the UK in the way they presently are under that
Regulation. However, the reciprocal position is uncertain because,
post-Brexit, UK Court Judgments will only continue to be
recognized and enforced in the remaining EU Member States in the
same manner as present if a specific agreement can be reached to
this effect between the UK Government and the EU in the
forthcoming Brexit negotiations.
By contrast, post-Brexit, arbitral awards issued by tribunals in
London-seat arbitrations will continue to be enforceable under the
1958 Convention on the Recognition and Enforcement of Foreign
Arbitral Awards (more commonly known as the "New York Convention")
by virtue of the UK remaining a signatory in its own right.
Currently, the New York Convention provides for the enforcement of
arbitral awards on a reciprocal basis across 157 jurisdictions
around the world, including all EU Member States.
Further, because the English Arbitration Act is unaffected by EU
law, it will continue in force following the UK's exit from the
EU. The body of case-law that has developed in the English Courts
concerning the interpretation and application of the Act will also
continue to apply, providing parties currently entering into
agreements with certainty on the future conduct of any London-seat
arbitrations arising post-Brexit.
II. The use of arbitration in class action proceedings in the
United States
A. Background
In the United States, class action litigation has for decades been
a source of great attention and expense for companies across all
industry sectors. Class actions have been employed by plaintiffs,
including consumers, who are injured in a small enough way that
bringing an individual lawsuit is simply not cost-effective.
Through the use of the class action device, similarly situated
class members can effectively resolve their claims. Unfortunately,
the class action system has been subject to abuse by some
plaintiffs' attorneys as well as plaintiffs who have not actually
suffered a concrete or redressable injury. One way in which this
is accomplished is by forcing exorbitant settlements with
companies that cannot afford to risk proceeding to trials on a
class-wide basis. To cut down on unnecessary expenses and increase
positive results for both sides, over the past decade an
increasing number of companies have added to their consumer
contracts provisions that require single party arbitration in lieu
of class litigation or class arbitration. These arbitration
provisions and class action waivers have been subject to judicial
review -- including by the United States Supreme Court on several
occasions -- as well as media and political critique.
Leading up to the 2016 presidential election, many observers were
bracing for the death knell to mandatory single arbitration
provisions for two reasons. First, it appeared that a Democratic
Party president would fill the vacant slot on the US Supreme
Court; with a 5-4 liberal majority in place, recent pro-
arbitration clause case law would stand on tenuous ground. Second,
pursuant to the Dodd-Frank Wall Street Reform and Consumer
Protection Act (Dodd-Frank), the Consumer Financial Protection
Bureau's (CFPB) impending rule prohibiting these class action
waivers seemed poised to proceed to final form. The election of
Donald J. Trump turned conventional wisdom on its head, however,
and in the process altered the future of this area of law.
B. The Shifting Political Winds in the US
1. Replacing Justice Scalia
When conservative Supreme Court Justice Antonin Scalia passed away
in February 2016, most observers expected that then-President
Obama's nominee, Judge Merrick Garland, would shift the Supreme
Court to a more liberal posture. Among the anticipated changes was
the Court's treatment of the issue of mandatory individual
arbitration provisions. The Senate effectively blocked Judge
Garland's appointment, however, and President Trump's win in
November 2016 mooted the Garland nomination altogether.
In early March 2017, President Trump nominated Tenth Circuit Court
of Appeals Judge Neil Gorsuch to the Supreme Court. Now that he
has been confirmed, Justice Gorsuch will effectively replace the
late Antonin Scalia in the Court's 5-4 conservative majority that
formed the backbone for most of the Supreme Court's pro-
arbitration and pro-class action waiver opinions issued over the
last several years. Accordingly, what looked like a potential
upheaval surrounding the relatively settled case law just months
ago now seems unlikely.
2. CFPB Rule on Ice?
In May 2016, the CFPB issued a proposed rule that would, among
other things, ban enforcement of class action waivers included in
arbitration agreements found in many consumer finance-related
agreements. The CFPB was created as part of the Dodd-Frank Act,
which explicitly authorized the CFPB to study the effects of
consumer class action waivers and issue a rule consistent with its
findings. After the proposed rule was issued, companies had the
option to submit comments -- of both the rule and the study --
prior to issuance of a final rule.
The CFPB has not yet issued a final rule, and it is now unclear if
it ever will. A bill pending in Congress would curtail the CFPB's
jurisdiction and eliminate its authority to issue a final
arbitration rule. Moreover, if the CFPB were to issue a final
arbitration rule, any such rule would be subject to the
Congressional Review Act, which would allow Congress to overturn
it before it even becomes effective. Furthermore, Director Richard
Cordray, who has helmed the CFPB since its inception, will be
replaced by a Trump appointee when his term expires in 2018, if
not earlier. It is, therefore, unclear whether the CFPB will focus
its attention on this rule before that changeover. In any event,
it appears for now that the prospect of a CFPB ban on class action
waivers in arbitration agreements has little chance of going into
effect.
III. Implications/Forecast
It is anticipated that UK parties doing business elsewhere in the
EU, EU corporations doing business in the UK, and even foreign
parties in contracts which involve the UK and any EU Member State,
will increasingly consider choosing London-seat arbitration
clauses instead of English Court clauses. There may even be a rise
in banks which operate in the EU including arbitration clauses in
their loan agreements, notwithstanding their historical preference
for the English Courts.
Arbitration was thriving in the UK before Brexit, and it will
likely continue post-Brexit. Indeed, Brexit may improve London's
appeal as a seat for arbitration. Not only may third parties
regard English law as being more certain and more neutral once the
English Courts are no longer bound by decisions of the Court of
Justice of the EU, but the English courts may also be willing to
re-establish the use of anti-suit injunctions, currently
prohibited under EU law, to prevent parties from commencing
actions in EU Courts in breach of arbitration agreements.
In the US, the change in administration is more likely to result
in business as usual for arbitration. The Supreme Court will
almost certainly have a conservative majority for the foreseeable
future, all but guaranteeing that legal challenges to consumer
contract provisions prohibiting class action litigation or class
arbitration will continue to fail. Moreover, even if the CFPB does
ultimately issue its final rule, the uncertain future of the CFPB
itself suggests that any news about the death of mandatory
arbitration provisions in consumer contracts and class action
waivers was greatly exaggerated.
The seismic political shifts of 2016 in London and Washington, DC
are being felt around the world. For companies subject to
arbitration and litigation in the US and the EU, the impact of
those political shifts will be understood more fully as the dust
settles in the months and years to come. [GN]
* Zuckerman Law Attorney Discusses Arbitration Agreement Issues
---------------------------------------------------------------
Eric Bachman, Esq., of Zuckerman Law, in an article for The
National Law Review, wrote that the Supreme Court occasionally
rules on issues related to arbitration agreements and class action
requirements and these decisions have a major impact on the size,
scope, and prospects of future promotion discrimination and other
employment discrimination class lawsuits.
Arbitration agreements and why they matter in glass ceiling
discrimination cases
When parties agree to arbitrate, it generally means they've agreed
not file a case in court. Instead, their legal dispute will be
heard by a private, neutral, third party (the arbitrator). The
arbitrator will hear each side's evidence and arguments and then
making a ruling. The arbitrator's decision is generally binding
on the parties and enforceable in court. Arbitration can take many
different forms so it's important to know what rules apply if you
have signed an arbitration agreement at your job.
Supreme Court class action developments
Glass ceiling, promotion discrimination, and other types of
employment discrimination cases under Title VII may be litigated
in court as either an individual or class action case.
The Supreme Court in 2011 issued two significant rulings about
class action cases: Wal-Mart v. Dukes and AT&T v. Concepcion.
And in early 2017, the Supreme Court announced it would hear
another important class action case regarding the use of
arbitration agreements (NLRA v. Murphy Oil USA, Inc.). The Murphy
Oil case involves arbitration agreements that prohibit individual
employees from pursuing work-related claims as a class action in
court, arbitration, or any other forum.
Wal-Mart v. Dukes
The first case, Wal-Mart v. Dukes, considered whether an
employment discrimination case involving about 1.5 million female
Wal-Mart employees could be litigated as a class action. The
Supreme Court answered with a clear "no" for the following
reasons:
-- no "commonality" existed among the class;
-- that is, the 1.5 million class members lacked a common
question of law or fact that served as "some glue" linking the way
in which the employer's adverse actions impacted the class
members;
-- the class members also did not suffer the same injury or rely
upon a collective contention that could be resolved on a class-
wide basis; and
-- the monetary claims for back pay damages required individual
calculations that were unsuited for a class action.
While many believed the Wal-Mart decision may spell the end for
employment discrimination class actions, the results have been
considerably less dire. Certainly, it is more difficult now to
attain class certification in an employment discrimination case.
But many class action cases have been allowed to go forward by
courts after Wal-Mart.
Promotion discrimination claims more suitable to class action
status
Some types of employment and glass ceiling discrimination claims
appear better positioned than others to meet the post-Wal-Mart
class action requirements, including cases that involve:
-- a small geographic scope (perhaps even a single plant or
unit of a larger company);
-- a set company policy regarding promotion or compensation; or
-- a test that is used to select employees or make promotions
AT&T v. Concepcion
The second big decision, AT&T v. Concepcion, involved a consumer
lawsuit about an AT&T cell phone service contract. The contract
included an arbitration provision that required the Concepcions to
bring any legal claims as individuals only in a private
arbitration proceeding; they could not be part of any class action
case. Even so, the Concepcions filed a lawsuit in California
state court seeking class action status, and AT&T asked the court
to dismiss the class action case and force them to arbitrate their
claims on an individual basis.
The Concepcions argued that the class action waiver in the
arbitration agreement was unconscionable/outrageous and that they
should not be bound by it. The Supreme Court, however, disagreed
and ruled that companies can use arbitration agreements that
require consumers to give up their right to file a case in court
(either as an individual or class action case) and limit their
legal option to an individual action in arbitration.
Since then, an increasing number of courts have required consumers
with legal actions against a business to forego potential class
action cases in court and instead arbitrate their individual
claims.
NLRA v. Murphy Oil USA, Inc.
In early 2017, the Supreme Court agreed to hear a case (NLRA v.
Murphy Oil) about arbitration agreements that bar individual
employees from pursuing their work-related claims as a class
action in any forum (federal court, state court, arbitration,
etc.).
The National Labor Relations Board (NLRB) had ruled that employers
cannot use these types of class action waivers in arbitration
agreements with employees who are covered by the National Labor
Relations Act (NLRA) (most employees in the private sector are
covered by the NLRA). Several federal courts have disagreed with
the NLRB's position and refused to follow it. The Supreme Court
will now take up whether employers can use class action waivers in
arbitration agreements with employees. A decision from the Court
should come in late 2017.
This decision should be closely watched as it could have far-
reaching consequences on the rights of private sector employees to
oppose and seek to correct systemic employment discrimination.
Key takeaways
It is essential for employees to know whether, as part of their
employment, they signed or are otherwise subject to an agreement
under which they must arbitrate any legal claim they have against
the company.
Employers use different types of arbitration agreement and it is
crucial to know whether your claim can be filed in state or
federal court or whether it must be handled through private
arbitration only.
Although recent Supreme Court decisions have generally made it
more difficult for cases to proceed as class action cases, courts
have continued to certify appropriate cases as 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
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