/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/170807.mbx C L A S S A C T I O N R E P O R T E R Monday, August 7, 2017, Vol. 19, No. 154 Headlines ADECCO USA: "Zimmer" Suit Seeks Unpaid Wages under Labor Code AIRTOUCH CELLULAR: Cal. App. Affirms Class Certification Denial ALABAMA: Court Denies Preliminary Injunction in "Thompson" ALBUQUERQUE, NM: "Torres" Suit Moved to Federal District Court ALLSTATE PROPERTY: Court Recommends Dismissing "Zevallos" Suit AMERICAN AIRLINES: Bazerman Sues over Additional Baggage Charge APOLLO EDUCATION: Court Dismisses "Lomingkit" Suit With Prejudice BAYCARE HEALTH: "Figueroa" Suit Moved to Middle Dist. of Florida BEDFORD, OH: Court Certifies Class in "Pund" BROOKDALE SENIOR: "Eidler" Suit Sues over Disabilities Act CAFE POMPETTE: Faces "Castro" Suit in Eastern Dist. of New York CALIFORNIA PHYSICIANS: Ct. Allows 3-Hr Deposition in "Des Roches" CE DESIGN: 7th Cir. Affirms Dismissal of SMI's TCPA Suit CJS SOLUTIONS: "Garrett" Suit Moved to Southern Dist. of New York COCONUT GROVE: "Hernandez" Suit Seeks Unpaid Overtime under FLSA COLUMBIA COUNTY, AR: Jailor's Class Certification Bid Denied CRICKET COMMUNICATIONS: Court Remands "Scott" MMWA Suit CYPO CAFE: Faces "Filet" Suit in Southern District of Florida DAIRY FARMERS: Toms' Bid to Extend Opt Out Period Denied DARNELL EARLEY: 6th Cir. Reverses Dismissal of Sec. 1983 Claims DICK SMITH: Faces Shareholders Class Action Over Collapse E.A. RENFROE: Cal. App. Reverses Judgment in "Quiroz" ELECTRICITY MAINE: Zurich Doesn't Want to Pay Class Action Costs ENDOLOGIX INC: Wants California Judge to Sanction Shareholder ENHANCED RECOVERY: Faces "Deutsch" Suit in E.D. New York ERNST & YOUNG: Oral Arguments on Waiver Issue Set for October 2 FBL FINANCIAL: Faces "Tronsgard" Suit in Kansas Federal Court FINANCIAL ASSET: Faces "McGaster" Suit in District of New Jersey FISKER AUTOMOTIVE: Judge Halts Investors' Class Action FLOYD CO: Judge Approves $1.23MM Inmates' Class Action Settlement FORD MOTOR: Court Dismisses "Kommer" Suit with Leave to Amend FORD MOTOR: Settles Class Action Over Defective Transmissions FOREVER 21: Faces Class Action in New York Over Sales Tax FREEDOM MORTGAGE: "Ortolani" Suit Moved to C.D. California GENERAL NUTRITION: Faces "Gomez" Suit in S.D. Florida GEORGE WESTON: Graydon Attorney Discusses Ontario Court Ruling GOOGLE INC: Agrees to Settle Privacy Class Action in California GOPRO INC: Court Denies Bid to Dismiss "Bielousov" Suit HATELMACHER LLC: Faces "Casilao" Suit in W.D. Oklahoma HERITAGE COMMUNITIES: Bid for Rehearing in "Harleysville" Denied HESKA CORP: Denied to Certify Questions to Colorado High Court HOMELAND SECURITY: Faces "Morales" Suit in E.D. Pennsylvania HUALALAI INVESTORS: "Brooks" Suit Moved to Hawaii Federal Court INTELLITIX INC.: "Kovacevic" Suit Sues over RFID Wristbands KAREY WITTY: Court Dismisses "Kelley" Suit With Prejudice KFC: Faces $10MM Suit Over Multiple Sexual Assaults by Manager KOHL'S DEPARTMENT: 1st Cir. Affirms Dismissal of "Mulder" Suit LAKE VIEW CEMETERY: "Suts" Suit Seeks Unpaid Overtime Pay LARINO MASONRY: Faces "Arpi" Suit in Southern Dist. of New York LEXMARK INT'L: September 19 Lead Plaintiff Motion Deadline Set LION BIOTECH: Kessler Topaz Named Class Counsel in "Desilvio" LIVE NATION: "Adams" Suit Moved to Central District of California LOCKHEED MARTIN: Court Denies Prelim Certification in "Ross" M-I LLC: Settlement in "Syed" Gets Final Court Approval M&M INVESTMENT: "Francis" Suit Moved to N.D. California MALDEN-DOCKSIDE: Frost Seeks Unpaid Wages & Tips under Wage Act MANASSEH JORDAN: "Molitor" Suit Moved to N.D. Illinois MASTERCARD: Class Actions Not Ruled Out Despite Favorable Ruling MIDLAND FUNDING: "Wheeler" Complaint Survives Dismissal Bid MISSOURI: Court Certifies Class in "Postawko" MONSANTO COMPANY: B&L Farms Suit Moved to E.D. Arkansas MONTANA: Court Denies Class Certification in "Sadler" NATIONALL FOOTBALL: Defeats California Antitrust Class Action NATIONAL FOOTBALL: Judge Tosses Painkillers Class Action NATIONAL RIFLE: Bid to Dismiss "Kalmbach" Partly Granted NAVIENT SOLUTIONS: "McHarris" Suit Moved to E.D New York NEBRASKA: "Lassalle" Suit Seeks Unpaid Wages NEW YORK: Akal Taxi Sues over Black Car Vehicle Licenses NORDSTROM INC: 1st Cir. Affirms Dismissal of Price Tag Suit ONSHIFT INC: Faces "Simonich" Suit in C.D. California OVERLAND SOLUTIONS: Faces "Garbero" Suit in California Super. Ct. PETLAND INC: Faces "Cisneros" Suit in N.D. Georgia PETROBRAS: Wants 2d Circuit to Reconsider Class Action Ruling PORTFOLIO RECOVERY: Faces "Avezbadalov" Suit in E.D.N.Y. PRIMEFLIGHT AVIATION: Magistrate Refuses to Remand "Roundtree" PROVIDENCE HEALTH: 9th Cir. Affirms Dismissal of "Morales" QUALITY SYSTEMS: 9th Cir. Reverses Dismissal of Securities Suit RED CARPET: Faces "Woods" Suit in Eastern Dist. of New York SANDRIDGE ENERGY: Reliance's Bid to Dismiss "Gernandt" Okayed SCRUB INC: Abdi, et al Seek Overtime Pay under FLSA SOUTHERN REFRIGERATED: "Bass" Suit Moved to W.D. Arkansas SPOTIFY USA: Court Dismisses Plaintiff's Claim Brought Under ARL STATE COLLEGE: Responds to Workers' Class Action Over "Tip Pool" SUGAR FOOD: Court Denies Settlement in "Manohar" SUN-MAID GROWERS: Faces "Saghian" Suit in C.D. California SYNGENTA: 2018 Class Action Hearings Scheduled in Kansas Court TECH MAHINDRA: Ct. Conditionally Certifies Class in "Kumar" THOROUGHBRED RESEARCH: Oct. 26 Hearing on Class Cert. Bid TIMBERWOLVES: Class Action Over Ticketing System Nears Settlement TITLEMAX: Faces "Davis" Suit in Southern District of Florida TOYOTA: Class Action Mulled Over Role in Takata Airbag Scandal TRANS UNION: Faces "Nair" Suit in Southern Dist. of New York TRI-STATE CANDY: Faces "Ortiz" Suit in E.D. New York TRINITY SERVICES: Faces "Reutter" Suit in Middle Dist. of Florida TWC ADMINISTRATION: "Fuller" Suit Moved to S.D. California TYSON FOODS: Court Dismisses Securities Suit Without Prejudice U.S. DEPARTMENT OF JUSTICE: Faces "Taggart" Suit in E.D. Pa. UNITED SERVICES: Court Dismisses "Basham" Suit with Prejudice UNITED STATES: Judge Opts Not to Renew Iraqi Deportation Stay UTILITY SERVICE: "Komoroski" Settlement Granted Preliminary OK VERISMA SYSTEMS: Court Certifies Class in "McCracken" VIVINT SOLAR: "Aanderud" Remanded to Calif. State Court VOLKSWAGEN GROUP: Faces "Makaryan" Suit in C.D. California WAL-MART ASSOCIATES: "Hernandez" Suit Moved to C.D. California WINN MANAGEMENT: "Goodwin" Class Settlement Gets Prelim Approval YGRENE ENERGY: Bid to Dismiss "Smith" Fraud Suit Partly Granted YOUNG CHOW: Faces "Vasquez" Suit in S.D. New York ZB N.A.: Sept. 18 Hearing on Bid to Refer Class Suit ZOCDOC INC: Can Deposit $13.9K to Secure Judgment in "Geisman" ZUFFA LLC: Faces "Le" Suit in Western District of Washington * Foley & Lardner Attorneys Discuss DOJ's Stance on Waivers ********* ADECCO USA: "Zimmer" Suit Seeks Unpaid Wages under Labor Code ------------------------------------------------------------- CHRISTINA ZIMMER, an individual; JAZMYNE ROBINSON, an individual; and WENDY MEDINA, an Individual, the he Plaintiffs, v. ADECCO USA INC., a business entity; GOOGLE EXPRESS, a business entity; and DOES 1-200, INCLUSIVE, the Defendants, Case No. BC668679 (Cal. Super. Ct., July 11, 2017), seeks to recover unpaid wages under California Labor Code. According to the complaint, the Defendants have engaged in a system of willful violations of the California Labor Code, California, Business and Professions Code, and applicable IWC wage orders by creating and maintaining policies, practices and customs that fail to pay all meal and rest, period premium usages; fail to provide, or timely provide, all required, meal and rest periods; fail to keep proper records pursuant to California Labor Code; and fail to provide suitable seating. The Plaintiffs and the Class Members have suffered damages, and will, continue to suffer the same harm as the Representative Plaintiffs as a result of Defendants' wrongful conduct unless the relief requested is granted. Adecco USA provides workforce solutions in the United States. It offers contingent staffing and direct hire recruitment services for large enterprise organizations; workforce solutions and consulting services, including managed services programs and recruitment process outsourcing; career transition and leadership consulting; and specialty staffing, project solutions, and consulting services.[BN] The Plaintiffs are represented by: Paul P. Tashnizi, Esq. THE TASLINIZI LAW FIRM 200 N. Westlake Blvd. Suite 204 Westlake Village, CA 91352 Telephone: (805) 719 2010 Facsimile: (866) 973 3308 E-mail: paul@tashinizilaw.com - and - Marcus J. Bradley, Esq. BRADLEY/GROMBAEHER, LLP 28) 5 Townsgate Road, Suite 130 Westlake Village, CA 91361 AIRTOUCH CELLULAR: Cal. App. Affirms Class Certification Denial --------------------------------------------------------------- Judge Richard Dennis Aldrich of the U.S. Court of Appeals of California, Second District, Division Three, affirmed the trial court's denial of class certification in the case captioned KENDELL CRAWLEY et al., Plaintiffs and Appellants, v. AIRTOUCH CELLULAR, Defendant and Respondent, No. B264042 (Cal. App.). The Defendant operates Verizon Wireless retail stores and kiosks throughout Southern California. The Plaintiffs moved to certify a class of approximately 339 persons who have been, or currently are, employed by AirTouch and who worked at least one shift in a California retail store location during the Class Period (Aug. 12, 2007 through final judgment) and who held, or hold, the position of single store manager ("RSM"). They averred that the proposed class was sufficiently numerous and ascertainable; they were adequate class representatives; and their claims were typical. They also sought certification of a proposed subclass of all class members whose employment with AirTouch had ended. According to the Plaintiffs, common questions of law and fact would predominate over individual issues because all RSMs were misclassified as exempt employees under the managerial exception; worked between 50 and 70 hours per week, without receiving overtime or payment for missed meal and rest periods; performed the same job duties in the same manner and under the same supervision and control; received the same training; operated under a common job description; and were required to follow AirTouch's standardized policies and procedures. Analysis of AirTouch's uniform policies and practices in regard to RSMs would establish that all were subject to uniform treatment which results in each failing to meet the standards applicable to the executive exemption. Specifically, they averred that absent approval by the single district manager ("DM") and/or Human Resources ("HR"), RSMs could not discipline, terminate, or hire employees; give a performance review; increase store staffing; or retroactively alter employee time records. They also asserted the court could look to statistical evidence to determine both liability (i.e., whether all RSMs fell within the relevant exemptions) and damages. After the Supreme Court issued its decision in Duran v. U.S. Bank National Assn., the Plaintiffs filed a supplemental brief and a second declaration from Dr. Drogin, in which he averred that a properly designed and implemented random sampling plan that avoided the mistakes present in the sample at issue in Duran would be an appropriate statistical technique for obtaining representative evidence about the nature of the job, tasks performed, and time spent on various tasks in the instant case. The trial court denied the motion for class certification, concluding the Plaintiffs had failed to establish common, as opposed to individual, issues, would predominate; the Plaintiffs' claims were typical of the class; or that the class action device was superior. The Plaintiffs timely appealed the trial court's order. The Plaintiffs contend the trial court's ruling rests on improper criteria and erroneous legal assumptions, and insist that its order should be reversed and the matter remanded with instructions to certify the class. AirTouch, on the other hand, urges that the trial court acted well within its discretion in concluding individual issues would predominate, and properly denied the class certification motion. Judge Aldrich agrees with AirTouch. Examining the Plaintiffs' theory of recovery and assessing the nature of the legal and factual disputes likely to be presented, he concludes that substantial evidence supported the trial court's finding that individual issues predominated. In short, the evidence before the court was in conflict. The trial court had discretion to weigh the evidence and credit AirTouch's evidence. Judge Aldrich does not detect error in the trial court's conclusion that Dr. Drogin's statistical sampling proposal could not substitute for evidence of commonality during the liability phase of trial. Here, Dr. Drogin proposed that random sampling could be used to obtain representative evidence about the nature of the job, tasks performed, and time spent on various tasks. He did not base his opinion on actual evidence in the case, conduct surveys or talk with class members. The trial court therefore did not abuse its discretion in concluding this was a mere proposal for future statistical sampling that could not substitute for evidence of commonality. In light of his conclusions, Judge Aldrich needs not further consider the trial court's rulings on the related questions of typicality and manageability. As the Plaintiffs' claims regarding meal and rest periods, record keeping, payment of wages due upon termination, and unfair competition are all derivative of the misclassification claim, the trial court did not err by concluding they were unsuitable for certification. Therefore, Judge Aldrich affirmed the trial court's order. The Respondent is to recover its costs on appeal. A full-text copy of the Court's July 28, 2017 order is available at https://is.gd/lVqYAX from Leagle.com. Marlin & Saltzman, Stanley D. Saltzman, Stephen P. O'Dell, David C. Leimbach; United Employees Law Group and Walter Haines for Plaintiffs and Appellants. Jones Day, Peter E. Davids -- pdavids@jonesday.com -- Cindi L. Ritchey -- critchey@jonesday.com -- Liat Yamini -- lyamini@jonesday.com -- and Brian M. Jorgensen -- bmjorgensen@jonesday.com -- for Defendant and Respondent. ALABAMA: Court Denies Preliminary Injunction in "Thompson" ---------------------------------------------------------- Judge W. Keith Watkins of the U.S. District Court for the Middle District of Alabama, Northern Division, denied the Plaintiffs' motion for a preliminary injunction in the case captioned TREVA THOMPSON, et al., Plaintiffs, v. STATE OF ALABAMA, et al., Defendants, Case No. 2:16-CV-783-WKW (M.D. Ala.). The Plaintiffs filed this lawsuit on Sept. 26, 2016, seeking to certify (i) a class of the Plaintiffs defined as all unregistered persons otherwise eligible to register to vote in Alabama who are now, or who may in the future be, denied the right to vote because they have been convicted of a felony; (ii) nine subclasses of the Plaintiffs; and (iii) a Defendant class of county registrars. It also asks for a declaratory judgment that Section 177(b) of the Alabama Constitution, on its face and as applied, violates the First Amendment and the Equal Protection and Due Process Clauses of the Fourteenth Amendment. In their motion, the Plaintiffs ask for a preliminary injunction mandating the Defendants to take the following actions prior to the voter registration deadline on July 31, 2017: (i) to provide notice of the Felony Voter Disqualification Act, Alabama Laws Act 2017-378 ("HB 282")'s voting eligibility standards on the electronic Alabama Voter Registration Form on the Alabama Secretary of State's website; (ii) to post notice of HB 282's voting eligibility standards on the Alabama Secretary of State's website and at county registrars and DMV offices; (iii) to submit a request to the federal Election Assistance Commission to provide notice of HB 282's voting eligibility standards in Alabama's state-specific instructions on the Federal Voter Registration Form; and (iv) to reinstate HB 282 voters -- voters whose registration applications were denied or who were struck from the voter registration rolls in the last two years, but whose eligibility was affirmed by HB 282 -- to the voter registration rolls and provide them with individualized notice of their eligibility to vote. Judge Watkins explains that HB 282 offered long-needed and sought- after clarification to the conundrum in the Alabama Constitution's disenfranchising provision, Section 177(b), when it defined a "felony involving moral turpitude." HB 282 did not exist when the Plaintiffs filed this lawsuit challenging Section 177(b) on federal constitutional grounds, but after its enactment, the Plaintiffs filed a motion for preliminary injunction asking the Court to tell Alabama's state officials how to implement the law. The Plaintiffs' motion, however, is based on claims that HB 282 has mooted; raises new claims, new requests for relief, a new putative class of voters who were ineligible to vote prior to HB 282, but now are eligible; seeks to alter the status quo; and raises serious concerns about federal instruction into state election law. The Court held the motion for preliminary injunction is due to be denied for all these reasons and more. They satisfy none of the elements for granting a preliminary injunction. Accordingly, based upon careful consideration of the Plaintiffs' motion for preliminary injunction, the Defendants' opposition, the evidentiary hearing, and the oral arguments, and the record, Judge Watkins ordered that the motion is denied. A full-text copy of the Court's July 28, 2017 memorandum opinion and order is available at https://is.gd/qYJgjF from Leagle.com. Treva Thompson, Plaintiff, represented by Aderson B. Francois -- aderfner@derfneraltman.com -- Institute for Public Representation, pro hac vice. Treva Thompson, Plaintiff, represented by Armand Derfner, Derfner & Altman LLC, Danielle Lang, Campaign Legal Center, pro hac vice, James Uriah Blacksher -- jblacksher@ns.sympatico.ca -- Attorney at Law, Jessica Ring Amunson, Jenner & Block LLP, pro hac vice, Joseph Gerald Hebert, Campaign Legal Center, Joseph Mitchell McGuire -- jmcguire@mandabusinesslaw.com -- McGuire & Associates LLC & Pamela Karlan, Stanford Law School, pro hac vice. Melissa Swetnam, Plaintiff, represented by Aderson B. Francois, Institute for Public Representation, pro hac vice, Armand Derfner, Derfner & Altman LLC, Danielle Lang, Campaign Legal Center, pro hac vice, James Uriah Blacksher, Attorney at Law, Jessica Ring Amunson, Jenner & Block LLP, pro hac vice, Joseph Gerald Hebert, Campaign Legal Center, Joseph Mitchell McGuire, McGuire & Associates LLC & Pamela Karlan, Stanford Law School, pro hac vice. Antwoine Giles, Plaintiff, represented by Aderson B. Francois, Institute for Public Representation, pro hac vice, Armand Derfner, Derfner & Altman LLC, Danielle Lang, Campaign Legal Center, pro hac vice, James Uriah Blacksher, Attorney at Law, Jessica Ring Amunson, Jenner & Block LLP, pro hac vice, Joseph Gerald Hebert, Campaign Legal Center, Joseph Mitchell McGuire, McGuire & Associates LLC & Pamela Karlan, Stanford Law School, pro hac vice. Anna Reynolds, Plaintiff, represented by Aderson B. Francois, Institute for Public Representation, pro hac vice, Armand Derfner, Derfner & Altman LLC, Danielle Lang, Campaign Legal Center, pro hac vice, James Uriah Blacksher, Attorney at Law, Jessica Ring Amunson, Jenner & Block LLP, pro hac vice, Joseph Gerald Hebert, Campaign Legal Center, Joseph Mitchell McGuire, McGuire & Associates LLC & Pamela Karlan, Stanford Law School, pro hac vice. Laura Corley, Plaintiff, represented by Aderson B. Francois, Institute for Public Representation, pro hac vice, Armand Derfner, Derfner & Altman LLC, Danielle Lang, Campaign Legal Center, pro hac vice, James Uriah Blacksher, Attorney at Law, Jessica Ring Amunson, Jenner & Block LLP, pro hac vice, Joseph Gerald Hebert, Campaign Legal Center, Joseph Mitchell McGuire, McGuire & Associates LLC & Pamela Karlan, Stanford Law School, pro hac vice. Larry Joe Newby, Plaintiff, represented by Aderson B. Francois, Institute for Public Representation, pro hac vice, Armand Derfner, Derfner & Altman LLC, Danielle Lang, Campaign Legal Center, pro hac vice, James Uriah Blacksher, Attorney at Law, Jessica Ring Amunson, Jenner & Block LLP, pro hac vice, Joseph Gerald Hebert, Campaign Legal Center, Joseph Mitchell McGuire, McGuire & Associates LLC & Pamela Karlan, Stanford Law School, pro hac vice. Mario Dion Yow, Plaintiff, represented by Aderson B. Francois, Institute for Public Representation, pro hac vice, Armand Derfner, Derfner & Altman LLC, Danielle Lang, Campaign Legal Center, pro hac vice, James Uriah Blacksher, Attorney at Law, Jessica Ring Amunson, Jenner & Block LLP, pro hac vice, Joseph Gerald Hebert, Campaign Legal Center, Joseph Mitchell McGuire, McGuire & Associates LLC & Pamela Karlan, Stanford Law School, pro hac vice. Jennifer Zimmer, Plaintiff, represented by Aderson B. Francois, Institute for Public Representation, pro hac vice, Armand Derfner, Derfner & Altman LLC, Danielle Lang, Campaign Legal Center, pro hac vice, James Uriah Blacksher, Attorney at Law, Jessica Ring Amunson, Jenner & Block LLP, pro hac vice, Joseph Gerald Hebert, Campaign Legal Center, Joseph Mitchell McGuire, McGuire & Associates LLC & Pamela Karlan, Stanford Law School, pro hac vice. Timothy Lanier, Plaintiff, represented by Aderson B. Francois, Institute for Public Representation, pro hac vice, Armand Derfner, Derfner & Altman LLC, Danielle Lang, Campaign Legal Center, pro hac vice, James Uriah Blacksher, Attorney at Law, Jessica Ring Amunson, Jenner & Block LLP, pro hac vice, Joseph Gerald Hebert, Campaign Legal Center, Joseph Mitchell McGuire, McGuire & Associates LLC & Pamela Karlan, Stanford Law School, pro hac vice. State of Alabama, Defendant, represented by Andrew L. Brasher, Office of the Attorney General, James William Davis, State of Alabama, Misty Shawn Fairbanks Messick, Office of the Attorney General & Mary Mangan, Office of the Attorney General. John H. Merrill, Defendant, represented by Andrew L. Brasher, Office of the Attorney General, James William Davis, State of Alabama, Misty Shawn Fairbanks Messick, Office of the Attorney General & Mary Mangan, Office of the Attorney General. George Noblin, Defendant, represented by Andrew L. Brasher, Office of the Attorney General, James William Davis, State of Alabama, Misty Shawn Fairbanks Messick, Office of the Attorney General & Mary Mangan, Office of the Attorney General. Clifford Walker, Defendant, represented by Andrew L. Brasher, Office of the Attorney General, James William Davis, State of Alabama, Misty Shawn Fairbanks Messick, Office of the Attorney General & Mary Mangan, Office of the Attorney General. ALBUQUERQUE, NM: "Torres" Suit Moved to Federal District Court -------------------------------------------------------------- The class action lawsuit titled Joseph Dion Torres, on his behalf and on behalf of similarly situated persons, the Plaintiff, v. City of Albuquerque, Michelle Wall, Ricardo Vialpando, Stephanie Garcia, Randy Hanes, and Adam Barela, sued in their individual capacities, the Defendants, Case No. 17cv04691, was removed on July 20, 2017 from the Second Judicial District Court, to the U.S. District Court for the District of New Mexico (Albuquerque). The District Court Clerk assigned Case No. 1:17-cv-00754 to the proceeding. Albuquerque, New Mexico's largest city, sits in the high desert. Its modern Downtown core contrasts with Old Town Albuquerque, dating to the city's 1706 founding as a Spanish colony. Old Town is filled with historic adobe buildings, such as San Felipe de Neri Church, 5 museums, and shops selling Native American handicrafts. Nearby, The Indian Pueblo Cultural Center traces the area's tribal history.[BN] The Plaintiff is represented by: Joseph P. Kennedy, Esq. Adam C. Flores, Esq. KENNEDY KENNEDY & IVES, LLC 1000 2nd Street, N.W. Albuquerque, NM 87102 Telephone: (505) 244 1400 Facsimile: (505) 244 1406 E-mail: jpk@civilrightslawnewmexico.com acf@civilrightslaw.com The Defendants are represented by: Kristin J Dalton, Esq. ASSISTANT CITY ATTORNEY CITY OF ALBUQUERQUE P.O. Box 2248 Albuquerque, NM 87103 Telephone: (505) 768 4500 Facsimile: (505) 768 4440 E-mail: kjdalton@cabq.gov ALLSTATE PROPERTY: Court Recommends Dismissing "Zevallos" Suit -------------------------------------------------------------- Magistrate Judge Craig B. Shaffer of the U.S. District Court for the District of Colorado recommended granting the Defendant's Motion for Judgment on the Pleadings and dismissing the case captioned MIRIAM ZEVALLOS, Plaintiff, v. ALLSTATE PROPERTY AND CASUALTY COMPANY, Defendant, Civ. No. 17-00189-RM-CBS (D. Colo.). Since a 2007 amendment, section 10-4-609 of the Colorado insurance code has provided that the amount of the Uninsured Motorist/Underinsured Motorist ("UM/UIM") coverage available pursuant to this section will not be reduced by a setoff from any other coverage, including, but not limited to, legal liability insurance, medical payments coverage, health insurance, or other uninsured or underinsured motor vehicle insurance. The Plaintiff alleges that despite this statute, the Defendants uniformly reduce amounts paid to their insureds under their UM/UIM coverages by setoffs from their medical payments ("MedPay") coverages under their respective automobile policies. Zevallos was insured by Allstate with a policy of insurance that included $5,000 of MedPay coverage and $50,000/$100,000 of UM/UIM coverage. This policy constitutes a contract. Zevallos was injured by an underinsured motorist on Aug. 20, 2012. As a result of her injuries, she submitted claims under her MedPay and UM/UIM coverages. Allstate paid MedPay benefits on her behalf and paid Zevallos UM/UIM benefits of $2,700. Allstate alleges that the $2,700 it paid to the Plaintiff was in settlement of her claim for UM/UIM benefits under the Policy. In consideration of the settlement payment, on Sept. 26, 2014, the Plaintiff released Allstate from any and all liability and from any and all contractual obligations whatsoever under the coverage designated above underinsured motorist insurance -- Coverage SU of the Policy and arising out of bodily injury sustained by Miriam Zevallos due to an accident on or about the Aug. 20, 2012. The Plaintiff alleges that in reaching the $2,700 UM/UIM benefit number, Allstate explicitly subtracted the $5,000 in MedPay coverage from its evaluation. She further alleges that Allstate confirmed this subtraction on June 11, 2014, in a letter regarding her claim. On Nov. 7, 2016, more than two years after the Plaintiff agreed to settle her claim with Allstate, the Colorado Supreme Court issued Calderon v. American Family Mutual Insurance Co. It held that insurers cannot use non-duplication of benefits clauses to setoff MedPay benefits from UM/UIM benefits. Four days after Calderon issued, the Plaintiff filed her complaint in state court on behalf of herself and a putative class. Allstate removed the case based on federal jurisdiction under the Class Action Fairness Act. On March 2, 2017, the Defendant filed its Motion for Judgment on the Pleadings. Judge Moore referred the motion to this Magistrate Judge pursuant to a Memorandum. Allstate argues that the Plaintiff's UM/UIM benefits are barred by a release that she executed with Allstate in 2014 and that the Colorado Supreme Court's decision in Calderon can be applied only prospectively. Zevallos filed her Response to the motion on March 23, 2017, which was followed by the Defendant's Reply on April 6, 2017. On May 3, 2017, Judge Shaffer heard oral argument. He has also received from Allstate three notices of supplemental authority. Magistrate Judge Shaffer concludes that the Plaintiff's release bars her claims, regardless of whether Calderon should or should not be given retroactive effect. Even assuming that Calderon applies retroactively, as she argues, nothing barred the Plaintiff from voluntarily waiving the statute's anti-setoff provision when she settled and released her claim. Therefore, the Magistrate Judge recommended granting Allstate's motion for judgment on the pleadings and dismissing the Plaintiff's claims. A full-text copy of the Court's July 28, 2017 recommendation is available at https://is.gd/t2vXxu from Leagle.com. Miriam Zevallos, Plaintiff, represented by Tonya L. Melnichenko, Franklin D. Azar & Associates, PC. Miriam Zevallos, Plaintiff, represented by Bradley Aaron Levin -- bal@levinsitcoff.com -- Levin Sitcoff PC, Franklin David Azar, Franklin D. Azar & Associates, PC, Jonathan Steven Parrott, Franklin D. Azar & Associates, PC, Keith Richard Scranton, Franklin D. Azar & Associates, PC, Nelson Andrew Waneka -- naw@levinsitcoff.com -- Levin Sitcoff PC, Patricia A. Meester, Franklin D. Azar & Associates, PC & Susan S. Minamizono -- ssm@levinsitcoff.com -- Levin Sitcoff PC. Allstate Property and Casualty Company, Defendant, represented by Lauren Pamela Carboni -- lauren.carboni@dentons.com -- Dentons US LLP, Richard L. Fenton -- richard.fenton@dentons.com -- Dentons US LLP & Lino S. Lipinsky de Orlov -- lino.lipinsky@dentons.com -- Dentons US LLP. AMERICAN AIRLINES: Bazerman Sues over Additional Baggage Charge --------------------------------------------------------------- MAX BAZERMAN, individually and on behalf of others similarly situated, the Plaintiffs, v. AMERICAN AIRLINES, INC., a Delaware Corporation, the Defendants, Case No. 1:17-cv-11297-MBB (D. Mass., July 13, 2017), seeks to enjoin American Airlines' systematic failure to honor the contracts it enters into with its passengers. AA's passenger contracts include promises that specified passengers are permitted to check a first, second, and/or third bag for no additional charge. These passengers include "elite" members of certain frequent flyer programs and those who purchase certain types of tickets, such as business class or first class. AA contracts also routinely promise certain other passengers that they are permitted to check their first bag for no additional charge. Yet, AA systematically required these passengers to pay to check bags that AA had promised to transport at no additional charge, and thus breached its contract with affected passengers. American Airlines, commonly referred to as American, is a major American airline headquartered in Fort Worth, Texas, within the Dallas-Fort Worth metroplex.[BN] The Plaintiff is represented by: Benjamin Edelman, Esq. LAW OFFICES OF BENJAMIN EDELMAN 169 Walnut Street Brookline, MA 02445 Telephone: (617) 297 7360 - and - Linda M. Dardarian, Esq. Byron Goldstein, Esq. Raymond Wendell, Esq. GOLDSTEIN, BORGEN, DARDARIAN & HO 300 Lakeside Drive, Suite 1000 Oakland, CA 94612 Telephone: (510) 763 9800 Facsimile: (510) 835 1417 E-mail: ldardarian@gbdhlegal.com brgoldstein@gbdhlegal.com rwendell@gbdhlegal.com APOLLO EDUCATION: Court Dismisses "Lomingkit" Suit With Prejudice ----------------------------------------------------------------- In the case captioned Rameses Te Lomingkit, et al., Plaintiffs, v. Apollo Education Group Incorporated, et al., Defendants, No. CV-16 -00689-PHX-JAT (D. Ariz.), Judge James A. Teilborg of the U.S. District Court for the District of Arizona granted in part the Defendants' Request for Judicial Notice in Support of Moving Defendants' Motion to Dismiss; and granted the Defendants' Motion to Dismiss [Plaintiffs'] Second Amended Complaint. This is a consolidated class action proceeding. Defendant Apollo is an Arizona-based company that owns and operates proprietary postsecondary educational institutions and is one of the largest private education providers in the world. In particular, University of Phoenix ("UOP") is Apollo's largest university, accounting for approximately 90% of Apollo's total enrollment and revenues. The remaining Defendants are various individuals who served as Apollo's officers and directors between Nov. 13, 2013 and Oct. 21, 2015 ("Class Period"). The Plaintiffs purchased Apollo stock during the Class Period. In 2009, Apollo determined that UOP's software for students was outdated and formulated plans to "rebuild" UOP's online learning environment from scratch. This software--referred to as the "online classroom" -- was used by all UOP students, whom relied on the platform to access their UOP accounts, receive educational content for their courses, and turn in their assignments. The Plaintiffs allege that the successful upgrade of the online classroom platform was critically important to Apollo's financial success, and Apollo had plans to sell the technology to other universities. However, the upgrades experienced multiple disruptions from mid- 2012 to mid-2014. These disruptions included widespread blackouts, in which users were unable to login to the platform. The online classroom disruptions were further exacerbated by rounds of significant layoffs within Apollo's IT department from 2013 to 2015. The Plaintiffs allege that Defendants and Apollo representatives made a number of false and/or misleading statements during and after the rollout of Apollo's online classroom upgrades. The Court previously dismissed the Plaintiffs' Consolidated Class Action Complaint ("CAC"), finding that they failed to state a claim upon which relief could be granted because they failed to meet the standard for pleading securities fraud. Specifically, the Court found that the Plaintiffs failed to adequately plead that the Defendants made a false or misleading statement. They then amended their CAC, and the Defendants now seek to dismiss the Plaintiffs' SAC. The Court finds that the Plaintiffs' factual allegations suffer from the same deficiencies as the In re Vantive Corp. Sec. Litig. plaintiffs. Particularly, their allegations fail because of three types of deficiencies: (i) general failure of factual allegations to render the Defendants' alleged misstatements false or misleading; (ii) lack of precise meaning in terms used by the Defendants and the Plaintiffs' witnesses; and (iii) lack of sufficient temporal proximity between witness observations and the Defendants' statements. The Court also finds that no statement alleged by the Plaintiffs to be false or misleading meets the pleading standard of the PSLRA and Federal Rule9(b). It reiterates from its prior Order that it is insufficient to simply allege that a statement is false or misleading because it is incomplete rather than affirmatively alleging what specifically makes a statement false or misleading. And because the Court concludes that the Plaintiffs have failed to plausibly allege that the Defendants made any false or misleading statement, it does not address scienter. As to the Plaintiffs' request for leave to amend under Federal Rule 15, the Court has already granted them leave to amend. In granting their leave to amend, it cautioned that it had advised them as to the standard under the PSLRA and Federal Rule 9(b) and expects them to comply in the next amended complaint, without seeking further amendment. As noted, the Plaintiffs failed to fully comply with its Order. Additionally, the Plaintiffs point to no additional facts that they might allege to cure the addressed deficiencies, which persisted in a similar light between the CAC and SAC. Thus, the Court denied the Plaintiffs' request to amend the SAC. Based on the foregoing, the Court granted in part the Defendants' Request for Judicial Notice in Support of Moving Defendants' Motion to Dismiss and granted their Motion to Dismiss [Plaintiffs'] Second Amended Complaint. The Clerk of the Court is directed to dismiss the case with prejudice and enter judgment accordingly. A full-text copy of the Court's July 26, 2017 order is available at https://is.gd/5BH5YC from Leagle.com. Rameses Te Lomingkit, Plaintiff, represented by Carolyn G. Anderson -- carolyn.anderson@zimmreed.com -- Zimmerman Reed PLLP. Rameses Te Lomingkit, Plaintiff, represented by Corey D. Holzer -- cholzer@holzerlaw.com -- Holzer & Holzer LLC, Hart Lawrence Robinovitch -- hart.robinovitch@zimmreed.com -- Zimmerman Reed PLLP, Jonah H. Goldstein -- jonahg@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Marwill P. Dees -- mdees@holzerlaw.com -- Holzer & Holzer LLC, Mary K. Blasy -- mblasy@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Robert R. Henssler, Jr. -- bhenssler@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Samuel H. Rudman -- SRudman@rgrdlaw.com -- Lerach Coughlin Stoia Geller Rudman & Robbins LLP, Danielle S. Myers -- danim@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP & Matthew James Balotta -- mbalotta@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP. National Shopmen Pension Fund, Plaintiff, represented by Jonah H. Goldstein, Robbins Geller Rudman & Dowd LLP, Robert R. Henssler, Jr., Robbins Geller Rudman & Dowd LLP & Danielle S. Myers, Robbins Geller Rudman & Dowd LLP. Government of Guam Retirement Fund, Plaintiff, represented by Blair A. Nicholas -- blairn@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP, Brandon Marsh -- brandon.marsh@blbglaw.com -- Bernstein Litowitz Berger & Grossman LLP, David R. Stickney -- davids@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP, Rachel Felong, Bernstein Litowitz Berger & Grossmann LLP & Richard Glenn Himelrick -- RGH@TBLAW.COM -- Tiffany & Bosco PA. Apollo Education Group Incorporated, Defendant, represented by Brian Kirk Mosley -- bmosley@omlaw.com -- Osborn Maledon PA, David B. Rosenbaum -- drosenbaum@omlaw.com -- Osborn Maledon PA, Michael Gerald Bongiorno -- michael.bongiorno@wilmerhale.com -- Wilmer Cutler Pickering Hale & Dorr LLP, Peter A. Spaeth -- peter.spaeth@wilmerhale.com -- Wilmer Cutler Pickering Hale & Dorr LLP & James W. Prendergast -- james.prendergast@wilmerhale.com -- Wilmer Cutler Pickering Hale & Dorr LLP. Peter V Sperling, Defendant, represented by Brian Kirk Mosley, Osborn Maledon PA, David B. Rosenbaum, Osborn Maledon PA & Peter A. Spaeth, Wilmer Cutler Pickering Hale & Dorr LLP. Gregory W Cappelli, Defendant, represented by Brian Kirk Mosley, Osborn Maledon PA, David B. Rosenbaum, Osborn Maledon PA & Peter A. Spaeth, Wilmer Cutler Pickering Hale & Dorr LLP. Brian L Swartz, Defendant, represented by Brian Kirk Mosley, Osborn Maledon PA, David B. Rosenbaum, Osborn Maledon PA & Peter A. Spaeth, Wilmer Cutler Pickering Hale & Dorr LLP. BAYCARE HEALTH: "Figueroa" Suit Moved to Middle Dist. of Florida ---------------------------------------------------------------- The class action lawsuit titled Elayne Figueroa, on behalf of herself and on behalf of all others similarly situated, the Plaintiff, v. BayCare Health System, Inc., Case No. 17-CA-004503 Div E, was removed on July 25, 2017 from the 13th Judicial Circuit, Hillsborough County, to the U.S. District Court for the Middle District of Florida (Tampa). The District Court Clerk assigned Case No. 8:17-cv-01780-JSM-JSS to the proceeding. The case is assigned to the Hon. Judge James S. Moody, Jr. BayCare Health operates inpatient and outpatient healthcare facilities that provide primary care and specialty services to children and adults.[BN] The Plaintiff is represented by: Brandon J. Hill, Esq. Luis A. Cabassa, Esq. WENZEL FENTON CABASSA, PA 1110 N Florida Ave Ste 300 Tampa, FL 33602-3343 Telephone: (813) 224 0431 Facsimile: (813) 229 8712 E-mail: bhill@wfclaw.com lcabassa@wfclaw.com The Defendant is represented by: Nathan Paulich, Esq. Thomas M. Gonzalez, Esq. THOMPSON, SIZEMORE, GONZALEZ & HEARING, PA 201 N Franklin St-Ste 1600 PO Box 639 Tampa, FL 33601-0639 Telephone: (813) 273 0050 Facsimile: (813) 273 0072 E-mail: npaulich@tsghlaw.com tgonzalez@tsghlaw.com BEDFORD, OH: Court Certifies Class in "Pund" -------------------------------------------- In the case captioned KENNETH PUND, et al., Plaintiffs, v. CITY OF BEDFORD, OHIO, et al., Defendants, Case No. 1:16CV1076 (N.D. Ohio), Judge Benita Y. Pearson of the U.S. District Court for the Northern District of Ohio, Eastern Division, denied as moot the Plaintiffs' Oral Motion for Temporary Restraining Order and granted their Motion for Class Certification. The Plaintiffs, citizens of the City of Bedford, Ohio, brought suit against the City of Bedford and various city officials challenging the city's practice of imposing Point of Sale Inspection fees. They filed Motions for Preliminary Injunction and Temporary Restraining Order, asking the Court to enjoin the Defendants' Point of Sale inspection requirements. The Court set a hearing for May 13, 2016, but, prior to the hearing, parties filed a Joint Motion for an Order Granting Preliminary Injunction. The Court granted the Motion and cancelled the hearing. The Court preliminarily enjoined the Defendants from enforcing warrantless Point of Sale searches and from indirectly enforcing the warrantless Point of Sale searches requirement by criminally prosecuting the Plaintiffs, stripping them of the right to occupy or rent their property, or otherwise. The City indicated in its Opposition to the Motion for Permanent Injunction that it had amended its Point of Sale Inspection regulations. The Plaintiffs then moved for leave to amend their Complaint, which the Court granted. The Amended Complaint added a claim for class-wide relief, as well as claims related to the Defendants' Rental Inspection fees. They argued that the Defendants' Rental Inspection mandates were materially identical to the City's enjoined Point of Sale Inspection requirements. Nonetheless, the Defendants continued to enforce the Rental Inspections, and maintained that the injunction applies only to the Point of Sale inspections. The Plaintiffs also moved for a temporary restraining order. The Court held a hearing, at which Defendants agreed to amend the City's rental inspection ordinance. On March 10, 2017, the Defendants confirmed that the ordinance has been amended, and the rental application and City's website were updated accordingly. The Plaintiffs now move for class certification. Judge Pearson finds that the Plaintiffs have shown numerosity, typicality, commonality, and adequacy, and, therefore, have satisfied Rule 23(a). Accordingly, she certified the following Class, composed of two subclasses: a. Subclass A: All individuals and businesses that have (i) been subjected to Point of Sale Inspections between Sept. 10, 2014 and Jan. 30, 2017; and (ii) paid Points of Sale Inspection fees to the City of Bedford in conjunction with the aforesaid inspection(s). b. Subclass B: All individuals and businesses that have (i) been subjected to rental inspections between Sept. 10, 2014 and Feb. 14, 2017; and (ii) paid Rental Inspection fees to the City of Bedford in conjunction with the aforesaid inspection(s). Since appointment of counsel is not contested, Judge Pearson certified the current counsel, Maurice A. Thompson, as the class counsel. Because the City has modified its Rental Inspection ordinance, she denied the Oral Motion for Temporary Restraining Order as moot. A full-text copy of the Court's July 28, 2017 memorandum of opinion and order is available at https://is.gd/YuB8eI from Leagle.com. Kenneth Pund, Plaintiff, represented by Christopher P. Finney -- chris@finneylawfirm.com. Kenneth Pund, Plaintiff, represented by Gary F. Werner -- gwerner@bernsockner.com -- Berns, Ockner & Greenberger, Maurice A. Thompson -- mthompson@ohioconstitution.org -- Center for Constitutional Law & Sheldon Berns -- sberns@bernsockner.com -- Berns, Ockner & Greenberger. John Diezic, Plaintiff, represented by Christopher P. Finney, Gary F. Werner, Berns, Ockner & Greenberger, Maurice A. Thompson, Center for Constitutional Law & Sheldon Berns, Berns, Ockner & Greenberger. Scott Jowers, Plaintiff, represented by Christopher P. Finney, Gary F. Werner, Berns, Ockner & Greenberger, Maurice A. Thompson, Center for Constitutional Law & Sheldon Berns, Berns, Ockner & Greenberger. Stephanie Jowers, Plaintiff, represented by Christopher P. Finney, Stephanie Jowers, Plaintiff, represented by Gary F. Werner, Berns, Ockner & Greenberger, Maurice A. Thompson, Center for Constitutional Law & Sheldon Berns, Berns, Ockner & Greenberger. City of Bedford, Ohio, Defendant, represented by Kallen L. Dearnbarger, Smith Marwill & R. Eric Smearman -- res@smithmarwill.com -- Smith Marwill. Rob Brown, Defendant, represented by Kallen L. Dearnbarger, Smith Marwill & R. Eric Smearman, Smith Marwill. Richard Hickman, Defendant, represented by Kallen L. Dearnbarger, Smith Marwill & R. Eric Smearman, Smith Marwill. BROOKDALE SENIOR: "Eidler" Suit Sues over Disabilities Act ---------------------------------------------------------- In the case, PATRICIA EIDLER, by and through her Guardian Ad Litem, CHRISTOPHER WILLIAM EIDLER; STACIA STINER; MARY-CATHERINE JONES, by and through her Guardian Ad Litem, KELLY CLAPPER; and HELEN CARLSON, by and through her Guardian Ad Litem, and JOAN CARLSON; on their own behalves and on behalf of others similarly situated, the Plaintiffs, v. BROOKDALE SENIOR LIVING, INC.; BROOKDALE SENIOR LIVING COMMUNITIES, INC.; and DOES 1 through 100, the Defendants, Case No. 3:17-cv-03962-JD (N.D. Cal., July 13, 2017), Plaintiffs are elderly or dependent individuals living in California who have significant care needs and disabilities. Plaintiffs and their families were overwhelmed by and required assistance with their activities of daily living including, but not limited to, assistance with managing and taking medication; housekeeping; laundry; dressing; bathing; toileting; hygiene; food preparation; and transportation. The Plaintiffs and their families and the classes they seek to represent either chose a Brookdale facility or chose to stay in a facility purchased by Brookdale because they believed Brookdale's repeated promises to provide the care and assistance that would allow them to age with dignity. Instead, Plaintiffs, their family members, and the proposed class members have all encountered in Brookdale a system of understaffed assisted living facilities that fails to consistently provide even the most basic level of promised care. According to the lawsuit, the Defendant has engaged in a policy and practice of violating Title III of the Americans with Disabilities Act of 1990 (ADA), accompanying regulations, and the Unruh Civil Rights Act (Unruh Act), California Civil Code. Among other things, Defendant has violated the ADA by failing to make its assisted living facilities readily accessible to and usable by persons with disabilities. Brookdale Senior Living is an owner and operator of senior living communities throughout the United States, operating over 1,100 senior living communities and retirement communities in the US.[BN] The Plaintiffs are represented by: Guy B. Wallace, Esq. Sarah Colby, Esq. Jennifer A. Uhrowczik, Esq. SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 2000 Powell Street, Suite 1400 Emeryville, CA 94608 Telephone: (415) 421 7100 Facsimile: (415) 421 7105 -and - Kathryn A. Stebner, Esq. Kelly Knapp, Esq. STEBNER AND ASSOCIATES 870 Market Street, Suite 1212 San Francisco, CA 94102 Telephone: (415) 362 9800 Facsimile: (415) 362 9801 -and - Gay Crosthwait Grunfeld, Esq. Benjamin Bien-Kahn, Esq. Christopher D. Hu, Esq. ROSEN BIEN GALVAN & GRUNFELD LLP 50 Fremont Street, 19th Floor San Francisco, CA 94105-2235 Telephone: (415) 433 6830 Facsimile: (415) 433 7104 CAFE POMPETTE: Faces "Castro" Suit in Eastern Dist. of New York --------------------------------------------------------------- A class action lawsuit has been filed against Cafe Pompette, Inc. The case is styled as Adriano de Jesus Garcia Castro, on behalf of himself and all other persons similarly situated, the Plaintiff, v. Cafe Pompette, Inc., Cafe Pompette, Inc. d/b/a El Mate Restaurant, Fernando Rodas, and Ariel Jara, the Defendants, Case No. 1:17-cv-04388 (E.D.N.Y., July 25, 2017). The Defendants operate a restaurant.[BN] The Plaintiff appears pro se. CALIFORNIA PHYSICIANS: Ct. Allows 3-Hr Deposition in "Des Roches" ----------------------------------------------------------------- In the case captioned CHARLES DES ROCHES, et al., Plaintiffs, v. CALIFORNIA PHYSICIANS' SERVICE, et al., Defendants, Case No.5:16- cv-02848-LHK (HRL) (N.D. Cal.), Magistrate Judge Howard R. Lloyd of the U.S. District Court for the Northern District of California, San Jose Division, warranted the Plaintiffs three hours to depose Amanda Flaum, a former Blue Shield executive. In this certified class action, the Plaintiffs claim that their health care plans provided for mental health and substance abuse treatment that was medically necessary as defined by generally accepted professional standards, but that the Defendants evaluated claims for such treatment under "Guidelines" that were far and away more restrictive. Among other relief, they seek an injunction requiring that their claims be reevaluated under proper guidelines. The parties filed Discovery Dispute Joint Report ("DDJR") #1 on July 20. In it, the Blue Shield Defendants seek an order preventing the Plaintiffs from deposing Amanda Flaum, a former Blue Shield executive. The Blue Shield Defendants say that Ms. Flaum was Blue Shield's Vice President of Medical Management from 2013 to 2016, overseeing a department that managed medical necessity determinations. They say that the Plaintiffs have already deposed knowledgeable people below her in the hierarchy. She is, they claim, an "apex" executive, who should not be subjected to the possible harassment of a deposition unless her testimony is unique and unavailable elsewhere. The Plaintiffs say Ms. Flaum was at all times a member of and for a time the chairperson of the Blue Shield Utilization Management Committee, the committee that approved adoption of the very Guidelines that are the heart of this lawsuit. She was, they suggest, not a hands-off manager, but was closely involved in overseeing the review and approval of the Guidelines. Magistrate Judge Lloyd, on balance, is not persuaded that Ms. Flaum is an apex executive. The Defendants do not explain where she was in the corporate hierarchy. Even if she were an apex executive, the Plaintiffs have satisfied the Court that her testimony could be unique on account of her role as a decision maker on the Guidelines' adoption and application. He sees no hint of any intention to harass her, and the rationale for ever giving a "pass" to a high level executive is to avoid harassment through a needless deposition. The Plaintiffs make a satisfactory case for a brief deposition to explore her role in the matters at issue here. Thus, a three-hour deposition is warranted. Magistrate Judge Lloyd does not know how long this discovery dispute simmered before it was presented to the Court. The presiding judge established a fact discovery cutoff of July 28, and the parties' filing of the DDJR 8 days before the cutoff did not, as a practical matter, leave time for both the Court to rule and for the deposition to take place. He requires the deposition to take place forthwith, by July 28 if that is feasible, but in any event no later than 10 days from the date of the Order. A full-text copy of the Court's July 26, 2017 order is available at https://is.gd/WCn5Sp from Leagle.com. Charles Des Roches, Plaintiff, represented by Rebecca Ann Musarra -- rmusarra@gelaw.com -- Grant and Eisenhofer P.A.. Charles Des Roches, Plaintiff, represented by Carl Spencer Kravitz -- ckravitz@zuckerman.com -- Zuckerman Spaeder LLP, pro hac vice, Caroline Judge Mehta -- cmehta@zuckerman.com -- Zuckerman Spaeder LLP, pro hac vice, Caroline E. Reynolds -- creynolds@zuckerman.com -- Zuckerman Spaeder LLP, pro hac vice, Daniel L. Berger -- dberger@gelaw.com -- Grant and Eisenhofer PA, pro hac vice, Jason S. Cowart -- jcowart@zuckerman.com -- Zuckerman Spaeder LLP, Jing- Li Yu, Grant and Eisenhofer P.A., pro hac vice, Kyle J. McGee -- kmcgee@gelaw.com -- Grant and Eisenhofer P.A., pro hac vice, Nell Zora Peyser -- npeyser@zuckerman.com -- Zuckerman Spaeder LLP, pro hac vice & Steven N. Herman -- sherman@zuckerman.com -- Zuckerman Spaeder, pro hac vice. Sylvia Meyer, Plaintiff, represented by Rebecca Ann Musarra, Grant and Eisenhofer P.A., Carl Spencer Kravitz, Zuckerman Spaeder LLP, pro hac vice, Caroline Judge Mehta, Zuckerman Spaeder LLP, pro hac vice, Caroline E. Reynolds, Zuckerman Spaeder LLP, pro hac vice, Daniel L. Berger, Grant and Eisenhofer PA, pro hac vice, Jason S. Cowart, Zuckerman Spaeder LLP, Jing-Li Yu, Grant and Eisenhofer P.A., pro hac vice, Kyle J. McGee, Grant and Eisenhofer P.A., pro hac vice, Nell Zora Peyser, Zuckerman Spaeder LLP, pro hac vice & Steven N. Herman, Zuckerman Spaeder, pro hac vice. Gayle Tamler Grecco, Plaintiff, represented by Daniel L. Berger, Grant and Eisenhofer PA, Rebecca Ann Musarra, Grant and Eisenhofer P.A., Carl Spencer Kravitz, Zuckerman Spaeder LLP, pro hac vice, Caroline Judge Mehta, Zuckerman Spaeder LLP, pro hac vice, Caroline E. Reynolds, Zuckerman Spaeder LLP, pro hac vice, Jing-Li Yu, Grant and Eisenhofer P.A., pro hac vice, Kyle J. McGee, Grant and Eisenhofer P.A., Nell Zora Peyser, Zuckerman Spaeder LLP, pro hac vice & Steven N. Herman, Zuckerman Spaeder, pro hac vice. California Physicians' Service, Defendant, represented by Carri Maas -- cmaas@manatt.com -- Manatt, Phelps & Phillips, LLP, Gregory Neil Pimstone -- gpimstone@manatt.com -- Manatt Phelps & Phillips, LLP & Joseph Edward Laska -- jlaska@manatt.com -- Manatt, Phelps & Phillips, LLP. Human Affairs International of California, Defendant, represented by Jennifer Salzman Romano -- jromano@crowell.com -- Crowell & Moring LLP, April Nelson Ross -- aross@crowell.com -- Crowell & Moring LLP, pro hac vice, Christopher Flynn -- cflynn@crowell.com -- Crowell and Moring LLP, pro hac vice, Kristin J. Madigan -- kmadigan@crowell.com -- Crowell & Moring LLP & Thomas Francis Koegel, Crowell & Moring LLP. Blue Shield of California Life & Health Insurance Company, Defendant, represented by Joseph Edward Laska, Manatt, Phelps & Phillips, LLP & Carri Maas, Manatt, Phelps & Phillips, LLP. CE DESIGN: 7th Cir. Affirms Dismissal of SMI's TCPA Suit -------------------------------------------------------- The U.S. Court of Appeals for the Seventh Circuit affirmed the judgment of the district court dismissing the case captioned SASKATCHEWAN MUTUAL INSURANCE CO., Plaintiff-Appellant, v. CE DESIGN, LTD., Defendant-Appellee, No. 15-3332 (7th Cir.), for lack of subject-matter jurisdiction. The Defendant is an Illinois corporation whose business now appears to center on litigating claims under the federal Telephone Consumer Protection Act (TCPA). It brought the present suit as a class action in Illinois state court against Homegrown Advertising, which was then a Canadian marketing firm; the complaint accused Homegrown of sending junk faxes to CE Design in violation of Illinois law and the TCPA. The two sides settled in February 2007 for $5 million plus interest and costs. In March 2007, CE Design (to which Homegrown had assigned all its rights under the policy) filed a citation to discover assets in the Lake County, Illinois, circuit court in an effort to recover some or all of the judgment from SMI. At that point Rod Rath, SMI's Canadian attorney, wrote a letter to the circuit court advising that SMI was denying coverage. On May 3, 2007, the Illinois court entered judgment for CE Design. As the state court litigation unfolded, CE Design decided to try another tack: enforcement of the Illinois judgment in Saskatchewan, where SMI is based. The gambit failed. On Jan. 8, 2008, the Queen's Bench, which is the court of first instance in the province, concluded that SMI had not received sufficient notice of the Illinois judgment and thus that it was unenforceable. In June 2015, SMI revived the issue by filing a motion to enforce the Saskatchewan judgment in federal district court. Two possible bases for jurisdiction have been advanced: the Class Action Fairness Act (CAFA), and the alienage branch of diversity jurisdiction. The district court found CAFA inapplicable because the class is the Defendant in this suit, and that CAFA applies only to Plaintiff classes. As for diversity jurisdiction, the court concluded that no individual class member could satisfy the $75,000 amount-in-controversy requirement, and none of the exceptions to the general prohibition on aggregating claims applied. Those rulings ended the case in the district court. SMI is trying to enforce a Canadian judgment against CE Design in the federal court. Judge Wood explains that CAFA is such a jurisdictional statute, and it seems to them neither sensitive nor wise for federal courts to insert themselves into litigation that has busied the Illinois and Saskatchewan courts for a considerable time. SMI evidently does not like how the latest phase of the case is progressing, but its remedy lies in an appeal to a higher Illinois court, not in using federal authority to transmute a $1,000 (Canadian) award into a $5 million (US) trump card. The bottom line is this: When litigation has dragged on for a decade across two countries and three jurisdictions, comity and common sense both counsel forbearance on the part of the federal courts. That leaves alienage jurisdiction, she says, which requires complete diversity and an amount in controversy that exceeds the sum or value of $75,000, exclusive of interest and costs. There is complete diversity. Travelers Prop. Cas. v. Good explained that interests are "common and undivided" only if each claim is part of a 'common fund' and could not be adjudicated on an individual basis without affecting the interests of the other claimants. Here, each class member's claim rests on a specific fax or faxes, and thus each claim stems from a separate transaction. Judge Wood notes it makes no difference that the class members now seek to satisfy their disparate claims from a single source. Nor is she persuaded by SMI's attempt to distinguish Good factually by alleging the fax problem was the result of "a single fax blast campaign." Even granting that the faxes were sent simultaneously from one source, they were received by 23,541 different entities. That defeats a finding of "common fund" for aggregation purposes. Judge Wood held that neither CAFA nor conventional diversity jurisdiction empowers them to hear this matter, and so she affirmed the judgment of the district court dismissing the case for lack of subject-matter jurisdiction. A full-text copy of the Court's July 26, 2017 order is available at https://is.gd/sKswAX from Leagle.com. Jeffrey A. Berman -- jberman@seyfarth.com -- for Defendant- Appellee. James K. Borcia -- jborcia@tresslerllp.com -- for Plaintiff- Appellant. David Max Oppenheim, for Defendant-Appellee. CJS SOLUTIONS: "Garrett" Suit Moved to Southern Dist. of New York ----------------------------------------------------------------- The class action lawsuit titled Jaimey Garrett, individually and on behalf of all others similarly situated, the Plaintiff, v. The CJS Solutions Group, LLC, doing business as: The HCI Group, the Defendant, Case No. 2:17-cv-00863, was transferred on July 19, 2017 from the U.S. District Court for the Western District of Washington, to the U.S. District Court for the Southern District of New York (Foley Square). The District Court Clerk assigned Case No. 1:17-cv-05493-UA to the proceeding. CJS Solutions offers healthcare technology consulting services.[BN] The Plaintiff is represented by: Beth E. Terrell, Esq. Jennifer Rust Murray, Esq. TERRELL MARSHALL DAUDT & WILLIE PLLC 936 North 34th Street, Suite 300 Seattle, WA 98103-8869 Telephone: (206) 816 6603 Facsimile: (206) 350 3528 E-mail: bterrell@tmdwlaw.com jmurray@terrellmarshall.com The Defendant is represented by: Susan Kathleen Stahlfeld, Esq. Francis L VanDusen, Jr., Esq. MILLER NASH GRAHAM & DUNN LLP 2801 Alaskan Way, Suite 300 Seattle, WA 98121-1128 Telephone: (206) 624 8300 Facsimile: (206) 340 9599 E-mail: susan.stahlfeld@millernash.com frank.vandusen@millernash.com COCONUT GROVE: "Hernandez" Suit Seeks Unpaid Overtime under FLSA ---------------------------------------------------------------- CLAUDIA HERNANDEZ, and others similarly situated, the Plaintiff, v. COCONUT GROVE WINES CORP d/b/a/ HAPPY'S WINE IN THE GROVE, HAPPY WINE, INC. d/b/a HAPPY WINE and JUAN C RESTREPO and ANGELA J BORY, the Defendants, Case No. 58724954 (Fla. Cir. Ct., Miami-Dade County, July 7, 2017), seeks to recover compensatory and liquidated damages and reasonable attorney's fees and costs from Happy Wine and Groves Wine pursuant to the Fair Labor Standards Act. In the event that Plaintiff does not recover liquidated damages, then Plaintiff will seek an award of prejudgment interest for the unpaid overtime, and any and all other relief which this Court deems reasonable under the circumstances. According to the complaint, the Defendants willfully and intentionally refused to pay Plaintiff's minimum wages as required by the FLSA as Defendants knew of the Federal Minimum Wage requirements of the FLSA and recklessly failed to investigate whether Defendants payroll practices were in accordance with the FLSA. Happy Wine, Inc. is in the wine business.[BN] The Plaintiff is represented by: Christopher F. Zacarias, Esq. LAW OFFICES OF CHRISTOPHER F. ZACARIAS, P.A. 5757 Blue Lagoon Drive, Suite 230 Miami, FL 33126 Telephone: (305) 403 2000 Facsimile: (305) 459 3964 E-mail: czacarias@zacariaslaw.com COLUMBIA COUNTY, AR: Jailor's Class Certification Bid Denied ------------------------------------------------------------ District Judge Susan O. Hickey of the U.S. District Court for the Western District of Arkansas, El Dorado Division, denied plaintiff's motion for class certification, in the case MICHELLE RASBERRY, individually and on Behalf of Others Similarly Situated, Plaintiff, v. COLUMBIA COUNTY, ARKANSAS, Defendant, Case No. 1:16- CV-1074 (W.D. Ark.). Plaintiff Michelle Rasberry claims that defendant Columbia County failed to pay her, and others similarly situated, overtime compensation for all hours worked in excess of 171 hours in a twenty-eight consecutive day work period. Plaintiff filed a complaint on August 4, 2016 and alleges that defendant had misclassified her and all those similarly situated as exempt from the overtime requirements of the Fair Labor Standards Act (FLSA). Plaintiff seeks relief pursuant to the FLSA, 29 U.S.C. Sections 201, et seq., and the Arkansas Minimum Wage Act (AMWA), Ark. Code Ann. Sections 11-4-201, et seq. The Court conditionally certified plaintiff's FLSA collective action on January 31, 2017. Upon completion of the FLSA opt-in period, only six individuals, including plaintiff, had consented to be part of plaintiff's FLSA collective action. As for plaintiff's AMWA claim, plaintiff seeks recovery individually and collectively, proposing to represent the class of salaried jailors who are/were employed by defendant within the relevant time period. Plaintiff asks the court to certify a Federal Rule of Civil Procedure (FRCP) 23 AMWA class with the following description: All of defendant's salaried jailors or similar positions who worked in the State of Arkansas at the Columbia County Jail at any time after August 04, 2013. District Judge Hickey is unconvinced that a Rule 23 class action is superior to other available methods for fairly and efficiently adjudicating plaintiff's and potential class members' AMWA claims. Judge Hickey denied plaintiff's motion for Rule 23 Class Certification, since plaintiff failed to meet the predominance and superiority requirements of Rule 23(b)(3). A copy of Judge Hickey's order dated July 31, 2017, is available at https://goo.gl/F6TyA1 from Leagle.com. Michelle Rasberry, Plaintiff, represented by Josh Sanford -- josh@sanfordlawfirm.com -- Christopher Burks -- chris@sanfordlawfirm.com -- Stacy Gibson -- stacy@sanfordlawfirm.com -- at Sanford Law Firm PLLC Columbia County, AR, Defendant, represented by: Jason E. Owens, Esq. RAINWATER, HOLT & SEXTON, P.A. 801 Technology Dr. Little Rock, AR 72223 Tel: 800-767-4815 CRICKET COMMUNICATIONS: Court Remands "Scott" MMWA Suit ------------------------------------------------------- Judge Allyson Kay Duncan of the U.S. Court of Appeals for the Fourth Circuit vacated the district court's judgment in the case captioned MICHAEL A. SCOTT, on behalf of himself and all others similarly situated, Plaintiff-Appellee, v. CRICKET COMMUNICATIONS, LLC, f/k/a Cricket Communications, Inc., Defendant-Appellant. CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, Amicus Supporting Appellant, No. 16-2300 (4th Cir.) and remanded for reconsideration. Sometime between July 2013 and March 2014, Scott purchased two Samsung Galaxy S4 cellular phones from Cricket for hundreds of dollars each. The phones are only operable on a network using Code Division Multiple Access ("CDMA") technology. Known to Cricket, but not to Scott, at the time Scott purchased his phone Cricket had begun to shut down its CDMA network. When Cricket completed that process in 2015, Scott alleges that his phones -- which were "locked" to Cricket's CDMA network -- were rendered "useless and worthless." On Sept. 24, 2015, Scott filed a putative class action in the Circuit Court for Baltimore City, Maryland. Scott, the sole Named Plaintiff, alleged Cricket's actions violated Maryland's express warranties and implied warranties of merchantability and fitness for a particular purpose, which in turn was a violation of the Magnuson-Moss Warranty Act ("MMWA"). Seeking to bring a class action on behalf of himself and similarly situated individuals, Scott defined the class as all Maryland citizens who, between July 12, 2013 and March 13, 2014, purchased a CDMA mobile telephone from Cricket which was locked for use only on Cricket's CDMA network. On Oct. 30, 2015, Cricket removed the case to the U.S. District Court for the District of Maryland. Cricket invoked Class Action Fairness Act ("CAFA"). On Nov. 23, 2015, Scott moved to remand the case to state court arguing that Cricket did not satisfy its burden to allege jurisdiction under CAFA because the class Cricket described in its notice of removal is broader than Scott's defined class. Cricket opposed remand, attaching another declaration from Cricket employee Rick Cochran ("Cochran Declaration") which stated that Cricket's records indicate that between July 12, 2013 and March 13, 2014, Cricket customers who listed addresses located in Maryland on their Cricket accounts purchased at least 47,760 CDMA handsets that were locked to Cricket's CDMA network. Cricket thus urged the district court to make the easonable inference that the vast majority of Cricket's Maryland customers are Maryland citizens. The district court declined to do so and granted Scott's motion to remand. Although the district court concluded that Cricket failed to prove federal jurisdiction it did not make any finding of fact as to the amount in controversy. Cricket timely appealed. Judge Duncan agrees with the district court that Cricket's initial statement that it sold at least 50,000 CDMA mobile telephones that were shipped to and activated in Maryland, during the relevant time period suffices to allege jurisdiction under CAFA. While Cricket's assertion is broader than the proposed class, that does not, as Scott argues, make the notice of removal incurably defective. Cricket's short and plain statement contains enough factual content that allows the court to draw the reasonable inference that the amount in controversy exceeds $5,000,000. Once Scott challenged Cricket's allegations through a motion to remand, Cricket was required to prove CAFA jurisdiction exists by a preponderance of the evidence. Because the district court committed legal error in disregarding Cricket's evidence as over inclusive, Judge Duncan says she's unable to engage in appellate review to determine whether Cricket met its burden to prove jurisdiction. Accordingly, because she concludes that the district court applied the wrong legal standard to Cricket's evidence, Judge Duncan vacated the district court's judgment and remanded for reconsideration consistent with the principles set forth in her opinion. A full-text copy of the Court's July 28, 2017 order is available at https://is.gd/Af9LTo from Leagle.com. ARGUED: Charles Alan Rothfeld -- crothfeld@mayerbrown.com -- MAYER BROWN LLP, Washington, D.C., for Appellant. Benjamin Howard Carney -- bcarney@GWCfirm.com -- GORDON, WOLF & CARNEY, CHTD, Towson, Maryland, for Appellee. ON BRIEF: Archis A. Parasharami -- aparasharami@mayerbrown.com -- Matthew A. Waring -- mwaring@mayerbrown.com -- MAYER BROWN LLP, Washington, D.C., for Appellant. Martin E. Wolf -- mwolf@gordon-wolf.com -- GORDON, WOLF & CARNEY, CHTD, Towson, Maryland, for Appellee. Kate Comerford Todd, Warren Postman, UNITED STATES CHAMBER LITIGATION CENTER, INC., Washington, D.C.; Ryan L. Bangert -- chris.ryan@bakerbotts.com -- BAKER BOTTS L.L.P., Dallas, Texas, for Amicus Curiae. CYPO CAFE: Faces "Filet" Suit in Southern District of Florida ------------------------------------------------------------- A class action lawsuit has been filed against Cypo Cafe, Inc. The case is styled as Hector Filet, on behalf of himself and all others similarly situated, the Plaintiff, v. CYPO CAFE, INC. and Rafael M. Moledo, the Defendants, Case No. 1:17-cv-22717-MGC (S.D. Fla., July 20, 2017). The case is assigned to the Hon. Judge Marcia G. Cooke. Cypo Cafe is a cozy, art-filled cafe serving homestyle Brazilian dishes, such as steak and fruit mousses for dessert.[BN] The Plaintiff is represented by: Jonathan Scott Minick, Esq. JONATHAN S. MINICK, P.A. 1850 SW 8th Street, Suite 307 Miami, FL 33135 Telephone: (786) 441 8909 Facsimile: (786) 523 0610 E-mail: jminick@jsmlawpa.com DAIRY FARMERS: Toms' Bid to Extend Opt Out Period Denied -------------------------------------------------------- the case captioned ALICE H. ALLEN, et al., Plaintiffs, v. DAIRY FARMERS OF AMERICA, INC. and DAIRY MARKETING SERVICES, LLC, Defendants, Case No. 5:09-cv-230 (D. Vt.), Judge Christina Reiss of the District Court for the District of Vermont denied Andrew and Matthew Toms' motion to extend the time period to opt out of the December 2015 Settlement. In this lawsuit, the Plaintiffs alleged that the Defendants violated the Sherman Act by conspiring to control the supply of raw Grade A milk in Federal Milk Market Order 1, which had the effect of suppressing certain premiums paid to dairy farmers for their milk. The Court certified the Dairy Farmers Class, which consisted of all dairy farmers, whether individuals, entities, or members of cooperatives, who produced and pooled raw Grade A milk in Order 1 during any time after Jan. 1, 2002. The Dairy Farmers Class is comprised of two certified Subclasses: (i) all dairy farmers, whether individuals or entities, who produced and pooled raw Grade A milk in Order 1 during any time from Jan. 1, 2002 to the present, who are members of DFA or otherwise sell milk through DMS (DFA/DMS [S]ubclass); and (ii) all dairy farmers, whether individuals or entities, who produced and pooled raw Grade A milk in Order 1 during any time from Jan. 1, 2002 to the present, who are not members of DFA and do not otherwise sell milk through DMS (non-DFA/DMS [S]ubclass). After the Court granted in part and denied in part the Defendants' motion for summary judgment, the case was set for trial. The Parties thereafter entered into a series of settlement agreements which the Court rejected until they entered into the December 2015 Settlement, which included an opt-out provision. On Feb. 8, 2016, the Court preliminarily approved the December 2015 Settlement, ordering that any member of the Subclass who did not previously opt out of a Subclass but wishes to be excluded from the 2015 Settlement Agreement, may opt out of it by submitting a letter expressing such intent to the Claims Administrator at least 21 days prior to the Fairness Hearing. In a June 7, 2016 Opinion and Order, the Court granted the Parties' motion for final approval of the December 2015 Settlement ("June 7, 2016 Opinion and Order"). On Aug. 19, 2016, it entered an Order Identifying Subclass Exclusions and Opt-Ins, Dismissing the Class Action Claims as to Defendants, Directing Entry of Final Judgment, and Approving the Settlement Allocation Plan. The Aug. 19, 2016 Order provided in relevant part that those Subclass Members who failed to object to the December 2015 Settlement in accordance with the procedures outlined in the Court-approved notice are deemed to have waived any objections to the Settlement or the Settlement Agreement and are barred from making such objections in the future. Pending before the Court is the March 1, 2017 motion filed by the Toms to extend the time period to opt out of the December 2015 Settlement. The Defendants oppose the motion, arguing that it is both untimely and made without justification. The Toms did not file a reply in support of their motion. The Court took the pending motion under advisement on March 29, 2017. The Toms aver that their delay was the product of their belief that they would be unable to secure counsel to represent them individually and their lack of notice of the Opt-Out Litigation, Sitts, et al. v. Dairy Farmers of America, Inc. As the Defendants point out, however, the Toms do not identify any efforts they undertook prior to the opt-out deadline to secure counsel or determine whether there was opt-out litigation pending. They also do not explain why they filed the instant motion four months after the Opt-Out Litigation commenced. While it is unlikely that the Defendants will be forced to expend significant additional resources if the Toms are granted leave to opt out and join the Opt-Out Litigation, they persuasively assert that permitting the Toms to opt out at this time could prompt other class members to seek permission for an untimely opt out. The length of the delay, also weighs in the Defendants' favor. The deadline to opt out was 21 days prior to the May 13, 2016 fairness hearing -- approximately 10 months before the Toms filed the motion. Significantly less substantial delays have precluded a finding of excusable neglect. The Court says it is satisfied that the Toms have acted in good faith and the Defendants do not argue to the contrary. The Toms nonetheless made a conscious and informed choice of litigation strategy and cannot in hindsight seek extraordinary relief. On balance, the Court finds that the relevant factors that must be considered in determining excusable neglect weigh against such a finding in the facts and circumstances of the case. As a result, the Toms remain bound by the December 2015 Settlement. Accordingly, the Court denied their motion to extend the opt-out deadline. A full-text copy of the Court's July 26, 2017 order is available at https://is.gd/YxPWMP from Leagle.com. Alice H. Allen, Plaintiff, represented by Andrew D. Manitsky, Esq., Lynn, Lynn, Blackman & Manitsky, P.C.. Alice H. Allen, Plaintiff, represented by Brent W. Johnson, Esq., Cohen Milstein Sellers & Toll PLLC, pro hac vice, Danyll W. Foix, Esq., Baker & Hostetler LLP, pro hac vice, Emily J. Joselson, Esq., Langrock Sperry & Wool, LLP, Gregory J. Commins, Jr., Baker & Hostetler LLP, pro hac vice, Kit A. Pierson, Cohen Milstein Sellers & Toll PLLC, pro hac vice, Lisa B. Shelkrot, Esq., Langrock Sperry & Wool, LLP, Robert G. Abrams, Esq., Baker & Hostetler LLP, pro hac vice, Robert J. Brookhiser, Esq., Baker & Hostetler LLP, pro hac vice & Terry L. Sullivan, Esq., Baker & Hostetler LLP. Laurance E. Allen, Plaintiff, represented by Andrew D. Manitsky, Esq., Lynn, Lynn, Blackman & Manitsky, P.C., Brent W. Johnson, Esq., Cohen Milstein Sellers & Toll PLLC, pro hac vice, Danyll W. Foix, Esq., Baker & Hostetler LLP, pro hac vice, Emily J. Joselson, Esq., Langrock Sperry & Wool, LLP, Gregory J. Commins, Jr., Baker & Hostetler LLP, pro hac vice, Kit A. Pierson, Cohen Milstein Sellers & Toll PLLC, pro hac vice, Lisa B. Shelkrot, Esq., Langrock Sperry & Wool, LLP, Robert G. Abrams, Esq., Baker & Hostetler LLP, pro hac vice, Robert J. Brookhiser, Esq., Baker & Hostetler LLP, pro hac vice & Terry L. Sullivan, Esq., Baker & Hostetler LLP. Garret Sitts, Plaintiff, Pro Se. Ralph Sitts, Plaintiff, Pro Se. Jonathan Haar, Plaintiff, represented by Andrew D. Manitsky, Esq., Lynn, Lynn, Blackman & Manitsky, P.C., Benjamin D. Brown, Esq., Cohen Milstein Sellers & Toll PLLC, pro hac vice, Brent W. Johnson, Esq., Cohen Milstein Sellers & Toll PLLC, pro hac vice, Daniel A. Small, Esq., Cohen Milstein Sellers & Toll PLLC, pro hac vice, David A. Balto, Esq., The Law Offices of David A. Balto, Emmy L. Levens, Esq., Cohen Milstein Sellers & Toll PLLC, pro hac vice, George F. Farah, Esq., Cohen Milstein Sellers & Toll PLLC & Kit A. Pierson, Cohen Milstein Sellers & Toll PLLC, pro hac vice. Claudia Haar, Plaintiff, represented by Andrew D. Manitsky, Esq., Lynn, Lynn, Blackman & Manitsky, P.C., Benjamin D. Brown, Esq., Cohen Milstein Sellers & Toll PLLC, pro hac vice, Brent W. Johnson, Esq., Cohen Milstein Sellers & Toll PLLC, pro hac vice, Daniel A. Small, Esq., Cohen Milstein Sellers & Toll PLLC, pro hac vice, David A. Balto, Esq., The Law Offices of David A. Balto, Emmy L. Levens, Esq., Cohen Milstein Sellers & Toll PLLC, pro hac vice, George F. Farah, Esq., Cohen Milstein Sellers & Toll PLLC & Kit A. Pierson, Cohen Milstein Sellers & Toll PLLC, pro hac vice. Richard Swantak, Plaintiff, Pro Se. Peter Southway, Plaintiff, represented by Andrew D. Manitsky, Esq., Lynn, Lynn, Blackman & Manitsky, P.C., Benjamin D. Brown, Esq., Cohen Milstein Sellers & Toll PLLC, Brent W. Johnson, Esq., Cohen Milstein Sellers & Toll PLLC, Daniel A. Small, Esq., Cohen Milstein Sellers & Toll PLLC, pro hac vice, David A. Balto, Esq., The Law Offices of David A. Balto, Emmy L. Levens, Esq., Cohen Milstein Sellers & Toll PLLC, pro hac vice, George F. Farah, Esq., Cohen Milstein Sellers & Toll PLLC & Kit A. Pierson, Cohen Milstein Sellers & Toll PLLC. Marilyn Southway, Plaintiff, represented by Andrew D. Manitsky, Esq., Lynn, Lynn, Blackman & Manitsky, P.C., Benjamin D. Brown, Esq., Cohen Milstein Sellers & Toll PLLC, Brent W. Johnson, Esq., Cohen Milstein Sellers & Toll PLLC, Daniel A. Small, Esq., Cohen Milstein Sellers & Toll PLLC, pro hac vice, David A. Balto, Esq., The Law Offices of David A. Balto, Emmy L. Levens, Esq., Cohen Milstein Sellers & Toll PLLC, pro hac vice, George F. Farah, Esq., Cohen Milstein Sellers & Toll PLLC & Kit A. Pierson, Cohen Milstein Sellers & Toll PLLC. Dairy Farmers of America, Inc., Defendant, represented by Alfred C. Pfeiffer, Jr., Esq., Latham & Watkins LLP, pro hac vice, Amber L. McDonald, Esq., Baker & Miller PLLC, pro hac vice, Carl R. Metz, Esq., Williams & Connolly LLP, pro hac vice, Elyse M. Greenwald, Esq., Latham & Watkins LLP, Ian P. Carleton, Esq., Sheehey Furlong & Behm P.C., Jennifer L. Giordano, Esq., Latham & Watkins LLP, Jonathan B. Pitt, Esq., Williams & Connolly LLP, pro hac vice, Kevin Hardy, Esq., Williams & Connolly LLP, pro hac vice, Lauren Collogan, Esq., Williams & Connolly LLP, pro hac vice, Margaret M. Zwisler, Esq., Latham & Watkins LLP, pro hac vice, R. Jeffrey Behm, Esq., Sheehey Furlong & Behm P.C., Steven R. Kuney, Esq., Williams & Connolly LLP & W. Todd Miller, Esq., Baker & Miller PLLC, pro hac vice. Dairy Marketing Services, LLC, Defendant, represented by Alfred C. Pfeiffer, Jr., Esq., Latham & Watkins LLP, pro hac vice, Amber L. McDonald, Esq., Baker & Miller PLLC, pro hac vice, Carl R. Metz, Esq., Williams & Connolly LLP, pro hac vice, Elyse M. Greenwald, Esq., Latham & Watkins LLP, Ian P. Carleton, Esq., Sheehey Furlong & Behm P.C., Jennifer L. Giordano, Esq., Latham & Watkins LLP, Jonathan B. Pitt, Esq., Williams & Connolly LLP, pro hac vice, Kevin Hardy, Esq., Williams & Connolly LLP, pro hac vice, Lauren Collogan, Esq., Williams & Connolly LLP, pro hac vice, Margaret M. Zwisler, Esq., Latham & Watkins LLP, pro hac vice, R. Jeffrey Behm, Esq., Sheehey Furlong & Behm P.C., Steven R. Kuney, Esq., Williams & Connolly LLP & W. Todd Miller, Esq., Baker & Miller PLLC, pro hac vice. Vermont Attorney General's Office, Amicus, represented by Ryan G. Kriger, Esq., Vermont Office of the Attorney General. DARNELL EARLEY: 6th Cir. Reverses Dismissal of Sec. 1983 Claims --------------------------------------------------------------- Judge Jane B. Stranch of the U.S. Court of Appeals for the Sixth Circuit reversed the district court's dismissal of the Plaintiffs' Section 1983 claims as precluded by the Safe Drinking Water Act ("SDWA") in the appeals cases captioned BEATRICE BOLER; EDWIN ANDERSON; ALLINA ANDERSON; EPCO SALES, LLC, Plaintiffs-Appellants, v. DARNELL EARLEY; GERALD AMBROSE; DAYNE WALLING; CITY OF FLINT; STATE OF MICHIGAN; MICHIGAN DEPARTMENT OF ENVIRONMENTAL QUALITY; MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES; RICHARD DALE SNYDER, Defendants-Appellees. MELISSA MAYS; MICHAEL MAYS; JACQUELINE PEMBERTON; KEITH JOHN PEMBERTON; ELNORA CARTHAN; RHONDA KELSO, Plaintiffs-Appellants, v. RICK SNYDER; STATE OF MICHIGAN; DANIEL WYANT; LIANE SHEKTER SMITH; ADAM ROSENTHAL; STEPHEN BUSCH; PATRICK COOK; MICHAEL PRYSBY; BRADLEY WURFEL; DARNELL EARLEY; GERALD AMBROSE; DAYNE WALLING; HOWARD CROFT; MICHAEL GLASGOW; DAUGHERTY JOHNSON; CITY OF FLINT; NICK LYON; ANDY DILLON; EDWARD KURTZ; JEFF WRIGHT, Defendants-Appellees, Nos. 16-1684, 17- 1144(6th Cir.), and remanded the case for further proceedings. The Boler Plaintiffs brought a class action on behalf of purchasers of Flint water against the Defendants. They filed suit in the Eastern District of Michigan on Jan. 31, 2016, alleging twelve causes of action, five of them pursuant to 42 U.S.C. Section 1983: (i) impairment of the constitutional right to contract; (ii) deprivation of substantive and procedural due process; (iii) breach of the duty to protect against state-created danger; (iv) breach of the Equal Protection Clause; and (v) deprivation of property interest without due process or just compensation. They also alleged claims for (vi) conspiracy to deprive them of a constitutional right in violation of 42 U.S.C. Section 1985; (vii) breach of contract; (viii) unjust enrichment; (ix) breach of implied warranty of merchantability; (x) violation of the Michigan Consumer Protection Act; (xi) conversion; and (xii) gross negligence. The Boler Plaintiffs filed a motion for a preliminary injunction, seeking to enjoin the Defendants from billing and collecting money from Flint residents for water. The court subsequently dismissed the case for lack of subject matter jurisdiction, finding that the Plaintiffs' Section 1983 claims were precluded by the SDWA, leaving only state law claims over which the court did not have jurisdiction. The district court did not address the Plaintiffs' claim under 42 U.S.C. Section 1985, but presumably found it similarly preempted by the SDWA. This appeal followed. On Nov. 13, 2015, the Mays Plaintiffs filed suit on behalf of a proposed class of Flint residents or regular users of Flint water since April 25, 2014. The Plaintiffs filed an Amended Complaint on May 25, 2016. It alleged six causes of action, four of them under 42 U.S.C. Section 1983: (i) violation of substantive due process through state- created danger; (ii) violation of substantive due process through an invasion of the fundamental right to bodily integrity; (iii) intentional race discrimination in violation of the Equal Protect Clause; and (iv) impermissible wealth-based discrimination in violation of the Equal Protection Clause. The Plaintiffs also asserted that the Defendants (v) engaged in a racially-motivated conspiracy to deny equal protection under 42 U.S.C. Section 1985, and (vi) engaged in discrimination in violation of Michigan's Elliot-Larsen Civil Rights Act. Relying on its finding of preclusion by the SDWA in Boler, the district court dismissed the Mays Plaintiffs' Section 1983 claims for lack of subject matter jurisdiction under Rule 12(b)(1). The court also determined that without the Section 1983 claims, the Plaintiffs' Section 1985 claim based upon the same conduct also failed. Having dismissed the federal claims, the court declined to exercise supplemental jurisdiction over the state law discrimination claim. The Plaintiffs appealed, and their case was consolidated with Boler. Judge Stranch finds that the Plaintiffs correctly note that the only issues currently before the Court are the dismissal of their Section 1983 claims as preempted by the SDWA and the question of sovereign immunity. Even though she has determined that the Section 1983 claims are not foreclosed, the Defendants seek affirmance under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. We may affirm the district court on any basis supported in the record. She declines to do so. First, Boler was dismissed pursuant to a Rule 12(b)(1) motion for lack of subject matter jurisdiction. Though Mays was apparently dismissed after motions brought under both Rule 12(b)(1) and (12(b)(6), the district court premised the dismissal on its resolution in Boler -- where it treated the issue as jurisdictional. Judge Stranch says the district court has addressed the merits of the Plaintiffs' constitutional claims or even the sufficiency of their pleadings. Nor have the Plaintiffs been given an opportunity to fully brief the merits of their constitutional claims, which involve factual complexities that are best examined by the district court in the first instance. Moreover, the Boler and Mays Plaintiffs bring distinct constitutional claims, based on different factual underpinnings and legal arguments. Judge Stranch adds that a consolidated appeal is not the appropriate occasion to evaluate these claims for the first time. Such an analysis, moreover, could unfairly prejudice the Plaintiffs, who have only addressed the Defendants' Rule 12(b)(6) arguments in their reply briefs. She believes the district court is in the best position to evaluate these arguments upon remand. For these, Judge Stranch reversed the district court's dismissal of the Plaintiffs' Section 1983 claims as precluded by the SDWA. She affirmed the dismissal of the Plaintiffs' claims against the State of Michigan in Mays, and against the State of Michigan, the Michigan Department of Environmental Quality, the Michigan Department of Health and Human Services, and Governor Snyder in Boler, on the basis of Eleventh Amendment sovereign immunity. She remanded the cases for further proceedings in accordance with her opinion. A full-text copy of the Court's July 28, 2017 opinion is available at https://is.gd/HQttBS from Leagle.com. ARGUED: 16-1684: Nicholas A. Szokoly, MURPHY, FALCON & MURPHY, Baltimore, Maryland, for Appellants. William Y. Kim -- William.Kim@ropesgray.com -- CITY OF FLINT, Flint, Michigan, for Flint Appellees. Margaret Bettenhausen, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for State Appellees. 17-1144: Samuel R. Bagenstos, Ann Arbor, Michigan, for Appellants. Margaret A. Bettenhausen, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees State of Michigan, Snyder, Lyon, and Dillon. William Y. Kim, CITY OF FLINT, Flint, Michigan, for Flint Appellees. ON BRIEF: 16-1684: Nicholas A. Szokoly, Jason G. Downs, Jessica H. Meeder, MURPHY, FALCON & MURPHY, Baltimore, Maryland, for Appellants. William Y. Kim, CITY OF FLINT, Flint, Michigan, Frederick A. Berg, Jr., Sheldon H. Klein, BUTZEL LONG, P.C., Detroit, Michigan, for Flint Appellees. Margaret Bettenhausen, Richard S. Kuhl, Nathan A Gambill, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, Eugene Driker -- edriker@bsdd.com -- Morley Witus -- mwitus@bsdd.com -- Todd R. Mendel -- tmendel@bsdd.com -- BARRIS, SOTT, DENN & DRIKER, PLLC, Detroit, Michigan, for State Appellees. Samuel R. Bagenstos, Ann Arbor, Michigan, for Amicus Curiae. 17-1144: Samuel R. Bagenstos, Ann Arbor, Michigan, Michael L. Pitt, Cary S. McGehee, Beth M. Rivers, PITT MCGEHEE PALMER & RIVERS, PC, Royal Oak, Michigan, Paul F. Novak, Gregory Stamatopolous, Diana Gjonaj, WEITZ & LUXENBERG, PC, Detroit, Michigan, William H. Goodman, Julie H. Hurwitz, GOODMAN & HURWITZ, PC, Detroit, Michigan, Deborah A. LaBelle, LAW OFFICE OF DEBORAH A. LABELLE, Ann Arbor, Michigan, for Appellants. Margaret A. Bettenhausen, Richard S. Kuhl, Nathan A. Gambill, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees State of Michigan, Snyder, Lyon, and Dillon. William Y. Kim, CITY OF FLINT, Flint, Michigan, Frederick A. Berg, Jr., Sheldon H. Klein, BUTZEL LONG, P.C., Detroit, Michigan, Todd R. Perkins, Nikkiya Branch, THE PERKINS LAW GROUP PLLC, Detroit, Michigan, Alexander S. Rusek, WHITE LAW PLLC, Okemos, Michigan, EDWARD A. ZEINEH, DAVID W. MEYERS, LAW OFFICE OF EDWARD A. ZEINEH, Lansing, Michigan, Barry A. Wolf, LAW OFFICE OF BARRY A. WOLF PLLC, Flint, Michigan, BRETT T. MEYER, O'NEILL, WALLACE & DOYLE, P.C., Saginaw, Michigan, for Flint Appellees. Michael J. Pattwell -- mpattwell@clarkhill.com -- Jay M. Berger -- jberger@clarkhill.com -- Christopher B. Clare -- cclare@clarkhill.com -- CLARK HILL PLC, Detroit, Michigan, Thaddeus E. Morgan -- tmorgan@fraserlawfirm.com -- FRASER TREBILCOCK, Lansing, Michigan, Charles E. arbieri, Allison M. Collins, FOSTER, SWIFT, COLLINS & SMITH, Lansing, Michigan, Phillip A. Grashoff, Jr. -- pgrashoff@kotzsangster.com -- Dennis K. Egan -- degan@kotzsangster.com -- Krista A. Jackson -- Phillip A. Grashoff -- KOTZ SANGSTER WYSOCKI, Bloomfield Hills, Michigan, for Appellees Busch, Cook, Prysby, Rosenthal, Smith, Wurfel, and Wyant. Gregory M. Meihn -- gmeihn@foleymansfield.com -- FOLEY & MANSFIELD, P.L.L.P., Ferndale, Michigan, Joseph F. Galvin, GENESEE COUNTY DRAIN COMMISSION, Flint, Michigan, for Appellee Wright. Sarah C. Tallman, NATURAL RESOURCES DEFENSE COUNCIL, Chicago, Illinois, Dimple Chaudhary, NATURAL RESOURCES DEFENSE COUNCIL, Washington, D.C., Michael J. Steinberg, Bonsitu A. Kitaba, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Detroit, Michigan, for Amicus Curiae. DICK SMITH: Faces Shareholders Class Action Over Collapse ---------------------------------------------------------- Petrina Berry, writing for The Daily Telegraph, reports that a class action against failed electronics chain Dick Smith on behalf of disgruntled shareholders has been given the green light. The Supreme Court of NSW has granted legal firm Bannister Law leave to file a class action against Dick Smith (DSHE) on July 24. Bannister Law principal Charles Bannister says the ruling is a win for shareholders who lost a lot of money when the company collapsed in January 2016. "Thousands of shareholders have lost tens of millions because, we allege, DSHE contravened provisions of the Corporations Act, including by engaging in misleading or deceptive conduct on various occasions throughout 2015," he said in a statement on July 25. Mr Bannister said the firm alleges that the retailer misled shareholders about the financial health of the company through directors' declarations that the accounts during 2015 were up to Australian Accounting Standards. He said it will be alleged that the use of supplier rebates to artificially inflate Dick Smith's reported profit deceived shareholders who have suffered loss and damage as a result. Another litigation firm, Investor Claim Partner, is also investigating a class action on behalf of shareholders. This is on top of claims filed earlier in 2017 in the Federal Court by Dick Smith's lenders, National Australia Bank and HSBC. The banks accuse the company of buying "bad stock" to inflate income and earnings. Dick Smith went into administration after failing to secure a funds injection from its banks last year. [GN] E.A. RENFROE: Cal. App. Reverses Judgment in "Quiroz" ----------------------------------------------------- In the case captioned MONICA QUIROZ et al., Plaintiffs and Respondents, v. E.A. RENFROE & COMPANY, INC., Defendant and Appellant, No. C082316 (Cal. App.), Judge Jonathan K. Renner of the Court of Appeals of California, Third District, Placer, reversed the trial court's judgment and remanded the case for further proceedings. In May 2015, Plaintiffs Quiroz and McTier filed a class action complaint in Placer County against Renfroe on behalf of themselves and other similarly situated current and former employees. The operative complaint alleges failure to provide meal and rest breaks, failure to pay overtime, failure to pay final wages in a timely manner, failure to provide accurate wage statements, nonpayment of wages and an unfair competition law claim. The Respondents brought these claims as individuals and putative class representatives seeking damages. In their eighth cause of action, the Respondents sued in a representative capacity under the Labor Code Private Attorneys General Act of 2004 seeking civil penalties for Labor Code violations. Renfroe petitioned to compel arbitration and sought dismissal of the Respondents' class and representative claims, and a stay of litigation until arbitration was completed. The trial court found that the Federal Arbitration Act governs the arbitration agreement and the Alabama choice of law provision is enforceable. It ruled that the evidence presented by both parties was sufficient to show the arbitration provision was unconscionable under Alabama law. It found that the employment agreement "is strikingly one-sided with the majority of terms favoring Renfroe." The trial court decided not to sever any provisions of the employment agreement. Instead, it denied Renfroe's requests to compel arbitration, dismiss the class and representative claims, and stay the current litigation pending arbitration. Renfroe timely appealed. It contends the trial court erred in determining the arbitration agreement respondents signed when it hired the Plaintiffs was unenforceable under Alabama law because it was unconscionable. Judge Renner finds that the Respondents have not demonstrated procedural unconscionability under Alabama law. As a result, the arbitration agreement is not unconscionable under Alabama law. He has found no indication that ambiguity with respect to the applicable arbitration rules has any relevance to the unconscionability analysis under Alabama law. Under Alabama law, the fact that an arbitration agreement permits an employer but not an employee to choose between arbitration and another forum does not make an agreement unconscionable. Further, the concept of mutuality of remedies does not technically apply because Alabama does not consider arbitration to be a remedy. As to the Respondents contention that the arbitration provision's definition of prevailing party unfairly favors Renfroe, he says it is undisputed that the prevailing party definition will not apply in this action. Thus, the Respondents' arguments are undone by their lack of evidence regarding meaningful choice. Nothing in the substantive terms of the arbitration agreement alters his conclusion that it is not unconscionable under Alabama law. Therefore, Judge Renner reversed the trial court's judgment and remanded the case for further proceedings consistent with the views stated. The parties will bear their own costs on appeal. A full-text copy of the Court's July 26, 2017 order is available at https://is.gd/2JG1ct from Leagle.com. ELECTRICITY MAINE: Zurich Doesn't Want to Pay Class Action Costs ---------------------------------------------------------------- Darren Fishell, writing for Bangor Daily News, reports that the insurer for electricity seller Electricity Maine says it doesn't have to pay for the company to defend a class-action lawsuit, and it wants a judge to agree. Zurich American Insurance Co. has sued Electricity Maine in federal court, where it hopes a judge will clarify whether the insurer has any obligation to cover the company's costs or damages that may come from the class-action suit. Electricity Maine fired back, claiming the opposite, and arguing the insurance policy it had from 2011 to 2012 should cover its costs and potential losses. Zurich alleges the lawsuit brought by Electricity Maine customers does not fall within the terms of a policy Electricity Maine had from 2011 to 2012 with Assurance Co. of America. Zurich eventually acquired the policy through mergers. In November, two former customers sued Electricity Maine and claimed thousands were lured by false advertising into electricity contracts to power their homes. The lawsuit alleges Electricity Maine cost those customers at least $35 million in total. Those customers have also argued that Zurich is legally required to defend Electricity Maine in the case. In the insurance dispute, the parties agreed to dismiss Electricity Maine's current owner, the Houston-based Spark HoldCo, as the company was not connected to Electricity Maine during the time the policy was active. Spark also wants out of the class-action suit, arguing that the claims refer to a period before Spark had anything to do with the Maine company. A judge has not yet ruled on whether to dismiss customers' claims against Spark. The potential class-action lawsuit followed an investigation by the Bangor Daily News that found electricity sellers such as Electricity Maine charged residential customers about $50 million more than the standard electricity rate, from 2012 to 2015. Lawmakers passed new restrictions on those companies into law earlier this year. [GN] ENDOLOGIX INC: Wants California Judge to Sanction Shareholder ------------------------------------------------------------- Rachel Graf, writing for Law360, reports that Endologix Inc. urged a California federal judge on July 21 to sanction a shareholder whose amended complaint allegedly hinges on false statements made by a single witness in a proposed class action claiming the medical device maker misrepresented the likelihood that a product would be approved by the U.S. Food and Drug Administration, causing its stock to plunge. Endologix said shareholder Vicky Nguyen's first amended complaint is based on statements by a single witness, referred to as "CW1," who denies making the statements and who disagrees with the accuracy of the allegations. The company is consequently seeking sanctions including the dismissal of all statements attributed to the witness and expenses and attorneys' fees related to this request. "Plaintiff and her counsel blindly adopted the allegations attributed to CW1 by a third-party, chose not to confirm the accuracy of any of the extensive quotations attributed to CW1, and as a result, made fundamental misrepresentations of fact to the court," the company said in the filing. Ms. Nguyen filed the proposed class action in January, and amended her complaint in May. In it, she alleges Endologix assured investors that it was on track to receive premarket approval from the FDA for its medical device Nellix by early 2017, but the company disclosed in late 2016 that the FDA required another two years of testing, sending shares down more than 20 percent. The company updated investors in May that it would not seek FDA approval for the "first generation" Nellix device, causing shares to drop another 36 percent, according to the amended complaint. Nguyen included statements from a confidential witness, the former head of Aortic Procedure Development at Endologix, who said Endologix was "consumed with" an "unsolvable problem" with the Nellix products starting in 2015, meaning the company knowingly misled investors about the likelihood of FDA approval, according to the amended complaint. But Endologix claimed on July 21 that they tracked down the only former Endologix employee who matches the witness' description, and he denies making the allegations and doubts their accuracy. Ms. Nguyen's counsel delegated the witness interview to OnPoint Investigations, and never interviewed the witness themselves, confirmed quotations attributed to the witness or confirmed the information attributed to the witness, thereby submitting false information to the court, Endologix argued. Ms. Nguyen's attorney Laurence M. Rosen of The Rosen Law Firm PA called the company's request for sanctions "baseless." "They improperly pressured a witness to change his statements," Rosen said by email. "The evidence will show our complaint is 100% accurate." Counsel for Endologix declined to comment. Endologix is represented by Jason de Bretteville -- jdebretteville@sycr.com -- Justin N. Owens -- jowens@sycr.com -- and Kenneth P. Hsu -- khsu@sycr.com -- of Stradling Yocca Carlson & Rauth PC. Ms. Nguyen is represented by Laurence M. Rosen and Sara Fuks of The Rosen Law Firm PA. The suit is Vicky Nguyen v. Endologix et al., Case No. 2:17-cv- 00017 (C.D. Cal.). The case is assigned to Judge Andre Birotte Jr. The case was filed January 3, 2017. [GN] ENHANCED RECOVERY: Faces "Deutsch" Suit in E.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Enhanced Recovery Company, LLC. The case is captioned as Edmund B. Deutsch, individually and on behalf of all others similarly situated, the Plaintiff, v. Enhanced Recovery Company, LLC, the Defendant, Case No. 2:17-cv-04369 (E.D.N.Y., July 24, 2017). Enhanced Recovery provides business process outsourcing services that include recovery, outsourcing, and market research.[BN] The Plaintiff appears pro se. ERNST & YOUNG: Oral Arguments on Waiver Issue Set for October 2 --------------------------------------------------------------- Holger G. Besch, Esq., of Seyfarth Shaw LLP, in an article for Lexology, wrote that perhaps signaling the importance of the issue for American businesses and jurisprudence, the U.S. Supreme Court chose the first day of its term beginning in October as the date to set oral arguments in three petitions for certiorari asking whether employees can be required to waive their rights via arbitration agreements to file class and collective actions against their employers. The arguments in Ernst & Young LLP v. Morris; Epic Systems Corp. v. Lewis; and NLRB v. Murphy Oil USA Inc., will all be heard on October 2nd, so mark your calendars. The cases before the Supreme Court originated before the National Labor Relations Board, which had ruled that such agreements violate workers' rights under the National Labor Relations Act to take collective action to ameliorate their working conditions. SCOTUS will be resolving the resulting Circuit split, in which the Ninth and Seventh Circuits backed the NLRB's position when they ruled against Ernst & Young and Epic Systems, respectively, and the Fifth Circuit ruled in favor of Murphy Oil. Opening briefs are already on file and address, at bottom, whether the Federal Arbitration Act or the NLRA should take precedence. [GN] FBL FINANCIAL: Faces "Tronsgard" Suit in Kansas Federal Court ------------------------------------------------------------- A class action lawsuit has been filed against FBL Financial Group, Inc. The case is styled as Steve Tronsgard, on behalf of himself and all others similarly situated, the Plaintiff, v. FBL Financial Group, Inc., Farm Bureau Financial Services, Farm Bureau Property & Casualty Insurance Company, Western Agricultural Insurance Company, Farm Bureau Life Insurance, and FBL Marketing Services, LLC, the Defendants, Case No. 2:17-cv-02393-CM-KGG (D. Kan., July 7, 2017). The case is assigned to the Hon. District Judge Carlos Murguia. FBL Financial is a financial services holding company whose purpose is to protect livelihoods and futures.[BN] The Plaintiff is represented by: Aaron L. Kite, Esq. David J. Rebein, Esq. REBEIN BANGERTER REBEIN PA 810 Frontview PO Box 1147 Dodge City, KS 67801 Telephone: (620) 227 8126 Facsimile: (620) 227 8451 E-mail: aaron@rbr3.com Dave@rbr3.com FINANCIAL ASSET: Faces "McGaster" Suit in District of New Jersey ---------------------------------------------------------------- A class action lawsuit has been filed against Financial Asset Management Systems Inc. The case is titled as PHILL MCGASTER, individually and on behalf of all others similarly situated, the Plaintiff, v. FINANCIAL ASSET MANAGEMENT SYSTEMS INC., and JOHN DOES 1-25, the Defendants, Case No. 2:17-cv-04981-ES-SCM (D.N.J., July 7, 2017). The case is assigned to the Hon. Judge Esther Salas. Financial Asset provides customized receivables management services primarily in the United States.[BN] The Plaintiff is represented by: Marcus Zelman, LLC, Esq. YITZCHAK ZELMAN 1500 Allaire Avenue, Suite 101 Ocean, NJ 07712 Telephone: (347) 526 4093 Facsimile: (732) 298 6256 E-mail: yzelman@marcuszelman.com - and - Ari Hillel Marcus, Esq. MARCUS ZELMAN LLC 1500 Allaire Avenue, Suite 101 Ocean, NJ 07712 Telephone: (732) 695 3282 Facsimile: (732) 298 6256 E-mail: ari@marcuszelman.com FISKER AUTOMOTIVE: Judge Halts Investors' Class Action ------------------------------------------------------ Dan Churney, writing for Cook County Record, reports that a Chicago federal judge has put the brakes on a class action suit filed by investors, who alleged they were ripped off for hundreds of millions of dollars in a failed electric car venture, saying the investors were asleep at the switch because they launched their suit after the statute of limitations expired. However, the judge gave plaintiffs an opportunity to take another shot with an amended suit. The July 20 ruling was issued by U.S. District Judge Rebecca Pallmeyer, dismissing an October 2016 suit lodged by Orgonne Capital, Lincolnshire Fisker LLC, David Burnidge, Kenneth A. Steel Jr. and Robert F. Steel on behalf of themselves and about 100 putative class action members. Defendants are the venture capital firm Kleiner Perkins Caufield & Byers and its managing partners Ray Lane and John Doerr, as well as Keith Daubenspeck and Peter McDonnell. Mr. Daubenspeck founded the now-defunct Advanced Equities Inc., a Chicago investment bank that sold millions of dollars worth of securities for Fisker Automotive from 2009 to 2012. Mr. McConnell was a senior managing director, and both worked with Kleiner Perkins, which "exercised substantial control" over Fisker's operations and finances. Plaintiffs did not sue Fisker Automotive. Fisker was set up to build luxury hybrid electric cars, raising $1.3 billion in private capital and $192 million in public money to that purpose, before going belly-up in late 2012. Plaintiffs alleged defendants misled them into buying more than $10.2 million in Fisker stock between October 2009 and September 2012, by not revealing the company was in crisis, because the federal government froze further draw-downs on a $528.7 million U.S. Department of Energy loan. The DOE refused to release further funds because Fisker was on the brink of insolvency, according to the suit. However, defendants kept this information secret and persuaded investors to continue putting money into the project, based on the federal loan, the suit said. Plaintiffs lost their investments, describing the Fisker affair as the "largest venture capital-backed debacle in U.S. history." Defendants filed a motion to dismiss the suit, saying plaintiffs were bound by the Illinois Securities Law, which sets a three-year limit for such suits. Plaintiffs countered that their agreements to buy Fisker stock, contained clauses that any disputes would be decided under Delaware law, which sets a five-year limit. Plaintiffs said they could not have invoked Illinois law even if they so desired, because of the clauses in the agreements. Judge Pallmeyer had no use for plaintiffs' argument, saying plaintiffs presumed if they filed their suit under Illinois law, defendants would have asserted the supposedly overriding Delaware law. Further, plaintiffs presumed a judge would have found Delaware law applied, Judge Pallmeyer added. Simply put, Judge Pallmeyer said: "Plaintiffs cannot assert a defense on behalf of an opponent that has not asserted it. Plaintiffs waited too long and now rely on this conjectural, procedurally inverted route to a timely claim." Determining the three-year Illinois law applied, Judge Pallmeyer ruled plaintiffs knew of their claims more than three years before bringing suit in October 2016, most likely in April 2013, when reports of alleged fraud and breach of fiduciary duties in the Fisker matter hit the news. Judge Pallmeyer said she was puzzled plaintiffs did not attempt the "more straightforward route" of simply arguing Delaware law should be followed. If plaintiffs wish to do so, Judge Pallmeyer gave them 21 days to amend their suit accordingly and keep the litigation alive. Plaintiffs are represented by the following firms: Wexler Wallace, Chicago; Berger & Montague, Philadelphia; Klafter, Olsen and Lesser, of Washington, D.C. and Rye Brook, N.Y.; and Rosenthal, Monhait & Goddess, of Wilmington, Del. The defendants, with the exception of Peter McDonnell, who is representing himself, are defended by the firms of Freeborn & Peters, Loeb & Loeb and Stetler & Rotert, all of Chicago; Keker, Van Nest & Peters, of San Francisco; and Pepper Hamilton, of Wilmington, Del. [GN] FLOYD CO: Judge Approves $1.23MM Inmates' Class Action Settlement ----------------------------------------------------------------- WDRB News reports that a federal judge approved a $1.23 million settlement of a class action suit that alleged mistreatment of several inmates at the Floyd County Jail in New Albany, Ind., plaintiffs' attorney Dan Canon confirmed on July 24. In 2014, six former inmates sued Floyd County, then-sheriff Darrell Mills and four corrections officers after their booking into the jail for incidents as early as June 2012. Their complaint said jail officers "stripped, held naked, tortured, humiliated and abused" them by using unwarranted Taser applications, pepper spray and other excessive force. Officers also placed the inmates in padded holding cells without toilets and withheld proper bedding, clothing and hygiene supplies. The maneuvers also exposed the inmates' private areas to corrections officers and other inmates; at least one incident is recorded on publicly-accessible video, the lawsuit said. A third-party administrator will distribute the money after payment of approximately $500,000 in attorneys' fees and costs and $15,000 for each of the six plaintiffs for being "the faces" of the suit. Those six will receive additional payments according to criteria in the settlement agreement, court records said. The agreement also called for certification and additional training of jail employees. The county already has discontinued its "combative subjects" policy in effect when the plaintiffs were arrested, court records said. The parties first agreed to the settlement in February 2017. Members of the class had until July 21 to submit claim forms. [GN] FORD MOTOR: Court Dismisses "Kommer" Suit with Leave to Amend ------------------------------------------------------------- Judge Lawrence E. Kahn of the U.S. District Court for the Northern District of New York granted the Defendant's motion to dismiss the case captioned, BRANDON KOMMER, Plaintiff, v. FORD MOTOR COMPANY, Defendant, No. 1:17-CV-296 (LEK/DJS)(N.D.N.Y.). In October 2015, Kommer purchased a 2015 Ford F-150 XLT Super Crew truck from New Country Ford in Saratoga Springs, New York. He decided to purchase his truck after seeing Ford's "Built Ford- Tough" advertisement on television and the Internet and advertisements for the new redesigned Ford F-150. Soon after Kommer purchased his vehicle, however, he had problems with its doors and locks. He also alleges that Ford knew of the problem with the door handles but failed to disclose it. On April 8, 2015, Ford issued a technical service bulletin ("TSB") entitled "SUPERCAB/SUPERCREW CAB -- FROZEN OR INOPERATIVE DOOR LATCH" which recognized that the door latches on some 2015 F-150 trucks did not work in freezing temperatures, and outlined steps dealers should take to address the problem. The Plaintiff's truck was listed as an affected vehicle and was also identified as eligible for repair "Under Provisions Of New Vehicle Limited Warranty Coverage." Despite issuing a TSB, Ford did not disclose the faulty door handle problem to current or potential F-150 owners. Kommer does not allege that he took his truck to get repaired or that it was not under warranty. Kommer filed his Complaint against Ford on March 13, 2017, alleging violations of N.Y. G.B.L. sections 349 and 350. He brings forwards two claims: (i) Ford's "Built Ford-Tough" advertising was an affirmative misrepresentation and (ii) Ford failed to disclose to consumer that the F-150 had defective door handles. He also seeks to represent himself and a class of similarly-situated New York consumers who are current or former owners or lessees of Ford F-150 vehicles for model years 2015- 2017. On April 12, 2017, Ford moved to dismiss Kommer's Complaint for failure to state a claim. It argues that Kommer has failed to state a claim under New York General Business Law ("N.Y. G.B.L.") sections 340 and 350 because (i) Ford's advertisements describing the quality and durability of its F-150s are non-actionable puffery, and (ii) Kommer has not alleged a legally cognizable injury. Judge Kahn finds that Ford's advertisements for the F-150 make no reference whatsoever to the quality of the vehicles' door handles. Its statement that their vehicles are "Built Ford-Tough" is an exaggerated and generalized claim similar to the advertisements determined to be puffery in Hubbard v. Gen. Motors Corp. Accordingly, the advertisements on which Kommer's affirmative misrepresentation claim is premised are non-actionable puffery. As to Kommer's second theory of liability that Ford's failure to disclose the problems with the door handles constitutes a violation of N.Y. G.B.L sections 349 and 350, Judge Kahn says the Plaintiff fail to plausibly plead an injury. Kommer alleges merely that he incurred out-of-pocket costs to repair his truck but readily admits that he has not personally expended any money to repair his vehicle. Kommer also alleges that he overpaid for a product that has diminished value because of its defects but has a perfectly adequate remedy available to him, and that defeats his price-premium theory of injury. Judge Kahn finds that the deficiency with Kommer's affirmative misrepresentation claim is substantive in nature. Thus, amendment of this claim would be futile. For these reasons, Judge Kahn granted Ford's motion to dismiss and dismissed with leave to amend Kommer's affirmative misrepresentation claim. If Kommer wishes to proceed with his misrepresentation-by-omission claim, he must file an amended complaint as set forth within 30 days of the filing date of this Memorandum-Decision and Order. The Clerk of the Court is directed to serve a copy of the Memorandum-Decision and Order on all parties in accordance with the Local Rules. A full-text copy of the Court's July 28, 2017 memorandum-decision and order is available at https://is.gd/OFIoe9 from Leagle.com. Brandon Kommer, Plaintiff, represented by Jeffrey I. Carton -- jcarton@denleacarton.com -- Denlea & Carton LLP. Brandon Kommer, Plaintiff, represented by Myles K. Bartley -- mbartley@denleacarton.com -- Denlea & Carton LLP & Robert J. Berg -- rberg@denleacarton.com -- Denlea & Carton LLP. Ford Motor Company, Defendant, represented by Peter J. Fazio -- pjfazio@arfdlaw.com -- Aaronson, Rappaport Law Firm. FORD MOTOR: Settles Class Action Over Defective Transmissions ------------------------------------------------------------- Daily Hornet's Ray Simon, citing Road and Track, reports that Ford Motor Co. has agreed to provide "substantial cash payments" and other benefits to the owners of about 1.5 million Fiesta and Focus vehicles that had to be repaired due to allegedly defective transmissions, the automaker has announced. The agreement, which follows nearly 4 years of litigation including 1 full year of settlement negotiations, affects owners and lessees of Ford Fiestas and Ford Focuses from model years 2011-2016. Ford did not oppose the settlement, but continues to deny any wrongdoing associated with the alleged transmission defect, which caused affected vehicles to "slip," "buck," "kick" or "jerk" while accelerating, according to owners. A quick search of the National Highway Traffic Safety Administration (NHTSA) database found more than 500 such complaints filed by Fiesta and Focus owners. The lawsuit was filed in California, but because of its status as a class action, drivers in Indiana and Michigan qualify for compensation under the settlement as well. Ford initially offered customer service programs which included free repairs and warranty extensions, but many vehicle owners were forced to fix the problem on their own, according to the class action. Plaintiffs claim that affected vehicles required multiple software and hardware repairs that took weeks or even months to be completed. Per the agreement, class members with 3 or more visits to replace 1 of the main transmission parts will receive $200 for the 3rd visit, plus increasing amounts for any additional repair trips. Owners could also choose to receive a discount toward the purchase of a new Ford vehicle equaling twice the amount of whatever cash they qualified to receive. In all, class members may be eligible to collect up to $2,325 in cash or $4,650 in credit, according to the lawsuit. Considering that Ford ordered about 6 million replacement parts for roughly 1.5 million vehicles, it is expected that a large number of Fiesta and Focus owners will qualify for compensation per the settlement. [GN] FOREVER 21: Faces Class Action in New York Over Sales Tax --------------------------------------------------------- Bryan Koenig, writing for Law360, reports that a Forever 21 customer hit the retail clothing chain with a proposed class action in New York federal court on July 24 accusing the company of collecting sales taxes from online New York City customers whose orders should have been tax-exempt. Laura Togut wants to represent the thousands, "if not tens or hundreds of thousands," of customers she says were charged New York retail sales taxes for Forever 21 deliveries even though individual clothing items in the city and state are supposed to be exempt if they come in under $110. "Defendants' sales tax assessment practices, in effect, are improperly and fraudulently adding a surcharge to purchases, and are disguising those surcharges as a 'sales tax' that does not exist, and for which defendants lack authority to collect or remit," Ms. Togut said. According to the complaint, New York customers buying clothing cheaper than $110 should be exempt from the state's 4 percent retail sales tax, while New York City customers buying such clothing should also be free of the city's 4.5 percent sales tax and the 0.375 percent tax on the Metropolitan Commuter Transportation District. The problem is not limited to the city, according to the complaint, which pointed to other jurisdictions that should be exempt from the MCTD tax but where customers were charged anyway. "Defendants illegally overcharge buyers up to 8.875% every time a resident of New York City, or a resident of the counties of Chautauqua, Chenango (outside of the city of Norwich), Columbia, Delaware, Greene, Hamilton, Tioga, and Wayne, make an online purchase of clothing or footwear from defendants for less than $110 and have such purchase shipped to an address in their exempt jurisdiction," Ms. Togut said. Ms. Togut wants to represent all New York state customers charged sales taxes that shouldn't have been collected, arguing that retail transactions only incur sales taxes for the point of delivery, not the source of the goods. Ms. Togut contends Forever 21 knows about how the taxation rules work but has still collected "without regard to the laws of the taxing authority where defendants delivered the purchase." The failure to calculate taxes based on where the clothes were going "is problematic," Ms. Togut said, because many jurisdictions either don't charge sales taxes or exempt clothing from those taxes when the purchases happen in those jurisdictions or are delivered there. "As a result, if a consumer purchases defendants' clothing from defendants who, upon information and belief, are within a jurisdiction that charges sales tax, but the purchase is delivered into a jurisdiction that does not charge sales tax," Ms. Togut said, "defendants' payment system overcharges the consumer in the guise of a sales tax that does not exist in the jurisdiction governing that transaction." Ms. Togut further alleged that the collected taxes never went to New York coffers, pointing to her own May 19 online purchase of more than 20 items of clothing all worth under $110, for which the pre-tax total came to $283.40 and for which she was charged another $22.90 in sales taxes. "Instead, upon information and belief, defendants retained the fraudulently obtained $22.90, or remitted it to taxing authorities outside of New York, which authorities have no jurisdiction to assess sales tax on purchases shipped to the exempt jurisdictions in New York and New York City," she said. An attorney for Ms. Togut, Bradley J. Bartolomeo -- bbartolomeo@mclaughlinstern.com -- said on July 24 that it's unclear if the issue extends beyond New York state. "However, we anticipate that this may be a broader issue and I, along with my team at McLaughlin & Stern LLP, are prepared to expand the case to a multidistrict lawsuit should such plaintiffs surface in the future," Mr. Bartolomeo told Law360 in an email. Forever 21 declined to comment on July 24. Ms. Togut is represented by Bradley J. Bartolomeo and Lee S. Shalov -- lshalov@mclaughlinstern.com -- of McLaughlin & Stern LLP. Counsel information for Forever 21 was not available on July 24. The case is Togut v. Forever 21 Inc. et al., case number 1:17-cv- 05616, in the U.S. District Court for the Southern District of New York. [GN] FREEDOM MORTGAGE: "Ortolani" Suit Moved to C.D. California ---------------------------------------------------------- The class action lawsuit titled Gabriela Ortolani, individually and on behalf of all other similarly situated, the Plaintiff, v. Freedom Mortgage Corporation, an unknown entity, the Defendant, Case No. CIVDS1709817, was removed on July 24, 2017 from the San Bernardino Superior Court, to the U.S. District Court for the Central District of California (Eastern Division - Riverside). The District Court Clerk assigned Case No. 5:17-cv-01462 to the proceeding. Freedom Mortgage is a full-service direct lender founded in 1990.[BN] The Plaintiff appears pro se. GENERAL NUTRITION: Faces "Gomez" Suit in S.D. Florida ----------------------------------------------------- A class action lawsuit has been filed against General Nutrition Corporation. The case is titled as Andres Gomez, on his own and on behalf of all other individuals similarly situated, the Plaintiff, v. GENERAL NUTRITION CORPORATION, the Defendant, Case No. 1:17-cv- 22747-MGC (S.D. Fla., July 24, 2017). The case is assigned to the Hon. Judge Marcia G. Cooke. General Nutrition retails vitamins, minerals, dietary supplements, and sports nutrition products.[BN] The Plaintiff is represented by: Jessica Lynn Kerr, Esq. JESSICA L.KERR, P.A. DBA THE ADVOCACY GROUP 333 Las Olas Way, Suite CU3-311 Fort Lauderdale, FL 33301 Telephone: (954) 282 1858 Facsimile: (844) 786 3694 E-mail: service@advocacypa.com GEORGE WESTON: Graydon Attorney Discusses Ontario Court Ruling -------------------------------------------------------------- Jessica Lam, Esq. -- jessica.lam@blakes.com -- and Nicole Henderson, Esq. -- nicole.henderson@blakes.com -- of Blake Cassels & Graydon LLP, in an article for Lexology, wrote that the Ontario Superior Court of Justice recently dismissed a proposed class action arising out of the collapse of a manufacturing facility in Bangladesh. On July 5, 2017, in Das v. George Weston Limited (Das), the court found that under either Bangladesh or Ontario law, putative class members had no legally viable claims against the defendants. The decision raises several local and international legal issues regarding jurisdiction, choice of law, and the scope of the duty of care owed by Canadian businesses that source goods from abroad. Das should be of interest to Canadian businesses that purchase goods from foreign suppliers. In dismissing the claims in this case, the court was mindful of the limits of a company's control over independent suppliers located abroad and the importance of not deterring responsible foreign investment by Canadian businesses. BACKGROUND Rana Plaza was a building in Bangladesh that housed numerous businesses, including a clothing manufacturer that was a sub- supplier to Loblaws. On April 24, 2013, the plaza collapsed, resulting in the death or injury of thousands. Four Bangladesh citizens commenced a proposed class action in Ontario against Loblaws and Bureau Veritas, a consultant retained by Loblaws to conduct a "social audit" of its sub-supplier in Rana Plaza. The plaintiffs alleged that the defendants were liable for negligence, and that Loblaws was also vicariously liable for the negligence of its suppliers and sub-suppliers, and liable for breach of fiduciary duty. Among other things, the plaintiffs alleged that Loblaws failed to ensure that Rana Plaza complied with Loblaws' Corporate Social Responsibility (CSR) standards and that the CSR standards were in any event inadequate. The plaintiffs moved for certification of the proposed class action. The defendants brought a cross-motion to have the action dismissed on the bases of lack of jurisdiction, choice of law, limitations, and no viable cause of action against the defendants. DECISION Jurisdiction Over Absent Foreign Claimants The court found that there was no doubt that an Ontario court had jurisdiction simpliciter over the named parties. The matter of controversy was whether the court had jurisdiction over putative class members who were not individually named as parties to the litigation, and who resided in Bangladesh -- the so-called "absent foreign claimants". Loblaws argued that the absent foreign claimants should be required to actively attorn to the Ontario court's jurisdiction before the class could be certified. In response, the plaintiffs revised the proposed class definition and sought certification of an "opt-in" class rather than the usual "opt-out" class, such that the court did not have to determine whether it had jurisdiction to certify a global "opt- out" class. The motion judge held that had the class action been certified, it would not have been necessary for putative class members to have formally attorned before the certification motion because their attornment would have been achieved post- certification by a court-supervised opt-in notice program. Choice of Law The court rejected the plaintiffs' argument that the pleaded wrongdoing occurred in Ontario, where the defendants have offices. Rather, the court held that any alleged wrongdoing took place in Bangladesh -- the country substantially affected by the defendants' alleged conduct and where the victims were located. Accordingly, Bangladesh law applied to the claims. To the extent that limited aspects of Bangladesh law regarding compensation might be found contrary to Canadian public policy, those aspects of the law could be severed. The court held that the claims of all class members (except those who were minors at the time of the collapse) were statute-barred under the one-year limitation period that applies to a wrongful death claim under Bangladesh law. Viability of the Plaintiff's Claims The court found that the plaintiffs' assertion that a purchaser of goods (Loblaws) should have a duty of care to the employees of the manufacturer of those goods would be a novel duty, and went on to consider whether such a duty should be recognized. The court noted that mere foreseeability of harm is insufficient to create a duty of care. The law does not impose a positive duty on a person to rescue others or to prevent a person from being harmed by a third party's criminal acts, outside of narrow circumstances. Applying Ontario law, the court held that there was insufficient proximity between the defendants and putative class members to recognize a duty of care. The court found that it would be unreasonable to impose such a duty on the defendants, given that they did not create the dangers at Rana Plaza, nor were they in a position to ameliorate those dangers. The court also cited numerous public policy factors negating the existence of a duty of care, including the extension of liability imposed on purchasers who would become responsible for the safety of their supplier's employees in foreign lands, and the spectre of indeterminate liability. The court noted Canadian businesses may be deterred from adopting CSR policies if doing so would mean exposing the company to claims that their policies were not robust enough to protect a supplier's employees. The plaintiffs' vicarious liability claim against Loblaws was also found to be unviable, given the absence of any direct control on Loblaws' part. The court also found that Loblaws could not owe putative class members a fiduciary duty because, among other things, there was no "legally significant relationship" between Loblaws and the employees of an independent sub-supplier. The court concluded that the plaintiffs' claims were not viable under Bangladesh law for similar reasons. CONCLUSION In the result, the court dismissed the plaintiffs' action, finding that their claims did not disclose a reasonable cause of action. Had the pleadings disclosed any viable claims, the court would have been prepared to certify the class, with some modifications to the proposed class definition. The court's decision in Das signals that tort law has its limits, even as business becomes increasingly globalized. Blakes periodically provides materials on our services and developments in the law to interested persons. [GN] GOOGLE INC: Agrees to Settle Privacy Class Action in California --------------------------------------------------------------- Wendy Davis, writing for MediaPost, reports that Google recently promised to end its practice of scanning email messages in order to surround them with ads. Now, the company has also agreed to resolve a class-action privacy lawsuit stemming from its prior email practices. The proposed settlement agreement, submitted on July 21 to U.S. District Court Judge Lucy Koh in San Jose, California, calls for a three-year injunction that could affect Google's ability to send ads to people based on the content of their emails. Among other terms, the proposed settlement requires Google "to cease all processing of email content that it applies prior to the point when the Gmail user can retrieve the email in his or her mailbox . . . and that is used for advertising purposes," according to the court papers. Google also plans to stop processing email contents after they reach users' in-boxes, but the company will not be required to agree to that term as part of an injunction, according to the court papers. Instead, that change is viewed by Google as "independent of the settlement," but consistent with the deal, according to documents filed with Judge Koh. The deal doesn't call for individual users to receive monetary damages, but allows them to pursue their own lawsuits against Google. The class-action attorneys who brought the case could receive up to $2.2 million. The settlement stems from a complaint filed in September 2015 by San Francisco resident Daniel Matera, who alleged that Google violates a California privacy law and the federal wiretap law by intercepting messages without people's consent. Google's terms of service disclosed that it analyzed the contents of email messages for features including "tailored advertising." But Matera alleged that he didn't have a Gmail account, and therefore never agreed to those terms. Judge Koh rejected a previous settlement that would have required Google to make some technical changes to its scanning system. Koh said at the time that it wasn't clear how those prior terms would remedy the alleged violations of the federal wiretap law or California's privacy statute. Even though Google will no longer scan emails for ad purposes, the company still plans to send targeted ads to Gmail users based on data such as their search queries and YouTube viewing histories. [GN] GOPRO INC: Court Denies Bid to Dismiss "Bielousov" Suit ------------------------------------------------------- Judge Claudia Wilken of the U.S. District Court for the Northern District of California denied the Defendants' motion to dismiss the case captioned ANTON BIELOUSOV, Individually and on Behalf of All others Similarly Situated, Plaintiff, v. GOPRO, INC. and NICHOLAS D. WOODMAN, Defendants, No. 16-cv-06654-CW (N.D. Cal.). On Sept. 19, 2016, GoPro unveiled two new HERO5 model cameras and the Karma(R) quadcopter drone, which was its entry into the drone market. It stated that the Karma drone would be available on Oct. 23, 2016, globally, at select retailers and announced pricing for the drone. Brian McGee, the company's chief financial officer, told investors that the drone would take GoPro to "new heights" and that the company was on track to meet Feb. 3, 2016 revenue guidance of $1.35-1.5 billion revenue for 2016. The Plaintiff alleges, however, that these and other statements by the Defendants were false and misleading. GoPro was suffering a severe shortage of Karma drones and a shortage of HERO5 cameras. The Plaintiff alleges that the Defendants knew of the product shortages due to GoPro's use of a cloud-based NetSuite enterprise resource planning system that gave them real-time access to supply chain information. On Nov. 16, 2016, Plaintiff Bielousov filed the original complaint in this action. On Feb. 6, 2017, the Court appointed Troy Larkin as the Lead Plaintiff for a putative class of purchasers of GoPro stock. On March 14, 2017, the Lead Plaintiff filed the Amended Class Action Complaint ("1AC"), alleging that the Defendants made various false or misleading statements between Sept. 19, 2016 and Nov. 8, 2016 about GoPro's HERO5 camera and Karma drone and misled investors regarding its ability to meet its previous revenue guidance. He asserts two claims for violations of the Securities Exchange Act of 1934 (Exchange Act). The first claim is against all Defendants for violations of Section 10(b) of the Exchange Act, 15 U.S.C. Section 78j(b), and Rule 10b-5, 17 C.F.R. Section 240.10b- 5. The second claim is against the individual Defendants only as control persons of GoPro, for violations of Section 20(a) of the Exchange Act, 15 U.S.C. Section 78t(a). The Defendants move to dismiss the 1AC. The Plaintiff opposed the motion and the Defendants filed a reply. The Court held a hearing on June 27, 2017. The Defendants move to dismiss the Plaintiff's claims based on McGee's "on track" statement, arguing that it falls within the protection of the PSLRA's "safe harbor" protecting forward-looking statements. Under Omnicare, McGee was representing his and GoPro's existing state of mind when he stated that when they talked about their revenue guidance for 2016, its $1.35 billion to $1.5 billion and they believe they're still on track to make that as well. This statement of present opinion, according to Judge Wilken, is not forward-looking, and therefore is not covered by the PSLRA safe harbor provision. The Defendants also argue that the Plaintiff fails to plead scienter because the 1AC lacks any mention of specific data or reports, any non-speculative description of the information that GoPro's internal reporting system showed, or any allegation of who actually accessed that information. Judge Wilken these finds that these allegations are bolstered by allegations of circumstantial evidence. These include the timing of corrective statements and updates to risk factors as well as the resignation of Bates as GoPro's president. Most notably, Woodman and McGee's Sarbanes- Oxley Act certifications filed with the SEC support their scienter, because those certifications required them to access sufficient reporting information to certify that the information provided did not omit any material facts to make the report not misleading. Finally, the Defendants argue that if the Plaintiff fails to plead a predicate violation of Section 10(b), his control person claim also fails. As discussed, however, Judge Wilken finds that the Plaintiff has sufficiently alleged a primary violation of federal securities law under Section 10(b) and Rule 10b-5. Accordingly, his Section 20(a) claim may proceed. For these reasons, Judge Wilken denied the Defendants' motion to dismiss. Within 14 days after the date of the Order, the Plaintiff must file a second amended complaint naming all Defendants he intends to sue. No other amendments are permitted except as provided by Federal Rule of Civil Procedure 15. A full-text copy of the Court's July 26, 2017 order is available at https://is.gd/NunrFa from Leagle.com. Anton Bielousov, Plaintiff, represented by J. Alexander Hood, II - - ahood@pomlaw.com -- Pomerantz LLP. Anton Bielousov, Plaintiff, represented by Jeremy A. Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP & Jennifer Pafiti, Pomerantz LLP. Troy Larkin, Plaintiff, represented by Richard W. Gonnello -- rgonnello@faruqilaw.com -- Faruqi & Faruqi, LLP, Barbara Ann Rohr -- brohr@faruqilaw.com -- Faruqi and Faruqi, LLP, Katherine M. Lenahan -- klenahan@faruqilaw.com -- Faruqi and Farqui, LLP & Sherief Morsy -- smorsy@faruqilaw.com -- Faruqi and Faruqi, LLP. GoPro, Inc., Defendant, represented by Kaitlin O. Keller -- kkeller@fenwick.com -- Fenwick & West LLP, Catherine Duden Kevane -- ckevane@fenwick.com -- Fenwick & West LLP, Susan Samuels Muck - - smuck@fenwick.com -- Fenwick & West LLP & Vincent Barredo -- vbarredo@fenwick.com -- Fenwick & West LLP. Nicholas D. Woodman, Defendant, represented by Kaitlin O. Keller, Fenwick & West LLP, Catherine Duden Kevane, Fenwick & West LLP, Susan Samuels Muck, Fenwick & West LLP & Vincent Barredo, Fenwick & West LLP. Brian McGee, Defendant, represented by Catherine Duden Kevane, Fenwick & West LLP & Vincent Barredo, Fenwick & West LLP. Anthony Bates, Defendant, represented by Catherine Duden Kevane, Fenwick & West LLP & Vincent Barredo, Fenwick & West LLP. Zoinks, Inc., Movant, represented by Robert Vincent Prongay -- RProngay@glancylaw.com -- Glancy Prongay & Murray LLP. Sheldon Reinhardt, Movant, represented by Adam Christopher McCall -- amccall@zlk.com -- Levi Korsinsky, LLP. Edward Wayne Shorter, Movant, represented by Ramzi Abadou, Kahn Swick Foti LLP. Melissa Pham, Movant, represented by Jennifer Pafiti -- jpafiti@pomlaw.com -- Pomerantz LLP. Osman Koci, Movant, represented by Jennifer Pafiti, Pomerantz LLP. Haluk Lee Aykut, Movant, represented by Jennifer Pafiti, Pomerantz LLP. Michael Sherman, Movant, represented by Jennifer Pafiti, Pomerantz LLP. HATELMACHER LLC: Faces "Casilao" Suit in W.D. Oklahoma ------------------------------------------------------ A class action lawsuit has been filed against Hatelmacher LLC. The case is captioned as Madelyn Casilao, Harry Lincuna, and Allan Garcia, Individually and on behalf of all others similarly situated, the Plaintiffs, v. Hatelmacher LLC, doing business as: Holiday Inn Express; Steakmacher LLC, doing business as: Montana Mikes Steakhouse; Schumacher Investments LLC, doing business as: Water Zoo; Apex USA Inc.; and Walter Schmacher; Carolyn Schumacher, the Defendants, Case No. 5:17-cv-00800-M (W.D. Okla., July 26, 2017). The case is assigned to the Hon. Judge Vicki Miles-LaGrange. Holiday Inn Express is a mid-priced hotel chain within the InterContinental Hotels Group family of brands. As an "express" hotel, their focus is on offering limited services and a reasonable price.[BN] The Plaintiffs are represented by: Brady R Henderson, Esq. ACLU OF OKLAHOMA FOUNDATION 3000 Paseo Dr Oklahoma City, OK 73103 Telephone: (405) 525 3831 Facsimile: (405) 524 2296 E-mail: bhenderson@acluok.org HERITAGE COMMUNITIES: Bid for Rehearing in "Harleysville" Denied ---------------------------------------------------------------- Judge Donald W. Beatty of the Supreme Court of South Carolina denied the Respondents/Appellants petition for rehearing in the case captioned Harleysville Group Insurance, a Pennsylvania Corporation, Appellant/Respondent, v. Heritage Communities, Inc., a South Carolina Corporation; Heritage Magnolia North, Inc., a South Carolina Corporation; Buildstar Corporation, a South Carolina Corporation; Magnolia North Horizontal Property Regime; Magnolia North Property Owners Association, Inc., a South Carolina Corporation; and National Surety Corp., Defendants, Of whom Heritage Communities, Inc., a South Carolina Corporation; Heritage Magnolia North, Inc., a South Carolina Corporation; Buildstar Corporation, a South Carolina Corporation; and National Surety Corp. are Respondents, and Magnolia North Horizontal Property Regime and Magnolia North Property Owners Association, Inc., a South Carolina Corporation, are Respondents/Appellants. And Harleysville Group Insurance, a Pennsylvania Corporation, Appellant/Respondent, v. Heritage Communities, Inc., a South Carolina Corporation; Heritage Riverwalk, a South Carolina Corporation; Buildstar Corporation, a South Carolina Corporation; Riverwalk at Arrowhead Country Club Horizontal Property Regime; Riverwalk at Arrowhead Country Club Property Owners Association, Inc., a South Carolina Corporation; National Surety Corp.; and Tony L. Pope and Lynn Pope, individually and representing as a class all unit owners at Riverwalk at Arrowhead Country Club Horizontal Property Regime, Defendants, Of whom Heritage Communities, Inc., a South Carolina Corporation; Heritage Riverwalk, a South Carolina Corporation; Buildstar Corporation, a South Carolina Corporation; National Surety Corp.; and Tony L. Pope and Lynn Pope, individually and representing as a class all unit owners at Riverwalk at Arrowhead Country Club Horizontal Property Regime, are Respondents, and Riverwalk at Arrowhead Country Club Horizontal Property Regime and Riverwalk at Arrowhead Country Club Property Owners Association, Inc. are Respondents/Appellants, Opinion No. 27698 (S.C.). The Riverwalk and Magnolia North developments were constructed between 1997 and 2000. After construction was complete and the units were sold, the purchasers became aware of significant construction problems, including building code violations, structural deficiencies, and significant water-intrusion problems. In 2003, the purchasers filed suit to recover damages for necessary repairs to their homes. The lawsuits were filed by the respective property owners' associations ("POAs"), which sought actual and punitive damages for the extensive construction defects under theories of negligent construction, breach of fiduciary duty, and breach of warranty. As to the Riverwalk development, individual homeowners also filed a class action to recover damages for the loss of use of their property during the repair period. During the period of construction from 1997 to 2000, the various Heritage entities each maintained several liability insurance policies with Harleysville with per-occurrence limits totaling between $3,000,000 and $4,000,000 on the primary policies and between $9,000,000 and $13,000,000 on the excess liability policies. Heritage was uninsured after the last policy lapsed in 2001, and the financial strain of numerous construction-defect lawsuits caused Heritage to go out of business in 2003. After receiving notice of the lawsuits, Harleysville informed its insureds that it would provide for their defense; however, Harleysville contends this was done under a full reservation of rights. At the outset of each trial, Harleysville's counsel for Heritage conceded liability, and in both trials, the trial court directed a verdict in favor of the POA on the negligent construction cause of action. Thus, the only contested issue in the underlying trials was the nature and extent of the damages resulting from the admitted negligent construction. In this regard, the parties presented various experts who offered widely different estimates of the costs to correct the construction defects. In the Magnolia North matter, the jury returned a general verdict for $6,500,000 in actual damages and $2,000,000 in punitive damages, and in the Riverwalk suit, the jury returned a general verdict of $4,250,000 in actual damages and $250,000 in punitive damages in favor of the POA and $250,000 in loss-of-use damages and $750,000 in punitive damages in the class action. Following these general jury verdicts against its insureds, Harleysville filed the present declaratory judgment actions to determine what portion of the judgments in the underlying construction-defect lawsuits would be covered under Heritage's CGL policies. In filing these suits, Harleysville contended that, under the terms of the policies, it has no duty to indemnify Heritage for these judgments. Alternatively, if any of the damages were found to be covered, Harleysville sought an accounting to somehow parse the jury verdicts and determine which portion of the juries' general verdicts constituted covered damages. Harleysville further argued it could be responsible for only that portion of damages occurring during the period of time its policies provided coverage. The matter was referred to a Special Referee, who held an evidentiary hearing in December 2010. Because this Court's decision in Crossmann Communities of North Carolina, Inc. v. Harleysville Mutual Insurance Co. was pending at the time, the parties agreed for the Special Referee to stay the matter until Crossmann was resolved. After Crossmann was decided in August 2011, the parties agreed for the Special Referee to reopen the evidentiary hearing in December 2011 to hear arguments and testimony regarding the applicability of the time-on-the-risk formulation as set forth in Crossmann. Ultimately, the Special Referee ordered the full amount of the actual damages in the construction-defect suits would be subject to Harleysville's duty to indemnify in proportion with its time on the risk. Lastly, the Special Referee found punitive damages were covered and that no policy exclusion applied to preclude coverage for any portion of those damages. The parties subsequently filed cross-appeals. Harleysville is the primary Appellant. Upon the parties' joint motion, these matters were certified from the court of appeals to this Court pursuant to Rule 204(b), SCACR. In sum, the Court finds the Special Referee correctly found Harleysville failed to reserve the right to contest coverage of actual damages and that punitive damages are covered under the CGL policies. It also finds there is evidence in the record to support the Special Referee's factual findings as to the progressive damages periods and that the Special Referee did not abuse its discretion in determining Harleysville's time on the risk at Magnolia North. It finds loss-of-use actual damages at Riverwalk are subject to time-on-the-risk allocation but that punitive damages at both developments are not. The Court thus affirmed in the Magnolia North matter and affirmed as modified in the Riverwalk matter. The Court granted the Appellant/Respondent's petition for rehearing, dispensed with further briefing, and substituted the attached opinions for the opinions previously filed in the matter. As to the petition for rehearing filed by Respondents/Appellants, the Court is unable to discover any material fact or principle of law that has been either overlooked or disregarded, and therefore, it denied the Respondents/Appellants' petition for rehearing. A full-text copy of the Court's July 26, 2017 order is available at https://is.gd/IHOVyq from Leagle.com. C. Mitchell Brown -- mitch.brown@nelsonmullins.com -- William C. Wood, Jr. -- bill.wood@nelsonmullins.com -- and A. Mattison Bogan -- matt.bogan@nelsonmullins.com -- all of Nelson Mullins Riley & Scarborough, LLP, of Columbia and Robert C. Calamari, -- bob.calamari@nelsonmullins.com -- of Nelson Mullins Riley & Scarborough, LLP of Myrtle Beach, for Appellant/Respondent. John P. Henry -- phenry@thompsonlaw.com -- and Philip C. Thompson -- pthompson@thompsonlaw.com -- both of Thompson & Henry, P.A., of Conway, for Respondents/Appellants. Elliott B. Daniels -- edaniels@murphygrantland.com -- of Murphy & Grantland, P.A., of Columbia, and Laura A. Foggan -- lfoggan@crowell.com -- of Crowell & Moring LLP, of Washington, D.C., for Amici Curiae Complex Insurance Claims Litigation Association and Property Casualty Insurers' Association of America. HESKA CORP: Denied to Certify Questions to Colorado High Court -------------------------------------------------------------- In the case captioned THE PHOENIX INSURANCE COMPANY, a Connecticut corporation, Plaintiff, v. HESKA CORPORATION, a Delaware corporation; and SHAUN FAULEY, a natural person, Defendants, Civil Action No. 15-CV-2435-MSK-KMT (D. Colo.), Judge Marcia S. Krieger of the U.S. District Court for the District of Colorado granted the Plaintiff's Amended Motion for Affirmative Partial Summary Judgment and denied the Defendant's Certify Questions to the Colorado Supreme Court. Mr. Fauley, named as a defendant in this case but never served, filed a lawsuit against the Defendant in the Northern District of Illinois ("Underlying Litigation"). He seeks to recover under the Telephone Consumer Protection Act on a class-action basis for an unsolicited fax he alleges he received in May 2013. Mr. Fauley seeks the greater of his "actual monetary loss" or $500 for each violation of the Act, and seeks treble recovery for a willful or knowing violation of the Act. With regard to his monetary loss, Mr. Fauley alleges the fax caused a loss of paper, toner, and time, and used phone lines. The Plaintiff was the Defendant's provider for commercial liability insurance at all times relevant to the Underlying Litigation. To that end, from 2010 to 2014, Phoenix issued four successive policies, each lasting one year. The Policies each included a provision undertaking a right and duty to defend the insured against any suit seeking damages for bodily injury or property damage, provided the damages were caused by an occurrence that takes place in the coverage territory. Each of the Policies contained exclusions, removing coverage from bodily injury or property damage expected or intended from the standpoint of the insured. Phoenix denied coverage for the Underlying Litigation in a May 8, 2015 letter to Heska. After communication with Heska that is not in the record, Phoenix agreed to participate in the Underlying Litigation under an express reservation of all of its rights, contractual, quasi-contractual and/or otherwise, to the extent permitted by Colorado law, to seek reimbursement or recoupment of all defense fees and costs paid in connection with any and all non-covered claims. Phoenix also reserved the right to decline coverage and withdraw from the defense. Phoenix filed this suit in November 2015, seeking declaratory judgment on the Policies. It contends that any number of the foregoing provisions operates to remove the Underlying Litigation from coverage. In August 2016, the Court bifurcated Phoenix's claim into two claims: whether it has a contractual obligation to defend Heska in the underlying action and whether it has a contractual obligation to indemnify Heska for its liability, if any, determined in the underlying action. The Court also stayed discovery as to the duty-to-indemnify claim pending determination of the duty-to-defend claim. Phoenix moved for summary judgment, as amended, on Sept. 9, 2016, and Heska moved to certify questions to the Colorado Supreme Court on Oct. 30, 2016. As an initial matter, Heska asks the Court to certify a number of questions to the Colorado Supreme Court: (i) wWhether Phoenix has a duty to defend Heska in the Underlying Litigatio; (ii) whether this action is an anticipatory declaratory judgment action; (iii) whether, in an anticipatory declaratory judgment action, the insurer under a liability insurance policy owes a duty to defend a lawsuit against the insured unless the insurer can prove the allegations in the complaint against the insured fall solely and entirely within an exclusion to the insurance policy; (iv) whether, for purposes of determining the duty to defend, the allegations in the complaint against the insured must be construed broadly in favor of coverage; (v) whether, for purposes of construing allegations in a complaint against the insured broadly in favor of coverage for purposes of determining a liability insurer's duty to defend, the Court must consider whether the insured could be found liable on a cause of action not asserted in the complaint if facts alleged would support liability under that cause of action; (vi) whether a liability insurer can avoid its duty to defend a lawsuit against an insured based on a policy exclusion, if the complaint against the insured, construed broadly in favor of coverage, alleges facts that would support a cause of action not pled but, if proved, would potentially fall outside the operation of the policy exclusion; (vii) whether a liability insurer is required to clearly and unambiguously state in writing to the insured all bases on which the insurer reserves its right to deny coverage for a claim against the insured within a reasonable time after the insurer receives notice of the claim from the insured; and (viii) whether a liability insurer waives any coverage defense the basis for which is not clearly and unambiguously stated in writing to the insured within a reasonable time after the insurer receives notice of the claim from the insured. The Court declined to certify any of the questions Heska urges, finding that the dispositive issue in this case can be resolved by applying Colorado law to the terms of the policy. Under Colorado law, an insurance policy constitutes a contract, which courts construe using general principles of contractual interpretation. There is no ambiguity here; the plain meaning of the Policies' terms is clear to the Court. Furthermore, many of Heska's proposed questions are either already determined by existing law or unnecessary to determine to resolve the case. Phoenix argues a number of provisions in the Policies confirm it has no duty to defend in the Underlying Litigation. Though the Court doubts the terms "property damage," "occurrence," and "accident," contemplate a claim under the Act, the Court says it need not parse and resolve these terms because the Policies' exclusions clearly remove such claims from coverage. Specifically, the unsolicited-communications exclusion, by the plain meaning of its text, indicates that Phoenix will not cover any claims for damages arising out of unsolicited communications by or on behalf of the insured. There can be no reasonable disagreement that the claim in the Underlying Litigation is not only excluded from coverage under the Policies, but clearly contemplated by Phoenix as a situation under which it will not provide coverage. The Court thus finds that Phoenix has no duty to defend in the Underlying Litigation. Finding that the Policy excludes coverage for the claims asserted in the Underlying Litigation, the Court does not need to address the duty-to-indemnify claim. Thus within 14 days, the parties will show cause why such claim should not be dismissed. By such deadline, the parties will address whether Phoenix's request for a recoupment order, can be addressed in this litigation, and if so, by what mechanism. For the foregoing reasons, the Court denied the motion to certify and denied as moot Phoenix's motion for summary judgment. A full-text copy of the Court's July 26, 2017 opinion and order is available at https://is.gd/RM1XBb from Leagle.com. The Phoenix Insurance Company, Plaintiff, represented by Carolyn J. Fairless -- fairless@wtotrial.com -- Wheeler Trigg O'Donnell, LLP. The Phoenix Insurance Company, Plaintiff, represented by Evan Bennett Stephenson -- stephenson@wtotrial.com -- Wheeler Trigg O'Donnell, LLP. Heska Corporation, Defendant, represented by Dennis Boyd Polk, Holley, Albertson & Polk, P.C., Eric Edward Torgersen, Holley, Albertson & Polk, P.C. & Melissa Ray Liff, Holley, Albertson & Polk, P.C.. Heska Corporation, Counter Claimant, represented by Dennis Boyd Polk, Holley, Albertson & Polk, P.C., Eric Edward Torgersen, Holley, Albertson & Polk, P.C. & Melissa Ray Liff, Holley, Albertson & Polk, P.C.. The Phoenix Insurance Company, Counter Defendant, represented by Carolyn J. Fairless, Wheeler Trigg O'Donnell, LLP & Evan Bennett Stephenson, Wheeler Trigg O'Donnell, LLP. HOMELAND SECURITY: Faces "Morales" Suit in E.D. Pennsylvania ------------------------------------------------------------ A class action lawsuit has been filed against Homeland Security. The case is styled as ANA CORAL CORTEZ MORALES, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, the Plaintiff, v. JOHN F. KELLY, AS SECRETARY OF THE U.S. DEPARTMENT OF HOMELAND SECURITY, IN HIS OFFICIAL CAPACITY; JAMES MCCAMENT, ACTING DIRECTOR OF U.S. CITIZENSHIP AND IMMIGRATION SERVICES, IN HIS OFFICIAL CAPACITY; THOMAS D. HOMAN, AS ACTING DIRECTOR OF U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, IN HIS OFFICIAL CAPACITY; KEVIN MCALEENAN, ACTING COMMISSIONER OF U.S. CUSTOMS AND BORDER PROTECTION IN HIS OFFICIAL CAPACITY; and BRENDA SLOAN, IMMIGRATION AND CUSTOMS ENFORCEMENT OFFICER IN HER OFFICIAL CAPACITY, the Defendants, Case No. 2:17-cv-03342-LDD (E.D. Pa., July 26, 2017). The case is assigned to the Hon. Judge Legrome D. Davis. The United States Department of Homeland Security is a cabinet department of the United States federal government with responsibilities in public security, roughly comparable to the interior or home ministries of other countries.[BN] The Plaintiff is represented by: John J. Grogan, Esq. LANGER GROGAN & DIVER PC Three Logan Square 1717 Arch St Ste 4130 Philadelphia, PA 19103 Telephone: (215) 320 5660 E-mail: jgrogan@langergrogan.com HUALALAI INVESTORS: "Brooks" Suit Moved to Hawaii Federal Court --------------------------------------------------------------- The class action lawsuit titled Steven Brooks, individually and on behalf of all similarly situated individuals, the Plaintiff, v. Hualalai Investors, LLC, a Delaware limited liability company; Four Seasons Hotels Limited, a Canada corporation; and Does 1 through 10 inclusive, Case No. 17-1-0209K, was removed on July 26, 2017 from the Circuit Court of the Third Circuit, State of Hawaii, to the U.S. District Court for the District of Hawaii (Hawaii). The District Court Clerk assigned Case No. 1:17-cv-00364-KJM-NONE to the proceeding. The case is assigned to the Hon. Magistrate Judge Kenneth J. Mansfield.[BN] The Plaintiff is represented by: Kenneth S. Robbins, Esq. Margery S. Bronster, Esq. Robert M. Hatch, Esq. BRONSTER FUJICHAKU ROBBINS 1003 Bishop Street, Suite 2300 Honolulu, HI 96813 Telephone: (808) 524 5644 Facsimile: (808) 599 1881 E-mail: krobbins@bfrhawaii.com mbronster@bfrhawaii.com rhatch@bfrhawaii.com The Defendants are represented by: Barry A. Sullivan, Esq. Patrick K. Shea, Esq. William Meheula, Esq. SULLIVAN MEHEULA LEE, LLP 733 Bishop Street, Suite 2900 Honolulu, HI 96813 Telephone: (808) 599 9555 Facsimile: (808) 533 2467 E-mail: sullivan@smlhawaii.com shea@smlhawaii.com meheula@smlhawaii.com INTELLITIX INC.: "Kovacevic" Suit Sues over RFID Wristbands ----------------------------------------------------------- ADMIR KOVACEVIC and ALEXA PARASHOS, individually, and on behalf of all others similarly situated, the Plaintiffs, v. INTELLITIX, INC., INTELLIPAY, INC., and DOES 1-10, inclusive, the Defendants, Case No. 4:17-cv-03873-DMR (N.D. Cal., July 7, 2017), seeks to recover compensatory damages, including actual and statutory damages, injunctive and declaratory relief, as well as reasonable attorneys' fees and the cost of the action. According to the complaint, the Plaintiffs and similarly situated individuals attended music festivals and/or other events in California and New York. In order to purchase food, merchandise, and/or other goods or services at Festivals, consumers used Radiofrequency Identification (RFID) wristbands with a form of Festival-specific currency, such as "Bison Bucks" or "Birdie Bucks," from Defendants that they loaded onto the RFID wristbands instead of cash, credit, debit, or other forms of payment. The Defendants advertise the RFID wristbands as a "digital wallet," or a convenient cashless method to pay vendors for goods and/or services at events, including Festivals. They also promote their wristbands to Festival organizers and vendors as a way to reduce queues and increase "spend," which is the amount of money that customers spend on goods and services at Festivals. To purchase goods or services at Festivals, patrons load money onto the RFID wristband via credit card, debit card, cash, or other methods, and use the funds loaded onto the wristbands to purchase goods or services from vendors at Festivals generally by scanning their wristbands at the individual vendors' scanners. The Plaintiffs herein loaded money onto their RFID wristbands and used the wristbands to purchase goods and/or services at Festivals. The money that they loaded onto their wristbands was converted to a Festival-specific currency. For example, at the Outside Lands festival attended by Plaintiff Parashos, money loaded onto her RFID wristband was converted to "Bison Bucks," with each Bison Buck equal to approximately $1.00. At the Mysteryland Festival attended by Plaintiff Kovacevic, money loaded onto his RFID wristband was converted to "Birdie Bucks," with each Birdie Buck equal to approximately $2.22. The Plaintiffs, like many Festival attendees, did not spend all of the money that had been pre-loaded onto their wristbands at the Festivals. However, Defendants failed to refund all unused funds to Plaintiffs. In Plaintiff Parashos' case, Defendants failed to refund any of her unused funds at all, despite the fact that she loaded the "Bison Bucks" onto her RFID wristband with a debit card. In Plaintiff Kovacevic's case, Defendants charged a $5.00 processing fee before refunding the remainder of Mr. Kovacevic's leftover funds, but failed to disclose the refund processing fee in the manner required under New York law to Mr. Kovacevic at the time he loaded funds onto his wristband, or at any point thereafter until after he was provided his refund. Defendants engage in the above misconduct despite the fact that on their website, they specifically represent that refunds will be provided. Specifically in a section entitled "how cashless payment works," defendants list 3 steps: "(1) top-up cashless account; (2) tap wristband to purchase; (3) get post event refund." See https://www.intellitix.com/cashless-payment/ (last accessed April 27, 2017). Intellitix is a global provider of RFID access control and cashless payment systems for live events.[BN] The Plaintiffs are represented by: Stanley D. Saltzman, Esq. Adam M. Tamburelli, Esq. Cody Kennedy, Esq. MARLIN & SALTZMAN LLP 29800 Agoura Road, Suite 210 Agoura Hills, CA 91301 Telephone: (818) 991 8080 Facsimile: (818) 991 8081 E-mail: ssaltzman@marlinsaltzman.com atamburelli@marlinsaltzman.com ckennedy@marlinsaltzman.com KAREY WITTY: Court Dismisses "Kelley" Suit With Prejudice --------------------------------------------------------- Judge Tanya Walton Pratt of the District Court for the Southern District of Indiana, Indianapolis Division, denied both the Plaintiff's Motion for Reconsideration and Motion to Appoint Counsel in the case captioned RICHARD KELLY, Plaintiff, v. KAREY WITTY CEO Corizon Health, Inc., Defendant, No. 1:17-cv-00989-TWP- DML (S.S. Ind.). The Plaintiff seeks to bring several claims on behalf of all present and future inmates at New Castle Correctional Facility. The lone Defendant is the CEO of Corizon Health, Inc., the private entity contracted to provide healthcare to inmates at New Castle. The claims involve nearly every aspect of health care provided at New Castle, including claims regarding the drug approval procedures, chronic care practice, and dental care. The Court screened the Plaintiff's Complaint pursuant to 28 U.S.C. Section 1915A(b) in a Screening Entry dated May 24, 2017. It dismissed the Complaint at screening, finding that the Complaint must be dismissed because he is not bringing his claims on his own behalf. Specifically, he states that his claims are brought as a class action rather than on behalf of any one individual. But a pro se prisoner cannot typically establish the criteria necessary to bring a class action. Kelly may still proceed with his individual claims on his own behalf. However, the Plaintiff's allegations are devoid of any specific allegations regarding how he was harmed by any of the alleged conduct or how the Defendant was personally responsible for them. Without such allegations, Kelly cannot state a Section 1983 claim. The Court gave Kelly an opportunity to file an amended complaint that included allegations of how he was personally affected by the generalized allegations regarding the medical care at New Castle set forth in his class action complaint. Instead of filing an amended complaint, Kelly filed a motion to appoint class counsel and a motion to reconsider the Court's Screening Entry. In his motion to reconsider, Kelly states that he will not amend the original class action complaint in this matter in order to turn this into a personal claims civil complaint, and should the Court deny the appointment of class counsel, he intends to move directly to the appeals stage. The Court denied Kelly's motion to appoint class counsel because he is not entitled to class counsel pursuant to Rule 23(g) or otherwise, nor, even if this were not a barrier, has he made an attempt to secure class counsel on his own. Kelly's motion to reconsider is also denied because he made clear in his motion that if the Court denies his motion to appoint class counsel he will not file an amended complaint to pursue individual claims. Accordingly, the action is dismissed with prejudice pursuant to 28 U.S.C. Section 1915A because Kelly has failed to state a viable Section 1983 claim. A full-text copy of the Court's July 26, 2017 order is available at https://is.gd/Ztifrp from Leagle.com. RICHARD KELLY, Plaintiff, Pro Se. KAREY WITTY, CEO Corizon Health, Inc., Defendant, Pro Se. KFC: Faces $10MM Suit Over Multiple Sexual Assaults by Manager -------------------------------------------------------------- The former manager of a Kentucky Fried Chicken restaurant is accused of multiple sexual assaults performed on a 16-year-old female worker. The suit alleges that between 2013-2014, the 16-year-old was groomed by former KFC general manager, Sean McIntosh, 35, to have sex at the KFC store while they worked as well as offsite. Mr. McIntosh is alleged to have had oral and vaginal sex with the minor more than 50 times at various locations, including at a local hotel, at the KFC restaurant dumpster, in cars as well as public places. The suit also alleges that other KFC managers at the restaurant were similarly engaging in sex with underage female employees and entered into a pact to cover-up for one another in order to facilitate their sexual interactions with children (In Texas, the age of consent is 17). The Cause Number for the case, filed in Harris County, Texas, is 2016-81879. George Edwards, III, Esq. -- george@eslawpartners.com -- and Murtaza Sutarwalla, Esq., -- murtaza@eslawpartners.com -- of Edwards Sutarwalla PLLC and Benjamin Hall, III, Esq., -- george@eslawpartners.com -- of The Hall Law Firm represent the plaintiff in this case. The suit seeks $10 million in actual damages and an unspecified amount of punitive damages. Court records show that the victim has filed criminal charges against Mr. McIntosh for the sexual assaults. A judge has also issued a temporary restraining order against McIntosh. In another case, filed on June 14, 2017, in Harris County, Texas, another employee of the same KFC restaurant filed a lawsuit against Mr. McIntosh, Regional Manager Shawn Baker, two KFC cooks, and KFC Corporation for an alleged attempted rape of that employee when she was 16 years old. Mr. McIntosh reportedly learned immediately of the attempted rape, only to disregard it and make jokes about the rape. Mr. McIntosh is alleged to attempt to have "oral and vaginal sex without her consent" with the minor plaintiff. The suit seeks more than $100,000 in damages. The Cause Number for the case, filed in Harris County, Texas, is 2017- 39729. Allen H. Zwernemann, Esq. -- az@azf.com -- of The Zwernemann Law Firm and Chavon D. Carr, Esq. -- Ccarr@carr.associates.com -- represent the plaintiff in this case. About Edwards Sutarwalla PLLC Edwards Sutarwalla PLLC -- http://www.eslawpartners.com-- is a full-service business law firm based in Houston and Austin, Texas, practicing areas of commercial transactions and litigation, corporate law, real estate and health care law. A copy of the 2016 Complaint is available for free at: http://d.classactionreporternewsletter.com/u?f=kKuSyQz7 A copy of the 2017 Complaint is available for free at: http://d.classactionreporternewsletter.com/u?f=UT7Pb1UF KOHL'S DEPARTMENT: 1st Cir. Affirms Dismissal of "Mulder" Suit -------------------------------------------------------------- Judge Kermit V. Lipez of the U.S. Court of Appeals for the First Circuit affirmed the district court's dismissal of all of Mulder's claims in the case captioned ELLEN MULDER, Plaintiff, Appellant, v. KOHL'S DEPARTMENT STORES, INC., Defendant, Appellee, No. 16- 1238 (1st Cir.). This appeal involves a putative class action lawsuit arising out of allegedly deceptive labeling and marketing of products by Kohl's. The Appellant purchased several items from a Kohl's store in Hingham, Massachusetts. The price tags on these items listed both purchase prices and significantly higher "comparison prices." She alleges that these comparison prices are entirely fictional, and were selected by Kohl's to mislead unsuspecting consumers about the quality of its products. Feeling cheated by Kohl's allegedly deceitful pricing scheme, on Nov. 20, 2014, Mulder filed suit in Massachusetts Superior Court. She filed an amended complaint on Feb. 19, 2015. The amended complaint alleged claims for fraud, breach of contract, unjust enrichment, violations of the Code of Massachusetts Regulations and the Federal Trade Commission Act, and violations of Mass. Gen. Laws ch. 93A ("Chapter 93A"). After Kohl's removed the case to federal court, it successfully moved to dismiss all of Mulder's claims. The district court held that Mulder had failed to adequately plead a legally cognizable injury under Chapter 93A, and further denied her requests to certify several Chapter 93A questions to the Massachusetts Supreme Judicial Court ("SJC") and for leave to file a second amended complaint. The court also dismissed all of Mulder's common law claims. On appeal, Mulder challenges dismissal of her Chapter 93A claim and her common law claims for fraud, breach of contract, and unjust enrichment. Judge Lipez affirmed. He explains that in dismissing all of Mulder's claims, the district court noted that this case involved allegations "substantially identical" to those made against another retailer in Shaulis v. Nordstrom Inc., in which the plaintiff was also represented by the Mulder's counsel. The Plaintiffs appealed in both cases, and their appeals were joined for oral argument before this court. Discerning no relevant factual or legal distinctions between these two cases, and applying his opinion in Shaulis v. Nordstrom, he affirmed the district court's dismissal of Mulder's Chapter 93A claim for damages and injunctive relief and her common law claims for fraud, breach of contract, and unjust enrichment for the reasons stated therein. The only remaining issue is Mulder's challenge to the district court's denial of her motion for leave to file a second amended complaint. He reviews a district court's denial of a motion to amend for abuse of discretion and finds no fault with the district court's denial of Mulder's motion for leave to amend on either ground. Even on appeal, Mulder does not explain why her "travel expense" theory of injury was not advanced earlier. Judge Lipez therefore concludes that the district court acted within its expansive discretion in denying leave to amend. The district court likewise acted within its discretion by denying Mulder's motion for leave to amend as futile, he adds. As the district court noted, and as he similarly noted in Shaulis, Mulder's "travel expenses" theory of injury suffers from a causation problem, as she does not explain how a deceptive price tag could have caused her to travel to Kohl's in the first place. Mulder's "induced travel" theory of injury fares no better than the "induced purchase" theory. Mulder identifies no authority, and Judge Lipez is aware of none, ratifying this theory of injury under Chapter 93A. A full-text copy of the Court's July 26, 2017 order is available at https://is.gd/hRed3E from Leagle.com. S. James Boumil -- SJBoumil@Boumil-Law.com -- with whom Boumil Law Offices, Konstantine W. Kyros, and Law Offices of Konstantine W. Kyros, were on brief, for appellant. Lauri A. Mazzuchetti -- lmazzuchetti@kelleydrye.com -- with whom Michael C. Lynch -- mlynch@kelleydrye.com -- James B. Saylor -- jsaylor@kelleydrye.com -- Kelly Drye & Warren LLP, and William T. Harrington -- wharringtonlaw@gmail.com -- were on brief, for appellee. LAKE VIEW CEMETERY: "Suts" Suit Seeks Unpaid Overtime Pay --------------------------------------------------------- WAYNE SUTS, 413 Downing Drive Chardon, Ohio, 44024, On behalf of himself and all others similarly situated, the Plaintiff, v. THE LAKE VIEW CEMETERY FOUNDATION c/o Andrew Service Corporation, Statutory Agent 4900 Key Tower, 127 Public Square Cleveland, Ohio, 44114, the Defendant, Case No. 1:17-cv-01477 (N.D. Ohio, July 13, 2017), seeks to recover all available relief under the Fair Labor Standards Act of 1938 (FLSA) and the Ohio Minimum Fair Wage Standards Act. According to the complaint, Lake View owns and operates the Lake View Cemetery located at 12316 Euclid Avenue, Cleveland, Ohio, 44106. Suts is a former employee of Lake View. Suts was first hired by Lake View as a Memorial Advisor in or around July of 2015. The lawsuit alleges that Memorial Advisor position is primarily an inside sales position. Memorial Advisors interview potential clients, determine their needs, and promote the products and services of Lake View. Memorial Advisors must spend one to two hours a day prospecting for new business, and must complete at least two pre-need assessments a day. Memorial Advisors are also required to attend all committal/funeral services in which they had sold products and/or services. Memorial Advisors are also required to work nights and weekend as needed. Suts and those similarly situated (Memorial Advisors) are paid a flat hourly rate along with commissions. Suts and those similarly situated regularly worked on weekends, took after-hour appointments, participated in outside presentations and seminars, and performed other work at home, but were not compensated for this work. ("Off The Clock Work"). As a result of working their scheduled hours and performing the Off The Clock Work, Suts and those similarly situated regularly worked in excess of 40 hours per week.[BN] Attorney for Wayne Suts: Chris P. Wido, Esq. THE SPITZ LAW FIRM, LLC 25200 Chagrin Boulevard, Suite 200 Beachwood, Ohio 44122 Telephone: (216) 291 4744 Facsimile: (216) 291 5744 E-mail: chris.widow@spitzlawfirm.com LARINO MASONRY: Faces "Arpi" Suit in Southern Dist. of New York --------------------------------------------------------------- A class action lawsuit has been filed against Larino Masonry. The case is entitled as Marco Arpi, Marco Vinicio Vinansa Barbecho, Josue Bautista, and Angel Bolas, et al., Individually and On behalf of all others similarly situated, the Plaintiffs, v. Neil Gelardo, Individually, Juan Luis Larino, Individually, Larino Masonry, L and G Masonry Corp., and D and G Masonry Corp., the Defendants, Case No. 1:17-cv-05606 (S.D.N.Y., July 24, 2017). Larino Masonry is in masonry and other stonework business.[BN] The Plaintiffs appears pro se. LEXMARK INT'L: September 19 Lead Plaintiff Motion Deadline Set -------------------------------------------------------------- Kahn Swick & Foti, LLC ("KSF") and KSF partner, former Attorney General of Louisiana, Charles C. Foti, Jr., remind investors that they have until September 19, 2017 to file lead plaintiff applications in a securities class action lawsuit against Lexmark International, Inc., if they purchased the Company's securities between August 1, 2014 and July 20, 2015, inclusive (the "Class Period"). This action is pending in the United States District Court for the Southern District of New York. What You May Do If you purchased securities of Lexmark and would like to discuss your legal rights and how this case might affect you and your right to recover for your economic loss, you may, without obligation or cost to you, contact KSF Managing Partner Lewis Kahn toll-free at 1-877-515-1850 or via email (lewis.kahn@ksfcounsel.com), or visit http://ksfcounsel.com/cases/nyse-lxkto learn more. If you wish to serve as a lead plaintiff in this class action, you must petition the Court by September 19, 2017. About the Lawsuit Lexmark and certain of its executives are charged with failing to disclose material information during the Class Period, violating federal securities laws. The alleged false and misleading statements and omissions include, but are not limited to, that: (i) there were significant declines in demand and growth for the Company's supplies business; (ii) supplies revenue growth was not caused primarily by demand, but by advance buying ahead of scheduled price increases; (iii) this buying practice resulted in excessive inventory levels at its wholesale distributors; and (iv) as a result of the foregoing, Lexmark's financial statements were materially false and misleading at all relevant times. About Kahn Swick & Foti, LLC KSF -- http://www.ksfcounsel.com-- whose partners include the former Louisiana Attorney General Charles C. Foti, Jr., is a law firm focused on securities, antitrust and consumer class actions, along with merger & acquisition and breach of fiduciary litigation against publicly traded companies on behalf of shareholders. The firm has offices in New York, California and Louisiana. [GN] LION BIOTECH: Kessler Topaz Named Class Counsel in "Desilvio" ------------------------------------------------------------- In the case captioned LEONARD DESILVIO, Plaintiff, v. LION BIOTECHNOLOGIES, INC., et al., Defendants, Case No. 17-cv-02086-SI (N.D. Cal.), Judge Susan Illston of the U.S. District Court for the Northern District of California granted Jay Rabkin's unopposed motion for appointment as Lead Counsel, granted Rabkin's request for appointment of Kessler Topaz as the Class Counsel, denied Kimberly Colautti and Michele Rosati's and the Lion Investor Group's competing motions, and denied the motions to consolidate. Before the Court are three motions that seek consolidation of two related actions, Desilvio v. Lion Biotechnologies, Inc., 17-cv- 2086-SI and Kuc v. Lion Biotechnologies, Inc., 17-cv-2188-SI. Three separate Movants each originally sought appointment as the Lead Plaintiff in this putative securities class action. The movants are: (i) Colautti and Rosati; (ii) Rabkin; and (iii) Su Yee Lynn Ho, Sriram Sundareswaran, Manfred E. Strauch, and Kevin Fong ("Lion Investor Group"). However, Colautti and Rosati filed a statement of non-opposition to the competing motions, and the Lion Investor Group has withdrawn its motion. In addition, the Plaintiff in the Kuc action has voluntarily dismissed that case. Pursuant to Civil Local Rule 7-1(b), the Court determined that this matter is appropriate for resolution without oral argument and vacated the hearing scheduled for July 28, 2017. The Desilvio complaint is now the operative complaint in this case. To the extent he has not already done so, the Plaintiff is ordered to serve the Defendant with the complaint. The Defendants then have either 21 days from the date of service or 21 days from the date of the order, whichever is later, to file a responsive pleading or motion. A full-text copy of the Court's July 26, 2017 order is available at https://is.gd/TDODrj from Leagle.com. Leonard Desilvio, Plaintiff, represented by Laurence M. Rosen -- lrosen@rosenlegal.com -- The Rosen Law Firm, P.A.. The Lion Investor Group, Movant, represented by Lesley F. Portnoy -- lportnoy@glancylaw.com -- Glancy Prongay & Murray LLP. Jay Rabkin, Movant, represented by Eli Greenstein -- egreenstein@ktmc.com -- Kessler Topaz Meltzer & Check, LLP, Naumon A. Amjed -- namjed@ktmc.com -- Kessler Topaz Meltzer Check, LLP & Ryan Thomas Degnan -- rdegnan@ktmc.com -- Kessler Topaz Meltzer Check, LLP. Su Yee Lynn Ho, Movant, represented by Jennifer Pafiti -- jpafiti@pomlaw.com -- Pomerantz LLP & Jeremy A. Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP. Sriram Sundareswaran, Movant, represented by Jennifer Pafiti, Pomerantz LLP & Jeremy A. Lieberman, Pomerantz LLP. Manfred E. Strauch, Movant, represented by Jennifer Pafiti, Pomerantz LLP & Jeremy A. Lieberman, Pomerantz LLP. Kevin Fong, Movant, represented by Jennifer Pafiti, Pomerantz LLP & Jeremy A. Lieberman, Pomerantz LLP. LIVE NATION: "Adams" Suit Moved to Central District of California ----------------------------------------------------------------- The class action lawsuit titled Tiana Adams, individually and on behalf of all others similarly situated, the Plaintiff, v. LIVE NATION ENTERTAINMENT, INC. and VIVID SEATS, LTD., the Defendants, Case No. RIC 1707024, was removed on July 25, 2017 from the Riverside Superior Court of California, to the U.S. District Court for the Central District of California (Eastern Division - Riverside). The District Court Clerk assigned Case No. 5:17-cv- 01472 to the proceeding. Live Nation is an American live-events company based in Beverly Hills, California, focused on worldwide concert and entertainment- show promotions.[BN] The Plaintiff appears pro se. Attorney for Live Nation Entertainment, Inc.: Morgan D MacBride, Esq. IRELL & MANELLA LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, CA 90067 Telephone: (310) 277 1010 E-mail: mmacbride@irell.com LOCKHEED MARTIN: Court Denies Prelim Certification in "Ross" ------------------------------------------------------------ Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia denied the Plaintiffs' motion for preliminary certification as a class action and preliminary approval of the Settlement Agreement in the case captioned VERNON ROSS and DEBRA JOSEY, on behalf of themselves and all others similarly situated, Plaintiffs, v. LOCKHEED MARTIN CORP., Defendant, No. 16-cv- 2508(KBJ)(D.D.C.). The Plaintiffs allege that the Defendant has engaged in a pattern or practice of employment discrimination that is manifest in Lockheed Martin's performance appraisal system. Their three-count complaint claims that Lockheed's performance review process has been systemically injurious in a manner that amounts to both intentional race discrimination (Count I) and disparate impact race discrimination (Count II). Plaintiff Ross further contends, solely on his own behalf, that Lockheed retaliated against him for filing a Charge of Discrimination and/or complaining to senior executives at the Company of racial discrimination faced by him and other African-American employees (Count III). Critically, the Plaintiffs seek to prosecute the race discrimination claims on behalf of the class of plaintiffs who are all salaried non-represented African-American employees below the level of Vice President who received at least one performance evaluation between Jan. 1, 2013 and Feb. 29, 2016, with an overall rating below significantly exceeded commitments while employed at Lockheed Martin. The Plaintiffs have filed their putative class action complaint along with a proposed Settlement Agreement. One key feature of the resolution that they have negotiated with Lockheed (in addition to a $22.8 million settlement fund and certain changes to Lockheed's performance appraisal process) is the class members' agreement to release a broad swath of potential legal claims against the company, including claims that have nothing whatsoever to do with Lockheed's performance review procedures. Also noteworthy is what is not featured in the proposed Settlement Agreement: how much money each class member can expect to receive in exchange for releasing any and all race discrimination claims that were or could have been asserted against Lockheed. In their instant motion for preliminary certification of this case as a class action and preliminary approval of the Settlement Agreement, the Plaintiffs request that the Court make a preliminary determination that the complaint satisfies the requirements of a viable class action under Federal Rule of Civil Procedure 23, and they also seek preliminary approval of the Settlement Agreement so that the class-wide notice and detailed claim forms can be distributed. The Court notes that in this case, the Plaintiffs seek to certify a class for settlement purposes that, in effect, is comprised of virtually every salaried African-American employee of Lockheed Martin. They say that the 5,500-plus members of their proposed class have suffered race discrimination as a result of Lockheed's performance review process, and have been victimized in a manner that is susceptible to common proof, but they do not present any theory of how the performance appraisal system resulted in racially disparate outcomes, much less evidence that the challenged system discriminates against all class members in the same way, as the commonality element of Federal Rule of Civil Procedure 23(a) requires. Moreover, the broad release of legal claims in the proposed Settlement Agreement strongly suggests that the parties have endeavored to use the case to resolve the entire universe of race discrimination claims that these class members might have against Lockheed, via a lawsuit that is purportedly much more limited in scope. The Court finds that this imbalance creates serious fairness concerns with the breadth of the release, the adequacy of the settlement fund, the prescribed opt-out procedures, and the overall claims administration process. All this leads the Court to the firm but reluctant conclusion that this case cannot be preliminarily certified as a class action under Rule 23, and that the parties' proposed Settlement Agreement is so potentially unfair that it cannot be preliminarily approved. Accordingly, the Court denied the Plaintiffs' motion for preliminary certification and approval. A full-text copy of the Court's July 28, 2017 memorandum opinion is available at https://is.gd/Fa0M01 from Leagle.com. VERNON ROSS, Plaintiff, represented by Charles Vincent Firth, ENGELMEIER & UMANAH, P.A., pro hac vice. VERNON ROSS, Plaintiff, represented by Cyrus Mehri -- cmehri@findjustice.com -- MEHRI & SKALET, PLLC. DEBRA JOSEY, Plaintiff, represented by Charles Vincent Firth, ENGELMEIER & UMANAH, P.A., pro hac vice & Cyrus Mehri, MEHRI & SKALET, PLLC. LOCKHEED MARTIN CORP., Defendant, represented by Grace E. Speights -- grace.speights@morganlewis.com -- MORGAN, LEWIS & BOCKIUS, LLP & Krissy Anne Katzenstein -- krissy.katzenstein@morganlewis.com -- MORGAN, LEWIS & BOCKIUS LLP. M-I LLC: Settlement in "Syed" Gets Final Court Approval ------------------------------------------------------- The U.S. District Court for the Eastern District of California granted the Plaintiffs' motion for final approval of class settlement in the case captioned SARMAD SYED and ASHLEY BALFOUR, individually, and behalf of all others similarly situated, Plaintiffs, v. M-I, L.L.C., a Delaware Limited Liability Company, doing business as M-I SWACO; and DOES 1 through 10, inclusive, Defendant, No. 1:12-cv-01718-DAD-MJS (E.D. Cal.). The Court previously granted preliminary approval of a class action settlement in the action on Feb. 22, 2017. Following the granting of preliminary approval, the class notices were mailed to the class. Although Defendant M-I SWACO, was unable to provide addresses for an estimated 24 members of the California Class, the class counsel was able to locate those 24 individuals in addition to 7 other class members whose notices were returned as undeliverable. Thus far, not a single member has filed an objection to the settlement and only one member of the California Class has requested exclusion. The class currently consists of 467 individuals, which includes 117 participating FLSA Class Members and 350 California Class Members. On June 8, 2017, the Plaintiffs filed a motion for order granting final approval of class settlement. It is unopposed and came before the Court for hearing on July 6, 2017. The Court finds certification is warranted and that the settlement is fair, reasonable, and adequate. Therefore, it granted the Plaintiffs' motion for final certification of the class and final approval of the class settlement. Accordingly, the Court certified the following classes for settlement purposes only: i. California Class: The California Rule 23 Class Member(s) or California Class means all persons employed by the Defendant in California in a Covered Position at any time during the period from Oct. 18, 2008 through Nov. 30, 2016. There are an estimated 353 members in this group, which includes current and former employees who performed work for Defendant solely in California, as well as employees who performed work for Defendant both in California as well as outside of California. Covered Position means a drilling fluid specialist, mud engineer, mud man trainee, or consultant mud man, or equivalent title, as enumerated in Appendix No. 1 to the Agreement. ii. FLSA Collective Class Action Class: The FLSA Collective Action Class means the 115 individuals employed by the Defendant in a Covered Position during the period from Aug. 5, 2010 through Nov. 30, 2016, who previously consented to join the FLSA and who have not performed work for the Defendant in California during that time period. The Court (i) appointed the law firms of Spiro Law Corp., Blanchard Law Group, APC, the Holmes Law Group, APC, and Cohelan Khoury & Singer as the class counsel; (ii) confirmed Plaintiffs Syed and Balfour as the class representatives, with Plaintiff Syed to receive an incentive award of $20,000 and Plaintiff Balfour to receive an incentive award of $15,000 as requested; (iii) awarded the class counsels' attorneys' fees in the sum of $2,333,333.33, and the class counsel in the sum of $49,857.37 for litigation; (iv) awarded $11,500 to the appointed settlement administrator CPT Group, Inc. In accordance with the terms of the settlement, the Court approved approved payment (i) to the 467 members of the class; and (ii) of $75,000 to the Labor and Workforce Development Agency. The parties are directed to abide by the settlement agreement, and the Court will retain jurisdiction over this matter for the purpose of enforcing the settlement agreement. The Clerk of the Court is directed to close the case. A full-text copy of the Court's July 26, 2017 order is available at https://is.gd/CDksQZ from Leagle.com. Sarmad Syed, Plaintiff, represented by Ira Spiro, Spiro Law Corp.. Sarmad Syed, Plaintiff, represented by Isam Charles Khoury, Cohelan Khoury & Singer, James Jason Hill -- jhill@ckslaw.com -- Cohelan & Khoury & Singer, Michael D. Singer -- msinger@ckslaw.com -- Cohelan Khoury & Singer, Diana Marie Khoury, Cohelan Khoury and Singer, Jeff Holmes, Jeff Holmes, Esq. & R. Ira Spiro, Spiro Law Corp. Ashley Balfour, Plaintiff, represented by Isam Charles Khoury, Cohelan Khoury & Singer, James Jason Hill, Cohelan & Khoury & Singer, Michael D. Singer, Cohelan Khoury & Singer, Diana Marie Khoury, Cohelan Khoury and Singer, Jeff Holmes, Jeff Holmes, Esq. & R. Ira Spiro, Spiro Law Corp. M-I, L.L.C., Defendant, represented by Joseph Vincent Marra, III, Morgan, Lewis & Bockius LLP, Alexander M. Chemers -- alexander.chemers@ogletreedeakins.com -- Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Jason S. Mills -- jmills@morganlewis.com -- Morgan Lewis and Bockius LLP & Patricia S. Riordan -- priordan@morganlewis.com -- Morgan, Lewis & Bockius Llp. M&M INVESTMENT: "Francis" Suit Moved to N.D. California ------------------------------------------------------- The class action lawsuit titled Wallace Francis, Esq., as Guardian Ad Litem for April Wagner; and all Others Similarly Situated, the Plaintiff, v. Michael A Navone, Mohammed Rezaian, Faezeh Ricci, Stephen Ricci, Michael A Navone, as Trustee of the Michael A. Navone Revocable Trust, M&M Investment Partners, LLC, Maximo Investments, LLC, and Ricci Ventures, LLC, Case No. SCV-260479, was removed on July 20, 2017 from the Sonoma County Superior Court, to the U.S. District Court for the Northern District of California (Oakland). The District Court Clerk assigned Case No. 4:17-cv-04109-DMR to the proceeding. The case is assigned to the Hon. Magistrate Judge Donna M. Ryu. M&M Properties is a privately held real estate investment firm.[BN] The Plaintiff appears pro se. Attorneys for MTC Financial Inc. dba Trustee Corps.: Keiko Kojima, Esq. BURKE WILLIAMS & SORENSEN, LLP 444 South Flower Street, Suite 2400 Los Angeles, CA 90071 Telephone: (213) 236 0600 Facsimile: (213) 236 2700 E-mail: kkojima@bwslaw.com MALDEN-DOCKSIDE: Frost Seeks Unpaid Wages & Tips under Wage Act --------------------------------------------------------------- JANINE FROST, on behalf of herself and all others similarly situated, the Plaintiffs, v. MALDEN/DOCKSIDE, INC., CHELSEA DOCKSIDE, INC., DOCKSIDE AT WAKEFIELD, INC., and JACK URBACZEWSKI, the Defendants, Case No. 2017-2204 (Mass. Super. Ct., July 13, 2017), is brought on behalf of employees who have worked for Defendants at their Dockside restaurants, located in Malden, Chelsea, and Wakefield, Massachusetts, and have been subject to unlawful labor practices. The named Plaintiff alleges that the Defendants have violated the Massachusetts wage laws in multiple ways. First, Defendants have not paid their employees time-and-a- half for hours worked in excess of forty hours per week, which has resulted in unpaid owed wages under the Massachusetts Wage Act. Second, Defendants have subjected tipped employees to an unlawful policy requiring them to pay the restaurant out of their tips when customers walk out without paying their bills and/or when the cash register drawer has shortages. The promulgation of this unlawful policy and Defendants' retention of employees' tips because of this policy is a violation of the Massachusetts Tips Statute. Third, Defendants routinely require tipped employees to over- report their tip income, which results in those employees being charged a higher amount in taxes and other withholdings than they actually owe. This results in Defendants' tipped employees not retaining all of their tips and/ or wages, in violation of M.G.L. These three unlawful practices have also resulted in invalidation of Defendants' entitlement to pay the lower tipped minimum wage to tipped employees under M.G.L., because Defendants have not satisfied the requirements for paying the lower tipped wage.[BN] The Plaintiff is represented by: Brook Lane, Esq. Hillary Schwab, Esq. FAIR WORK, P.C. www.fairworklaw.com 192 South Street, Suite 450 Boston, MA 02111 Telephone: (617) 607 3260 E-mail: brook@fairworklaw.com hillary@fairworklaw.com MANASSEH JORDAN: "Molitor" Suit Moved to N.D. Illinois ------------------------------------------------------ The class action lawsuit titled Jeffrey Molitor, Laura C. De La Cabada, Steve Clarke, and Ruth Maki, individually and on behalf of all others similarly situated, the Plaintiffs, v. Manasseh Jordan Ministries, Inc., a New York Religious Corporation and Yakim Manasseh Jordan, an individual, the Defendants, and Kingdom Ministries Church, Inc., the Movant, Case No. 1:17-cv-02408, was transferred on July 19, 2017 from the U.S. District Court for the Northern District of Georgia, to the U.S. District Court for the Northern District of Illinois - (Chicago). The District Court Clerk assigned Case No. 1:17-cv-05309 to the proceeding. The case is assigned to the Hon. John J. Tharp, Jr.[BN] Jeffrey Molitor is represented by: Benjamin Harris Richman, Esq. Sydney Janzen, Esq. EDELSON PC 350 North LaSalle Street, Suite 1300 Chicago, IL 60654 Telephone: (312) 589 6370 E-mail: brichman@edelson.com - and - Laura W. Speed, Esq. SHAMP SPEED JORDAN WOODWARD, LLC Suite 660 1718 Peachtree Street Atlanta, GA 30309 Telephone: (404) 893 9400 Facsimile: (404) 260 4180 E-mail: speed@ssjwlaw.com Attorneys for Kingdom Ministries Church, Inc.: Alex Benjamin Kaufman, Esq. Matthew Dempsey Treco, Esq. KAUFMAN & FORMAN, P.C. Building 800 8215 Roswell Road Atlanta, GA 30350 Telephone: (770) 390 9200 E-mail: abk@kauflaw.net mdt@kauflaw.net MASTERCARD: Class Actions Not Ruled Out Despite Favorable Ruling ---------------------------------------------------------------- Joanne Atkinson, writing for Business Standard, reports that convenience often comes at a cost. As consumers, many of us are resigned to seeing a surcharge or "processing fee" on goods and services when we pay by credit or debit card. At present, it is lawful for businesses to charge consumers these fees although the amount should be limited to the actual cost to the retailer of the transaction. Bank charges for processing card payments were capped in the UK in 2015, but many businesses have continued to charge consumers inflated fees to generate further profit. Even the government's tax department routinely adds a surcharge of up to 2.4% to bills paid by card. Now, the government has announced that charges for paying by debit or credit card will be outlawed completely from January 2018. This raises several questions, not least whether retailers will simply increase their prices to cover any shortfall. Many companies argue that fees are there to cover their transaction costs, which consist of an "interchange fee", levied by the card issuer such as Visa or MasterCard (capped by law at 0.3%) and the "merchant fee", charged by the bank for handling each payment. This is not capped but for large businesses it should not amount to more than about 0.3%. It is also unclear how the ban will be policed. Local authority Trading Standards departments are tasked with dealing with complaints from buyers, but the widespread flouting of the current cap indicates that embattled officers are under-resourced to deal with the issue. Class action rejected Future charges are to be outlawed, but what about the millions in surplus fees paid by consumer buyers in the past? A recent attempt to secure ú14 billion in compensation for UK consumers was recently rejected by the Competition Appeal Tribunal (CAT). The trailblazing claim against MasterCard, initiated by Walter Merricks, who was head of the Financial Ombudsman Service from 1999-2009, was the first collective claim of its kind under new rules introduced by the Consumer Rights Act 2015. Previously, US-style class actions were not permitted under UK law and consumers affected by price fixing or anti-competitive behaviour had to either actively opt in as a named participant in a claim, or bring proceedings on their own behalf. In cases where the loss to the consumer was relatively small, the cost of bringing a claim meant that pursuing the trader was often not worthwhile. Under collective proceedings rules, there is no need to register for a stake in the claim -- anyone who fulfils the criteria is automatically joined in the action unless they expressly opt out. Under the new Consumer Rights Act, claims can be brought by a suitable representative of the group affected. In the Mastercard case it was Walter Merricks, on behalf of every consumer who purchased goods from a retailer in the UK between 1992 and 2008. Had the claim succeeded, it would have given individual consumers the collective legal power to call a corporation to account. Ultimately, the claim faltered under the huge complexity of trying to quantify the total compensation payable, and then allocate it fairly among consumer claimants. Notwithstanding the CAT's decision, the case has prompted fears from card companies that the UK will see a tsunami of similar claims, possibly resulting in vast payouts. Onslaught of action What happens next will be scrutinised closely by banks and other credit providers. The decision is the latest chapter in an onslaught of legal action against MasterCard dating back to 2007. The fees charged to retailers are determined in large part by interchange fees agreed between groups of banks and in 2007, MasterCard was subject to an investigation by the European Commission, which ruled that its interchange fees were anti- competitive and violated the EU Treaty. MasterCard appealed the ruling but the European Court of Justice confirmed the decision in September 2014. Fees were subsequently capped at 0.3% of the transaction value for credit card payments and 0.2% for debit card payments. In July 2016 MasterCard was ordered to pay substantial damages to the supermarket Sainsbury's, after it successfully sued MasterCard over processing fees. While the court in this case acknowledged that electronic payment arrangements benefit both customers and retailers, it ultimately concluded that MasterCard's charges were excessive and breached EU and UK competition law. This judgement potentially paves the way for a wave of further claims from retailers who were charged similar rates. MasterCard is not the only lender affected. Visa was also investigated in 2007, but managed to avoid formal sanctions by agreeing voluntarily to reduce its fees and improve transparency around charging. The British government's move to scrap charges completely by January 2018 promises greater transparency over future prices paid by consumers. But, future class actions should not be ruled out. The recent rejection of Merricks's case against MasterCard was down to the complexity of computing individual losses -- if this issue is remedied then future claims could well succeed. [GN] MIDLAND FUNDING: "Wheeler" Complaint Survives Dismissal Bid ----------------------------------------------------------- District Judge Virginia M. Kendall of the U.S. District Court for the Northern District of Illinois, Eastern Division, denied defendants' motion to dismiss, in the case KEVIN WHEELER, Plaintiff, v. MIDLAND FUNDING, LLC, MIDLAND CREDIT MANAGEMENT, INC., AND ECORE CAPITAL GROUP INC., Defendant, No. 15 C 11152 (N.D. Ill.). Midland Credit Management, Inc. (MCM) is a collection agency that collects charged off-debts for owners of debt, specifically for Midland Funding LLC. Sometime in 2015, Kevin Wheeler noticed that MCM was pulling his credit report. Wheeler contacted MCM and was told that it was attempting to collect an alleged credit card balance and offered Wheeler a 40% discount to settle the debt. On October 4, 2015, Wheeler noticed that MCM had pulled his credit again. When Wheeler called MCM, a representative provided him with an account number to obtain information about his debt from MCM's website. MCM's website indicated that Wheeler last made payment on the debt on September 18, 2009, that the original creditor had given up on being repaid as of April 30, 2010, a settlement offer whereby plaintiff would save 40%; and notice that MCM was not obligated to renew its settlement offer. The website did not indicate that the statute of limitations on Wheeler's debt had expired. Because the statute of limitations for his credit card debt had expired, Wheeler asserts that his debt could not be forcibly collected and that defendants violated the FDCPA and related rules because they failed to inform him of that fact. Wheeler brought a putative class action against Midland Funding, LLC, MCM, and Encore Capital Group, Inc. alleging that defendants violated the Fair Debt Collection Practices Act, 15 U.S.C. Section 1692 et. seq. (FDCPA), when MCM's website failed to inform him that his debt was not collectible under the applicable statute of limitations. He also alleges that defendants regularly attempt to collect debts from other debtors where the statute of limitations on the debt has expired. Defendants moved to dismiss Wheeler's claim for lack of subject matter jurisdiction, arguing that Wheeler lacks Article III standing because he has failed to articulate a concrete injury. District Judge Kendall denied defendants' motion to dismiss observing that Wheeler was directly impacted by the defendants' actions and he personally received misleading information regarding the status of his debt which essentially encouraged him to make a payment on a now-expired debt. Confused by the status of his debt, MCM's lack of disclosure opened the possibility that MCM calculated the applicable statute of limitations differently than Asset and would try to enforce the debt. The FDCPA was enacted to prevent such type of injury and the type of injury that courts within the circuit have consistently recognized as conferring standing. A copy of Judge Kendall's memorandum order and opinion dated July 31, 2017, is available at https://goo.gl/gCY4XP from Leagle.com. Kevin Wheeler, Plaintiff, represented by Daniel A. Edelman -- dedelman@edcombs.com -- Cassandra P. Miller -- cmiller@edcombs.com -- Michelle A. Alyea -- malyea@edcombs.com -- at Edelman, Combs, Latturner & Goodwin LLC Defendants, represented by Heather L. Kramer -- hkramer@dykema.com -- Theodore Wilson Seitz -- tseitz@dykema.com -- Todd A. Gale -- tgale@dykema.com -- at Dykema Gossett PLLC. MISSOURI: Court Certifies Class in "Postawko" --------------------------------------------- Judge Nanette K. Laughrey of the U.S. District Court for the Western District of Missouri, Central Division, granted the Plaintiffs' motion for class certification in the case captioned MICHAEL POSTAWKO, et al., Plaintiffs, v. MISSOURI DEPARTMENT OF CORRECTIONS, et al., Defendants, No. 2:16-cv-04219-NKL (W.D. Mo.). Named Plaintiffs Postawko, Christopher Baker, and Michael Jamerson are incarcerated in the Missouri Department of Corrections ("MDOC"). They filed this putative class action for claims arising out of what they allege to be inadequate medical care for their chronic Hepatitis C ("HCV") viral infections. They named numerous Defendants, including their prison treating physicians and nurses; prison officials who reviewed their grievances and treatment requests; the MDOC; and Corizon, LLC, the healthcare provider for all MDOC facilities. The Plaintiffs further allege that the Defendants have the following policies or customs, all of which are contrary to the prevailing standard of care: (i) not providing direct-acting antiviral ("DAA") drug treatment to all inmates with chronic HCV; (ii) using an APRI score, which measures the progression of fibrosis or cirrhosis, to determine whether a person should be treated; (iii) relying exclusively on APRI score to determine the stage of fibrosis or cirrhosis, rather than using other more accurate methods of determining its progression through liver biopsies, FIB-4, or FibroScan; (iv) failing to consider providing treatment to HCV-positive inmates unless they have an APRI score above 2.0 that persists for several months, even though more than half of persons with cirrhosis will not have an APRI score at or above 2.0, and they know that AST levels are transient; (v) disregarding independent diagnoses of cirrhosis or significant hepatitis fibrosis in making their treatment decisions; and (vi) basing treatment decisions on cost, rather than on need for treatment. They allege that these policies or customs have caused, and continue to cause, unnecessary pain and an unreasonable risk of serious damage to the health of HCV-positive inmates. The Named Plaintiffs seek certification of a class of similarly situated individuals in the custody of the Missouri Department of Corrections, defined as all those individuals in the custody of MDOC, now or in the future, who have been, or will be, diagnosed with chronic HCV, as that term is defined medically, but who are not provided treatment with direct acting antiviral drugs. The Plaintiffs bring two claims on behalf of the putative class: Count I for prospective relief for deprivation of their Eighth Amendment rights against Precythe, in her official capacity, and Corizon, and Count II for prospective relief for violation of the ADA against the MDOC. They seek injunctions that (i) direct the Defendants to "formulate and implement an HCV treatment policy that meets the prevailing standard of care, including identifying persons with HCV; (ii) direct the Defendants to treat members of the class with appropriate DAA drugs; and (iii) direct the Defendants to provide members of the class an appropriate and accurate assessment of the level of fibrosis or cirrhosis they have, counseling on drug-drug interactions, and ongoing medical care for complications and symptoms of HCV. The Court finds that the inmate populations at these facilities are constantly revolving. Even with a conservative estimate of one thousand class members, the number of individual claims, as well as the inherently fluid nature of the class, would make it impracticable to require individual lawsuits. Hence, numerosity is satisfied. It is laso satisfied that the commonality requirement is met because the alleged HCV-treatment policies or customs are the "glue" that holds together the putative class; either these policies are unlawful as to all inmates or they are not. The Court notes that the Named Plaintiffs' claims and the claims of the remainder of the putative class arise from the same course of conduct: the Defendants' policies surrounding their treatment of inmates with chronic HCV, including their policy of denying DAA drug treatment to individuals with HCV due to APRI score. The Plaintiffs allege these policies are discriminatory based on HCV status and are violative of their Eighth Amendment rights. These claims are identical to the claims that could be raised by any member of the class. Therefore, the Named Plaintiffs are typical because they, too, are exposed to the same risk. In addition, the Court is satisfied that the Named Plaintiffs' interests are aligned with those of the class because, as it explains, their claims arise out of the same common course of conduct and are based upon the same legal theories as the class members' claims. The Court concluded that the putative class is appropriate for certification under Rule 23(b)(2). Accordingly, it granted the Plaintiffs' motion for class certification. A full-text copy of the Court's July 26, 2017 order is available at https://is.gd/jTlSSd from Leagle.com. Michael G Postawko, Plaintiff, represented by Anthony E. Rothert, American Civil Liberties Union of Missouri Foundation. Michael G Postawko, Plaintiff, represented by Mae C. Quinn, MacArthur Justice Center at St. Louis, Amy Elizabeth Breihan, MacArthur Justice Center at St. Louis, Gillian R. Wilcox, American Civil Liberties Union of Missouri Foundation & Jessie Steffan, American Civil Liberties Union of Missouri Foundation. Christopher Baker, Plaintiff, represented by Mae C. Quinn, MacArthur Justice Center at St. Louis, Amy Elizabeth Breihan, MacArthur Justice Center at St. Louis, Gillian R. Wilcox, American Civil Liberties Union of Missouri Foundation, Jessie Steffan, American Civil Liberties Union of Missouri Foundation & Anthony E. Rothert, American Civil Liberties Union of Missouri Foundation. Michael Jamerson, Plaintiff, represented by Mae C. Quinn, MacArthur Justice Center at St. Louis, Amy Elizabeth Breihan, MacArthur Justice Center at St. Louis, Gillian R. Wilcox, American Civil Liberties Union of Missouri Foundation, Jessie Steffan, American Civil Liberties Union of Missouri Foundation & Anthony E. Rothert, American Civil Liberties Union of Missouri Foundation. Corizon Medical Services, Defendant, represented by J. Thaddeus Eckenrode -- jte@eckenrode-law.com -- Eckenrode-Maupin, Attorneys at Law. Missouri Department of Corrections, Defendant, represented by Amy C. Haywood, Missouri Attorney General's Office, Dean John Sauer, Missouri Attorney General's Office, Jillian Mueller, Missouri Attorney General's Office & Michael D. Quinlan, Missouri Attorney General's Office. Corizon, LLC, Defendant, represented by Daniel L. Messeloff -- SchudroffD@jacksonlewis.com -- Jackson Lewis PC, pro hac vice, Jessica L. Liss -- Jessica.Liss@jacksonlewis.com -- Jackson Lewis PC, Michael P. Huff -- mhuff@maynardcooper.com -- pro hac vice, William R. Lunsford -- blunsford@maynardcooper.com -- pro hac vice, Amy J. White -- Amy.White@jacksonlewis.com -- Jackson Lewis PC & Carrie L. Kinsella, Jackson Lewis PC. Trinidad Aguilera, Defendant, represented by Daniel L. Messeloff, Jackson Lewis PC, pro hac vice, Jessica L. Liss, Jackson Lewis PC, Amy J. White, Jackson Lewis PC & Carrie L. Kinsella, Jackson Lewis PC. John Williams, Defendant, represented by Jessica L. Liss, Jackson Lewis PC, Amy J. White, Jackson Lewis PC & Carrie L. Kinsella, Jackson Lewis PC. FNU Stamps, Defendant, represented by Amy J. White, Jackson Lewis PC, Daniel L. Messeloff, Jackson Lewis PC, pro hac vice, Jessica L. Liss, Jackson Lewis PC & Carrie L. Kinsella, Jackson Lewis PC. Thomas Pryor, Defendant, represented by Amy J. White, Jackson Lewis PC, Daniel L. Messeloff, Jackson Lewis PC, pro hac vice, Jessica L. Liss, Jackson Lewis PC & Carrie L. Kinsella, Jackson Lewis PC. FNU Proctor, Defendant, represented by Amy J. White, Jackson Lewis PC, Daniel L. Messeloff, Jackson Lewis PC, pro hac vice, Jessica L. Liss, Jackson Lewis PC & Carrie L. Kinsella, Jackson Lewis PC. FNU Hardman, Defendant, represented by Amy J. White, Jackson Lewis PC, Daniel L. Messeloff, Jackson Lewis PC, pro hac vice, Jessica L. Liss, Jackson Lewis PC & Carrie L. Kinsella, Jackson Lewis PC. FNU Davison, Defendant, represented by Amy J. White, Jackson Lewis PC, Daniel L. Messeloff, Jackson Lewis PC, pro hac vice, Jessica L. Liss, Jackson Lewis PC & Carrie L. Kinsella, Jackson Lewis PC. MONSANTO COMPANY: B&L Farms Suit Moved to E.D. Arkansas ------------------------------------------------------- The class action lawsuit titled B&L Farms Partnership, Double A Farms, NJ&B Partnership, Neil Culp, Allen Culp, Pam Culp, Jill Culp, Ronnie George, R. P. George, Brian Chastain Farms, Josh Bartlett, Randle Foran, doing business as: Randle Foran Farms, Borderline Farms JV, and Wilson Application LLC, And all others similarly situated, the Plaintiffs, v. Monsanto Company, BASF SE, and BASF Corporation, the Defendants, Case No. 54CV-17-00132, was removed on July 20, 2017 from the Phillips County Circuit Court, to the U.S. District Court for the Eastern District of Arkansas (Helena). The District Court Clerk assigned Case No. 2:17-cv- 00122-BRW to the proceeding. The case is assigned to the Hon. Judge Billy Roy Wilson. Monsanto Company is a publicly traded American multinational agrochemical and agricultural biotechnology corporation. It is headquartered in Creve Coeur, Greater St. Louis, Missouri.[BN] The Plaintiffs are represented by: David A. Hodges, Esq. DAVID HODGES LAW OFFICE 212 Center Street, Suite 500 Little Rock, AR 72201 Telephone: (501) 374 2400 Facsimile: (501) 374 8926 E-mail: david@hodgeslaw.com - and - Jesse B. Daggett, Esq. Joseph Robert Perry, Esq. DAGGETT, DONOVAN & PERRY, PLLC Post Office Box 389 Marianna, AR 72360-0389 Telephone: (870) 295 3434 E-mail: Jesse@DaggettLaw.com joe@daggettlaw.com Attorneys for Monsanto Company: Elizabeth Blackwell, Esq. Christopher M. Hohn, Esq. Daniel C. Cox, Esq. Jan Paul Miller, Esq. Jeffrey A. Masson, Esq. THOMPSON COBURN LLP One U.S. Bank Plaza St. Louis, MO 63101 Telephone: (314) 552 6000 Facsimile: (314) 552 7000 - and - Edwin L. Lowther, Jr., Esq. Scott Andrew Irby, Esq. WRIGHT, LINDSEY & JENNINGS 200 West Capitol Avenue, Suite 2300 Little Rock, AR 72201-3699 Telephone: (501) 371 0808 E-mail: elowther@wlj.com sirby@wlj.com Attorneys for BASF SE and BASF Corporation: E. B. Chiles, IV, Esq. John E. Tull, III, Esq. Sarah DeLoach, Esq. QUATTLEBAUM, GROOMS & TULL PLLC 111 Center Street, Suite 1900 Little Rock, AR 72201-3325 Telephone: (501) 379 1700 E-mail: cchiles@qgtb.com jtull@qgtlaw.com sdeloach@qgtlaw.com MONTANA: Court Denies Class Certification in "Sadler" ----------------------------------------------------- In the case captioned TIMOTHY RAY SADLER, Plaintiff, v. SHERIFF DUTTON, et al., Defendants, Nos. CV 16-83-H-DLC-JTJ, CV 17-00026- M-DLC-JCL, CV 17-00042-H-DLC-JTJ (D. Mont.), Judge Dana L. Christensen of the District Court for the District of Montana, Helena Division, (i) adopted in full Magistrate Judge John Johnston's Findings and Recommendation, (ii) denied the Plaintiff's motion for class certification, and (iii) dismissed the Plaintiff's claims of defamation, libel, and slander. United States Magistrate Judge Johnston entered his Order, Findings and Recommendation on June 1, 2017, recommending dismissal of the Plaintiff's claims of defamation, libel, and slander; and denial of his motion that the matter to be certified as a class action. Sadler has failed to timely object to the Findings and Recommendation, and, as a result, has waived his right to de novo review of the record. This Court reviews for clear error those findings and recommendations to which no party objects. Having reviewed the Findings and Recommendation, the Court finds no clear error in Judge Johnston's conclusion that Sadler's claims of defamation, libel, and slander must be denied. These claims fail to state a federal constitutional claim and, thus, cannot be pursued under 42 U.S. Code Section 1983. Further, Sadler, as a Plaintiff appearing pro se, cannot bring claims on the behalf of others. Accordingly, the Court agreed with Judge Johnston that Sadler's motion to certify this matter as a class action must be denied. A full-text copy of the Court's July 28, 2017 order is available at https://is.gd/telumn from Leagle.com. Timothy Ray Sadler, Plaintiff, Pro Se. NATIONALL FOOTBALL: Defeats California Antitrust Class Action ------------------------------------------------------------- Nicholas Iovino, writing for Courthouse News Service, reports that the National Football League has defeated an antitrust class action claiming it conspired with 27 teams to suppress cheerleaders' wages and restrict their mobility. In a ruling issued on July 20, U.S. District Judge William Alsup refused to let plaintiff Kelsely K., who cheered for the San Francisco 49ers in 2013, file an amended complaint. Judge Alsup found her proposed amendments failed to plausibly allege an antitrust conspiracy, just as he found in a ruling dismissing the lawsuit in May. The judge found the proposed complaint failed to cite actual evidence for allegations that NFL teams colluded to keep cheerleaders' wages low. "The proposed amendment . . . rests solely on a theory of parallel conduct, i.e., that all clubs must have acted in concert because they all paid below what, according to the proposed amendment, cheerleaders' services were worth," Judge Alsup wrote in his 11- page ruling. The lead plaintiff says NFL teams paid cheerleaders as little as $90 to $125 per game with no compensation for other required activities, until a rash of recent labor suits raised most cheerleaders' pay to at least minimum wage. Judge Alsup also found allegations of a "no poaching agreement" among teams implausible, given that an NFL policy expressly forbids such conduct. While the league bans recruiting other teams' employees when they are under contract, another policy bars interfering with an employee's ability to seek employment with another team while in between contracts. Despite that policy, the plaintiff insists that no team has ever hired another club's cheerleader, which serves as proof of a "no poaching" pact among the NFL teams. But Judge Alsup found the mere fact that no team has hired another club's cheerleader does not by itself support a theory of collusion. "Is it proof of a conspiracy? No, it is not, at least in the absence of well-pled facts showing a need for clubs to poach in the first place," Judge Alsup wrote in his ruling. The judge said it's possible that NFL clubs have never had to lure away cheerleaders from other teams because "sufficient local cheerleader talent" exists in their respective geographic regions. Turning to claims that cheerleaders' wages have not "skyrocketed" at the same pace as NFL revenue and salaries for players, executives and coaches, Judge Alsup found the cheerleaders failed to explain why their salaries should swell at that pace. "The proposed amendment alleges nothing to suggest that cheerleaders have made the same contributions as have players, executives, and coaches in causing the NFL to flourish," Judge Alsup wrote. He also found lead plaintiff Kesley K. failed to demonstrate how she personally suffered an antitrust injury. Kelsey said the director of the 49ers cheerleading team "caused to be communicated" to her that if she was not rehired as a 49ers cheerleader, she could not try out for another NFL team. After she was turned away at the end of the 2013 season, Kelsey says she didn't try out for another team -- like the then-Oakland Raiders - - even though she wanted to. Judge Alsup found those allegations were missing a lot of key facts, such as how the message that she was not allowed to try out for other teams was conveyed, why she could not try out for other teams, and why she did not attempt to try out for another team. "The peculiar phrasing of the allegation makes it impossible to infer any reason why it was not wholly plaintiff's own decision to not tryout for another club after the 49ers declined to re-hire her," Judge Alsup wrote in his ruling. Judge Alsup said he warned the plaintiff to "be sure to plead her best case" in any proposed amended complaint. "Her proposed amendment, however, still fails to plead factual allegations supporting any plausible claim for relief," Judge Alsup wrote. Judge Alsup denied the motion for leave to file an amended complaint as futile and issued judgment in favor of the NFL on July 21. The NFL's corporate office in New York and attorneys for the lead plaintiff and NFL teams did not immediately return phone calls seeking comment on July 24. The lead plaintiff is represented by Thomas O'Brien of Bradshaw Associates in San Francisco. The NFL and its 27 teams are represented by Sonya Winner of Covington & Burling in San Francisco. Five of the NFL's 32 clubs were left out of the lawsuit because they do not employ cheerleaders. [GN] NATIONAL FOOTBALL: Judge Tosses Painkillers Class Action -------------------------------------------------------- Nicholas Iovino, writing for Courthouse News Service, reports that a federal judge on July 21 struck down a class action claiming the National Football League and its teams pushed painkillers on injured athletes to get them back on the field, often causing permanent injuries. In a summary judgment ruling, U.S. District Judge William Alsup found retired football players could only seek relief through workers' compensation, because their claims against three NFL teams did not fall within a narrow "intentional harm" exception. It was the second painkillers class action against the NFL and its teams to be thrown out of court by Judge Alsup, who dismissed an earlier suit, Dent v. NFL, in 2014, finding those claims were subject to arbitration under collective bargaining agreements. "This and other orders ruling against the theories advanced by plaintiffs' counsel in these cases do not diminish the seriousness of the national need to protect the health and safety of our professional athletes," Judge Alsup wrote in his 9-page ruling. The judge said although workers' compensation and collective bargaining remedies are not "gold-plated remedies," they are the only remedies recognized by the law. "The sweeping remedy sought herein by plaintiffs is not, on this record, available under the law," Judge Alsup wrote. Lead plaintiff Etopia Evans, widow of the late Minnesota Vikings and Baltimore Ravens player Charles "Chuck" Evans, filed a federal class action against all 32 NFL teams in May 2015. The case was transferred from Maryland to Northern California in March 2016. The players claim NFL teams conspired since at least 1964 to have trainers and team doctors dole out unprescribed pills and injections, sometimes mixing them in "dangerous cocktails," to get players back into games without warning them of the long-term side effects. Judge Alsup previously dismissed most claims, including conspiracy claims, against all 32 NFL teams, leaving only claims of intentional misrepresentation against the Green Bay Packers, Denver Broncos and Los Angeles Chargers. The two remaining plaintiffs, Alphonso Carreker and Reggie Walker, argued their claims fell within a narrow "intentional harm" exception to workers compensation exclusivity laws in California, Colorado and Wisconsin. But Judge Alsup found the deliberate harm exception only applied in cases involving willful physical assault, and that the plaintiffs failed to present facts showing the NFL teams intended to harm players in an egregious manner. "This order recognizes, as have California courts, that workers' compensation exclusivity may bar claims that reveal egregious employer misconduct," Judge Alsup wrote. "But the mere culpability of such misconduct, without more, is not a basis for keeping in court a claim properly subject to the exclusive remedy provisions of workers' compensation laws." Mr. Carreker, who played for the Green Bay Packers and Denver Broncos from 1984 to 1991, had to get heart surgery in 2013 after anti-inflammatory drugs stopped working because he'd built up resistance from taking too many during his career, according to the lawsuit. After suffering a sprained ankle while playing for the San Diego Chargers (now the Los Angeles Chargers), Mr. Walker said he was given Toradol injections by a team doctor before every game for the rest of his career. Now that he's retired, he has permanent ankle pain, he says. Last December, an attorney representing plaintiffs in Dent v. NFL asked a Ninth Circuit panel to overturn Judge Alsup's 2014 dismissal of that suit. A ruling is still pending. Attorneys for the retired football players and NFL teams did not immediately return phone calls seeking comment on July 24. The NFL also did not immediately respond to a phone call seeking comment. The plaintiffs are represented by William Sinclair of Silverman Thompson Slutkin White in Baltimore. The NFL teams are represented by Jack DiCanio -- jack.dicanio@skadden.com -- of Skadden Arps Slate Meagher & Flom in Palo Alto, California. [GN] NATIONAL RIFLE: Bid to Dismiss "Kalmbach" Partly Granted -------------------------------------------------------- Judge Ricardo S. Martinez of the U.S. District Court for the Western District of Washington, Seattle, granted in part and denied in part the Defendant's motion to dismiss the case captioned KATHARYN KALMBACH, individually and on behalf of all others similarly situated, Plaintiff, v. NATIONAL RIFLE ASSOCIATION OF AMERICA, a New York corporation, and INFOCISION, INC., a Delaware corporation, Defendants, Case No. C17-399-RSM (W.D. Wash.). On Nov. 9, 2007, the Plaintiff registered her landline telephone with the National Do Not Call Registry. Beginning in July 2016, the Plaintiff began to receive daily, unsolicited and prerecorded calls on her landline telephone placed by Defendant InfoCision on behalf of Defendant NRA using phone number 425-405-6193. After her unsuccessful attempt to get a live agent on the telephone in order to ask them to stop calling, Ms. Kalmbach called the NRA to indicate her desire that the calls stop. Despite all of this, Kalmbach continued to receive unsolicited pre-recorded calls placed by Defendant InfoCision on behalf of the NRA for three weeks. On Feb. 10, 2017, Ms. Kalmbach filed a putative class action complaint in state court, and the Defendants removed to this Court on March 13, 2017. The Complaint contains causes of action brought under the Washington Automatic Dialing and Announcing Device Statute ("WADAD"); the Washington Do Not Call Statute ("WDNC"); the Washington Consumer Protection Act ("WCPA"); and for invasion of privacy under Washington law. Before the Court is the Defendants' Motion to Dismiss, brought under Rule 12(b)(6). Given Ms. Kalmbach's analogous case law above, the Court concludes that both causes of action can proceed at this early stage in the litigation. It agrees with Ms. Kalmbach that she has standing on this claim because she has adequately pled facts to reasonably infer that her injury would not have occurred without the Defendants' incessant autodialing and use of a prerecorded message. In addition, it also finds that Ms. Kalmbach does not need to, at this stage; convince the Court that the number of calls precludes the possibility that these calls were manually dialed. The number and content of the calls satisfy the facial plausibility requirement. And taking the facts in the Complaint as true, the Court finds that a reasonable factfinder could easily determine that the Defendants were making calls for the purpose of encouraging a person to purchase property, goods, or services as part of magazine membership rather than as a gift for a charitable contribution, and that this is a commercial solicitation. This is adequate to survive a 12(b)(6) motion. The Court agrees with the Defendants' analysis that Ms. Kalmbach has not alleged a conversation took place in any call from the Defendants, and that this is required to bring a WDNC claim. The Court dismissed without prejudice and with leave to amend this claim as the Court concludes that it is possible for Ms. Kalmbach to allege other facts, consistent with the challenged pleading, to cure this deficiency. As to the invasion of privacy claim, the Court concludes that the Complaint pleads facts adequate to meet the requirements of this tort. Finally, with respect to dismissal of all claims against the NRA because Ms. Kalmbach has not alleged any facts to support her conclusion that the NRA is liable for calls made by InfoCision, the Court concludes that the facts as pled and cited to by the parties in briefing are not conclusory and provide sufficient detail to allege agency under the Twombly/Iqbal standard. Ms. Kalmbach will not be required to prove the entirety of her case, including the internal details of the business relationship between the Defendants, prior to discovery. Thus, the NRA remains in this case. For these reasons, the Court granted in part and denied in part the Defendants' Motion to Dismiss. The Court granted the Plaintiff leave to file an Amended Complaint curing the mentioned deficiencies no later than 30 days from the date of the Order. Failure to file an Amended Complaint within this time period will result in dismissal of its WDNC claim. A full-text copy of the Court's July 26, 2017 order is available at https://is.gd/Uae2H8 from Leagle.com. Katharyn Kalmbach, Plaintiff, represented by Kim D. Stephens -- kstephens@tousley.com -- TOUSLEY BRAIN STEPHENS. Katharyn Kalmbach, Plaintiff, represented by Patrick Peluso -- ppeluso@woodrowpeluso.com -- WOODROW & PELUSO LLC, pro hac vice, Stefan Coleman, LAW OFFICE OF STEFAN COLEMAN, P.S., pro hac vice, Steven L. Woodrow -- swoodrow@woodrowpeluso.com -- WOODROW & PELUSO LLC, pro hac vice & Chase Christian Alvord -- calvord@tousley.com -- TOUSLEY BRAIN STEPHENS. National Rifle Association of America, Defendant, represented by Brett A. Wall -- bwall@bakerlaw.com -- BAKER HOSTETLER LLP, pro hac vice, James Raymond Morrison -- jmorrison@bakerlaw.com -- BAKER HOSTETLER LLP, Michael D. Meuti -- mmeuti@bakerlaw.com -- BAKER HOSTETLER LLP, pro hac vice, Terry M. Brennan -- tbrennan@bakerlaw.com -- BAKER HOSTETLER, pro hac vice & Curt Roy Hineline -- chineline@bakerlaw.com -- BAKER HOSTETLER LLP. InfoCision, Inc, Defendant, represented by Brett A. Wall, BAKER HOSTETLER LLP, pro hac vice, James Raymond Morrison, BAKER HOSTETLER LLP, Michael D. Meuti, BAKER HOSTETLER LLP, pro hac vice, Terry M. Brennan, BAKER HOSTETLER, pro hac vice & Curt Roy Hineline, BAKER HOSTETLER LLP. NAVIENT SOLUTIONS: "McHarris" Suit Moved to E.D New York -------------------------------------------------------- The class action lawsuit titled TAMEIKA L. MCHARRIS, on behalf of herself and all others similarly situated, the Plaintiff, v. Navient Solutions, Inc., Case No. 504969/2017, was removed on July 25, 2017 from the Kings County Supreme Court, to the U.S. District Court for the Eastern District of New York. The District Court Clerk assigned Case No. 1:17-cv-04392 to the proceeding. Navient Solutions provides loan management, servicing, and asset recovery solutions to clients in higher education and business clients.[BN] The Plaintiff appears pro se. The Defendant is represented by: Ashley Bryne Huddleston, Esq. VEDDER PRICE P.C. 1633 Broadway New York, NY 10019 Telephone: (212) 407 7700 Facsimile: (212) 407 7799 E-mail: ahuddleston@vedderprice.com NEBRASKA: "Lassalle" Suit Seeks Unpaid Wages -------------------------------------------- BRIAN LASSALLE and all others And all Others Similarly Situated, the Plaintiff, v. THE STATE OF NEBRASKA, and THE STATE OF NEBRASKA, ACTING THROUGH THE NEBRASKA DEPARTMENT OF HEALTH and HUMAN SERVICES, THE LINCOLN REGIONAL CENTER, THE HASTINGS REGIONAL CENTER, THE NORFOLK REGIONAL CENTER and THE BEATRICE STATE DEVELOPMENTAL CENTER, the Defendants, Case No. 4:17-cv-03088-SMB (D. Neb., July 13, 2017), seeks unpaid wages for Defendant's violation of the rights guaranteed to the Plaintiff and all others similarly situated by the Nebraska Wage Payment and Collection Act. According to the complaint, the Plaintiff is a resident of Lincoln, Lancaster County, Nebraska. The Plaintiff has been continuously employed by the Lincoln Regional Center (LRC) as a security specialist and medication aide from 1993 through the present. The Lincoln Regional Center is located in Lincoln, Lancaster County, Nebraska. In this capacity, Plaintiff is paid by the hour for the work he performs and is awarded job related benefits, including, but not limited to paid time off in the form of vacation and sick leave. Starting in July 2016, Defendant denied pay to Plaintiff (and all others similarly situated) for earned and approved paid time off he took if the total hours he worked (or earned through a paid holiday) combined with the total number of hours of paid time off exceeded 40 hours in a given week. As an example, if Plaintiff worked 32 hours Monday through Thursday and took 8 hours of approved paid leave on Friday and was required to work an additional 8 hours on Saturday, Defendant refused to pay Plaintiff and all others similarly situated for the 48 hours of combined work and PTO. Under the scenario reference, rather than paying Plaintiff for 48 hours of time worked and the PTO, Defendant paid Plaintiff only 40 hours per week.[BN] The Plaintiff is represented by: Kathleen M. Near, Esq. POWERS LAW Kathleen M. Near 20212 411 South 13th Street, Suite 300 Lincoln, NE 68508 Telephone: (402) 474 8000 NEW YORK: Akal Taxi Sues over Black Car Vehicle Licenses -------------------------------------------------------- AKAL TAXI NYC LLC, C&R BHOGAL LLC, PEG TAXI NYC LLC, GGS TAXI LLC, JASPREET SINGH, and D&P BAIDWAN LLC, individually and on behalf of all others similarly situated, the Plaintiffs, v. THE CITY OF NEW YORK and THE NEW YORK CITY TAXI AND LIMOUSINE COMMISSION, the Defendants, Case No. 708602/2017 (N.Y. Sup. Ct., July 13, 2017), seeks to recover consequential damages in an amount to be determined at trial as well as an order requiring Defendants to pay punitive damages. According to the complaint, in late 2013 and early 2014, the City of New York and the New York City Taxi and Limousine Commission held three auctions for wheelchair-accessible taxi medallions. The Plaintiffs Akal Taxi NYC LLC, C&R Bhogal LLC, Peg Taxi NYC LLC, GGS Taxi LLC, Jaspreet Singh, and D&P Baidwan LLC (Plaintiffs) each purchased an independent, wheelchair-accessible taxi medallion directly from Defendants in the February 2014 auction organized and promoted by the TLC. Before the 2013 and 2014 auctions, the TLC intentionally overstated the value of taxi medallions and concealed that the value of those medallions had already begun to decline. After the auctions, the TLC, through its actions and its inaction, significantly undermined the value of the medallions it had just sold to Plaintiffs, causing them substantial economic harm. The TLC's misrepresentations, omissions, and deceptive acts and practices induced buyers to enter the auctions and/or to bid too much for the medallions. The TLC, almost immediately after the auctions, proceeded to grant licenses for "black car" bases to companies that plainly did not qualify for those licenses under both existing New York law and TLC regulations, including, and most prominently, to affiliates of Uber Technologies, Inc. ("Uber"), a California taxi company with operations around the world. The TLC also proceeded to grant tens of thousands of black car vehicle licenses that also failed to comply with local law. The improperly licensed black cars and black car bases granted to Uber and similar entities attracted more than 20,000 black cars over the course of several months, a sudden and dramatic increase in the size of the black car fleet and in the number of taxis serving passengers, especially in Manhattan and at the New York airports. With the black car fleet growing by leaps and bounds, the TLC sat by as these black cars routinely accepted de facto "street hails" (even in Manhattan and at the airports), even though the law clearly states that yellow taxis are the only taxis permitted to accept such hails. Defendants' actions and inaction caused the value of the medallions they sold directly to Plaintiffs and the Class to decline substantially. Defendants' actions and omissions constitute breach of the covenant of good faith and fair dealing, fraudulent inducement, and negligent misrepresentation, as well as violation of the General Business Law, the NYC Code, state law, and TLC rules, resulting in tens of millions of dollars in damages to Plaintiffs and the Class.[BN] The Plaintiff is represented by: Wolf Haldenstein Adler, Esq. Benjamin Y. Kaufman, Esq. Gregory M. Nespole, Esq. Correy A. Kamin, Esq. FREEMAN & HERZ LLP 270 Madison Avenue New York, NY 10016 Telephone: (212) 545 4600 Facsimile: (212) 686 0114 E-mail: kaufman@whafh.com gmn@whafh.com kamin@whafh.com - and - LAW OFFICE OF DANIEL L. ACKMAN 222 Broadway, 19th Floor New York, NY 10038 Telephone: (917) 282 8178 E-mail: d.ackman@comcast.net NORDSTROM INC: 1st Cir. Affirms Dismissal of Price Tag Suit ----------------------------------------------------------- The U.S. Court of Appeals for the First Circuit affirmed the district court's dismissal of all of the Plaintiff's claims in the case captioned JUDITH SHAULIS, Plaintiff, Appellant, v. NORDSTROM, INC., d/b/a/ NORDSTROM RACK, Defendant, Appellee, No. 15-2354 (1st Cir.). This case is about a sweater with a controversial price tag. The Appellant purchased a cardigan sweater for $49.97 at a Nordstrom Rack outlet store in Boston, Massachusetts. The price tag attached to that sweater listed both the purchase price of $49.97 and a higher "Compare At" price of $218. She claims that the listed "Compare At" price was deceptive. The sweater was, she alleges, never sold by Nordstrom Rack, or any other retailer, for $218. Instead, she claims that the "Compare At" price tags are used by Nordstrom to mislead consumers about the quality of items. To vindicate this position, on Nov. 6, 2014, Shaulis initiated this action with a complaint filed in the Massachusetts Superior Court. She filed an amended complaint on Dec. 8, 2014, and a second amended complaint ("SAC") on December 24. The SAC alleged claims for fraud, breach of contract, unjust enrichment, violations of the Code of Massachusetts Regulations and the Federal Trade Commission Act, and violations of Mass. Gen. Laws ch. 93A ("Chapter 93A"). The SAC was brought on behalf of herself and all those similarly situated, and proposed a class consisting of all individuals residing in the Commonwealth of Massachusetts who, within the applicable statute of limitations preceding the filing of this action, purchased Nordstrom Rack Products. Nordstrom removed the case to federal court and successfully moved to dismiss all of Shaulis' claims. On appeal, Shaulis challenges dismissal of her Chapter 93A claim and her common law claims for fraud, breach of contract, and unjust enrichment. Judge Lipez explains that to state a viable claim, the Plaintiff must allege that she has suffered an "identifiable harm" caused by the unfair or deceptive act that is separate from the violation itself. It is thus not enough to claim that the Defendant's improper conduct created a risk of real economic damages. Speculation concerning still inchoate harm does not establish the distinct injury that "is an essential predicate for recovery under" Chapter 93A. Instead, legally cognizable injuries under Chapter 93A must involve objective, "identifiable" harm that goes beyond the deception itself. Because Shaulis has not adequately alleged that she suffered a legally cognizable injury, her Chapter 93A claims for damages and injunctive relief were both properly dismissed. Although Shaulis alleges that she would not have purchased the sweater but for Nordstrom's deception -- and, hence, that we should infer that her "loss" is the total purchase price -- she does not allege that the sweater she actually received was worth less than she paid, or that the sweater was defective in some way. Absent such allegations, Judge Lipez says, her claim for fraudulent misrepresentation fails to allege any pecuniary loss. As for Shaulis' breach of contract claim, Judge Lipez finds no allegations in the SAC that the sales contract itself was actually breached. The agreement between Shaulis and Nordstrom was nothing more than a straightforward, everyday sales contract for the purchase of a sweater. Shaulis' common law claim for unjust enrichment also fails because a party with an adequate remedy at law cannot claim unjust enrichment, he says. Although she argues that, if her other claims are dismissed, she effectively has no adequate remedy, this argument misapprehends the relevant law. It is the availability of a remedy at law, not the viability of that remedy, that prohibits a claim for unjust enrichment. Finally, Judge Lipez finds that the district court did not err in denying Shaulis' motion for reconsideration and for leave to amend. Nordstrom has not even appealed this determination, and, hence, cumulative allegations of Nordstrom's allegedly deceptive conduct cannot help Shaulis avoid dismissal of her claims. He notes that the primary deficiency in the SAC was that Shaulis failed to adequately plead that she suffered a legally cognizable injury; further allegations of deception do nothing to remedy that flaw. A full-text copy of the Court's July 26, 2017 order is available at https://is.gd/YMjO26 from Leagle.com. S. James Boumil -- SJBoumil@Boumil-Law.com -- with whom Boumil Law Offices, Konstantine W. Kyros, and Law Offices of Konstantine W. Kyros, were on brief, for appellant. P. Craig Cardon, with whom Dylan J. Price -- dprice@sheppardmullin.com -- Sheppard Mullin Richter & Hampton LLP, John P. Bueker -- John.Bueker@ropesgray.com -- Rebecca C. Ellis -- Rebecca.Ellis@ropesgray.com -- and Ropes & Gray LLP, were on brief, for appellee. ONSHIFT INC: Faces "Simonich" Suit in C.D. California ----------------------------------------------------- A class action lawsuit has been filed against Onshift, Inc. The case is titled as John Simonich, individually and on behalf of all other similarly situated, the Plaintiff, v. Onshift, Inc., a Delaware limited liability company, the Defendant, Case No. 2:17- cv-05326 (C.D. Cal., July 19, 2017). OnShift develops cloud-based staff scheduling and labor management software solutions primarily to the long-term care and senior living industry.[BN] The Plaintiff appears pro se. OVERLAND SOLUTIONS: Faces "Garbero" Suit in California Super. Ct. ----------------------------------------------------------------- A class action lawsuit has been filed against Overland Solutions Inc. The case is captioned as Garbero, Andrea, On behalf of herself and all others similarly situated, the Plaintiff, v. Does 1-100 and Overland Solutions Inc., the Defendant, Case No. 34- 2017-00215142-CU-OE-GDS (Cal. Super. Ct., July 7, 2017). Overland Solutions specializes in premium audit services, inspection surveys, high value residential surveys and loss control consulting solutions.[BN] The Plaintiff is represented by: Matthew R. Schoech, Esq. SCHOECH LAW GROUP, PC 4020 Lennane Dr. No. 102 Sacramento, CA 95834 Telephone: (916) 569 1940 Facsimile: (916) 569 1939 PETLAND INC: Faces "Cisneros" Suit in N.D. Georgia -------------------------------------------------- A class action lawsuit has been filed against Petland, Inc. The case is captioned as Rosalba Cisneros, On behalf of herself and all others similarly situated, the Plaintiff, v. Petland, Inc., BKG Pets, Inc., Pets BKG LLC, and Pawsitive Solutions, Inc., the Defendants, Case No. 1:17-cv-02828-MHC (N.D. Ga., July 26, 2017). The case is assigned to the Hon. Judge Mark H. Cohen. Petland is a privately owned operator and franchisor of pet stores based in Chillicothe, Ohio. Ed Kunzelman founded the company in 1967.[BN] The Plaintiff is represented by: Anthony Eliseuson, Esq. DENTONS US LLP 233 South Wacker Drive, Suite 5900 Chicago, IL 60606-6361 Telephone: (312) 876 8000 E-mail: anthony.eliseuson@dentons.com - and - David Aaron Weisz, Esq. Michael Ira Fistel, Jr., Esq. William Woodhull Stone, Esq. JOHNSON & WEAVER, LLP 40 Powder Springs Street Marietta, GA 30064 Telephone: (770) 200 3104 Facsimile: (770) 200 3101 E-mail: davidw@johnsonandweaver.com michaelf@johnsonandweaver.com WilliamS@johnsonandweaver.com - and - Tamara Yvette Feliciano, Esq. COLEMAN LEGAL GROUP, LLC 5755 North Point Parkway, Suite 52 Alpharetta, GA 30022 Telephone: (770) 609 1247 E-mail: tamarafelicianoesq@gmail.com PETROBRAS: Wants 2d Circuit to Reconsider Class Action Ruling ------------------------------------------------------------- B. Colby Hamilton, writing for New York Law Journal, reports that attorneys for Brazilian energy giant Petrobras are asking the U.S. Court of Appeals for the Second Circuit to reconsider its order that would largely have allowed the class action suit against it to proceed. The order, partially vacating and partially affirming from Circuit Judges Peter Hall and Debra Ann Livingston and U.S. District Judge Nicholas Garaufis for the Eastern District of New York, sitting by designation, was largely a win for the plaintiffs. While the panel found that U.S. District Judge Jed Rakoff of the Southern District of New York had erred in how he defined the plaintiffs in two separate classes suing Petrobras, it also rejected a higher standard for class membership sought by the company. In a request for a rehearing or an en banc review filed July 21 in In re Petrobras Securities, 16-1914-cv, Petrobras' attorneys argued the panel's order "conflicts with settled precedent on two exceptionally important and recurring issues." The panel's lowering of this threshold also appeared to have caught Petrobras by surprise. It contends that none of the parties expected the precedent set in 2015's Brecher v. Republic of Argentina to be in dispute, "only whether the requirement was satisfied." "The panel . . . not only overruled a decision of a prior panel, but did so when the issue had not been squarely considered by the district court or raised by the parties," Petrobras argued. The first issue is with U.S. Supreme Court and local precedent governing the proof required to show a harm in the market that the appellants' counsel argues will have serious implications for large companies being sued for securities fraud. The panel was wrong when it said that concrete proof wasn't required to show that a stock price was affected by news of a specific event, according to Petrobras. This contradicts the Supreme Court's decision in 2014's Halliburton v. Erica P. John Fund, known as Halliburton II, where simple price movement wasn't enough to show an event, such as the revelation of the kickback and bribery scheme Petrobras found itself in a decade ago, was primarily responsible for a gain or loss of value. The relaxed burden will effectively transfer the burden of proof onto the defendants, Petrobras said, while creating a standard that is vague enough "for every plaintiff who can site venue in the Second Circuit, the home of the New York Stock Exchange" to file suit, opening "the floodgates in the Second Circuit to meritless and debilitatingly expensive lawsuits where there is no objective evidence that any investor relied on any misstatements." The second issue the energy company said requires review concerns the feasibility of determining who, exactly, should be in a class. Petrobras argued that the panel split with the circuit's previous ruling in Brecher. There, the panel determined the ability to easily identify who should be class members as a "touchstone" in determining whether a class can be created. This issue of a test for class membership that is administratively feasible was undone by the panel's order, Petrobras said. The panel found then that the circuit's precedent "requires only that a class be defined using objective criteria that establish a membership with definite boundaries." Appellants argue that their case would run into similar issues found in Brecher, namely that class membership "would require the kind of individualized mini- hearings that run contrary to the principle of ascertainability." The lower court in this suit already dealt with a version of this issue when it had to sift through claims to determine what the class-defining "domestic transactions" meant, accepting certain purchases that occurred in the United States, while determining other actions, such as a transfer in the United States at the request of a U.K.-based broker, insufficient. Petrobras contends that whether it wins or loses, this parsing of each individual potential class member would be required given the definition uncertainty, ultimately defeating the very purpose of a class action. "When . . . the class definition does not permit putative class members to readily determine from their own knowledge whether they satisfy that definition, their due process rights to make an informed decision whether to opt out are compromised, as are the rights of defendants--in the event of a defense verdict or judgment unfavorable to plaintiffs--to hold those persons to class membership," Petrobras said. The petition was filed by Cleary Gottlieb Steen & Hamilton partner Lewis Liman and Skadden, Arps, Slate, Meagher & Flom partner Jay Kasner. Neither could be reached for comment. [GN] PORTFOLIO RECOVERY: Faces "Avezbadalov" Suit in E.D.N.Y. -------------------------------------------------------- A class action lawsuit has been filed against Portfolio Recovery Associates, LLC. The case is entitled as Bela Avezbadalov, on behalf of herself and all others similarly situated, the Plaintiff, v. Portfolio Recovery Associates, LLC, the Defendant, Case No. 1:17-cv-04284 (E.D.N.Y., July 19, 2017). PRA is a publicly traded debt buyer based in Norfolk, Virginia.[BN] The Plaintiff appears pro se. PRIMEFLIGHT AVIATION: Magistrate Refuses to Remand "Roundtree" -------------------------------------------------------------- In the case captioned TANAIJAH A. ROUNDTREE, NICOLAS MOLINA, and D'ANDRE KING, Plaintiffs, v. PRIMEFLIGHT AVIATION SERVICES, INC., Defendant, Civil Action No. 16-9609 (CCC)(D. N.J), Magistrate Judge Mark Falk of the District Court for the District of New Jersey denied the Plaintiffs' motion to remand this case to state court. The Plaintiffs allege that the Defendant wrongfully deducted pay for lunch breaks each day, and further failed to fully record their compensable work, including unpaid overtime. On Nov. 4, 2016, the Plaintiffs filed this putative class action in the Superior Court of New Jersey, Essex County. The Complaint alleges that it is brought, on behalf of the Plaintiffs and a putative class consisting of each and every other person who performed work in trades, including but not limited to cabin cleaners, cabin cleaning leads, lift truck drivers, drivers' helpers, and other related trades for Defendants at Newark Airport. The Complaint contains two counts labeled (i) New Jersey Minimum Wage Compensation ("NJWHL"); and (ii) New Jersey Overtime Compensation. They allege that the class is believed to be in excess of 100 similarly situated employees, and that all class members are entitled to (i) damages; (ii) attorney's fees; and (ii) costs of suit. On Dec. 30, 2016, the Defendant removed the action invoking the Class Action Fairness Act of 2005 jurisdiction, which vests original jurisdiction in federal district courts over "class actions" in which the proposed class has at least 100 members, the parties are minimally diverse," and "the matter in controversy exceeds the sum or value of $5 million. On January 20, 2017, Defendant filed a motion to compel arbitration and dismiss the Complaint. The motion remains pending. On Jan. 30, 2017, the Plaintiff filed the present motion to remand conceding that the first two CAFA requirements are satisfied. However, the Plaintiff's complaint is silent on the amount of damages sought. And Plaintiff initially argued that, in removing the case, the Defendant failed to show, "to a legal certainty," that the requisite amount in controversy -- $5 million -- is in dispute. The Defendant opposed the motion to remand, cogently tracing a series of recent cases to explain that, while it indeed does bear the burden on a motion to remand, that burden is to show only "by a preponderance of the evidence" that the required amount in controversy is in dispute. After full briefing, the parties now agree that (i) the burden is on the Defendant; and (ii) that the burden is a preponderance of the evidence. However, they continue to disagree whether Defendant has shown $5 million is in dispute. Under CAFA, the claims of all the Plaintiffs and putative class members are aggregated to determine if the amount in controversy exceeds the jurisdictional threshold. To attempt to compute the amount in controversy, the Defendant has addressed the following variables: (i) the size of the putative class; (ii) the amount of overtime worked by the purported class members; (iii) the applicable pay rate; (iv) the liability period; and (v) attorney's fees. In order to address the factors, the Defendant relies in part on the Declaration of Christina Michelle Hall, Payroll Director for PrimeFlight Aviation Services. Applying the Hall Declaration to the allegations in the Complaint, the Defendant calculates the amount in controversy to be at least $6,594,295. After carefully reviewing the parties' differing calculations, Magistrate Judge Falk is satisfied that the Defendant's composition of the amount in controversy is reasonable and not a "pie-in-the-sky" contrived number invented to meet the jurisdictional threshold. As is shown, the Defendant has met its burden to show that more than $5 million is in dispute. For this reason, he respectfully recommended that the Plaintiff's motion to remand be denied. A full-text copy of the Court's July 28, 2017 report and recommendation is available at https://is.gd/xpn499 from Leagle.com. TANAIJAH ROUNDTREE, Plaintiff, represented by KARA SUE MILLER -- kmiller@vandallp.com -- VIRGINIA & AMBINDER LLP. TANAIJAH ROUNDTREE, Plaintiff, represented by LLOYD R. AMBINDER -- lambinder@vandallp.com -- VIRGINIA & AMBINDER, LLP. NICOLAS MOLINA, Plaintiff, represented by KARA SUE MILLER, VIRGINIA & AMBINDER LLP & LLOYD R. AMBINDER, VIRGINIA & AMBINDER, LLP. D'ANDRE KING, Plaintiff, represented by KARA SUE MILLER, VIRGINIA & AMBINDER LLP & LLOYD R. AMBINDER, VIRGINIA & AMBINDER, LLP. PRIMEFLIGHT AVIATION SERVICES, INC., Defendant, represented by MICHAEL JAMES RICCOBONO -- michael.riccobono@ogletree.com -- OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. & RYAN TODD WARDEN -- ryan.warden@ogletree.com -- OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. PROVIDENCE HEALTH: 9th Cir. Affirms Dismissal of "Morales" ---------------------------------------------------------- In the case captioned RENATE MORALES, on behalf of herself and all other persons similarly situated, Plaintiff-Appellant, v. PROVIDENCE HEALTH SYSTEM-SOUTHERN CALIFORNIA, Erroneously Sued As Providence Health and Services, Inc., Defendant-Appellee, No. 16- 55072 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's dismissal of the Plaintiff's amended complaint without prejudice for failure to exhaust administrative remedies. After a fall, the Plaintiff received 20 physical therapy sessions at a Providence facility. Medicare made conditional payments for the first 12 sessions, subject to any recovery from an alleged tortfeasor. Instead of billing Medicare for the remaining eight sessions, Providence placed a lien on Morales' tort claim. In this putative class action, Morales claims that Providence's failure to bill Medicare constitutes breach of contract, fraud, negligent misrepresentation, violation of the California Unfair Competition Law and Consumer Legal Remedies Act, and breach of the covenant of good faith and fair dealing. The district court dismissed his first amended complaint without prejudice for failure to exhaust administrative remedies. Morales appeals. The Court affirmed. It explains that it has a jurisdiction over the appeal. Providence argues that the Court does not have jurisdiction over the appeal because the district court dismissal was without prejudice. The dispute resolution process in 42 U.S.C. Section 1395y(b)(2)(B)(vii)(IV), which the district court cited, applies only to conditional Medicare reimbursements, not to the failure of a Medicare provider to submit a payment in the first place. In addition, the Medicare Act's exhaustion requirement, 42 U.S.C. Section 405(h), applies to judicial review of claims arising under the Act. Each of Morales' claims is complaining about the denial of Medicare benefits and therefore is subject to the exhaustion requirement. Finally, Morales argues that she could not be required to exhaust administrative remedies because none existed. But, the Court notes, as the district court noted, that to the extent the Plaintiff is claiming that the Defendants are running afoul of the Medicare Act by collecting reimbursement from her in an amount greater than what is permitted under that Act she is making a claim for benefits. The administrative appeals process under 42 U.S.C. Section 1395ff governs benefits determinations. Alternatively, Morales could have submitted the relevant claims directly to Medicare. A full-text copy of the Court's July 28, 2017 memorandum is available at https://is.gd/7ZUFR7 from Leagle.com. QUALITY SYSTEMS: 9th Cir. Reverses Dismissal of Securities Suit --------------------------------------------------------------- Judge William A. Fletcher of the U.S. Court of Appeals for the Ninth Circuit reversed the district court dismissal with prejudice of the case captioned IN RE QUALITY SYSTEMS, INC. SECURITIES LITIGATION, Debtor. CITY OF MIAMI FIRE FIGHTERS' AND POLICE OFFICERS' RETIREMENT TRUST; ARKANSAS TEACHER RETIREMENT SYSTEM, Plaintiffs-Appellants, v. QUALITY SYSTEMS, INC.; STEVEN T. PLOCHOCKI; PAUL A. HOLT; SHELDON RAZIN, Defendants-Appellees, No. 15-55173 (9th Cir.) and remanded for further proceedings. The Lead Plaintiffs brought this would-be class action on behalf of all persons or entities who purchased or otherwise acquired the common stock of Defendant QSI between May 26, 2011, and July 25, 2012. They allege that during the Class Period, QSI and several of its officers made false or misleading statements about the current and past state of QSI's sales "pipeline," and used those statements to support public guidance to investors about QSI's projected growth and revenue. The Plaintiffs allege that the Individual Defendants had real-time sales information showing a decline in sales due to market saturation beginning as early as April 2011, and that they knew that their public statements denying any decline were false or misleading. The district court dismissed the Plaintiffs' complaint with prejudice, finding that the Defendants' non-forward-looking statements about the past and current state of QSI's sales pipeline were non-actionable puffery, and that their forward- looking statements about projected growth and revenue were protected by the safe harbor provision of the Private Securities Litigation Reform Act. Judge Fletcher disagrees with the district court. First, some of the Defendants' statements were "mixed statements," containing non-forward-looking statements as well as forward-looking statements of projected revenue and earnings. He holds that a defendant may not transform non-forward-looking statements into forward-looking statements that are protected by the safe harbor provisions of the PSLRA by combining non-forward-looking statements about past or current facts with forward-looking statements about projected revenues and earnings. Second, he holds that many of the Defendants' non-forward-looking statements were materially false or misleading. Third, he holds that some of the Defendants' forward-looking statements were materially false or misleading, were not accompanied by appropriate cautionary statements, and were made with actual knowledge of their false or misleading nature. For these reasons, Judge Fletcher reversed and remanded for further proceedings consistent with his opinion. A full-text copy of the Court's July 28, 2017 opinion is available at https://is.gd/zIRbjG from Leagle.com. Joseph D. Daley -- joed@rgrdlaw.com -- (argued), Christopher D. Stewart -- cstewart@rgrdlaw.com -- and Robert R. Henssler, Jr. -- bhenssler@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, San Diego, California; Benjamin Galdston -- beng@blbglaw.com -- Blair A. Nicholas -- blairn@blbglaw.com -- Brandon Marsh -- brandon.marsh@blbglaw.com -- and Lucas E. Gilmore -- Lucas.Gilmore@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP, San Diego, California; Avi Josefson -- avi@blbglaw.com -- and Gerald Silk -- jerry@blbglaw.com -- Bernstein Litowitz Berger & Grossman LLP, New York, New York; Stephen H. Cypen -- scypen@cypen.com -- Cypen & Cypen, Miami Beach, Florida; for Plaintiffs-Appellants. Peter A. Wald -- peter.wald@lw.com -- (argued), Latham & Watkins, San Francisco, California; Andrew R. Gray -- andrew.gray@lw.com -- and Michele D. Johnson -- michele.johnson@lw.com -- Latham & Watkins LLP, Costa Mesa, California; Colleen C. Smith -- colleen.smith@lw.com -- Latham & Watkins LLP, San Diego, California; for Defendants-Appellees. RED CARPET: Faces "Woods" Suit in Eastern Dist. of New York ----------------------------------------------------------- A class action lawsuit has been filed against Red Carpet Management LLC. The case is captioned as Rex T. Woods, individually and in behalf of all other persons similarly situated, the Plaintiff, v. Red Carpet Management LLC, jointly and severally, and Ira Neuberg, jointly and severally, the Defendants, Case No. 2:17-cv-04311 (E.D.N.Y., July 20, 2017).[BN] The Plaintiff appears pro se. SANDRIDGE ENERGY: Reliance's Bid to Dismiss "Gernandt" Okayed ------------------------------------------------------------- In the case captioned BARTON GERNANDT, JR., et al., Plaintiff, v. SANDRIDGE ENERGY INC., et al., Defendants. CHRISTINA A. CUMMINGS, et al., Plaintiff, v. SANDRIDGE ENERGY, INC., et al., Defendants. RICHARD A. McWILLIAMS, et al., Plaintiff, v. SANDRIDGE ENERGY, INC., et al., Defendants, Case No. CIV-15-834-D, Consolidated with Case No. CIV-15-892-D., CIV-15-1001-D (W.D. Okla.), Judge Timothy D. DeGiusti of the U.S. District Court for the Western District of Oklahoma granted Defendant Reliance Trust Co.'s Motion to Dismiss Consolidated Class Action Complaint and Motion to Strike Jury Demand. This consolidated class action involves claims for alleged violations of the Employee Retirement Income Security Act of 1974 ("ERISA"), with respect to the SandRidge Energy, Inc., 401(k) Plan. The Plaintiffs, participants and beneficiaries of the Plan, claim the Defendants were responsible for the Plan's investments and breached their fiduciary duties by, inter alia, retaining SandRidge common stock as an investment option in the Plan despite its decline and when a reasonable fiduciary would have done otherwise. Specifically, they allege the Defendants permitted the Plan to continue to offer SandRidge Stock as an investment option to Participants even after the Defendants knew or should have known that: (i) SandRidge Stock was, for a substantial portion of the Class Period (Aug. 2, 2012 to the present), artificially inflated; (ii) SandRidge was in extremely poor financial condition; and (iii) SandRidge faced extremely poor long term prospects, making it an imprudent retirement investment option for the Plan. The Plaintiffs' Complaint is largely based on public information about SandRidge's gradual decline into bankruptcy, beginning in 2012 and culminating in 2016. Before the Court is Defendant Reliance's Motion to Dismiss Consolidated Class Action Complaint and Motion to Strike Jury Demand. Reliance was the Plan's trustee and held the Plan's assets in trust. The Plaintiffs contend that, given the amount of public information available regarding SandRidge's financial condition, Reliance had a duty to disregard any instruction to invest Plan assets in SandRidge stock. They have responded to the Motion and Reliance has replied. Reliance contends the Plaintiffs' claims against it should be dismissed on the grounds that it was a directed trustee that did not possess discretion regarding the extent to which the Plan invested in SandRidge stock, and thus, it cannot be held liable for the Plan's ongoing investment in the stock. The Plaintiffs do not dispute that Reliance was a directed trustee. Accordingly, the issue is whether Reliance's status as a directed trustee is sufficient to absolve it of liability for following directions given by SandRidge's Benefits Committee. The Court also finds that the standard announced in Fifth Third Bancorp v. Dudenhoeffer applies to the Plaintiffs' claims. The Plaintiffs contend Fifth Third is inapplicable because their claims against Reliance do not concern whether the market was over- or undervaluing SandRidge stock, but that the basic risk profile and future business prospects of SandRidge had so dramatically changed, that continued deterioration of the price of SandRidge Stock was inevitable, making SandRidge an imprudent Plan investment option. However, as other courts have noted in evaluating similar ERISA claims, the purported distinction between claims involving excessive risk and claims involving market value is illusory. Fifth Third forecloses breach of prudence claims based on public information irrespective of whether such claims are characterized as based on alleged overvaluation or alleged riskiness of a stock. Accordingly, the Court concluded that the Plaintiffs must plead facts sufficient to meet Fifth Third's special circumstances requirement. The Court granted Reliance's Motion on this issue. Reliance next contends the Plaintiffs have failed to state a claim for co-fiduciary liability. Viewing the allegations in the light most favorable to the Plaintiffs, the Court finds that the Plaintiffs have failed to plead sufficient factual content that would allow the Court to draw the reasonable inference that Reliance had actual knowledge of its co-defendant's alleged misconduct. Although the Plaintiffs adequately set forth the statutory elements of co-fiduciary liability, the Complaint is devoid of any supporting facts that bolster their contention Reliance had "actual knowledge" of the other fiduciary's alleged breaches. Accordingly, Reliance's Motion on this issue is granted. Lastly, Reliance moves to strike the Plaintiffs' jury trial demand. The Court finds the Plaintiffs' argument unpersuasive. First, Montanile involved the application of ERISA Section 502(a)(3), which is not at issue in the present case. Second, Montanile did not address whether there is a right to a jury trial under ERISA. Lastly, although the Court is mindful of Montanile's general holding, it is not clear that the Court's holding was meant to overturn the well-established precedent regarding the right to a jury trial under the claims asserted here. Instead, following well-established Tenth Circuit precedent, the Court concludes that the Plaintiffs are not entitled to a jury trial under the facts and allegations of this case. Accordingly, the Court struck the Plaintiffs' jury demand. For these reasons, the Court granted the Defendant's Motion to Dismiss. With respect to the claims that have been dismissed, the Court is not convinced the Plaintiffs are unable to state a claim for which relief can be granted. Accordingly, the Plaintiffs are granted leave to file an amended complaint within 21 days of the Order or seek an extension of time to do so. A full-text copy of the Court's July 28, 2017 order is available at https://is.gd/js2KB5 from Leagle.com. Barton Gernandt, Jr, Plaintiff, represented by Jason E. Roselius, Mattingly & Roselius PLLC. Barton Gernandt, Jr, Plaintiff, represented by Tanner W. Hicks -- tanner@mroklaw.com -- Mattingly & Roselius PLLC, Donna S. Moffa -- dmoffa@ktmc.com -- Kessler Topaz Meltzer & Check LLP, Edward W. Ciolko -- eciolko@ktmc.com -- Kessler Topaz Meltzer & Check LLP, Emmanuel E. Edem, Norman & Edem PLLC, James A. Maro, Jr. -- jmaro@ktmc.com -- Kessler Topaz Meltzer & Check LLP, Julie Eve Siebert-Johnson -- jsjohnson@ktmc.com -- Kessler Topaz Meltzer & Check LLP, Mark K. Gyandoh, Kessler Topaz Meltzer & Check LLP & Robert I. Harwood -- rharwood@hfesq.com -- Harwood Feffer LLP. Christina A Cummings, Plaintiff, represented by Emmanuel E. Edem, Norman & Edem PLLC, L. Mark Bonner, Norman & Edem PLLC, Michael Jason Klein -- mklein@ssbny.com -- Stull Stull & Brody, Tanner W. Hicks -- tanner@mroklaw.com -- Mattingly & Roselius PLLC & Mark K. Gyandoh -- mgyandoh@ktmc.com -- Kessler Topaz Meltzer & Check LLP. Richard A McWilliams, Plaintiff, represented by Daniel M. Delluomo, Delluomo & Crow, Robert I. Harwood, Harwood Feffer LLP, Tanner W. Hicks, Mattingly & Roselius PLLC, Mark K. Gyandoh, Kessler Topaz Meltzer & Check LLP, Daniel M. Delluomo, Delluomo & Crow, Mark K. Gyandoh, Kessler Topaz Meltzer & Check LLP & Tanner W. Hicks, Mattingly & Roselius PLLC. Joe L. Rayos, Plaintiff, represented by Tanner W. Hicks, Mattingly & Roselius PLLC & Mark K. Gyandoh, Kessler Topaz Meltzer & Check LLP. Sandridge Energy Inc, Defendant, represented by Alexander K. Talarides -- atalarides@orrick.com -- Orrick Herrington & Sutcliffe, Brandon P. Long -- brandon.long@mcafeetaft.com -- McAfee & Taft, Kenneth P. Herzinger -- kherzinger@orrick.com -- Orrick Herrington & Sutcliffe, pro hac vice, M. Todd Scott -- tscott@orrick.com -- Orrick Herrington & Sutcliffe, Mark D. Spencer -- mark.spencer@mcafeetaft.com -- McAfee & Taft & Michael F. Lauderdale -- michael.lauderdale@mcafeetaft.com -- McAfee & Taft. Tom L Ward, Defendant, represented by Alexander K. Talarides, Orrick Herrington & Sutcliffe, Christopher J. Fawal, Latham & Watkins-WASHINGTON, George S. Corbyn, Jr., Corbyn Hampton PLLC, James C. Word, Latham & Watkins-WASHINGTON, Kenneth P. Herzinger, Orrick Herrington & Sutcliffe, pro hac vice, M. Todd Scott, Orrick Herrington & Sutcliffe, Margaret A. Tough -- margaret.tough@lw.com -- Latham & Watkins & Steven M. Bauer -- steven.bauer@lw.com -- Latham & Watkins. Stephen C Beasley, Defendant, represented by Alexander K. Talarides, Orrick Herrington & Sutcliffe, Brandon P. Long, McAfee & Taft, Kenneth P. Herzinger, Orrick Herrington & Sutcliffe, pro hac vice, M. Todd Scott, Orrick Herrington & Sutcliffe, Mark D. Spencer, McAfee & Taft & Michael F. Lauderdale, McAfee & Taft. James D Bennett, Defendant, represented by Alexander K. Talarides, Orrick Herrington & Sutcliffe, Brandon P. Long, McAfee & Taft, Kenneth P. Herzinger, Orrick Herrington & Sutcliffe, pro hac vice, Mark D. Spencer, McAfee & Taft & Michael F. Lauderdale, McAfee & Taft. Jim J Brewer, Defendant, represented by Alexander K. Talarides, Orrick Herrington & Sutcliffe, Brandon P. Long, McAfee & Taft, Kenneth P. Herzinger, Orrick Herrington & Sutcliffe, pro hac vice, M. Todd Scott, Orrick Herrington & Sutcliffe, Mark D. Spencer, McAfee & Taft & Michael F. Lauderdale, McAfee & Taft. Everett R Dobson, Defendant, represented by Alexander K. Talarides, Orrick Herrington & Sutcliffe, Brandon P. Long, McAfee & Taft, Kenneth P. Herzinger, Orrick Herrington & Sutcliffe, pro hac vice, M. Todd Scott, Orrick Herrington & Sutcliffe, Mark D. Spencer, McAfee & Taft & Michael F. Lauderdale, McAfee & Taft. William A Gilliland, Defendant, represented by Alexander K. Talarides, Orrick Herrington & Sutcliffe, Brandon P. Long, McAfee & Taft, Kenneth P. Herzinger, Orrick Herrington & Sutcliffe, pro hac vice, M. Todd Scott, Orrick Herrington & Sutcliffe, Mark D. Spencer, McAfee & Taft & Michael F. Lauderdale, McAfee & Taft. Daniel W Jordan, Defendant, represented by Alexander K. Talarides, Orrick Herrington & Sutcliffe, Brandon P. Long, McAfee & Taft, Kenneth P. Herzinger, Orrick Herrington & Sutcliffe, pro hac vice, M. Todd Scott, Orrick Herrington & Sutcliffe, Mark D. Spencer, McAfee & Taft & Michael F. Lauderdale, McAfee & Taft. Edward W Moneypenny, Defendant, represented by Alexander K. Talarides, Orrick Herrington & Sutcliffe, Brandon P. Long, McAfee & Taft, Kenneth P. Herzinger, Orrick Herrington & Sutcliffe, pro hac vice, M. Todd Scott, Orrick Herrington & Sutcliffe, Mark D. Spencer, McAfee & Taft & Michael F. Lauderdale, McAfee & Taft. Roy T Oliver, Jr, Defendant, represented by Alexander K. Talarides, Orrick Herrington & Sutcliffe, Brandon P. Long, McAfee & Taft, Kenneth P. Herzinger, Orrick Herrington & Sutcliffe, pro hac vice, M. Todd Scott, Orrick Herrington & Sutcliffe, Mark D. Spencer, McAfee & Taft & Michael F. Lauderdale, McAfee & Taft. SCRUB INC: Abdi, et al Seek Overtime Pay under FLSA --------------------------------------------------- Hassan Abdi, Maria Abril Gonzalez, Fernando Acono, Nancy Acosta, Julia Acosta, Juan Acupina, Imelda Adame, Antonio Adan, Mawuli Agblewonou, Mirella Aguilar, Angel Aguilar, Rosa Aguilera, Miguel Aguiniga-Gonzalez, et al., the Plaintiffs, v. SCRUB, INC.; TERESA KAMINSKA; and MARK RATHKE, the Defendants, Case No. 1:17-cv-05136 (N.D. Ill., July 11, 2017), seeks to recover compensatory damages, including all regular, premium, and overtime pay owed under the Fair Labor Standards Act (FLSA). The case is an individual action by each of the Plaintiffs under the Fair Labor Standards Act (FLSA); and a Rule 23 class action under the Illinois Minimum Wage Law (IMWL) and the Illinois Wage Payment And Collection Act (IWPCA), involving janitors whose clock times as reflected on punch cards were improperly and detrimentally rounded by Defendants, and who were otherwise not properly compensated. In addition, each of the Plaintiffs were denied the full extent of their statutorily-required meal breaks, and were not paid for work performed during their unpaid meal breaks. Defendants' practices caused injury to Plaintiffs because they deprived the janitors of their earned wages and overtime. Scrub, Inc. is a highly specialized contract cleaning company with nearly 1,000 employees providing nationwide janitorial and facility services.[BN] The Plaintiffs are represented by: Glen J. Dunn, Jr. GLEN J. DUNN & ASSOCIATES, LTD. 221 North LaSalle Street, Suite 1414 Chicago, IL 60601 Telephone: (312) 546 5056 - and - Jeffrey Grant Brown Jeffrey Grant Brown, P.C. 221 North LaSalle Street, Suite 1414 Chicago, IL 60601 Telephone: (312) 789 9700 SOUTHERN REFRIGERATED: "Bass" Suit Moved to W.D. Arkansas --------------------------------------------------------- The class action lawsuit titled David Bass, individually, on a representative basis, and on behalf of all others similarly situated, the Plaintiff, v. Southern Refrigerated Transport, Inc., an Arkansas Corporation and Does 1 through 10, inclusive, the Defendants, Case No. 5:17-cv-00195, was removed on July 26, 2017 from the U.S. District Court for the Central District of California, to the U.S. District Court for the Western District of Arkansas (Texarkana). The Western District Court Clerk assigned Case No. 4:17-cv-04061-SOH to the proceeding. The case is assigned to the Hon. Susan O. Hickey.[BN] The Plaintiff is represented by: Brian J. Mankin, Esq. Peter Carlson, Esq. FERNANDEZ AND LAUBY LLP 4590 Allstate Dr. Riverside, CA 92501 Telephone: (951) 320 1444 Facsimile: (951) 320 1445 E-mail: bjm@fernandezlauby.com PJC@fernandezlauby.com The Defendant is represented by: Kai-Ching Cha, Esq. Michael J Hui, Esq. Richard H Rahm, Esq. Littler Mendelson PC 333 Bush Street, 34th Floor San Francisco, CA 94104 Telephone: (415) 433 1940 Facsimile: (415) 399 8490 E-mail: kcha@littler.com mhui@littler.com rrahm@littler.com SPOTIFY USA: Court Dismisses Plaintiff's Claim Brought Under ARL ---------------------------------------------------------------- Nancy Stagg, Esq. -- NStagg@kilpatricktownsend.com -- of Kilpatrick Townsend & Stockton LLP, in an article for JDSupra, wrote that a recent federal district court opinion highlights the class action risks companies selling consumer goods and services in California face from California's Automatic Renewal Law, California Business & Professions Code Section 17600 ("ARL"). The ARL, which was enacted in 2010, requires companies selling goods and services in California through continuous service programs, or automatically-renewing consumer contracts, or when offering free trials, to clearly and conspicuously disclose the terms, obtain the consumer's affirmative consent before imposing a charge, and provide an acknowledgment that contains the terms, the cancellation policy, and an easy-to-use method to cancel the service. Given the increasing popularity of subscription services for everything from streaming music to beauty products, numerous class action lawsuits have been filed against goods and service providers alleging violations of the ARL. In an order dated July 17, 2017 by U.S. District Judge William Alsup in the Northern District of California in Gregory Ingalls, et al., v. Spotify USA, Inc. (Case No. 3:16-CV-03533 WHA), the District Court granted in part and denied in part Spotify's motion for summary judgment on a plaintiff's claims brought under the ARL and California's Unfair Competition Law, California Business & Professions Code Section 17200 ("UCL"). The District Court granted summary adjudication and dismissed plaintiff's claim brought under the ARL but denied summary judgment on plaintiff's UCL claim. (At the time of this publication, plaintiff's motion for class certification was pending before the District Court.) The District Court's order dismissing plaintiff's claim based on the ARL itself is in line with other recent orders from the Eastern and Central Districts of California that have found that the ARL does not provide a private right of action. See Johnson v. Pluralsight, LLC, -- F. Supp. 3d --, 2017 WL 661953 (E.D. Cal. Feb. 17, 2017) (Judge Morrison England, Jr.); Roz v. Nestle Waters N. Am.,Inc., No. 2:16-cv-04418-SVM-JEM, 2017 WL 132853 (C.D. Cal. Jan. 11, 2017) (Judge Stephen Wilson). However, because a UCL claim can be based upon the violation of a statute, the District Court found that the alleged violation of the ARL could be the predicate unlawful act upon which a UCL claim (and class action) could be based. The District Court also rejected Spotify's claim that the plaintiff lacked Article III standing to bring the unfair competition claim. The District found that plaintiff's expenditure of $9.99 a month for 3 months for an online music streaming service, considered in light of his testimony that he did not expect to be charged for the service, no longer wanted it, and did not use it after the first 2 weeks of his 3-day free trial, was sufficient to establish injury-in-fact. In examining each of the three grounds upon which the plaintiff based his claim that Spotify violated the ARL, the District Court determined that the plaintiff raised a genuine issue of material fact as to "but for" causation, which precluded summary judgment for Spotify. First, the plaintiff's testimony -- to the effect that, if the terms had been properly presented to him, he would have read them and cancelled his subscription prior to the end of the free trial -- was sufficient to support his claim that Spotify's failure to disclose its automatic-renewal terms in a clear and conspicuous manner caused him harm. The District Court rejected Spotify's argument that, because the plaintiff admitted he did not read Spotify's automatic renewal disclosure, his injury was not traceable to Spotify's conduct. Plaintiff's allegations were not related to the actual content of the disclosure, according to the District Court, but were instead "predicated on a prophylactic law requiring businesses to present disclosures in a conspicuous manner." Second, the District Court found that the plaintiff sufficiently established causation as to his claim that Spotify failed to obtain his affirmative consent to the automatic renewal program: "Had Spotify presented [plaintiff] with an opportunity to affirmatively consent, he may have read whatever he was consenting to." Finally, in assessing plaintiff's third claim that Spotify failed to provide an appropriate acknowledgment of the automatic renewal disclosure, the District Court noted that the receipt plaintiff received after signing up contained only a link to the online terms and not a copy of the actual terms. Because Spotify failed to address the adequacy of this type of disclosure in its motion, the District Court also denied summary judgment as to this claim. Practice Tip: While many other states have enacted similar laws, California's Automatic Renewal Law is considered to be among the most stringent in the United States. California is currently a hot spot for the filing of automatic-renewal disclosure class action cases. To avoid being targeted, companies offering subscription service programs, automatic renewals, and free trials should carefully review their compliance with California law and make any necessary changes to their sign-up process to provide clear and conspicuous disclosure, obtain affirmative consent, and provide an appropriate acknowledgement to the consumer. [GN] STATE COLLEGE: Responds to Workers' Class Action Over "Tip Pool" ---------------------------------------------------------------- Jeremy Hartley, writing for Centre Daily, reports that a State College restaurant facing a class-action lawsuit has denied any wrongdoing and instead accused one of the plaintiffs of defrauding the establishment. A group of former delivery drivers brought the suit against Wings Over Happy Valley, located at 244 W. Hamilton Ave., in May. The suit alleges that the restaurant, and alleged owner Steven Moreira, unlawfully required drivers to participate in a "tip pool" used to compensate other workers. Specifically, the suit claims that drivers were routinely required to "tip out" about 8 percent of their tips to provide compensation to kitchen workers. Kitchen workers are not regularly tipped employees, the suit said, claiming that the restaurant violated the Fair Labor Standards Act and state Minimum Wage Act by wrongfully retaining the plaintiff's wages to avoid paying kitchen workers "an appropriate wage." In a defendant's answer to the May complaint, filed on July 21 with the U.S. District Court for the Middle District of Pennsylvania, Mr. Moriera and Wings Over denied engaging in unlawful tip-pooling practices, specifically denying that Mr. Moriera individually owns or operates the restaurant and individually employed the plaintiffs. The response claimed that two of the plaintiffs -- Jacob Wilson and Ty Carts -- did perform duties as delivery drivers, but were also employed as a driver manager and shift manager, respectively, and were paid more than minimum wage, excluding tip income. The response further claimed that wages were not "taken" from the plaintiffs, who were not required to participate in a "tipping pool" at all. The defendant's response admitted to having a tip jar for kitchen workers -- who were reportedly paid between $9 and $10.50 per hour -- and any contributions made to the jar were entirely voluntary. "At no time did Wings Over or Mr. Moreira withhold, take or in any way place the delivery drivers' tips into that jar," the document said. Wilson, it claimed, was "expressly informed in writing that the tip jar in question was voluntary." The response denied that the plaintiffs were subject to any common or general rule, policy or communication regarding a tip pool, further denying that the plaintiffs unlawfully lost any income. The response requested the court enter judgment in favor of the defendants, awarding "reasonable" attorney's fees and costs. In the response, the defendants claim Wilson was paid $15 per hour when acting as the driving manager and $6 per hour when acting as a delivery driver, during which time he earned tip income from customers. The document alleges that on several occasions, Wilson misrepresented his roles when tracking the time he worked, falsely entering time as a manager while working as a driver. These misrepresentations resulted in him being paid a higher wage, the response claimed, saying he intentionally defrauded the restaurant of money. The defendants seek further judgment in favor against Wilson with additional monetary damages, punitive damages, attorney's fees and costs. [GN] SUGAR FOOD: Court Denies Settlement in "Manohar" ------------------------------------------------ Magistrate Judge Nina Y. Wang of the U.S. District Court for the District of Colorado denied the Plaintiffs' Unopposed Motion for Approval of Fair Labor Standards Act Settlement in the case captioned ASWINRAJ MANOHAR and PACKIARAJ VEERAN, Plaintiffs, v. SUGAR FOOD LLC d/b/a Jai Ho, SUGAR BHAVAN LLC d/b/a Jai Ho Boulder, SUGAR DOSA LLC d/b/a Jai Ho Park Meadows, SATHYA NARAYA, an individual, and SUJATHA NARAYAN, an individual, Defendants, Civil Action No. 16-cv-02454-NYW (D. Colo.). On Sept. 29, 2016, Plaintiff Manohar initiated this lawsuit for violations of the Fair Labor Standards Act ("FLSA"), the Colorado Wage Claim Act ("CWCA"), and the Colorado Minimum Wage Order for unpaid and underpaid wages he earned while employed at the Defendants' Indian restaurants as a server and cashier and for general front of the house duties. On Dec. 16, 2016, the Defendants filed an Answer that included one counterclaim consisting of nine paragraphs. On Feb. 9, 2017, Mr. Manohar amended his Complaint with leave of court to add Plaintiff Veeran. The First Amended Complaint pleads one claim for FLSA violations asserted by both the Plaintiffs against all the Defendants, and one claim for violations of the CWCA asserted by both the Plaintiffs against Defendants Sugar Food, Sugar Bhavan, and Sugar Dosa. They plead that the Defendants were their employers at all times relevant to this lawsuit. On Feb. 23, 2017, the Defendants filed an Answer in which Defendant Sugar Bhavan asserted three Counterclaims for Conversion, Civil Theft, and Breach of Fiduciary Duty against Plaintiff Manohar. On March 16, 2017, Plaintiff Manohar filed a motion to dismiss arguing that the Counterclaims constitute improper retaliation in violation of the FLSA and CWA's anti- retaliation provisions, and must be dismissed as they do not arise out of a common nucleus of operative facts with their Plaintiffs' FLSA/CWA wage claims. Sugar Bhavan filed a Response on April 6, 2017. Plaintiff Manohar filed a Reply on April 20, 2017. Before the motion to dismiss could be fully adjudicated, however, the Parties notified the Court that the matter had been settled. On June 30, 2017, the Parties filed a Notice of Settlement stating that they had reached a mutually-acceptable settlement in this action. On July 14, 2017, the Plaintiffs filed the Motion for Approval and accompanying brief. The same day, the Court denied the motion to dismiss Counterclaims as moot in light of the Motion for Approval, permitting leave for the Plaintiffs to renew their motion should the settlement fail. Under the terms of the proposed Settlement Agreement, the Defendants agree to pay $17,500 to Plaintiff Manohar, $7,500 to Plaintiff Veeran, and $20,000 to the Plaintiffs' attorneys for fees and costs. Based on the information the Parties provide through the Amended Complaint and the Motion for Approval and associated brief, as well as consideration of the docket as a whole, the Court finds that a bona fide dispute led to the settlement negotiation and resulting terms. It also finds that the settlement agreement does not run afoul of the policy concerns underpinning the FLSA and there is no indication that the Defendants have a history of flouting FLSA requirements. However, the Motion for Approval raises several issues that preclude the Court from determining whether the settlement of the Plaintiffs' attorney's fees is reasonable. First, the "draft" is just that, a "draft," with no explanation of how it would differ from a "final" invoice. Second, their counsel do not attach affidavits to the Motion for Approval so as to explain the respective experience of the attorneys or and paralegal(s) involved, or justify their billing rates. Third, they present no comparator data to establish that their rate is, in fact, consistent with the prevailing rate for practitioners with FLSA expertise in this District. Fourth, upon review of the billing records, the Court finds that many of the billing entries are problematic because they are undecipherable to someone who is unfamiliar with the Plaintiffs' counsel's recordkeeping. The Ruiz v. Act Fast Delivery of Colorado court contemplated that the parties could elect to proceed with their settlement independent of the court's review, but if they chose to renew the motion for approval of settlement they would be required to address the court's concerns. This Court notes that the Parties before it may similarly elect to take such a course of action, and proceed independently in the resolution of this matter without judicial approval of the settlement. However, should the Parties continue to seek judicial review of their proposed settlement agreement, they must cure the deficiencies as described by the Court. Accordingly, the Court denied the Plaintiffs' Unopposed Motion for Approval of Fair Labor Standards Act Settlement. No later than Aug. 9, 2017, the Parties will either dismiss this action pursuant to their settlement and Federal Rule of Civil Procedure 41; or renew their motion for approval of settlement consistent with the instruction provided. A full-text copy of the Court's July 26, 2017 order is available at https://is.gd/aLIzaz from Leagle.com. Aswinraj Manohar, Plaintiff, represented by Alexander Gastman, AndersonDodson, P.C.. Aswinraj Manohar, Plaintiff, represented by Penn Anderson Dodson, AndersonDodson, P.C.. Packiaraj Veeran, Plaintiff, represented by Alexander Gastman, AndersonDodson, P.C. & Penn Anderson Dodson, AndersonDodson, P.C.. Sugar Food LLC, Defendant, represented by Jeffrey B. Klaus -- jeff_klaus@deisch-marion.com -- Deisch, Marion, & Klaus, P.C.. Sugar Bhavan LLC, Defendant, represented by Jeffrey B. Klaus, Deisch, Marion, & Klaus, P.C.. Sugar Dosa LLC, Defendant, represented by Jeffrey B. Klaus, Deisch, Marion, & Klaus, P.C.. Sathya Naraya, Defendant, represented by Jeffrey B. Klaus, Deisch, Marion, & Klaus, P.C.. Sujatha Narayan, Defendant, represented by Jeffrey B. Klaus, Deisch, Marion, & Klaus, P.C.. Sujatha Narayan, Counter Claimant, represented by Jeffrey B. Klaus, Deisch, Marion, & Klaus, P.C.. Sugar Dosa LLC, Counter Claimant, represented by Jeffrey B. Klaus, Deisch, Marion, & Klaus, P.C.. Sugar Bhavan LLC, Counter Claimant, represented by Jeffrey B. Klaus, Deisch, Marion, & Klaus, P.C.. Sugar Food LLC, Counter Claimant, represented by Jeffrey B. Klaus, Deisch, Marion, & Klaus, P.C.. Sathya Naraya, an individual, Counter Claimant, represented by Jeffrey B. Klaus, Deisch, Marion, & Klaus, P.C.. Aswinraj Manohar, Counter Defendant, represented by Alexander Gastman, AndersonDodson, P.C. & Penn Anderson Dodson, AndersonDodson, P.C.. Sujatha Narayan, an individual, Counter Claimant, represented by Jeffrey B. Klaus, Deisch, Marion, & Klaus, P.C.. Sugar Bhavan LLC, Counter Claimant, represented by Jeffrey B. Klaus, Deisch, Marion, & Klaus, P.C.. Sugar Food LLC, Counter Claimant, represented by Jeffrey B. Klaus, Deisch, Marion, & Klaus, P.C.. Sathya Naraya, Counter Claimant, represented by Jeffrey B. Klaus, Deisch, Marion, & Klaus, P.C.. Sugar Dosa LLC, Counter Claimant, represented by Jeffrey B. Klaus, Deisch, Marion, & Klaus, P.C.. Aswinraj Manohar, Counter Defendant, represented by Alexander Gastman, AndersonDodson, P.C. & Penn Anderson Dodson, AndersonDodson, P.C.. SUN-MAID GROWERS: Faces "Saghian" Suit in C.D. California --------------------------------------------------------- A class action lawsuit has been filed against Sun-Maid Growers of California. The case is styled as Jonathan Saghian, individually and on behalf of all others similarly situated, the Plaintiff, v. Sun-Maid Growers of California, the Defendant, Case No. 2:17-cv- 05013-AB-PJW (C.D. Cal., July 7, 2017). The case is assigned to the Hon. Judge Andre Birotte Jr. Sun-Maid Growers of California is a privately owned American cooperative of raisin growers headquartered in Kingsburg, California. Sun-Maid is the largest raisin and dried fruit processor in the world.[BN] The Plaintiff is represented by: Benjamin Heikali, Esq. Barbara A Rohr, Esq. FARUQI AND FARUQI LLP 10866 Wilshire Boulevard Suite 1470 Los Angeles, CA 90024 Telephone: (424) 256 2884 Facsimile: (424) 256 2885 E-mail: Bheikali@faruqilaw.com brohr@faruqilaw.com SYNGENTA: 2018 Class Action Hearings Scheduled in Kansas Court -------------------------------------------------------------- Mikkel Pates, writing for Agweek, reports that an early victory in cases against Syngenta is only one step in what could be another year or two lawsuits and appeals. Some U.S. farmers claim they're owed money because of the release of a certain genetic modifications into the corn market before it was fully accepted. Michelle Donarski -- mdonarski@andersonbottrell.com -- a shareholder attorney in the Anderson, Bottrell, Sanden & Thompson law firm in Fargo, has worked with lead counsel firms in the case for three years. The primary plaintiffs' lawyers are firms in St. Louis, Mo., Birmingham, Ala., and Dallas and Houston, Texas. Ms. Donarski's firm acts as local counsel for these bigger firms and gathers participant farmers who have grown corn since 2013 and allegedly are affected by the actions. The case is being tried in Kansas because of that court's experience and workforce. The Syngenta case is a confusing tangle of litigation involving thousands of plaintiffs in state and federal courts, with many parties making different claims. On June 23, 2017, in a federal court case in Kansas, a jury returned a $217.7 million verdict in a state negligence claim against Syngenta and in favor of a class of over 7,300 Kansas corn producer-plaintiffs. Syngenta has said it will appeal the Kansas verdict, as well as claims by other corn producers across the country. Syngenta says the company did nothing improper and that China's regulatory system was to blame. Unified jury In the Kansas class action case, the jury unanimously found that Syngenta had erred in its commercialization of Viptera and Duracade products -- both containing the MIR 162 trait. The jury awarded 100 percent of the damage alleged by the plaintiffs and rejected Syngenta's argument that China's was the cause of the damages. All farmers who raised corn in the eligible years are members of that class unless they have opted out. The Kansas case is being handled by Judge John W. Lungstrum, who has certified classes of corn producers in seven other states -- Arkansas, Illinois, Iowa, Missouri, Nebraska, Ohio and South Dakota. Farmers in 21 states account for 94 percent of the U.S. corn production in relevant years. Plaintiffs allege that Syngenta improperly commercialized Viptera before China had approved the particular genetic modification, costing U.S. farmers money and market share. The plaintiffs alleged that the losses to farmers ranged from 15.7 cents per bushel in 2013-2014 and up to 19.9 cents a bushel in 2015-2016, and then declined to about 6.1 cents. The case so far involves only Kansas farmers and does not set precedent for producers from other states, Ms. Donarski says. The cases for other states will be based on state negligence laws, which are different. Ms. Donarski says the decision is still good news for plaintiffs in that the jury "heard our experts on liability and on damages, and found that Syngenta is negligent, that it can't place blame on China and that farmers were damaged." She says the same damage and liability experts will testify in subsequent cases involving other states. 2018 trials The Kansas court is scheduled to hear federal class action cases in groups of one to two states on a schedule into 2018 -- Jan. 22 for Arkansas and Missouri, in a case expected to last three to four weeks. After that there is April 4 for Illinois and Nebraska; May 14, South Dakota and Iowa; and Oct. 8 for Ohio. The federal class action court will be looking for whether the state laws are similar enough to try the cases together. After that, groups of two to four states will be tried together, including Alabama, Colorado, Indiana, Kentucky, Louisiana, Michigan, Mississippi, North Dakota, Oklahoma, Tennessee, Texas and Wisconsin. No court date has been set for those on the federal class action. If the plaintiffs continue to have successful verdict awards, the parties could come together and discuss a "global settlement," she says. Syngenta also could refuse to settle, and more cases could be tried. Ms. Donarski's firm also is involved in a separate case in Minnesota state court that is scheduled to go to court in Hennepin County on Sept. 11 in Minneapolis. Minnesota corn growers are not eligible for the national class because they have their own case. It involves only Minnesota farmers who did not plant Viptera and Duracade. In that case, Ms. Donarski's firm helps farmers file claims. A separate case involves groups of individual plaintiffs in Illinois litigation, including Lee Murphy of Dallas, Texas, and Martin J. Phipps of San Antonio, Texas. Progressive Ag Law PLLC, of Fargo, was finding plaintiffs for that case. Syngenta responded to the amended complaint on June 27 -- essentially signaling the beginning of that case, although no trial date is set on that case according to the docket. Ray Grabanski, president of the Progressive Ag firm, did not immediately return comment for Agweek. [GN] TECH MAHINDRA: Ct. Conditionally Certifies Class in "Kumar" ----------------------------------------------------------- In the case captioned PANKAJ KUMAR, individually and on behalf of all other similarly situated individuals, Plaintiff, v. TECH MAHINDRA (AMERICAS) INC., Defendant, Case No. 4:16-cv-00905-JAR (E.D. Mo.), Judge John A. Ross of the U.S. District Court for the Eastern District of Missouri, Southeastern Division, granted the Plaintiffs' Motion for Conditional Class Certification and Court- Authorized Notice. On June 20, 2016, Plaintiff filed his original complaint against the Defendant, asserting individual unpaid-overtime claims under the Fair Labor Standards Act ("FLSA"), and Missouri statutory and common law. On Oct. 5, 2016, the Plaintiff amended his complaint to bring his claims on behalf of himself and others similarly situated, attaching a written consent to become a party plaintiff. In Count I of his amended complaint, Kumar brings an "opt-in" collective action under the FLSA on behalf of all persons who are, have been or will be employed by Tech Mahindra as Software Test Engineers or Software Engineers (and other titles that provide computer application and network environment support) at any time from three years prior to filing this action through the entry of judgment, and whose job it was to troubleshoot issues raised by test teams, deploy code and compile production plans. Counts II and III are brought as Federal Rule of Civil Procedure 23 class actions alleging violation of the Missouri Minimum Wage Law, and a state law claim of unjust enrichment. In his instant motion, Kumar requests the Court conditionally certify a collective action and authorize notice to the class of all U1-U3 band IT Delivery Engineers employed by Tech Mahindra who were classified as exempt during any workweek at any time three years prior to filing this action through the entry of judgment. In his revised proposed Notice, Kumar describes the proposed class as any individual who works or worked for the Defendant as a U1-U3 band IT Engineer under any of the following job titles: Associate Engineer, Associate Software Engineer, Junior Software Engineer, Junior Technical Engineer, Network Engineer, Senior Network Engineer, Product Engineer, Senior Product Engineer, Test Engineer, Senior Test Engineer, Software Engineer, or Senior Software Engineer, that were classified as exempt during any workweek at any time from June 20, 2013, to present. In response, Tech Mahindra consents to conditional certification of the class to the extent it includes U1-U3 band IT Engineers, but opposes certification of the class to the extent Kumar seeks to include all such employees who worked from June 20, 2013 (or three years prior to the date he filed his original complaint) to the present. It argues that the limitations period in this case should be two years, not three, as there is no evidence that it willfully violated the FLSA. It further argues that the limitations period, whether it is two years or three, should be measured from the date the Court conditionally certifies the class, not from the date the Plaintiff filed his original complaint. In reply, Kumar argues that the FLSA's three-year statute of limitations should apply because he has pled that Tech Mahindra's violation was willful, and that at this conditional-certification stage of the proceeding, no evidence of willfulness is required. In his view, running the limitations period from the date the Court conditionally certifies the class would improperly restrain the claims of the FLSA Collective members who have already filed their consent forms with the Court. He concedes that, for notice purposes, the limitations period should be calculated from the date the Court conditionally certifies the class. The Court granted the Plaintiff's motion for the conditional collective action certification and granted in part the court- authorized notice. It conditionally certifies a class of all U1- U3 band IT Delivery Engineers employed by the Defendant who were classified as exempt during any workweek at any time three years prior to Oct. 5, 2016 through the entry of judgment. The Court further (i) conditionally authorized Plaintiff Kumar to act as class representative; and (ii) authorized the Nichols Kaster, PLLP law firm to act as the class counsel. The Plaintiff will file his amended proposed Notice of Lawsuit and Consent to Join Collective Action against the Defendant no later than Aug. 8, 2017. The Defendant will file any objections to the Plaintiffs' amended proposed Notice no later than five days after it is filed. The Defendant will produce to Kumar a list of all potential class members in a computer-readable electronic data file format, no later than Aug. 25, 2017. A full-text copy of the Court's July 26, 2017 memorandum and order is available at https://is.gd/RzkGYG from Leagle.com. Pankaj Kumar, Plaintiff, represented by Benjamin F. Westhoff -- bwesthoff@sedeyharper.com -- SEDEY HARPER, P.C.. Pankaj Kumar, Plaintiff, represented by Brittany Bachman Skemp -- bskemp@nka.com -- NICHOLS KASTER, PLLP & Rachhana T. Srey -- srey@nka.com -- NICHOLS KASTER, PLLP. Tech Mahindra (Americas) Inc., Defendant, represented by Jeremy Michael Brenner -- jbrenner@armstrongteasdale.com -- ARMSTRONG TEASDALE LLP, Jovita M. Foster -- jfoster@armstrongteasdale.com -- ARMSTRONG TEASDALE LLP & Robert A. Kaiser -- rkaiser@armstrongteasdale.com -- ARMSTRONG TEASDALE LLP. THOROUGHBRED RESEARCH: Oct. 26 Hearing on Class Cert. Bid --------------------------------------------------------- In the case captioned GREGG RICHARDSON, individually and on behalf of all others similarly situated Plaintiff, v. THOROUGHBRED RESEARCH GROUP, INC., Defendant, Case No. 2:16-cv-656-FtM-99CM (M.D. Fla.), Magistrate Judge Carol Mirando of the U.S. District Court for the Middle District of Florida, Fort Myers Division, granted in part and denied in part the Joint Motion to Extend Time to Complete Discovery filed on July 7, 2017. On Aug. 26, 2016, the Plaintiff filed a Class Action Complaint under the Telephone Consumer Protection Act. The Defendant filed its Answer and Affirmative Defenses on Sept. 20, 2016. On Nov. 18, 2016, the Court entered its Case Management and Scheduling Order ("CMSO"), setting forth various case deadlines. The parties now seek to extend the CMSO deadlines by 90 days. In addition to the CMSO deadlines, the parties request to extend the Plaintiff's deadline to file a motion for class certification from Nov. 24, 2016 to Oct. 26, 2017. During the preliminary pretrial conference on Nov. 16, 2016, the parties requested that the Court extend the Plaintiff's deadline to move for class certification to July 1, 2017, three weeks after their proposed discovery date. Accordingly, the Court, with the parties' agreement, set "end of March 2017" as the deadline for the Plaintiff to move for class certification. In the present motion, the parties rightly point out that they requested a July 1, 2017 deadline during the preliminary pretrial conference, but do not acknowledge the Court's March 2017 deadline. They state that they have been operating as if the class certification deadline was July 1, 2017. Given the Defendant's consent to the request, the Court finds no prejudice to the nonmovant. The Court, however, finds that a long extension of the deadline for filing a motion for class certification will impact the judicial proceedings. Therefore, the Court set Oct. 26, 2017 as the new deadline for filing a motion for class certification, and Nov. 5, 2017 as the new deadline for filing dispositive motions. These deadlines are a mere 10 days apart. The Plaintiff will have up to and including Aug. 21, 2017 to move for class certification. A full-text copy of the Court's July 28, 2017 order is available at https://is.gd/q2PkkX from Leagle.com. Gregg Richardson, Plaintiff, represented by Patrick H. Peluso -- ppeluso@woodrowpeluso.com -- Woodrow & Peluso, LLC. Gregg Richardson, Plaintiff, represented by Stefan Coleman, Law Offices of Stefan Coleman, PLLC & Steven L. Woodrow -- swoodrow@woodrowpeluso.com -- Woodrow & Peluso, LLC. Thoroughbred Research Group, Inc., Defendant, represented by Ernest H. Kohlmyer, III, Urban Thier & Federer, PA & Mary Grace Dyleski, Urban Thier & Federer, PA. TIMBERWOLVES: Class Action Over Ticketing System Nears Settlement ----------------------------------------------------------------- Michael Rand, writing for Star Tribune, reports that a class- action lawsuit filed against the Timberwolves in 2016 over their implementation of their Flash Seats paperless ticketing system is nearing a settlement, according to an e-mail sent on July 24 from Brian Gudmundson, the attorney representing the plaintiffs, to at least one of the plaintiffs, Chris Hennen, which was obtained by the Star Tribune. The suit alleged that the implementation of Flash Seats "fundamentally, and unlawfully, alters the way Timberwolves ticket holders may use and transfer tickets" and was put in place to "control the use, resale, and transfer of tickets by season-ticket holders -- and to employ minimum resale prices, added fees, and other draconian restrictions on subsequent transfers of the tickets." The original plaintiffs argued that the organization implemented the Flash Seats system after season-ticket holders had already purchased their 2015-16 tickets and that had the plaintiffs -- both of whom spent more than $20,000 this season on Timberwolves season tickets -- known about the change it would have influenced their decisions. "While the team denied any wrongdoing or liability, as we enter this New Era of Timberwolves basketball, both parties felt strongly that it was important to resolve a two-season old dispute and focus on the future," the Timberwolves said in a statement. Glen Taylor, owner of the Timberwolves, also owns the Star Tribune. The case was filed in March 2016 in Hennepin County and was sent to an arbitrator in October. Per the e-mail from Mr. Gudmundson to Mr. Hennen, that process has led to a proposed settlement including these six points: * Every class-action member will be eligible to receive six upper level tickets from among 10 Timberwolves home games chosen by the team this season. * Class-action members get a free tour of the new Target Center, which will also be scheduled by the Timberwolves. * The Timberwolves will disclose explicitly and for the first time the 75 percent resale minimums right in the season membership agreement. * The Timberwolves are going to make a public statement regarding the settlement. * The Timberwolves are going to handle and pay for all notice and administration of the settlement. * The Timberwolves are going to pay $265,000 for attorneys' fees and expenses, and class representative service awards. "We presented these agreed terms to the Arbitrator and asked him to preliminarily approve the settlement as being fair and reasonable on its face, and to allow notice to be mailed to class members," Mr. Gudmundson wrote in the e-mail. "The arbitrator granted our request." Plaintiffs will now receive a class action notice, though it sounds like Mr. Hennen isn't exactly thrilled by the terms of the settlement. "I think it's a ripoff," he said. "We're getting tickets to probably some bad games against bad teams in the upper deck." Mr. Hennen said he joined the lawsuit after being unable to sell several games of his season-ticket package in 2015-16, the year Flash Seats was implemented, saying the minimum resale price was a factor. He said Timberwolves ticket representatives called last year and again this year to see if he was interested in buying season tickets, and he declined because Flash Seats is still the organization's ticket system. Mr. Hennen said he liked the part of the settlement in which the Wolves will have to disclose the 75 percent minimum resale price, though he added, "If I buy the tickets, I should be able to sell them for the price I want to sell them for." It's possible, though, that Mr. Hennen constitutes a part of a small but vocal minority of fans. In a Dec. 2016 interview, Brad Ruiter, the Wolves' VP of Communications, said of Flash Seats, "The vast majority of the feedback we have received from our ticket holders has been positive." [GN] TITLEMAX: Faces "Davis" Suit in Southern District of Florida ------------------------------------------------------------ A class action lawsuit has been filed against TitleMax of Alabama, Inc. The case is styled as Jessica Davis, Jimanika West, Erika Brinkley, and Kimberly Taylor, on behalf of themselves and all others similarly situated, the Plaintiff, v. TitleMax of Alabama, Inc. and TMX Finance, LLC, the Defendants, Case No. 2:17-cv-00488- SRW (S.D. Fla., July 20, 2017). The case is assigned to: the Hon. Judge Susan Russ Walker. TMX Finance is the parent company to the brands TitleMax, TitleBucks, EquityAuto Loan, The Cash Store and InstaLoan.[BN] The Plaintiffs are represented by: Andrew Phillip Campbell, Esq. Jonathan D. Guin, Esq. CAMPBELL, GUIN, WILLIAMS, GUY & GIDIERE 505 N. 20th Street, 16th Floor Birmingham, AL 35203 Telephone: (205) 224 -0750 E-mail: andy.campbell@campbellguin.com jonathan.guin@campbellguin.com - and - Jacob Alexander Fuller, Esq. James Doyle Fuller, Esq. FULLER & COPELAND PC 2851 Zelda Road Montgomery, AL 36106 Telephone: (334) 270 0020 Facsimile: (334) 270 9848 E-mail: jacob@fullercopeland.com jdf@fullercopeland.com - and - Susan Glasscock Copeland, Esq. FULLER & COPELAND 2851 Zelda Road Montgomery, AL 36106 Telephone: (334) 270 0020 Facsimile: (334) 270 9848 E-mail: susanc@fullercopeland.com TOYOTA: Class Action Mulled Over Role in Takata Airbag Scandal -------------------------------------------------------------- The Australian Associated Press reports that lawyers are filing an open class action against three car manufacturers over their role in the defective Takata airbag scandal. The Federal Court legal action will allege Toyota, Honda and Mazda are breaching consumer law provisions by not replacing faulty airbags despite a recall, global law firm Quinn Emanuel Urquhart and Sullivan announced on July 25. "It is quite frankly, outrageous and almost inconceivable that there are over one million cars on Australian roads that contain a 'safety' product that could, at any time, explode with lethal force," lawyer Damian Scattini said. The Australian government could impose mandatory recalls on faulty airbags linked to 18 deaths around the world if it's not satisfied major car manufacturers are doing enough voluntarily. A competition watchdog investigation was launched after consumer group Choice warned some car companies were replacing faulty Takata airbags with the same potentially-deadly devices. Following the revelation, the federal government said it had jointly written to all automotive manufacturers implicated in the massive worldwide recall demanding a "comprehensive status" on their progress. In a statement on July 24, Small Business Minister Michael McCormack said he wielded the power to trigger a mandatory recall on advice from the Australian Competition and Consumer Commission. Toyota and Lexus confirmed they used the same airbags and would need to refit some vehicles, while Choice also said Mazda, Lexus, BMW and Subaru had made the same mistake. Nissan said it had been replacing faulty airbags, but in May last year it was revealed the replacements would also be captured under a recall that covered airbags without a chemical drying agent. The newer version would not present any "unreasonable risk" for at least six years, the company said. The airbags' fault involves the ammonium nitrate used to trigger inflation. The chemical can deteriorate over time and cause a metal canister to explode too forcefully, projecting shrapnel. More than 2.3 million vehicles in Australia were subject to the recall originally issued back in 2009, but only 850,000 have had their Takata airbags replaced. A 58-year-old man who died in a Sydney car crash is suspected to be the 18th person globally -- and the first in Australia -- to have been killed as a result of the faulty product after police said he was struck by fragments. [GN] TRANS UNION: Faces "Nair" Suit in Southern Dist. of New York ------------------------------------------------------------ A class action lawsuit has been filed against Trans Union, LLC. The case is captioned as Paul K. Nair, individually and on behalf of all others similarly situated, the Plaintiff, v. Trans Union, LLC, the Defendant, Case No. 1:17-cv-05496-AT (S.D.N.Y., July 19, 2017). The case is assigned to the Hon. Judge Analisa Torres. TransUnion is a global leader in credit and information management.[BN] The Plaintiff is represented by: Kevin Christopher Mallon Fishman Rozen LLP 305 Broadway Suite 900 New York, NY 10007 Telephone: (212) 822 1474 Facsimile: (212) 897 5841 E-mail: consumer.esq@outlook.com TRI-STATE CANDY: Faces "Ortiz" Suit in E.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Tri-State Candy Wholesale, Inc. The case is captioned as Carlos Man de los Santos Ortiz, individually and on behalf of others similarly situated, the Plaintiff, v. Tri-State Candy Wholesale, Inc., doing business as: Tri-State Candy Wholesale; United Beverage Distributor Inc., doing business as: Beer Brothers; Kirtikumar Ved; and Amir Ali, the Defendants, Case No. 1:17-cv-04356 (E.D.N.Y., July 24, 2017). Tri-State is in the candy business.[BN] The Plaintiff appears pro se. TRINITY SERVICES: Faces "Reutter" Suit in Middle Dist. of Florida ----------------------------------------------------------------- A class action lawsuit has been filed against Trinity Services Group, Inc. The case is styled as David M. Reutter, and all others similarly situated, the Plaintiff, v. Trinity Services Group, Inc., Union Supply Group, Inc., and Secretary, Department of Corrections, the Defendants, Case No. 8:17-cv-01730-SDM-MAP (M.D. Fla., July 19, 2017). The case is assigned to the Hon. Judge Steven D. Merryday. Trinity Services is the leading food service provider to the corrections industry.[BN] The Plaintiff appears pro se. TWC ADMINISTRATION: "Fuller" Suit Moved to S.D. California ---------------------------------------------------------- The class action lawsuit titled Carmen Fuller, Laurence Gibbs, Matthew Lutack, and Brent Quick, an individual, on behalf of themself and other similarly situated employees, the Plaintiffs, v. TWC Administration, LLC, a Delaware limited liability company, and DOES 1-10, inclusive, Case No. 37-02017-00014437-CU-OE-CTL, was removed on July 26, from the Superior Court of California, County of San Diego, to the U.S. District Court for the Southern District of California (San Diego). The District Court Clerk assigned Case No. 3:17-cv-01513-DMS-AGS to the proceeding. The case is assigned to the Hon. Judge Dana M. Sabraw. TWC Administration LLC operates as a wired telecommunications carrier.[BN] The Plaintiff is represented by: David R Markham, Esq. THE MARKHAM LAW FIRM 750 B Street, Suite 1950 San Diego, CA 92101 Telephone: (619) 339 3995 Facsimile: (619) 615 2067 E-mail: dmarkham@markham-law.com The Defendant is represented by: Joseph Scott Carr, Esq. KABAT CHAPMAN & OZMER LLP 171 17th Street NW, Suite 1550 Atlanta, GA 30363 Telephone: (470) 447 0600 E-mail: scarr@kcozlaw.com TYSON FOODS: Court Dismisses Securities Suit Without Prejudice -------------------------------------------------------------- Judge Timothy L. Brooks of the U.S. District Court for the Western District of Arkansas, Fayetteville Division, dismissed without prejudice the case captioned IN RE TYSON FOODS, INC. SECURITIES LITIGATION, Case No. 5:16-cv-05340 (W.D. Ark.). The Defendant is the nation's largest chicken producer, and was traditionally not immune to its industry's volatility. Indeed, for the 10-year period preceding the Great Recession, its chicken margins fluctuated between 1.2% and 7%, and in no two consecutive years was Tyson able to sustain an increase in profit margin. From fiscal year 2011 to fiscal year 2014, its chicken segment's annual operating income rose from $164 million to $883 million, a more than five-fold increase. Tyson's stock price rose from $43.65 on Nov. 20, 2015, to $48.09 by close of market on Nov. 23. Its record results continued into the next year. On Feb. 5, 2016, it announced its first quarter financial reporting a chicken segment revenues of $2.63 billion, overall revenues of $9.15 billion, chicken segment net income of $358 million, and overall net income of $776 million. Its Aug. 8, 2016 disclosures listed chicken segment revenues of $2.74 billion, overall revenues of $9.4 billion, chicken segment net income of $380 million, and overall net income of $767 million. By Sept. 22, 2016, its stock had reached a high of $76.76. Tyson and certain of its executives attributed this financial success to a variety of factors, including its decision to improve its "product mix" by increasing its offerings of "value-added products"; its implementation of a newly developed "buy-versus- grow" strategy; and its increased financial outlook to cost- reduction measures. Lead Plaintiffs Employees' Retirement System of the State of Hawaii ("Hawaii ERS") and Blue Sky, representing a proposed class of Tyson investors, have a different, more sinister, explanation for Tyson's sustained period of financial success. According to them, Tyson engaged in an industry-wide antitrust conspiracy aimed at depressing the domestic supply of broiler chickens, thus keeping prices and margins high from 2008-2016. Crucial to the broiler chicken industry's alleged antitrust conspiracy was the producers' abilities to monitor each other's activities, else rogue participants "cheat" by increasing supply on their unsuspecting cohorts. From Oct. 17, 2016 through Dec. 2, 2016, proposed classes of Tyson shareholders initiated four lawsuits against the company and certain of its executives. Cases filed in the Central District of California, Southern District of New York, and Southern District of Ohio were subsequently transferred to this Court, where the fourth case had been filed. On Jan. 25, 2017, the Court issued an Opinion and Order consolidating the cases, appointing Hawaii ERS and Blue Sky as the Lead Plaintiffs, and approving their choice of Bernstein Litowitz as the Lead Counsel. The Court held a case management hearing on March 2, 2017, and on the same date issued a revised Scheduling Order giving the Lead Plaintiffs until March 22, 2017 to file an amended complaint. The Order also set a May 3, 2017 deadline for the Defendants to file a motion to dismiss, a May 26, 2017 deadline for the Lead Plaintiffs to respond, a June 21, 2017 deadline for the Defendants to reply, and a June 30, 2017 hearing on the anticipated motion to dismiss. The Lead Plaintiffs filed their Amended Complaint on the deadline date which sets a class period of Nov. 23, 2015 through Nov. 18, 2016; names Tyson, Smith, Leatherby, King, and White as the Defendants; and alleges violations of Sections 20(a) and 10(b) of the Exchange Act, and Rule 10b-5 promulgated thereunder. More specifically, the Lead Plaintiffs believe that Tyson's reported financial results, its representations about what accounted for those financial results, and its statements about the competitive nature of its industry, were all false and misleading. As expected, the Defendants filed a Motion to Dismiss on May 3, 2017, contending that the Lead Plaintiffs' Complaint fails to state a claim for which relief may be granted. The Lead Plaintiffs' Response and the Defendants' Reply were filed in turn, and the Court heard oral argument on June 30, 2017. As was the case in Van der Moolen, Gentiva, and Steiner, the Court explains that the Defendants' statements purporting to explain the bases for their financial performance, and changes therein, put the topic of the cause of Tyson's financial success at issue. This created an obligation to disclose the information concerning the source of its success, which would include its participation in an industry-wide antitrust conspiracy, if adequately alleged. As these cases demonstrate, the disclosure obligation remains even if the alleged wrongdoing began prior to the class period, and the statements at issue involved explanations for short-term, quarterly, and yearly financial performance. The failure to disclose Tyson's participation in the conspiracy would, for the same reasons, be material, since reasonable investors would find that such information would significantly alter the mix of available information regarding Tyson's financial performance. The Court therefore cannot determine whether the Defendants' statements were materially false or misleading without first considering whether the Complaint sufficiently alleges Tyson's participation in an antitrust conspiracy. The Court also finds that the complaint does not adequately plead scienter with respect to the Lead Plaintiffs' claim based on Tyson's participation in an antitrust conspiracy to manipulate the Georgia dock. The alleged conspiracy serves as a basis for Lead Plaintiffs' allegation that the Defendants, acting with scienter, made materially false and misleading statements in violation of Rule 10b-5. The Court cannot find from the facts, nor from reasonable inferences drawn therefrom, that the nature of the Georgia Dock scheme or the Defendants' executive positions support an inference of scienter. The Defendants' stock transactions and Smith's and King's resignations do lend some support to an inference of scienter, but the strength of those factors are tempered when considered holistically. For that reason, the stock transactions and resignations do not suffice to establish a strong inference of scienter. The more plausible inference is instead that the Defendants did not act with scienter when they made the statements identified in the Complaint. The Lead Plaintiffs therefore fail to state a Rule 10b-5 claim regarding the alleged Georgia Dock conspiracy. For these reasons, the Court granted Defendants' Motion to Dismiss and the Lead Plaintiffs' Complaint is dismissed without prejudice. A full-text copy of the Court's July 26, 2017 memorandum opinion is available at https://is.gd/88DlPZ from Leagle.com. Employees' Retirement System of the State of Hawaii, Plaintiff, represented by Amy C. Martin, Attorney at Law. Employees' Retirement System of the State of Hawaii, Plaintiff, represented by Angus NI, Bernstein Litowitz Berger Grossmann LLP, Avi Josefson, Bernstein Litowitz Berger & Grossmann LLP, David J. Schwartz, Bernstein Litowitz Berger Grossmann LLP, Gerald H. Silk, Bernstein, Litowitz, Berger & Grossmann, LLP, John J. Rizio- Hamilton, Bernstein Litowitz Berger & Grossmann LLP & Scott R. Foglietta, Bernstein Litowitz Berger Grossmann LLP. Blue Sky, Plaintiff, represented by Amy C. Martin, Attorney at Law, Angus NI -- angus.ni@blbglaw.com -- Bernstein Litowitz Berger Grossmann LLP, Avi Josefson -- avi@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP, David J. Schwartz, Bernstein Litowitz Berger Grossmann LLP, Gerald H. Silk -- jerry@blbglaw.com -- Bernstein, Litowitz, Berger & Grossmann, LLP, John J. Rizio- Hamilton -- johnr@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP & Scott R. Foglietta -- scott.foglietta@blbglaw.com -- Bernstein Litowitz Berger Grossmann LLP. Jonah Chung, Plaintiff, represented by Geoffrey P. Culbertson -- gpc@texarkanalaw.com -- Patton Tidwell & Culbertson, LLP, Jeremy Alan Lieberman, Pomerantz LLP, Joseph Alexander Hood, II, Pomerantz LLP & Kelly B. Tidwell -- kbt@texarkanalaw.com -- Patton, Tidwell & Culbertson, L.L.P.. William Huser, Plaintiff, represented by Laurence M. Rosen -- lrosen@rosenlegal.com -- The Rosen Law Firm PA. Patricia S. Lalonde, Plaintiff, represented by Jeffrey A. Levine - - jalevine@strausstroy.com -- Strauss Troy Co., LPA, pro hac vice, Marcus Neil Bozeman, Thrash Law Firm, P.A., Richard S. Wayne -- rswayne@strausstroy.com -- Strauss Troy Co. LPA, pro hac vice, Robert R. Sparks -- rrsparks@strausstroy.com -- Strauss Troy Co. LPA, pro hac vice & Thomas P. Thrash -- tpthrash@vorys.com -- Thrash Law Firm. Harold M. Voellinger, Plaintiff, represented by Danielle Myers -- danim@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac vice & James Allen Carney -- acarney@cbplaw.com -- Carney Bates & Pulliam, PLLC. Tyson Foods, Inc., Defendant, represented by Benjamin F. Burry -- BBURRY@SIDLEY.COM -- Sidley Austin LLP, Dorothy J. Spenner -- DSPENNER@SIDLEY.COM -- Sidley Austin LLP, Marwill S. Ney -- mney@fridayfirm.com -- Friday, Eldredge & Clark, LLP & David F. Graham -- DGRAHAM@SIDLEY.COM -- Sidley Austin, LLP. Donald J. Smith, Defendant, represented by Benjamin F. Burry, Sidley Austin LLP, Dorothy J. Spenner, Sidley Austin LLP, Marwill S. Ney, Friday, Eldredge & Clark, LLP & David F. Graham, Sidley Austin, LLP. Dennis Leatherby, Defendant, represented by Benjamin F. Burry, Sidley Austin LLP, Dorothy J. Spenner, Sidley Austin LLP, Marwill S. Ney, Friday, Eldredge & Clark, LLP & David F. Graham, Sidley Austin, LLP. Donnie Dean King, Defendant, represented by David F. Graham, Sidley Austin, LLP. Noel Wesley White, Defendant, represented by David F. Graham, Sidley Austin, LLP. U.S. DEPARTMENT OF JUSTICE: Faces "Taggart" Suit in E.D. Pa. ------------------------------------------------------------ A class action lawsuit has been filed against United States Department of Justice. The case is captioned as KENNETH TAGGART, AND OTHERS SIMILARLY SITUATED, the Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OFFICE OF THE COMPTROLLER OF CURRENCY, THE UNITED STATES TREASURY, THE UNITED STATES TREASURY OFFICE OF THE INSPECTOR GENERAL OF THE UNITED STATES REASURY, OFFICE OF THE INSPECTOR GENERAL OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, and UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, the Defendants, Case No. 2:17-cv-03210-GJP (E.D. Pa., July 19, 2017). The case is assigned to the Hon. Gerald J. Pappert. The United States Department of Justice (DOJ), also known as the Justice Department, is a federal executive department of the U.S. government, responsible for the enforcement of the law and administration of justice in the United States, equivalent to the justice or interior ministries of other countries.[BN] The Plaintiff is represented by: Joshua Thomas, Esq. JOSHUA L. THOMAS & ASSOCIATES 1110 Pocopson Road P.O. Box 415 Pocopson, PA 19366 Telephone: (215) 806 1733 E-mail: joshualthomas@gmail.com UNITED SERVICES: Court Dismisses "Basham" Suit with Prejudice ------------------------------------------------------------- Judge R. Brooke Jackson of the U.S. District Court for the District of Colorado (i) granted the Defendant's Motion for Judgment on the Pleadings and dismissed with prejudice the case captioned ANN BASHAM, Plaintiff, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant, Civil Action No. 16-cv-03057-RBJ (D. Colo.). After a hailstorm damaged her home, the Plaintiffs filed a homeowner's insurance claim with USAA. Her policy provides a two- step method for settling property damage claims above $5,000. First, USAA pays only the "actual cash value" for the loss, which is defined as the amount it would cost to repair or replace covered property, at the time of loss or damage, with material of like kind and quality, subject to a deduction for deterioration, depreciation and obsolescence. The policy warns that the actual cash value of damaged property may be significantly less than its replacement cost. Second, if the homeowner completes the repair or replacement within one year and submits timely notice, USAA will pay for this replacement cost without a deduction for depreciation and the like. Ms. Basham partially repaired her home and was reimbursed for her additional expenses on those items. However, she was stuck with the lesser actual cash value -- after a depreciation deduction -- for the property damage that she did not fix. Ms. Basham accepts that USAA can deduct depreciation of the materials that make up an item of property in calculating its actual cash value. But she believes USAA violated her policy and the law by taking a depreciation deduction for the cost of labor as well. She has filed a putative class action against USAA alleging breach of contract, unjust enrichment, and violation of the Colorado Consumer Protection Act and Colo. Rev. Stat. Sections 10-3-1115 and 1116. The Defendant has moved for judgment on the pleadings. Given the specific policy language here and background insurance principles, Judge Jackson finds that, a reasonably prudent insured would understand 'depreciation' to mean a decline in an asset's overall value. USAA therefore did not impermissibly depreciate labor costs in determining the actual cash value of the Plaintiff's losses, so no additional amount was due under the policy. Because all of the Plaintiff's claims assume her entitlement to payment for labor costs without a depreciation deduction, all of these claims must be dismissed. For the reasons, Judge Jackson granted the Defendant's Motion for Judgment on the Pleadings and dismissed with prejudice Ms. Basham's complaint. As the prevailing party, he awarded the Defendant its reasonable costs pursuant to Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1. A full-text copy of the Court's July 28, 2017 order is available at https://is.gd/RZU865 from Leagle.com. Ann Basham, Plaintiff, represented by J. Lucas McFarland, Evans & McFarland, LLC. Ann Basham, Plaintiff, represented by Jack Austin Mattingly, Jr., Mattingly & Roselius, PLLC. United Services Automobile Association, Defendant, represented by Ann Yackshaw -- ayackshaw@bakerlaw.com -- Baker & Hostetler, LLP, Rodger L. Eckelberry -- reckelberry@bakerlaw.com -- Baker & Hostetler, LLP & Casie D. Collignon -- ccollignon@bakerlaw.com -- Baker & Hostetler, LLP. UNITED STATES: Judge Opts Not to Renew Iraqi Deportation Stay ------------------------------------------------------------- The Economist reports that at midnight on July 24th a two-week stay of deportation for more than 1,400 Iraqis -- around 300 Christians and dozens of Kurds among them -- would expire. Mark Goldsmith, a district judge in Michigan, had prolonged the stay twice to allow time to consider a class-action suit representing 114 of them who argue they face persecution and torture, or worse, on their return. Civil-rights advocates are doing what they can to prevent the deportations. Family and friends have protested against them almost daily. One of the Iraqis in danger of imminent deportation is Usama Jamil Hamama, known as Sam, a 54-year old Iraqi Christian who came to America lawfully as a refugee in 1974 when he was four. Mr Hamama, who lives in West Bloomfield, Michigan, where he is a partner at a local supermarket, is married and has four children, all American citizens, between the ages of 11 and 17. He is a regular churchgoer and a pillar of his community. On June 11th, just as he was getting ready to go to church with his family, Mr Hamama was arrested by several agents of the United States Immigration and Customs Enforcement (ICE) agency and brought to a detention centre in Youngstown, Ohio. Mr Hamama is one of scores of Iraqi Christians in the Detroit area and Iraqi Kurds in and around Nashville, Tennessee, who were plucked from their homes by ICE agents as President Donald Trump put into action his promise to deport those he calls criminal aliens. Mr Hamama is a member of the Chaldean community, who descend from the ancient Assyrians, speak Aramaic and practise Catholicism according to eastern rites. Most Chaldeans in America live in and around Detroit. The Chaldeans were staunch supporters of Mr Trump during his campaign for the presidency. This meant they felt safe after his election; during the campaign Mr Trump frequently spoke out in favour of protecting Christians in the Middle East. In January he tweeted: "Christians in the Middle-East have been executed in large numbers. We cannot allow this horror to continue!" All the potential deportees, including Mr Hamama, have a criminal record. Their crimes range from relatively minor ones such as overstaying a visa or selling pot to second-degree murder. Twenty- eight years ago, Mr Hamama was convicted for assault, possession of a firearm and carrying a pistol in a car, for which he served a two-year prison sentence. Since then his record has been spotless, but his criminal conviction means that he has been subject of an order of removal to Iraq since 1994. He was able to remain in America until now because the Iraqis refused to let deportees from America into their country. This changed in March when Mr Trump removed Iraqis from the list of countries of his temporary travel ban from Muslim countries. As part of the deal, Baghdad consented to issue travel documents to deportees from America. But the Iraqis fear, with good reason, that many of them will face persecution, torture and even death if they return to their home country. Earlier this year Congress passed a resolution designating Chaldean and Assyrian Christians the victims of attempted genocide by Islamic State (IS). Though recently in retreat, IS still rules in parts of Iraq. In late June the Evangelical Immigration Table, an association of evangelical Christians many of whom are strong supporters of Mr Trump, wrote to John Kelly, the Secretary of Homeland Security, asking him to reconsider the decision to deport the Iraqi Christians. "The horrors facing Christians in Iraq are well documented," they wrote. And they reminded Mr Kelly that Mike Pence, the vice-president, recently noted in his remarks at the World Summit in Defense of Persecuted Christians that in Iraq "we've actually seen monasteries demolished, priests and monks beheaded, and the two-millennia-old Christian tradition in Mosul virtually extinguished overnight". The American Civil Liberties Union persuaded Judge Goldsmith at the end of June to halt the deportations. In his ruling the judge said sending the Iraqis back now would expose them to a "substantiated risk of death, torture, or other grave persecution before their legal claims can be tested in a court". At the time this article was published Judge Goldsmith had not renewed the stay of the deportations for a third time. [GN] UTILITY SERVICE: "Komoroski" Settlement Granted Preliminary OK -------------------------------------------------------------- Chief District Judge Greg Kays of the U.S. District Court for the Western District of Missouri, Western Division, conditionally certifies plaintiffs' settlement class and granted preliminary approval to proposed class action settlement, in the case JAMES KOMOROSKI and GALEN VERHULST, individually and on behalf of those similarly situated, Plaintiffs, v. UTILITY SERVICE PARTNERS PRIVATE LABEL, INC. d/b/a SERVICE LINE WARRANTIES OF AMERICA, Defendant, Case No. 4:16-CV-00294-DGK (WD Mo.). Defendant Utility Service Partners Private Label, Inc., doing business as Service Line Warranties of America sells utility warranties. A utility warranty is essentially a contract whereby a consumer pays a monthly or annual premium to a warranty provider, such as defendant, in exchange for warranty protection against certain leaks, ruptures, and other needed repairs to utility lines. James Komoroski purchased a water service warranty from defendant, but has not made a claim under that warranty. Galen Verhulst purchased a water service warranty from defendant and did experience a ruptured service line. After making a claim under his warranty, Verhulst incurred costs associated with the repair he believes should have been covered by his warranty. On February 17, 2016, Komoroski filed a petition in the Circuit Court of Jackson County, Missouri, entitled Komoroski v. Utility Service Partners Private Label, Inc., d/b/a/Service Line Warranties of America. The petition alleges defendant routinely denied warranty coverage for the cost of replacing galvanized steel pipes with copper ones, and for relocating interior water meters outside whenever a service line had to be repaired. It alleges violations of the Missouri Merchandising Practices Act (MMPA), breach of contract, and breach of the duty of good faith and fair dealing. It seeks declaratory relief and damages, including statutory attorneys' fees under the MMPA. On March 24, 2016, Verhulst joined the action as a class representative. On July 5, 2016, the parties had reached a settlement of all material terms and were in the process of finalizing the form of settlement agreement and motion for preliminary approval to be submitted to the court. On January 23, 2017, the parties submitted an initial proposed settlement. Judge Sachs recused on February 13, 2017, and the case was reassigned to the present court. On February 20, 2017, the parties submitted a slightly modified proposal, the settlement. The parties filed a stipulation and settlement agreement and the plaintiffs filed a motion for preliminary approval of class action settlement. The court gives preliminarily approval to the settlement, subject to final determination by the court at the final fairness hearing. The court conditionally certifies, for settlement purposes only and for no other purpose and with no other effect upon the action, including no effect upon the action should the settlement not receive final approval or should the effective date not occur, a class defined as all individuals with galvanized steel water service lines or interior water meters in Kansas City, Missouri who purchased a warranty agreement from defendant which was still in effect as of February 17, 2016. The court also certifies a subclass comprised of those individuals who were covered by a warranty agreement between May 1, 2015, and February 17, 2016, who made a valid claim under their warranty agreement and whose claims were denied in whole or in part for costs associated with replacing galvanized steel pipes with copper ones or for costs associated with relocating interior water meters to outside water meter pits (the Damages Subclass). Excluded from the settlement class are all officers, directors and employees of defendant, and their legal representatives, heirs, or assigns, any judges to whom the action is assigned, their staffs, and their immediate families, and class counsel. The court appoints, for settlement purposes, plaintiffs James Komoroski and Galen Verhulst as class representatives, and Attorneys Robert A. Horn and Joseph A. Kronawitter of the Law Office of Horn Aylward & Bandy, LLC and Phyllis Norman of The Norman Law Firm as settlement class counsel. A hearing will be held on November 2, 2017, at 9:00 a.m. at the United States District Court for the Western District of Missouri, Charles Evans Whittaker Courthouse, in Courtroom 8D, located at 400 East 9th Street, Kansas City, Missouri, 64106, to determine whether the Settlement is fair, reasonable, and adequate and should be approved by the Court; whether a judgment as provided in Section 8.1 of the settlement should be entered; and to determine any amount of fees and expenses that should be awarded to class counsel and any award to the class representatives for their representation of the settlement class. The court appoints defendant to supervise and administer the notice procedure as set forth: i. No later than fourteen (14) days from the entry of this order, Defendant shall file a copy of the templates that will be used to send notice to the class so the Court may proofread them. Within two (2) business days of the templates being filed, the Court will enter a text order approving the templates or an order notifying the parties of any concerns; ii. No later than thirty (30) days from the entry of this order (the Notice Mailing Date), Defendant shall cause a copy of the Notices to be mailed by first class mail to each individual and entity on the Notice List; iii. Within ten (10) days of the Notice Mailing Date, Defendant shall serve on counsel and file with the Court proof, by affidavit or declaration, of such mailing. Any class member may, upon request, be excluded from the settlement class. Any such class member must submit a written request for exclusion no later than fourteen (14) days before the final fairness hearing at: Clerk of the Courts, United States District Court for the Western District of Missouri, Charles Evans Whittaker Courthouse, 400 East 9th Street, Kansas City, Missouri, 64106. A copy of Judge Kays's order dated July 31, 2017, is available at https://goo.gl/jvWM8v from Leagle.com. James Komoroski, Plaintiffs, represented by Joseph A. Kronawitter -- jkronawitter@hab-law.com -- Robert A. Horn -- rhorn@hab-law.com -- at Horn, Aylward & Bandy, LLC; Phyllis Norman -- at The Norman Law Firm LLC Utility Service Partners Private Label, Inc., Defendant, represented by Jarrod D. Shaw -- jshaw@mcguirewoods.com -- McGuireWoods LLP; Michael S. Foster -- mfoster@polsinelli.com -- Mark A. Olthoff -- molthoff@polsinelli.com -- at Polsinelli PC. VERISMA SYSTEMS: Court Certifies Class in "McCracken" ----------------------------------------------------- Judge Michael E. Telesca of the U.S. District Court for the Western District of New York granted the Plaintiffs' Motion for Class Certification in the case captioned ANN McCRACKEN, JOAN FARRELL, SARAH STILSON, KEVIN McCLOSKEY, CHRISTOPHER TRAPATSOS, and KIMBERLY BAILEY, as individuals and as representatives of the classes, Plaintiffs, v. VERISMA SYSTEMS, INC., STRONG MEMORIAL HOSPITAL, HIGHLAND HOSPITAL, and UNIVERSITY OF ROCHESTER, Defendants, No. 6:14-cv-06248(MAT)(W.D. N.Y). In this putative class action, the Plaintiffs allege that the Defendants systematically overcharged them and other patients who requested copies of their medical records from the Rochester Healthcare Defendants, in violation of New York Public Health Law ("PHL"). They allege that Verisma and the Rochester Healthcare Defendants ignored the restriction in the statute that limits the amount that may be charged to produce the records a reasonable charge not exceeding the costs incurred, and not exceeding $0.75 per page. Instead, the Plaintiffs allege, Verisma and the Rochester Healthcare Defendants imposed an across-the-board, uniform charge of $0.75 per page for all copies of medical records, even those produced electronically, in excess of their actual costs and in violation of PHL Section 18. The Plaintiffs seek certification of one proposed class, the URMC Medical Records Class, defined as all persons who (i) requested copies of medical records (either by themselves or through a lawyer, personal representative, or other qualified person acting on their behalf) from a health care facility owned and/or operated by the University of Rochester; (ii) were charged by or through Verisma for copies of such records in accordance with Verisma's NY Fee Schedule PHL 18; and (iii) paid such charges (either directly or through the person making the request on their behalf) and had their records released by or through Verisma on or after May 14, 2011, excluding any principals or employees of Defendants. They also seek certification of two proposed subclasses: (i) the Highland Sub-Class defined as all persons in the URMC Medical Records Class who requested copies of medical records through Highland Hospital and whose records were released on or after May 14, 2011; and (ii) the Strong Sub-Class defined as all persons in the URMC Medical Records Class who requested copies of medical records through Strong Memorial Hospital and whose records were released on or after May 14, 2011. Judge Telesca finds that the Plaintiffs have met the numerosity, commonality, typicality, adequacy, ascertainability, predominance, and superiority requirements. For this reason, he granted the Plaintiffs' Motion for Class Certification pursuant to Rule and accordingly certified their proposed URMC Medical Records Class and proposed two provider-level sub-classes: (i) the Highland Sub- Class and (ii) the Strong Sub-Class. Judge Telesca appointed Ann McCracken, Joan Farrell, Sara Stilson, Kevin McCloskey, Christopher Trapatsos, and Kimberly Bailey as the class representatives. Finally, he appointed Faraci Lange LLP and Nicholas Kaster PLLP as the class counsel. A full-text copy of the Court's July 28, 2017 decision and order is available at https://is.gd/1tsWBq from Leagle.com. Ann McCracken, Plaintiff, represented by Kai H. Richter -- krichter@nka.com -- Nichols Kaster, PLLP. Ann McCracken, Plaintiff, represented by Kathryn Lee Bruns, Faraci Lange LLP, Stephen G. Schwarz, Faraci Lange LLP & Eleanor E. Frisch -- efrisch@nka.com -- Nichols Kaster, PLLP. Joan Farrell, Plaintiff, represented by Kai H. Richter, Nichols Kaster, PLLP, Kathryn Lee Bruns, Faraci Lange LLP, Stephen G. Schwarz, Faraci Lange LLP & Eleanor E. Frisch, Nichols Kaster, PLLP. Sara Stilson, Plaintiff, represented by Kai H. Richter, Nichols Kaster, PLLP, Kathryn Lee Bruns, Faraci Lange LLP, Stephen G. Schwarz, Faraci Lange LLP & Eleanor E. Frisch, Nichols Kaster, PLLP. Kevin McCloskey, Plaintiff, represented by Kai H. Richter, Nichols Kaster, PLLP, Kathryn Lee Bruns, Faraci Lange LLP, Stephen G. Schwarz, Faraci Lange LLP & Eleanor E. Frisch, Nichols Kaster, PLLP. Christopher Trapatsos, Plaintiff, represented by Kai H. Richter, Nichols Kaster, PLLP, Kathryn Lee Bruns, Faraci Lange LLP, Stephen G. Schwarz, Faraci Lange LLP & Eleanor E. Frisch, Nichols Kaster, PLLP. Kimberly Bailey, Plaintiff, represented by Kai H. Richter, Nichols Kaster, PLLP, Kathryn Lee Bruns, Faraci Lange LLP, Stephen G. Schwarz, Faraci Lange LLP & Eleanor E. Frisch, Nichols Kaster, PLLP. Verisma Systems, Inc., Defendant, represented by Caroline Jacobsen Berdzik -- cberdzik@goldbergsegalla.com -- Goldberg Segalla LLP, Daniel Barrie Moar -- dmoar@goldbergsegalla.com -- Goldberg Segalla LLP, Ryan Grant Pitman -- rpitman@goldbergsegalla.com -- Goldberg Segalla LLP & Christopher J. Belter -- cbelter@goldbergsegalla.com -- Goldberg Segalla LLP. Strong Memorial Hospital, Defendant, represented by Eric J. Ward - - eward@wardgreenberg.com -- Ward Greenberg Heller & Reidy LLP. Highland Hospital, Defendant, represented by Eric J. Ward, Ward Greenberg Heller & Reidy LLP. University of Rochester, Defendant, represented by Eric J. Ward, Ward Greenberg Heller & Reidy LLP. Strong Memorial Hospital, Cross Claimant, represented by Eric J. Ward, Ward Greenberg Heller & Reidy LLP. Highland Hospital, Cross Claimant, represented by Eric J. Ward, Ward Greenberg Heller & Reidy LLP. University of Rochester, Cross Claimant, represented by Eric J. Ward, Ward Greenberg Heller & Reidy LLP. Verisma Systems, Inc., Cross Defendant, represented by Caroline Jacobsen Berdzik, Goldberg Segalla LLP, Daniel Barrie Moar, Goldberg Segalla LLP, Ryan Grant Pitman, Goldberg Segalla LLP & Christopher J. Belter, Goldberg Segalla LLP. VIVINT SOLAR: "Aanderud" Remanded to Calif. State Court ------------------------------------------------------- In the case captioned LARRY AANDERUD, et al., Petitioners, v. THE SUPERIOR COURT OF KERN COUNTY, Respondent, VIVINT SOLAR DEVELOPER, LLC, Real Party in Interest, No. F073277 (Cal. App.), Judge Gene M. Gomes of the U.S. Court of Appeals of California for the Fifth District denied the peremptory writ challenging the trial court's order compelling arbitration and remanded the case to the trial court for further proceedings. Plaintiffs Aanderuds entered into a 20-year solar power purchase agreement (SPPA) with Vivint Solar, pursuant to which Vivint Solar agreed to install a solar power generating system on the Aanderuds' property in exchange for their agreement to purchase the solar power generated by the system. The Aanderuds later sued Vivint Solar in superior court, seeking rescission of the agreement and asserting individual and class claims for declaratory relief and violations of the Unfair Competition Law, Business and Professions Code section 17200, et seq. The Aanderuds seek to represent a class of similarly situated consumers consisting of all persons who entered into SPPA transactions with Vivint Solar in the past four years where the SPPA contained the same provisions as the Aanderuds' SPPA and who were subjected to the same business practices. The trial court granted Vivint Solar's petition to compel arbitration based on the arbitration provision in the agreement, ordered the Aanderuds to submit their individual claim to arbitration, and dismissed the class claims without prejudice. The Aanderuds assert the trial court erred in (i) dismissing the class claims, as under California law statutory claims for injunctive relief are not subject to compulsory arbitration; and (ii) finding the arbitration provision was enforceable, as the provision does not meet certain minimum standards required for the arbitration of public claims, and is procedurally and substantively unconscionable. The Aanderuds also contend a clause in the arbitration provision that delegates to the arbitrator "the determination of the scope or applicability" of that provision (the delegation clause) is unenforceable. In sum, Judge Gomes explains that the delegation clause here is clear and unmistakable, and it is not revocable under unconscionability principles. Vivint Solar asserts that if he concludes the delegation clause is enforceable, he should affirm the trial court's order and not reach the Aanderuds' arguments concerning enforceability of the arbitration provision, as those are properly reserved for the arbitrator. He agrees that it is the arbitrator who will consider the conscionability of the agreement and the scope of the arbitration clause. Given this, he cannot simply affirm the trial court's order, as the trial court itself decided issues reserved for the arbitrator, including that the arbitration provision was not procedurally or substantively unconscionable, all of the Aanderuds' claims were arbitrable, and the class claims should be dismissed. Accordingly, while he affirmed the trial court's order compelling arbitration, he vacated those portions of the order in which the trial court made findings that are reserved for the arbitrator and dismissed the class claims. Judge Gomes held that the appeal from the order granting Vivint Solar's motion to compel arbitration is treated as a petition for writ of mandate. The petition is granted in part and denied in part. Let a peremptory writ of mandate issue commanding the superior court to (i) vacate the portions of its order in which it (a) found the parties' arbitration agreement was neither substantively nor procedurally unconscionable; (b) found all claims asserted in the complaint were arbitrable; and (c) found that the Aanderuds could only arbitrate their claims in their individual capacity, and not as a class, and dismissed the class claims without prejudice; and (ii) enter a new order submitting all issues concerning the interpretation, validity, or enforceability of the solar power purchase agreement, including the determination of the scope and applicability of the arbitration provision, to arbitration. In all other respects, he denied the peremptory writ challenging the order compelling arbitration and remanded the case to the trial court for further proceedings consistent with his opinion. The parties will bear their own costs in this proceeding. A full-text copy of the Court's July 26, 2017 opinion is available at https://is.gd/GELxXc from Leagle.com. Kostas Law Firm, James S. Kostas -- jkostas@kostaslaw.com -- Law Office of Eugene E. Siegel and Eugene E. Siegel for Petitioners. No appearance for Respondent. Wilson Sonsini Goodrich & Rosati, Keith E. Eggleton -- keggleton@wsgr.com -- and Dale R. Bish -- dbish@wsgr.com -- for Real Party in Interest. VOLKSWAGEN GROUP: Faces "Makaryan" Suit in C.D. California ---------------------------------------------------------- A class action lawsuit has been filed against Volkswagen Group of America, Inc. The case is captioned as Anzhelya Makaryan, an individual, on behalf of herself, as class representative for all others similarly situated, and the general public, the Plaintiff, v. Volkswagen Group of America, Inc., a New Jersey Corporation; Audi AG, a German entity; and Does 1-10, the Defendants, Case No. 2:17-cv-05086-PA-KS (C.D. Cal., July 11, 2017). The case is assigned to the Hon. Judge Percy Anderson. Volkswagen Group of America, Inc., is the North American operational headquarters, and subsidiary of the Volkswagen Group of automobile companies of Germany.[BN] The Plaintiff is represented by: Hovanes Margarian, Esq. THE MARGARIAN LAW FIRM 801 North Brand Boulevard Suite 210 Glendale, CA 91203 Telephone: (818) 553 1000 Facsimile: (818) 553 1005 E-mail: hovanes@margarianlaw.com WAL-MART ASSOCIATES: "Hernandez" Suit Moved to C.D. California -------------------------------------------------------------- The class action lawsuit titled Alyssa Hernandez, individually, on a representative basis, and on behalf of all others similarly situated, the Plaintiffs, v. Wal-Mart Associates, Inc., a Delaware Limited Liability Corporation and DOES 1 through 10, inclusive, Case No. CIVDS1710945, was removed on July 26, 2017 from the San Bernardino County Superior Court, to the U.S. District Court for the Central District of California (Eastern Division - Riverside). The District Court Clerk assigned Case No. 5:17-cv-01485 to the proceeding. Wal-Mart operates retail stores in various formats worldwide.[BN] The Plaintiff appears pro se. WINN MANAGEMENT: "Goodwin" Class Settlement Gets Prelim Approval ---------------------------------------------------------------- Judge Dale A. Drozd of the U.S. District Court for the Eastern District of California granted the Plaintiff's unopposed motion for preliminary approval of class action settlement in the case captioned ADAM GOODWIN, Plaintiff, v. WINN MANAGEMENT GROUP LLC, Defendant, No. 1:15-cv-00606-DAD-EPG (E.D. Cal.). On April 17, 2015, the Plaintiff filed the original class action complaint against the Defendant. This action now proceeds on his First Amended Complaint, filed on May 20, 2015, alleging the following causes of action: (i) failure to pay overtime under 29 U.S.C. Section 201, et seq, and California Labor Code Sections 510, 1194; (ii) failure to issue accurate itemized wage statements under Labor Code Sections 226, 226.3; (iii) failure to pay wages due upon separation of employment under Labor Code Sections 201- 203; (iv) unfair business practices under California Business & Professions Code Section 17200; and (v) a claim for penalties under the California Labor Code Private Attorneys General Act of 2004. On Aug. 16, 2016, the parties attended mediation with mediator Robert J. Kaplan. The Plaintiff filed a notice of settlement on Aug. 24, 2016. In the settlement agreement, the Plaintiff defines the following two classes: (a) all non-exempt employees who worked for the Defendant in California and both (i) received non-discretionary compensation and (ii) worked over 8 hours in a day or 40 hours in a week in at least one pay period between April 16, 2011 through (date of preliminary approval); and (b) all non-exempt employees who worked for the Defendant in the United States and both (i) received non-discretionary compensation and (ii) worked over 40 hours in a week in at least one pay period between April 16, 2012 and (date of preliminary approval)("FLSA Class"). The Plaintiff estimates that there are 1,259 employees belonging to the putative classes. Under the settlement agreement, the Defendant will make a gross payment of $250,000. The agreement provides the following allocation of that gross payment: (i) attorneys' fees in the amount of $75,000, to be paid to class counsel; (ii) litigation costs and expenses of up to $15,000 to be paid to class counsel; (iii) $3,750 to be paid to the California Labor & Workforce Development Agency; (iv) class representative fees of $7,500 to be paid to the Plaintiff in addition to his entitlement as a class member; (v) the remaining funds to be paid to class members. The settlement is non-reversionary, and unclaimed amounts from the proposed settlement amount will be re-allocated to the California and FLSA Class Members participating in the settlement. On Nov. 16, 2016, the Plaintiff filed the instant unopposed motion for preliminary approval of the settlement. He seeks an order: (i) preliminarily certifying the settlement classes under Federal Civil Procedure Rule 23 and the FLSA, with his appointment as class representative, and appointment of Michael Malk, Esq., APC as class counsel; (ii) preliminarily approving the settlement agreement; (iii) approving the proposed form and method of service; and (iv) scheduling the hearing date for final approval of the class settlement. Judge Drozd granted the Plaintiff's motion for preliminary approval of class action settlement. He (i) approved the conditional certification of the collective action under the FLSA; (ii) appointed the Plaintiff's counsel, Michael Malk, as class counsel; (iii) appointed the Named Plaintiff as the class representative; (iv) approved the proposed notice and claim form; (v) approved CPT Group, Inc. as the claims administrator; and (vi) approved the proposed settlement on a preliminary basis. The hearing for final approval of the proposed settlement is set for Nov. 7, 2017 at 9:30 a.m., with the motion for final approval of class action settlement to be filed 28 days in advance of the final approval hearing, in accordance with Local Rule 230. The Plaintiff's proposed settlement implementation schedule is adopted. A full-text copy of the Court's July 26, 2017 order is available at https://is.gd/NrWn9x from Leagle.com. Adam Goodwin, Plaintiff, represented by Michael Malk -- mm@malklawfirm.com -- Michael Malk, Esq., Apc. Winn Management Group LLC, Defendant, represented by Mark J. Jacobs -- mjacobs@fisherphillips.com -- Fisher & Phillips LLC & Shaun Jordan Voigt -- svoigt@fisherphillips.com -- Fisher & Phillips LLP. YGRENE ENERGY: Bid to Dismiss "Smith" Fraud Suit Partly Granted --------------------------------------------------------------- Magistrate Judge Laurel Beeler of the U.S. District Court for the Northern District of California, San Francisco Division, granted in part the Defendants' motion to dismiss the case captioned GRACHIAN L. SMITH, et al., Plaintiffs, v. YGRENE ENERGY FUND, INC., et al., Defendants, Case No. 17-cv-01258-LB (N.D. Cal.). The Plaintiffs' fraud suit over home-improvement loans allege that the Defendants falsely told them that the Property Assessed Clean Energy ("PACE") loans would attach to their properties (like property taxes) and, correspondingly, failed to reveal that the loans would have to be repaid when a property was sold or refinanced. The Plaintiffs claim that, contrary to the Defendants' representations, they indeed had to repay the loans when they sold or refinanced their homes -- at which point they incurred prepayment penalties. They also claim that the Defendants charged them various improper fees. The Named Plaintiffs sue for themselves and for 12 proposed classes: 4 national classes; 4 California subclasses; and 4 Florida subclasses. These classes are distributed equally among four topics: "Prepayment Penalty"; "Prepayment Waiver Fee"; "Prepayment Penalty -- Paid"; and "Payoff and Administrative Fee." The Plaintiffs bring nine claims: (i) California Unfair Competition Law ("UCL")(unfair prong); (ii) UCL (fraudulent prong); (iii) California Consumer Legal Remedies Act ("CLRA"); (iv) Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"); (v) tortious interference with contract; (vi) fraudulent inducement; (vii) negligent misrepresentation; (viii) unjust enrichment; and (ix) negligence. The Defendants move to dismiss all these claims under Rules 9(b) and 12(b)(6). Magistrate Judge Beeler finds (i) that nothing in the complaint suggests that the Defendants did anything that would bring the PACE contracts inside the bounds of the CLRA; (ii) that the Defendants cannot have played the role that the Plaintiffs allege and yet been "strangers" to the PACE loans under Florida law; and (iii) that the Plaintiffs' unjust-enrichment claim is based on the same conduct as the statutory and tort claims through which they seek relief, thus it is superfluous. Accordingly, she dismissed with prejudice the CLRA claim, the Florida tortious-interference claim, and the California unjust-enrichment claim. The motion to dismiss is denied with respect to the California tortious-interference claim and the Florida unjust-enrichment claim. The Magistrate Judge explains that given the situation that the Plaintiffs describe, the Florida interference claim cannot plausibly be amended to be made viable. Moreover, under Florida law, an unjust-enrichment claim can coexist with other tort claims covering the same subject matter. All the claims that she has identified as being directly for fraud or grounded in fraud survive insofar as they are based on representations in the Unanimous Approval Agreements and Financing Agreements; to the extent that the fraud claims rest on other alleged representations, they are dismissed under Rule 9(b). Magistrate Judge Beeler says the Plaintiff may amend the latter allegations to satisfy Rule 9(b). Any amended complaint must be filed within 30 days of the Order. If the Plaintiffs do not file an amended complaint by then, their fraud-based claims will proceed based only upon the representations contained in the Unanimous Approval Agreements and Financing Agreements. Any claims that the Magistrate Judge has identified as being based partly on non-fraudulent conduct survive to that extent. A full-text copy of the Court's July 26, 2017 order is available at https://is.gd/xxxmKH from Leagle.com. Grachian L. Smith, Plaintiff, represented by Graham Bruce LippSmith, Kasdan LippSmith Weber Turner LLP. Grachian L. Smith, Plaintiff, represented by Annick Marie Persinger, Tycko & Zavareei LLP, Jaclyn L. Anderson -- janderson@klwtlaw.com -- Kasdan Lippsmith Weber Turner LLP, Jaclyn Louise Anderson, Kasdan LippSmith Weber Turner LLP, Jeffrey D. Kaliel -- jkaliel@tzlegal.com -- Tycko & Zavareei LLP, Jeffrey Douglas Kaliel, Tycko & Zavareei, LLP, Kenneth S. Kasdan, Kasdan Lippsmith Weber Turner LLP, Manuel Santiago Hiraldo, Hiraldo P.A. & Sophia Jaclyn Goren -- sgoren@tzlegal.com -- Tycko and Zavareei LLP. Mary Jane Smith, Plaintiff, represented by Graham Bruce LippSmith, Kasdan LippSmith Weber Turner LLP, Annick Marie Persinger, Tycko & Zavareei LLP, Jaclyn L. Anderson, Kasdan Lippsmith Weber Turner LLP, Jaclyn Louise Anderson, Kasdan LippSmith Weber Turner LLP, Jeffrey D. Kaliel, Tycko & Zavareei LLP, Jeffrey Douglas Kaliel, Tycko & Zavareei, LLP, Kenneth S. Kasdan, Kasdan Lippsmith Weber Turner LLP, Manuel Santiago Hiraldo, Hiraldo P.A. & Sophia Jaclyn Goren, Tycko and Zavareei LLP. Alejandro Marcey, Plaintiff, represented by Graham Bruce LippSmith, Kasdan LippSmith Weber Turner LLP, Annick Marie Persinger, Tycko & Zavareei LLP, Jaclyn L. Anderson, Kasdan Lippsmith Weber Turner LLP, Jaclyn Louise Anderson, Kasdan LippSmith Weber Turner LLP, Jeffrey D. Kaliel, Tycko & Zavareei LLP, Jeffrey Douglas Kaliel, Tycko & Zavareei, LLP, Kenneth S. Kasdan, Kasdan Lippsmith Weber Turner LLP, Manuel Santiago Hiraldo, Hiraldo P.A. & Sophia Jaclyn Goren, Tycko and Zavareei LLP. Felicia Marcey, Plaintiff, represented by Graham Bruce LippSmith, Kasdan LippSmith Weber Turner LLP, Annick Marie Persinger, Tycko & Zavareei LLP, Jaclyn L. Anderson, Kasdan Lippsmith Weber Turner LLP, Jaclyn Louise Anderson, Kasdan LippSmith Weber Turner LLP, Jeffrey D. Kaliel, Tycko & Zavareei LLP, Jeffrey Douglas Kaliel, Tycko & Zavareei, LLP, Kenneth S. Kasdan, Kasdan Lippsmith Weber Turner LLP, Manuel Santiago Hiraldo, Hiraldo P.A. & Sophia Jaclyn Goren, Tycko and Zavareei LLP. Lt. Joseph J. Galaska, Plaintiff, represented by Annick Marie Persinger, Tycko & Zavareei LLP, Jeffrey Douglas Kaliel, Tycko & Zavareei, LLP, Sophia Jaclyn Goren, Tycko and Zavareei LLP & Graham Bruce LippSmith, Kasdan LippSmith Weber Turner LLP. Michael G. Pekel, Plaintiff, represented by Annick Marie Persinger, Tycko & Zavareei LLP, Jeffrey Douglas Kaliel, Tycko & Zavareei, LLP, Sophia Jaclyn Goren, Tycko and Zavareei LLP & Graham Bruce LippSmith, Kasdan LippSmith Weber Turner LLP. Anthony Look, Jr., Plaintiff, represented by Annick Marie Persinger, Tycko & Zavareei LLP, Jeffrey Douglas Kaliel, Tycko & Zavareei, LLP, Sophia Jaclyn Goren, Tycko and Zavareei LLP & Graham Bruce LippSmith, Kasdan LippSmith Weber Turner LLP. George W. Woolley, Plaintiff, represented by Annick Marie Persinger, Tycko & Zavareei LLP, Jeffrey Douglas Kaliel, Tycko & Zavareei, LLP, Sophia Jaclyn Goren, Tycko and Zavareei LLP & Graham Bruce LippSmith, Kasdan LippSmith Weber Turner LLP. Kimberly Look, Plaintiff, represented by Annick Marie Persinger, Tycko & Zavareei LLP, Jeffrey Douglas Kaliel, Tycko & Zavareei, LLP, Sophia Jaclyn Goren, Tycko and Zavareei LLP & Graham Bruce LippSmith, Kasdan LippSmith Weber Turner LLP. Tammy S. Woolley, Plaintiff, represented by Annick Marie Persinger, Tycko & Zavareei LLP, Jeffrey Douglas Kaliel, Tycko & Zavareei, LLP, Sophia Jaclyn Goren, Tycko and Zavareei LLP & Graham Bruce LippSmith, Kasdan LippSmith Weber Turner LLP. Ygrene Energy Fund, Inc., Defendant, represented by Fredrick Stuart Levin -- flevin@buckleysandler.com -- Buckley Sandler LLP, Ali M. Abugheida -- aabugheida@buckleysandler.com -- Buckley Sandler LLP & Daniel Raphael Paluch -- dpaluch@buckleysandler.com -- Buckley Sandler LLP. Ygrene Energy Fund Florida, LLC, Defendant, represented by Fredrick Stuart Levin, Buckley Sandler LLP, Ali M. Abugheida, Buckley Sandler LLP & Daniel Raphael Paluch, Buckley Sandler LLP. YOUNG CHOW: Faces "Vasquez" Suit in S.D. New York ------------------------------------------------- A class action lawsuit has been filed against Young Chow Garden, Inc. The case is styled as Arnulfo Vasquez and Alejandro Mendoza, individually and on behalf of others similarly situated, the Plaintiff, v. Young Chow Garden, Inc., agent of New Asia Chinese Restaurant, Chang Su, and John Doe, the Defendants, Case No. 1:17- cv-05605 (S.D.N.Y., July 24, 2017). The Defendants operate a restaurant.[BN] The Plaintiff appears pro se. ZB N.A.: Sept. 18 Hearing on Bid to Refer Class Suit ---------------------------------------------------- In the case captioned RONALD C. EVANS, an individual; JOAN M. EVANS, an individual; DENNIS TREADAWAY, an individual; and all others similarly situated, Plaintiffs, v. ZB, N.A., a national banking association, dba California Bank & Trust, Defendant, Case No. 2:17-cv-01123-WBS-DB (E.D. Cal.), Judge William B. Shubb of the U.S. District Court for the Eastern District of California, Sacramento Division, granted the parties' stipulation to continue the hearing on the Defendant's Motion to Refer this Class Action Complaint to Sept. 18, 2017 at 1:30 p.m. and gave the Defendant 20 calendar days after notice to the Parties of the Court's entry of its written order ruling on the Referral Motion to file an answer or otherwise respond to the Plaintiffs' class action complaint. On May 26, 2017, the Plaintiffs filed this Class Action Complaint against the Defendant. On May 30, 2017, they served the Summons and the Complaint upon the Defendant via personal service. Under Rule 12(a)(1)(A)(ii) of the Federal Rules of Civil Procedure, the deadline for the Defendant to file and serve its answer or otherwise respond to the Complaint was initially June 20, 2017. On June 12, 2017, the Court entered an Order granting the Parties' Stipulation to extend the Defendant's Response Deadline to July 31, 2017. On July 24, 2017, the Defendant filed a Motion to Refer this Class Action Complaint to the Hon. Robert S. Bardwil in the U.S. Bankruptcy Court for the Eastern District of California and the Court's General Orders 182, 223, and 330 ("Referral Motion"). The Referral Motion is currently scheduled to be heard by the Court on Aug. 21, 2017 at 1:30 p.m. The Plaintiffs request additional time to review and consider the merits of the Referral Motion. Thus, the Parties agree to the following schedule with respect to the Referral Motion that (i) the Plaintiffs will file and serve their opposition, if any, to the Referral Motion no later than Aug. 28, 2017; (ii) the Defendant will file and serve its reply to any opposition to the Referral Motion no later than Sept. 11, 2017; and (iii) the hearing on Referral Motion will be continued from Aug. 21, 2017 to Sept. 18, 2017 at 1:30 p.m. To allow time for the Court to hear and determine the Referral Motion, the Parties agree to further extend the Defendant's Response Deadline such that it will have until 20 calendar days after notice to the Parties of the Court's entry of its written order ruling on the Referral Motion in which to file an answer or otherwise respond to the Complaint. This deadline will apply regardless of whether the Court retains jurisdiction, or refers all or part of the case to the Bankruptcy Court. The Court granted the Parties' Stipulation. The Scheduling Conference is continued from Sept. 25, 2017 to Nov. 20, 2017 at 1:30 p.m. A Joint Status Report will be filed no later than Nov. 6, 2017. A full-text copy of the Court's July 28, 2017 order is available at https://is.gd/Gq8EUN from Leagle.com. Ronald C Evans, Plaintiff, represented by Aaron Lee Arndt -- aarndt@foleybezek.com -- Foley Bezek Behle & Curtis, LLP. Joan M Evans, Plaintiff, represented by Aaron Lee Arndt, Foley Bezek Behle & Curtis, LLP. Dennis Treadaway, Plaintiff, represented by Aaron Lee Arndt, Foley Bezek Behle & Curtis, LLP. ZB, N.A., Defendant, represented by Robert Scott McWhorter -- rmcwhorter@buchalter.com -- Buchalter, A Professional Corporation. ZOCDOC INC: Can Deposit $13.9K to Secure Judgment in "Geisman" -------------------------------------------------------------- In the case captioned RADHA GEISMANN, M.D., P.C., Plaintiff, v. ZOCDOC, INC., Defendant, No. 14 Civ. 7009 (LLS)(S.D. N.Y), Judge Louis L. Stanton of the U.S. District Court for the Southern District of New York granted the Defendant's motion for leave to deposit $13,900 with the Clerk in satisfaction of its offer of settlement. In 2014, the Plaintiff filed a complaint in Missouri state court, alleging that it received two unsolicited faxes from ZocDoc, in violation of the Telephone Consumer Protection Act of 1991 ("TCPA"). Geismann seeks between $500 and $1,500 for each alleged TCPA violation, an injunction prohibiting ZocDoc from sending similar faxes in the future, and costs. It also filed a motion for class certification. On March 13, 2014, ZocDoc removed the action to the U.S. District Court for the District of Missouri. Two weeks later, ZocDoc made an offer of judgment pursuant to Fed. R. Civ. P. 68(a) for $6,000, plus reasonable attorney's fees, and an injunction prohibiting it from sending Geismann similar faxes in the future. On April 8, Geismann rejected the offer. On April 18, 2014, ZocDoc moved to transfer the action to the U.S. District Court for the Southern District of New York, which the court granted. It then moved to dismiss the complaint, arguing that its offer of judgment satisfied all of Geismann's claims, thereby mooting the action. On Sept. 26, 2014, Judge Stanton granted ZocDoc's motion and entered judgment, holding that its offer of judgment more than satisfies any recovery Geismann could make under the applicable statute and as a result, there remains no case or controversy before the Court. Geismann appealed. On Jan. 20, 2016, during the pendency of Geismann's appeal to the Second Circuit, the Supreme Court decided Campbell-Ewald Co. v. Gomez, which resolved a circuit split over whether a defendant's unaccepted offer of judgment in full satisfaction of a plaintiff's claim moots that a plaintiff's claim so as to deprive a federal court of the Article III "cases" and "controversies" jurisdictional requirement. Holding that such an unaccepted offer does not moot an action, the majority adopted Justice Kagan's dissent in Genesis Healthcare Corp. v. Symczyk, that an unaccepted settlement offer is a legal nullity, with no operative effect. On Feb. 1, 2016, ZocDoc requested leave to deposit $6,100 with the Clerk in satisfaction of its offer of settlement. Judge Stanton granted its request, noting no principle or authority appears to prevent compliance with an unstayed judgment, even one under appeal. On Feb. 5, 2016, ZocDoc deposited $6,100 with the Court's Clerk's Office, where it remains. On March 9, 2017, the Second Circuit reversed and remanded Judge Stanton's Sept. 26, 2014 order and judgment. On April 26, 2017, ZocDoc requested a pre-motion conference, in accordance with Judge Stanton's individual practices, to perfect the hypothetical contemplated by the Supreme Court in Campbell-Ewald and the Second Circuit in Geismann. On May 2, Geismann filed its opposition to ZocDoc's request. Judge Stanton held that on authority, and sound principles applied in the Second Circuit summary order after Campbell-Ewald, when ZocDoc has deposited with the Clerk of Court an additional $13,900 comprising an amount securing a judgment satisfying all of Geismann's monetary claims, and an unconditional consent to a proper form of injunction, it can make a cognizable, good-faith argument that this case should be terminated. The relevant law will no longer be that of contract, offer and acceptance, or Rule 68; it will be the Constitutional requirement of a case or controversy. For these reasons, Judge Stanton granted ZocDoc's motion for leave to deposit $13,900 with the Clerk of Court, to be held with the $6,100 already deposited, payable to the Plaintiff to secure a $20,000 judgment in favor of the Plaintiff, with a satisfactory form of consent to the entry of an injunction, and thereafter to follow the procedures for filing a motion for summary judgment. A full-text copy of the Court's July 28, 2017 opinion and order is available at https://is.gd/LoBLDj from Leagle.com. Radha Geismann, Plaintiff, represented by Aytan Yehoshua Bellin, Bellin & Associates. Radha Geismann, Plaintiff, represented by Max G. Margulis -- maxmargulis@margulislaw.com -- Margulis Law Group, pro hac vice, Brian J. Wanca -- BWanca@andersonwanca.com -- Anderson & Wanca, pro hac vice, Ross M. Good -- rgood@andersonwanca.com -- Anderson Wanca & Ryan M. Kelly -- rkelly@andersonwanca.com -- Anderson Wanca. Zocdoc, Inc.,, Defendant, represented by Bryan K. Clark, VEDDER AND PRICE, Blaine C. Kimrey -- bkimrey@vedderprice.com -- Vedder, Price, P.C., Bryan K. Clark -- bclark@vedderprice.com -- Vedder, Price, P.C., pro hac vice & Charles J. Nerko -- cnerko@vedderprice.com -- Vedder Price P.C. ZUFFA LLC: Faces "Le" Suit in Western District of Washington ------------------------------------------------------------ A class action lawsuit has been filed against Zuffa LLC. The case is titled as Cung Le, Nathan Quarry, Jon Fitch, Brandon Vera, Luis Javier Vazquez, and Kyle Kingsbury, on behalf of themselves and all others similarly situated, the Plaintiffs v. Zuffa LLC, doing business as: Ultimate Fighting Championship and UF, the Defendant, Case No. 2:17-mc-00074-RSL (W.D. Wash., July 19, 2017). The case is assigned to the Hon. Judge Robert S. Lasnik. Zuffa, LLC is an American sports promotion company specializing in mixed martial arts. It was founded in January 2001 in Las Vegas, Nevada.[BN] The Plaintiffs are represented by: Dan Drachler, Esq. ZWERLING SCHACHTER & ZWERLING 1904 3RD AVE., STE 1030 SEATTLE, WA 98101 Telephone: (206) 223 2053 Facsimile: (206) 223 2053 E-mail: ddrachler@zsz.com * Foley & Lardner Attorneys Discuss DOJ's Stance on Waivers ----------------------------------------------------------- James M. Nicholas, Esq. -- jnicholas@foley.com -- of Foley & Lardner LLP, in an article for The National Law Review, reports that on June 16, 2017, the United States Department of Justice (DOJ) changed its position with respect to the enforceability of class action waivers in the labor and employment context. The move came via the DOJ's filing of an amicus curiae brief in three consolidated cases pending before the Supreme Court (National Labor Relations Board v. Murphy Oil USA, Case No. 16-307, Epic Systems Corp. v. Lewis, Case No. 16-285 and Ernst & Young LLP v. Morris, Case No. 16-300) The Court's decision in these cases -- which were granted review in January 2017 -- is expected to resolve a circuit split over whether class action waivers included in employee arbitration agreements, constitute illegal waivers of rights under Section 7 of the National Labor Relations Act (NLRA). The Seventh and Ninth Circuit Court of Appeals have ruled that such waivers violate Section 7 of the NLRA, while the Second, Fifth, Eighth and Eleventh Circuits have upheld the validity of class action waivers in the employment context. In September 2016, the DOJ under the Obama Administration, on behalf of the National Labor Relations Board (NLRB), filed a petition for certiorari with the Supreme Court, aligning itself with the NLRB and its position that class action waivers are unenforceable and violate the NLRA. Less than a year later, the Trump Administration's DOJ has completely abandoned its predecessor's position. In its June 16thamicus brief, the DOJ argued that the Federal Arbitration Act mandates the enforcement of arbitration agreements containing class action waivers, unless overridden by a contrary congressional command or unless the waiver would deprive a plaintiff of substantive rights. The DOJ's current position is that enforcing class action waivers does not result in a surrender of substantive Section 7 rights, which are limited to union organizing and collective bargaining. According to the DOJ, those particular rights are in no way impacted by the procedural limitation of precluding individuals from joining together as a class to bring suit against their employers. Notably, the DOJ explicitly addressed its revised stance, stating that while it had "previously filed a petition . . . on behalf of the NLRB, defending the Board's view" concerning the enforceability of class action waivers, "[a]fter the change in administration, the [DOJ] reconsidered the issue and has reached the opposite conclusion." As a result of this new position, the NLRB is no longer represented by the U.S. Solicitor General in the matter, and is now representing itself in the three consolidated cases. The impact of this ideological shift on the cases before the Supreme Court is unclear. In a case involving statutory interpretation -- here the scope of the Federal Aviation Administration (FAA)versus the scope of Section 7 of the NLRA -- congressional intent and the plain language of the competing statutes, rather than a DOJ opinion, will likely drive the ultimate resolution of these cases. All employers who use or are considering using class action waivers should keep a close eye on this case. [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravantefor, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2017. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Joseph Cardillo at 856-381- 8268. * * * End of Transmission * * *