/raid1/www/Hosts/bankrupt/CAR_Public/170911.mbx
C L A S S A C T I O N R E P O R T E R
Monday, September 11, 2017, Vol. 19, No. 179
Headlines
ACOSTA TRACTORS: Appeals Ruling in "Hernandez" Suit to 11th Cir.
AMERICAN AIRLINES: Thompson Seeks to Certify Class of Attendants
AMERICAN HONDA: Ct. Appoints Interim Co-Lead Counsel in "Aberin"
ANTHEM INC: Reese Seeks to Stop Illegal and Unsolicited Texts
ARIZONA: Refused to Pay Overtime, "Redgrave" Suit Claims
ASH SOUNDS: Experts Investigate Crowd Rush on Falls Festival Suit
ATLANTIC MARINE: Faces CA Over Non-Disclosure of Bay Contamination
AUSTRALIA: People Detained on Manus Island Back Settlement
BARTON COMMUNITY: Accused by Garrett of Failing to Pay All Wages
BLACK TIE TRANSFERS: "Boger" Hits Illegal Telemarketing Calls
BLUE APRON: Sued by Nurlybayev Over 50% Decline of IPO Price
BMW NA: Faces "Hoar" Antitrust Suit Over Pricey German Cars
BMW NA: Court Approves $8.7MM Class Settlement Agreement
BROOKS AUTOMATION: Fails to Pay Employees Overtime, Action Claims
CELLCO PARTNERSHIP: Rosenbohm Seeks to Recover Past-Due Wages
CHI ST LUKE'S: "Salcedo" Suit Seeks to Recover Unpaid Wages
COCA-COLA CO: Court Upholds Summary Judgment in "Enslin"
COLLATERAL MANAGEMENT: Faces "Rodriguez" Lawsuit Under FLSA
CONRAD INDUSTRIES: Shipyard Workers Seek to Recover Unpaid Wages
CONSUMER CREDIT: Faces Class Action Over Solicitation Calls
CONVERGYS CORP: 5th Cir. to Review Waiver Case
CVI.CHE 105: Refuses to Pay Overtime Wages, "Madrigal" Suit Says
DIMENSION OILFIELD: "Bellow" Suit Seeks Unpaid Overtime Wages
E-LOGIC INC: Accused by "Lopez" Class Suit of Not Paying Overtime
ENDO INTERNATIONAL: Bier Sues Over Artificially-Inflated Stocks
ENSIGN UNITED: Court Denies Bid to Approve FLSA Settlement
EXPERIAN INFORMATION: Crabtree May File Cert. Bid on September 22
FARMERS GROUP: Faces "Baker" Class Suit for Breach of Contract
FINICITY CORP: Faces "Doman" Suit Over Unsolicited SMS
FIRST HAWAIIAN: "Robinson" Remanded to Hawaii State Court
FIRST STUDENT: Court Narrows Claims in "Gould" FLSA Suit
FITNESS MEMBER: Dawson Sues Over Unsolicited SMSs
FLOWERS FOODS: Conditional Certification of FLSA Class Denied
GODADDY INC: Ct. Won't Review Denial of "Schellenbach" Class Cert
GROUP HEALTH: Faces CA Over Misrepresented Coverage Policy
GUIDANCE SOFTWARE: Hernandez Sues Over Sale to Open Text
HAWAII: 9th Circuit Remands "Gregg" Suit
HDR INC: "Regan" Suit Seeks to Recover Overtime Wages Under FLSA
HIGHPOINT SOLUTIONS: Faces "Moore" Suit Over Data Breach by HR
HONDA MOTOR: Owners to Get Up to $500 in Settlement
INTELIUS INC: Court Partly Grants Bid to Dismiss "Dobrowolski"
KISLING NESTICO: Lord Challenges Illegal Sending of Text Messages
KOHL'S CORP: Hit With Proposed Class Action TCPA Lawsuit
LA LAKERS: Dismissal of Insurance Suit vs. Federal Affirmed
LAMPS PLUS: "Seegert" Suit Removed to S.D. Calif.
LASERSHIP INC: "Reynosa" Suit Removed to Mass. Dist. Ct.
LEIDOS INC: Supreme Court to Hear IPO Disclosure Case Nov. 6
LVNV FUNDING: Mo. App. Affirms Denial of Class Cert in "Mavaega"
LYFT INC: Accused by "Lowell" Suit of Violating Disabilities Act
MARK A. CIAVARELLA: Victims' Families Ready for Hearing
MARRIOTT OWNERSHIP: McComack Sues Over FCRA/Labor Code Violations
MCDONALD'S: Deal Reached in Payroll Cards Suit
MDL 2184: Ct. Affirms Arborist Panel Ruling, Junks Beddor Appeal
MDL 2284: Court Denies R. Adams' Appeal
MDL 2284: Court Denies B. Groves' Appeal
MDL 2284: Court Denies K. Starr's Appeal
MDL 2284: Court Denies B. Wang's Appeal
MDL 2437: Court Rejects Indirect Purchaser Class Certification
MED FOODS: Court Certifies Two Purchaser Classes in "Koller" Suit
MELTING POT: Fails to Pay Servers Earned Wages, "Kafka" Suit Says
MIDDLESEX CORP: EBI's Bid to Quash Subpoenas in "Myrick" OK'd
MONSANTO CO: Claassen Farms Seeks Damages Over Herbicide System
MONTANA: Hit With Class Action Over Driver's License Suspension
NEXTEP FUNDING: Prayitno's Cert. Bid Denied; Hearing on Sept. 28
OCHSNER HEALTH: Louisiana Court Narrows Claims in ERISA Suit
ONE TECHNOLOGIES: Ct. Approves Amended Case Schedule in "Hoffman"
OSTEOMED: Accused of Wrongful Conduct Over Sale of OsteoPower
PARKWAY INC: Faces "Scarantino" Suit Over Canada Pension Merger
PNC FINANCIAL: Partly Wins Bid to Strike Affirmative Defenses
R.F. FISHER: Faces "Smith" Suit Under Kansas Wage Payment Act
RALPH LAUREN: Court Partly Grants Bid to Dismiss "Dennis" Suit
RMK REALTY: "Lipski" Class Suit Seeks to Recover Wages Under FLSA
SAFECO INSURANCE: Sued in Cal. Over Vehicle Insurance Policies
SB NATION: Faces Class Action by Former Employees
SCENIC TOURS: Vows to Appeal Judgment in Flood-Disrupted Cruises
SCRANTON CITY, PA: Judge Hears Arguments on Trash-Fee Lawsuit
SEQUANS COMMUNICATIONS: Faces "Renner" Securities Class Suit
SHO-ME POWER: Multi-State Team Wins $130MM Missouri Jury Verdict
SIGNET JEWLERS: Faces New Shareholder Lawsuit
SM ENERGY: Court Denies Bid to Dismiss "Chieftain" Suit
SOUTH DAKOTA: Court Dismisses "Anderson" Suit without Prejudice
SPARTON CORP: "Jacobs" Suit Challenges Acquisition by Ultra
SPOTIFY: Fights Copyright Infringement Class Action
SUNBEAM PRODUCTS: Gorss Motels Amends Bid for Class Certification
SUNEDISON SEMICONDUCTOR: "Usenko" Suit Alleges ERISA Violation
SUPERVALU INC: 8th Circuit Adds to Litigation Uncertainty
SYNERGY ENTERPRISES: "Tshiteya" Suit Invokes FLSA, Md. Wage Laws
TDJ OILFIELD: "Barnhill" Suit to Recover Unpaid Overtime
TIMEPAYMENT CORP: Faces "Martell" Suit Over Failure to Pay OT
TRG CUSTOMER: Court Defers Ruling on Class Certification Bid
TRIPLE J PRODUCE: Court Grants Cy Pres Distribution in Wage Suit
UBER: Investor Suit Against Ex-CEO Moved to Arbitration
UNITED STATES: ICE Abusing Clients Due to Involvement in Suit
UNITED STATES: People Denied Entry Under Travel Ban Can Reapply
VAL-U CAR: Faces "Yates" Suit Alleging Non-payment of OT Work
WEBLOYALTY.COM INC: Court Allows Additional Affirmative Defenses
WELLS FARGO: Faces "Muniz" Suit Over Rate Lock Extension Fees
WRIGLEY CO: Accused of Mislabeling Caloric Content of Starburst
WEBMD HEALTH: Faces "Rubin" Suit Over Sale to Kohlberg Kravis
WIRELESS TIME: Perry Seeks to Recover Unpaid Wages and Overtime
WISCONSIN HOSPITALITY: Court Certifies Class in "Meetz" FLSA Suit
WORLD ACCEPTANCE: Settlement in "Epstein" Has Prelim. Approval
ZOEK INC: Accused by "Naiman" Class Suit of Violating TCPA
* DOL Posts Enforcement Policy on BIC Arbitration Limitation CA
*********
ACOSTA TRACTORS: Appeals Ruling in "Hernandez" Suit to 11th Cir.
----------------------------------------------------------------
Defendants Acosta Tractors Inc., Felix F. Acosta and Alex Ros
filed an appeal from a court ruling in the lawsuit entitled Julio
Hernandez Hernandez v. Acosta Tractors Inc., et al., Case No.
1:15-cv-23486-FAM, in the U.S. District Court for the Southern
District of Florida.
As previously reported in the Class Action Reporter, the lawsuit
is brought against the Defendants for alleged overtime wage
violation pursuant to the Fair Labor Standards Act.
The Defendants provide general contracting services, such as
constructing water and sewer mains.
The appellate case is captioned as Julio Hernandez Hernandez v.
Acosta Tractors Inc., et al., Case No. 17-13673, in the United
States Court of Appeals for the Eleventh Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- The appellant's brief is due on or before September 25,
2017;
-- The appendix is due no later than 7 days from the filing of
the appellant's brief;
-- Appellee's Certificate of Interested Persons is due on or
before September 12, 2017, as to Appellee Julio Hernandez
Hernandez.[BN]
Plaintiff-Appellee JULIO HERNANDEZ HERNANDEZ, and all others
similarly situated under 29 U.S.C. 216(B), is represented by:
Rivkah F. Jaff, Esq.
K. David Kelly, Esq.
Jamie H. Zidell, Esq.
J.H. ZIDELL, PA
300 71st St., Suite 605
Miami Beach, FL 33141
Telephone: (305) 865-6766
Facsimile: (305) 865-7167
E-mail: rivkah.jaff@gmail.com
david.kelly38@rocketmail.com
zabogado@aol.com
Defendants-Appellants ACOSTA TRACTORS INC., FELIX F. ACOSTA and
ALEX ROS are represented by:
Holly Lynn Griffin, Esq.
GUNSTER YOAKLEY & STEWART, PA
777 S Flagler Dr., Suite 500E
West Palm Beach, FL 33401-6194
Telephone: (561) 655-1980
E-mail: hgriffin@gunster.com
- and -
Raymond V. Miller, Jr., Esq.
GUNSTER YOAKLEY & STEWART, PA
600 Brickell Avenue, Suite 3500
Miami, FL 33131
Telephone: (305) 376-6048
E-mail: rmiller@gunster.com
- and -
Eduardo Alberto Suarez-Solar, Esq.
GUNSTER YOAKLEY & STEWART, PA
401 E Jackson St., Suite 2500
Tampa, FL 33602
Telephone: (813) 222-6653
E-mail: esuarez@gunster.com
AMERICAN AIRLINES: Thompson Seeks to Certify Class of Attendants
----------------------------------------------------------------
The Plaintiffs seek an order certifying that the lawsuit styled
CHER THOMPSON; LINDA IGOE; CHERYL ADAMS; DONNA HOLZBERGER; PAMELIA
MITCHNER; SIMON PARSONS; RODNEY JORDAN; CAROL SHIELDS; PAMELA
KISELA; CAROL REICHERT; YVETTE MARIE REIDY; JOSE LUIS CALDAS;
NANCY JOHNSON BLASINGAME; MARY SEARS; JOANN MONDRUS; and SCOTT
WESSEL, Individually and on behalf of all others similarly
situated v. AMERICAN AIRLINES GROUP, INC., a Delaware Corporation,
f/k/a AMR Corporation, and AMERICAN AIRLINES, INC, a Delaware
Corporation, Case No. 1:14-cv-07980 (N.D. Ill.), may proceed as a
class action and appointing the Plaintiffs' attorneys as class
counsel.
As alleged in the Plaintiffs' Second Amended Complaint, the
proposed class is defined as:
a. Individuals who retired under specific Voluntary Early Out
and Early Separation Programs and were eligible for Retiree
Travel Privileges pursuant to Company Policy; and
b. Individuals who accepted early separation packages for
unlimited D2 travel for five (5) or ten (10 years).
The named Plaintiffs, former American flight attendants, who
retired prior to January 1, 2014, seek to bring the lawsuit
against American as a class action. The lawsuit asserts causes of
action relating to the Plaintiffs' entitlement to their travel
pass benefits.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=9D6eSnnM
The Plaintiffs are represented by:
Mark F. Slavin, Esq.
SLAVIN & SLAVIN LLC
100 N. LaSalle St., 25th Floor
Chicago, IL 60602
Telephone: (312) 782-7848
Facsimile: (312) 782-8272
E-mail: mslavin@slavinlegal.com
nrichter@slavinlegal.com
draymond@slavinlegal.com
AMERICAN HONDA: Ct. Appoints Interim Co-Lead Counsel in "Aberin"
----------------------------------------------------------------
The United States District Court, Northern District of California,
issued an Order granting Plaintiffs' motion to appoint interim co-
lead class counsel in the case captioned ABERIN, et al.,
Plaintiffs, v. AMERICAN HONDA MOTOR COMPANY, INC., Defendant, Case
No. 16-cv-04384-JST (N.D. Cal.).
The Court denies Plaintiffs' motion to appoint a three-firm
executive committee.
In this purported class action, twelve named Plaintiffs allege
that they purchased new or used Acura vehicles manufactured by
Defendant American Honda Motor Company, Inc. Their Acura vehicles
were equipped with a defective Bluetooth system, the Hands Free
Link system, which caused a "parasitic drain" on their electrical
systems, resulting in premature failure of essential electric
components" and posing substantial safety hazards.
The Court has reviewed Plaintiffs' proposal and concludes that co-
lead class counsel comprised of Seeger Weiss and Carella Byrne
would "fairly and adequately represent the interests of the class.
Each firm has done extensive work identifying, investigating, and
prosecuting the potential claims. Each firm has experience
handling complex litigation1 and knowledge of the applicable law.
And each firm has established that it will commit adequate
resources to representing the class.
Accordingly, the Court designates Seeger Weiss and Carella Byrne
as interim co-lead class counsel.
The Court concludes that the appointment of an executive committee
is not warranted in this case for two reasons:
(1) First, Plaintiffs have neither addressed nor demonstrated
that the interests of the class diverge or are dissimilar. The
consolidated action is comprised of two suits with substantively
identical claims.
(2) Second, Plaintiffs have failed to demonstrate that the
interests of efficiency and economy are best served by appointing
a three-firm executive counsel. Plaintiffs do not articulate how
an executive committee would increase efficiency and the Court
does not believe that a five-firm organizational structure would
achieve that effect.
Accordingly, Plaintiffs' request for a three-firm executive
committee is denied.
A full-text copy of the District Court's August 24, 2017 Order is
available at http://tinyurl.com/y86v3ujefrom Leagle.com.
Mark Gerstle, Plaintiff, represented by Catherine Gannon -
catherineg@hbsslaw.com - Hagens Berman Sobol Shapiro LLP, pro hac
vice.
Mark Gerstle, Plaintiff, represented by Christopher A. Seeger -
cseeger@seegerweiss.com - Seeger Weiss LLP, pro hac vice, Daniel
R. Leathers, Seeger Weiss LLP, 77 Water Street, New York, NT 10005
pro hac vice, David Brian Fernandes - dfernandes@baronbudd.com -
Baron & Budd, P.C., James E. Cecchi, Carella Byrne Cecchi Olstein
Brody & Agnello, P.C., 5 Becker Farm RoadRoseland, NJ 07068, James
C. Shah, Shepherd Finkelman Miller & Shah, LLP, Lindsey H. Taylor,
Carella Byrne Cecchi Olstein Brody & Agnello, P.C., 5 Becker Farm
RoadRoseland, NJ 07068, Mark Philip Pifko - mpifko@baronbudd.com -
Baron & Budd, P.C., Roland K. Tellis, Baron Budd, P.C., Scott Alan
George, Seeger Weiss LLP, , 77 Water Street, New York, NT 10005
pro hac vice, Stephen A. Weiss, Seeger Weiss LLP, , 77 Water
Street, New York, NT 10005 pro hac vice, Steve W. Berman,
steve@hbsslaw.com Hagens Berman Sobol Shapiro LLP, pro hac vice &
Shana E. Scarlett - shanas@hbsslaw.com Hagens Berman Sobol Shapiro
LLP.
Yun-Fei Lou, Plaintiff, represented by Shana E. Scarlett, Hagens
Berman Sobol Shapiro LLP, Catherine Gannon, Hagens Berman Sobol
Shapiro LLP, pro hac vice, Christopher A. Seeger, Seeger Weiss
LLP, pro hac vice, Daniel R. Leathers, Seeger Weiss LLP, pro hac
vice, David Brian Fernandes, Baron & Budd, P.C., James E. Cecchi,
Carella Byrne Cecchi Olstein Brody & Agnello, P.C., James C. Shah,
Shepherd Finkelman Miller & Shah, LLP, Lindsey H. Taylor, Carella
Byrne Cecchi Olstein Brody & Agnello, P.C., Mark Philip Pifko,
Baron & Budd, P.C., Roland K. Tellis, Baron Budd, P.C., Scott Alan
George, Seeger Weiss LLP, pro hac vice, Stephen A. Weiss, Seeger
Weiss LLP, pro hac vice & Steve W. Berman, Hagens Berman Sobol
Shapiro LLP, pro hac vice.
Lindsey Aberin, Plaintiff, represented by Shana E. Scarlett,
Hagens Berman Sobol Shapiro LLP, Catherine Gannon, Hagens Berman
Sobol Shapiro LLP, pro hac vice, Christopher A. Seeger, Seeger
Weiss LLP, pro hac vice, Daniel R. Leathers, Seeger Weiss LLP, pro
hac vice, David Brian Fernandes, Baron & Budd, P.C., James E.
Cecchi, Carella Byrne Cecchi Olstein Brody & Agnello, P.C., James
C. Shah, Shepherd Finkelman Miller & Shah, LLP, Lindsey H. Taylor,
Carella Byrne Cecchi Olstein Brody & Agnello, P.C., Mark Philip
Pifko, Baron & Budd, P.C., Roland K. Tellis, Baron Budd, P.C.,
Scott Alan George, Seeger Weiss LLP, pro hac vice, Stephen A.
Weiss, Seeger Weiss LLP, pro hac vice & Steve W. Berman, Hagens
Berman Sobol Shapiro LLP, pro hac vice.
Don Awtrey, Plaintiff, represented by Shana E. Scarlett, Hagens
Berman Sobol Shapiro LLP, Catherine Gannon, Hagens Berman Sobol
Shapiro LLP, pro hac vice, Christopher A. Seeger, Seeger Weiss
LLP, pro hac vice, Daniel R. Leathers, Seeger Weiss LLP, pro hac
vice, David Brian Fernandes, Baron & Budd, P.C., James E. Cecchi,
Carella Byrne Cecchi Olstein Brody & Agnello, P.C., James C. Shah,
Shepherd Finkelman Miller & Shah, LLP, Lindsey H. Taylor, Carella
Byrne Cecchi Olstein Brody & Agnello, P.C., Mark Philip Pifko,
Baron & Budd, P.C., Roland K. Tellis, Baron Budd, P.C., Scott Alan
George, Seeger Weiss LLP, pro hac vice, Stephen A. Weiss, Seeger
Weiss LLP, pro hac vice & Steve W. Berman, Hagens Berman Sobol
Shapiro LLP, pro hac vice.
Daniel Criner, Plaintiff, represented by Shana E. Scarlett, Hagens
Berman Sobol Shapiro LLP, Catherine Gannon, Hagens Berman Sobol
Shapiro LLP, pro hac vice, Christopher A. Seeger, Seeger Weiss
LLP, pro hac vice, Daniel R. Leathers, Seeger Weiss LLP, pro hac
vice, David Brian Fernandes, Baron & Budd, P.C., James E. Cecchi,
Carella Byrne Cecchi Olstein Brody & Agnello, P.C., James C. Shah,
Shepherd Finkelman Miller & Shah, LLP, Lindsey H. Taylor, Carella
Byrne Cecchi Olstein Brody & Agnello, P.C., Mark Philip Pifko,
Baron & Budd, P.C., Roland K. Tellis, Baron Budd, P.C., Scott Alan
George, Seeger Weiss LLP, pro hac vice, Stephen A. Weiss, Seeger
Weiss LLP, pro hac vice & Steve W. Berman, Hagens Berman Sobol
Shapiro LLP, pro hac vice.
John Kelly, Plaintiff, represented by Shana E. Scarlett, Hagens
Berman Sobol Shapiro LLP, Catherine Gannon, Hagens Berman Sobol
Shapiro LLP, pro hac vice, Christopher A. Seeger, Seeger Weiss
LLP, pro hac vice, Daniel R. Leathers, Seeger Weiss LLP, pro hac
vice, David Brian Fernandes, Baron & Budd, P.C., James E. Cecchi,
Carella Byrne Cecchi Olstein Brody & Agnello, P.C., James C. Shah,
Shepherd Finkelman Miller & Shah, LLP, Lindsey H. Taylor, Carella
Byrne Cecchi Olstein Brody & Agnello, P.C., Mark Philip Pifko,
Baron & Budd, P.C., Roland K. Tellis, Baron Budd, P.C., Scott Alan
George, Seeger Weiss LLP, pro hac vice, Stephen A. Weiss, Seeger
Weiss LLP, pro hac vice & Steve W. Berman, Hagens Berman Sobol
Shapiro LLP, pro hac vice.
Jordan Moss, Plaintiff, represented by Shana E. Scarlett, Hagens
Berman Sobol Shapiro LLP, Catherine Gannon, Hagens Berman Sobol
Shapiro LLP, pro hac vice, Christopher A. Seeger, Seeger Weiss
LLP, pro hac vice, Daniel R. Leathers, Seeger Weiss LLP, pro hac
vice, David Brian Fernandes, Baron & Budd, P.C., James E. Cecchi,
Carella Byrne Cecchi Olstein Brody & Agnello, P.C., James C. Shah,
Shepherd Finkelman Miller & Shah, LLP, Lindsey H. Taylor, Carella
Byrne Cecchi Olstein Brody & Agnello, P.C., Mark Philip Pifko,
Baron & Budd, P.C., Roland K. Tellis, Baron Budd, P.C., Scott Alan
George, Seeger Weiss LLP, pro hac vice, Stephen A. Weiss, Seeger
Weiss LLP, pro hac vice & Steve W. Berman, Hagens Berman Sobol
Shapiro LLP, pro hac vice.
Donald Tran, Plaintiff, represented by Shana E. Scarlett, Hagens
Berman Sobol Shapiro LLP, Catherine Gannon, Hagens Berman Sobol
Shapiro LLP, pro hac vice, Christopher A. Seeger, Seeger Weiss
LLP, pro hac vice, Daniel R. Leathers, Seeger Weiss LLP, pro hac
vice, David Brian Fernandes, Baron & Budd, P.C., James E. Cecchi,
Carella Byrne Cecchi Olstein Brody & Agnello, P.C., James C. Shah,
Shepherd Finkelman Miller & Shah, LLP, Lindsey H. Taylor, Carella
Byrne Cecchi Olstein Brody & Agnello, P.C., Mark Philip Pifko,
Baron & Budd, P.C., Roland K. Tellis, Baron Budd, P.C., Scott Alan
George, Seeger Weiss LLP, pro hac vice, Stephen A. Weiss, Seeger
Weiss LLP, pro hac vice & Steve W. Berman, Hagens Berman Sobol
Shapiro LLP, pro hac vice.
Melissa Yeung, Plaintiff, represented by Shana E. Scarlett, Hagens
Berman Sobol Shapiro LLP, Catherine Gannon, Hagens Berman Sobol
Shapiro LLP, pro hac vice, Christopher A. Seeger, Seeger Weiss
LLP, pro hac vice, Daniel R. Leathers, Seeger Weiss LLP, pro hac
vice, David Brian Fernandes, Baron & Budd, P.C., James E. Cecchi,
Carella Byrne Cecchi Olstein Brody & Agnello, P.C., James C. Shah,
Shepherd Finkelman Miller & Shah, LLP, Lindsey H. Taylor, Carella
Byrne Cecchi Olstein Brody & Agnello, P.C., Mark Philip Pifko,
Baron & Budd, P.C., Roland K. Tellis, Baron Budd, P.C., Scott Alan
George, Seeger Weiss LLP, pro hac vice, Stephen A. Weiss, Seeger
Weiss LLP, pro hac vice & Steve W. Berman, Hagens Berman Sobol
Shapiro LLP, pro hac vice.
Jeff Aberin, Plaintiff, represented by Catherine Gannon, Hagens
Berman Sobol Shapiro LLP, pro hac vice, Christopher A. Seeger,
Seeger Weiss LLP, pro hac vice, Stephen A. Weiss, Seeger Weiss
LLP, pro hac vice & Steve W. Berman, Hagens Berman Sobol Shapiro
LLP, pro hac vice.
American Honda Motor Company, Inc., Defendant, represented by
Livia M. Kiser - LKISER@SIDLEY.COM - Sidley Austin LLP, Andrew
Jacob Chinsky - ACHINSKY@SIDLEY.COM - Sidley Austin LLP, pro hac
vice, Eric B. Scwartz - ESCHWARTZ@SIDLEY.COM- Sidley Austin LLP &
Michael Christian Andolina -MANDOLINA@SIDLEY.COM - Sidley Austin
LLP, pro hac vice.
ANTHEM INC: Reese Seeks to Stop Illegal and Unsolicited Texts
-------------------------------------------------------------
RENEE REESE, on behalf of herself and other persons similarly
situated v. ANTHEM INC. and AMERICAN HEART ASSOCIATION, INC., Case
No. 2:17-cv-07940-EEF-KWR (E.D. La., August 17, 2017), seeks to
stop the Defendants' alleged practice of making unwanted and
unsolicited text message calls to the cellular telephones of
consumers nationwide, and to obtain redress for all persons
injured by their conduct, which violated the Telephone Consumer
Protection Act.
Anthem Inc. is an Indianapolis, Indiana-based, for-profit
corporation. Anthem Inc., through its subsidiaries, operates as a
health benefits company in the United States. American Heart
Association, Inc. is a Dallas, Texas-based, non-profit
corporation. American Heart Association is a national voluntary
health agency.[BN]
The Plaintiff is represented by:
Roberto Luis Costales, Esq.
William H. Beaumont (#33005)
Emily A. Westermeier (#36294)
BEAUMONT COSTALES LLC
3801 Canal Street, Suite 207
New Orleans, LA 70119
Telephone: (504) 534-5005
E-mail: rlc@beaumontcostales.com
whb@beaumontcostales.com
eaw@beaumontcostales.com
ARIZONA: Refused to Pay Overtime, "Redgrave" Suit Claims
--------------------------------------------------------
Marcie A. Redgrave, individually and on behalf of all others
similarly situated v. Governor Doug Ducey, in his capacity as
Governor of the State of Arizona; Thomas J. Betlach, in his
official capacity as Director of the Arizona Health Care Cost
Containment System, Case No. 2:17-cv-02800-DGC (D. Ariz., August
18, 2017), alleges that despite being fully aware of how much the
Plaintiff actually works, the Defendants have willfully paid her
for less than half of her hours worked and have refused to pay her
overtime.
Ms. Redgrave is a current employee of the Division of
Developmental Disabilities ("DDD"), a state agency within
Defendant agency, the Arizona Health Care Cost Containment System
("AHCCCS"). She is one of over 1,900 Independent Providers
employed by the Defendants, who personally deliver in-home health
and personal care services to approximately 35,000 developmentally
disabled Arizonans.
Doug Ducey is sued in his official capacity as Governor of the
state of Arizona. Thomas J. Betlach is sued in his official
capacity as Director of the Arizona Health Care Cost Containment
System.
AHCCCS provides Medicaid long-term care benefits to disabled
persons through the Arizona Long-Term Care System. ALTCS provides
institutional services, home- and community-based services, acute
care, case management, and behavioral health services to eligible
persons.[BN]
The Plaintiff is represented by:
Nicholas J. Enoch, Esq.
Kaitlyn A. Redfield-Ortiz, Esq.
Emily A. Tornabene, Esq.
LUBIN & ENOCH, P.C.
349 North Fourth Avenue
Phoenix, AZ 85003-1505
Telephone: (602) 234-0008
Facsimile: (602) 626-3586
E-mail: nicholas.enoch@azbar.org
kaitlyn@lubinandenoch.com
emily@lubinandenoch.com
ASH SOUNDS: Experts Investigate Crowd Rush on Falls Festival Suit
-----------------------------------------------------------------
Emily Woods, writing for The Age, reports that international
"physics of crowd movement" experts are being sought to determine
how thousands of people became caught up in the crowd crush at
last year's Falls Festival.
The dispute over what caused a stampede that injured 80 people at
the festival in Lorne may stretch out to the second half of 2018,
Melbourne's Supreme Court heard on September 1.
The crowd crush occurred as people left the Grand Theatre main
tent.
Thousands of revellers became caught up in the crush, about 9.47pm
on December 30, as they tried to leave the Grand Theatre festival
tent after band the DMA's had finished their set.
The incident appears to have had little impact on ticket sales, as
the Lorne and Byron Bay legs of this year's festival sold out
within one hour on August 29 morning.
A class action lawsuit, involving 75 of the injured, has been
brought by Maddens Lawyers upon Ash Sounds Pty Ltd, trading as
Falls Festival.
During a directions hearing before Justice John Dixon, lawyers for
both sides discussed their desire for the case to go to trial.
Judge Dixon said this would likely be held during the second half
of next year.
The lead plaintiff in the dispute, Victorian student Michela
Burke, is still recovering from her injuries in the crowd crush,
the class action's barrister Min Guo told the court.
"She's lost feeling and sensation in her arm."
Ambulance Victoria say they assessed 80 people at the festival,
and 20 were taken to hospital.
Mr. Guo said Maddens Lawyers would try and find the remaining five
who were injured "through social media, considering their
demographic".
The court heard the main issue in dispute between the parties was
what had caused people to fall over during the crowd crush.
The physical layout of the festival, and the fact that some people
were pushing others in the back, is not disputed.
About 500 documents of evidence have been exchanged between the
parties, thus far.
Jeffery Gleeson, QC, the barrister representing the festival, said
they were seeking international "physics of crowd movement"
experts.
"There's experts across the world who deal with how large masses
of people move around," he said.
"It's a surprising set of circumstances in that there was a large
marquee, the band finished, people left, there was nothing
impeding the flow of people from getting out. They got through and
then tumbled on top of each other.
"There's a potential role for that sort of person, to try and work
out how this happened."
Mr. Guo said the plaintiff, Ms. Bourke, would rather have the
trial before a jury. However, Judge Dixon said he had reservations
about trial by jury, due to the complicated nature of the case.
A list of expert witnesses from both sides will be finalised and
provided to the court by the end of October.
Judge Dixon set the trial down for an estimated 10 to 15 days,
with a date to be fixed.
Another directions hearing will be held in the Supreme Court at
the beginning of 2018. [GN]
ATLANTIC MARINE: Faces CA Over Non-Disclosure of Bay Contamination
------------------------------------------------------------------
Kasia Kovacs, writing for Island Packet, reports that potentially
thousands of former Laurel Bay residents were not warned of
serious environmental contamination while living at the U.S.
Marines' housing complex in northern Beaufort County and are owed
back rent and other damages, a lawsuit filed on August 31 alleges.
Eleven former residents filed the suit in Beaufort County Circuit
Court on behalf of themselves and "all other similarly situated,"
described in the suit as "thousands of former tenants who lived at
Laurel Bay." The complex includes about 1,100 homes.
The suit alleges the defendants -- private companies that manage
Laurel Bay -- were aware of multiple serious contamination
problems at the housing site but that they failed to adequately
inform the residents.
One cause of contamination: Underground storage tanks -- once used
to heat homes from the late 1950s to the late 1960s or early 1970s
-- were abandoned and then "re-discovered during utility
construction activities" in the late 1990s, according to the suit.
The tanks were in "severe disrepair and leaking remnant fuel oil
in close proximity to Laurel Bay homes," the suit said.
Authorities have estimated that about 1,400 tanks were buried
underground, though the exact number is unknown. In 2007,
authorities began to remove the tanks. The Marine Corps claimed
"all known" tanks had been removed as of September 2015.
Another cause of contamination was the extensive peeling of lead
paint, the suit alleges. Notably, lead paint, which studies have
linked to various health problems in children, was found in nine
playgrounds at the housing complex, besides the outside of homes
where paint had peeled off, the suit said.
In addition, although the pesticide chlordane was banned by the
U.S. Environmental Protection Agency in 1988, Laurel Bay
management continued to use the chemical up to 1995, according to
the suit. Laurel Bay homes were also especially susceptible to
mold growth, the suit stated.
The plaintiffs allege that Laurel Bay management failed to
disclose information about the health risks to the housing
community, and therefore management didn't honor its end of the
lease. The suit said because of that, former Laurel Bay residents
"sustained damages . . . including the overpayment of rent." The
suit seeks class-action status and requests unspecified
"(g)eneral, special and consequential damages," as well as
punitive damages.
The suit also alleges the defendants violated the South Carolina
Residential Landlord Tenant Act and the Lead-Based Paint Hazard
Reduction Act of 1992.
Rob Metro, a Hilton Head-based attorney who is representing the
plaintiffs, has been working since January with families who live
or have lived in Laurel Bay. Metro was not immediately available
for comment on September 1.
In 2003, Tri-Command Managing Member LLC took authority over the
Laurel Bay military housing complex in a 50-year lease agreement
with the U.S. Navy, according to the suit. Tri-Command, now known
as Atlantic Marine Corps Communities LLC, is one of the defendants
in the suit. Another defendant is AMCC Property Management LLC,
which served as the leasing agent for Laurel Bay families.
Representatives from the Atlantic Marine Corps Communities and
AMCC Property Management were not available for comment on
September 31.
Questions about the Laurel Bay housing community captured national
attention in January after Amanda Whatley, one of the plaintiffs,
posted a YouTube video about her daughter's leukemia. Whatley
suspected her daughter's cancer was connected to contamination at
Laurel Bay, although doctors and scientists have advised caution
in drawing a direct causal relationship between contamination and
cancer.
As of Sept. 1, the YouTube video has been viewed over 51,000
times.
Marine Corps officials at Laurel Bay promised the results of a
health study last spring, but the release date has been pushed
back to the fall. [GN]
AUSTRALIA: People Detained on Manus Island Back Settlement
----------------------------------------------------------
The Guardian reported that most of the people who have been
detained on Manus Island have backed a AUD70 million compensation
settlement that lawyers say acknowledges the harms they have
suffered. But a journalist and Iranian refugee currently held on
Manus, Behrouz Boochani, said many had signed up to the settlement
because they felt they had no other options for legal action.
Legal firm Slater and Gordon hopes to get the money paid to
current and former detainees before the Manus Island regional
processing centre closes. Despite the Papua New Guinea supreme
court ruling in April that the detention centre is "illegal and
unconstitutional", it remains operational and houses nearly 900
men, and is not slated for closure until the end of October.
About 70% of the 1,923 group members in the class action, who
represent the majority of people detained on Manus Island since
2012, have so far registered to be part of the settlement.
The Australian government settled the landmark class action in
June rather than proceed with a six-month trial. Had the matter
gone to trial, the court would have heard evidence from detainees
detailing deaths inside the detention centre, allegations of
systemic sexual and physical abuse, and allegations of inadequate
medical treatment leading to injury and death.
Slater and Gordon says about eight per cent of the group has
lodged objections to what is believed to be Australia's largest
human rights class action settlement.
The firm will tell a judge on September 4 that the settlement is
the best option for group members in terms of receiving
compensation for the harms they have suffered, Slater and Gordon
practice group leader Rory Walsh said.
Walsh said the detainees had spent most of their lives waiting for
things to get better.
"They've been waiting to find somewhere safe to live and many have
now spent much of the last five years waiting in the inhumane
conditions of Manus Island for the outcomes of what can be
incredibly lengthy refugee status determinations," he said.
"This settlement provides certainty and it provides
acknowledgement. If it can help these detainees avoid waiting for
one minute less in this one aspect of their lives, then this
settlement is certainly in their best interests."
A letter seen by Guardian Australia and sent by Slate and Gordon
to detainees states: "The reason someone would opt out of a class
action is they do not want to be bound by its outcome - that is,
they do not want to share in any benefit that comes from the
resolution of the claim, and they do not want to be prevented from
participating in a separate case concerning the same issues".
The letter also says that Slater and Gordon does not agree with
criticisms from asylum seeker advocates that the settlement amount
was not enough.
"Although no amount of money is ever going to be able to properly
recognise what group members have been through at Manus regional
processing centre, the value of this claim is not a matter of
people's subjective opinions: it is what a court would award after
hearing all of the evidence," it states.
Boochani, who has written about the conditions in Manus detention
centre, told Guardian Australia that while many of the detainees
believe the settlement was not enough to hold the government to
account, they signed-up to the settlement because they felt there
was no hope of taking further court action.
While Boochani has signed up to the settlement, he said it would
never cover the mental, physical and emotional suffering.
"But we have been here more than four years and people need the
money to support their children so have signed up, because they
feel they will never have a chance to make another challenge to
the government in the future," he said.
"They feel they have no choice."
The group members must register their claims before 25 September
to receive their share of the AUD70 million, with 1,346 detainees
currently registered.
More than 160 people have lodged objections but the majority of
those have also registered to be part of the settlement if it is
ultimately approved by the Victorian supreme court.
The parties and independent legal counsel for the objectors will
on September 4 make submissions to Justice Cameron Macaulay, who
will announce his decision at a later date.
Walsh said the government and other defendants agreed to appoint
and pay for an independent law firm to act for those group members
who want to opt out of the proceeding.
"In our view, this case warranted the appointment of independent
legal representation because we do not believe this settlement
should be forced on any group member who does not want to
participate."
More than 50 group members have asked the court for more time to
opt out, which would preserve their legal rights to take separate
action. [GN]
BARTON COMMUNITY: Accused by Garrett of Failing to Pay All Wages
----------------------------------------------------------------
ROBIN GARRETT, on behalf of herself and all others similarly
situated v. BARTON COMMUNITY COLLEGE, Case No. 6:17-cv-01209 (D.
Kan., August 17, 2017), alleges that the Plaintiff and the
proposed Collective Action Plaintiffs were required to perform
work without receiving all wages due and owing pursuant to the
Fair Labor Standards Act.
Barton Community College is a quasi-municipal. BCC is located at
245 NE 30 Road, in Great Bend, Kansas.[BN]
The Plaintiff is represented by:
Sean M. McGivern, Esq.
Mark D. Kiefer, Esq.
GRAYBILL & HAZLEWOOD, LLC
218 N. Mosley St.
Wichita, KS 67202
Telephone: (316) 266-4058
Facsimile: (316) 462-5566
E-mail: sean@graybillhazlewood.com
mark@graybillhazlewood.com
BLACK TIE TRANSFERS: "Boger" Hits Illegal Telemarketing Calls
-------------------------------------------------------------
Dan Boger on behalf of himself and others similarly situated,
Plaintiff, v. Black Tie Transfers, Inc. and The Blu Group LLC,
Defendants, Case No. 1:17-cv-11549 (D. Mass., August 18, 2017),
seeks statutory damages and injunctive relief under the Telephone
Consumer Protection Act. [BN]
The Blu Group LLC hired Black Tie Transfers, Inc. to solicit new
customers for its merchant loans and business financing business.
Black Tie made telemarketing calls to Boger's mobile phone using
an automated dialing system and Plaintiff incurred charges for
such calls.
Plaintiff is represented by:
Anthony I. Paronich, Esq.
Edward A. Broderick, Esq.
BRODERICK & PARONICH, P.C.
99 High St., Suite 304
Boston, MA 02110
Tel: (508) 221-1510
Email: anthony@broderick-law.com
- and -
Matthew P. McCue, Esq.
LAW OFFICE OF MATTHEW P. MCCUE
1 South Avenue, 3rd Floor
Natick, MA 01760
Telephone: (508) 655-1415
Fax: (508) 319-3077
Email: mmccue@massattorneys.net
BLUE APRON: Sued by Nurlybayev Over 50% Decline of IPO Price
------------------------------------------------------------
RUSTEM NURLYBAYEV, Individually and on Behalf of All Others
Similarly Situated v. BLUE APRON HOLDINGS, INC., MATTHEW B.
SALZBERG, ILIA M. PAPAS, MATTHEW J. WADIAK, JARED CLUFF, PABLO
CUSSATTI, BENJAMIN C. SINGER, JULIE M.B. BRADLEY, TRACY BRITT
COOL, KENNETH A. FOX, ROBERT P. GOODMAN, GARY R. HIRSHBERG, BRIAN
P. KELLEY, BRADLEY J. DICKERSON, GOLDMAN SACHS & CO. LLC, MORGAN
STANLEY & CO. LLC, CITIGROUP GLOBAL MARKETS INC., BARCLAYS CAPITAL
INC., RBC CAPITAL MARKETS, LLC, SUNTRUST ROBINSON HUMPHREY, INC.,
STIFEL, NICOLAUS & COMPANY, INCORPORATED, CANACCORD GENUITY INC.,
NEEDHAM & COMPANY, LLC, OPPENHEIMER & CO. INC., RAYMOND JAMES &
ASSOCIATES, INC., and WILLIAM BLAIR & COMPANY, L.L.C., Case No.
1:17-cv-04846 (E.D.N.Y., August 17, 2017), is a federal securities
class action brought on behalf of those who purchased or acquired
the publicly traded securities of Blue Apron pursuant or traceable
to the Company's initial public offering.
Less than two months after going public, on August 10, 2017, Blue
Apron shocked the stock market by announcing significant
undisclosed problems, lowering its guidance for the second half of
2017, and stating that it planned to change its strategic approach
for managing the business for the remainder of 2017, according to
the complaint. On this news, the Company's stock price plummeted
to approximately $5 per share -- a 50% decline from the IPO price
of $10.
Blue Apron was founded in 2012 and is an ingredient-and-recipe
meal kit service. Blue Apron also sells wine, kitchen tools and
staples that are used in their test kitchens where new recipes are
created. Blue Apron Holdings, Inc., the issuer in this offering,
was incorporated in Delaware on December 22, 2016, to enable Blue
Apron, Inc., to implement a holding company organizational
structure. Blue Apron Holdings maintains its principal executive
office in New York City. The Individual Defendants are directors
and officers of the Company.
Under the terms and subject to the conditions in an underwriting
agreement dated on or about June 29, 2017, the underwriters
severally agreed to purchase and Blue Apron agreed to sell to
them, severally, Company shares for which the Underwriter
Defendants collectively were paid $16.5 million in commissions.
The Underwriter Defendants are Goldman Sachs & Co. LLC, Morgan
Stanley & Co. LLC, Citigroup Global Markets Inc., Barclays Capital
Inc., RBC Capital Markets, LLC, SunTrust Robinson Humphrey, Inc.,
Stifel, Nicolaus & Company, Incorporated, Canaccord Genuity Inc.,
Needham & Company, LLC, Oppenheimer & Co. Inc., Raymond James &
Associates, Inc., and William Blair & Company, L.L.C.[BN]
The Plaintiff is represented by:
Fred T. Isquith, Esq.
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP
270 Madison Avenue
New York, NY 10016
Telephone: (212) 545-4600
Facsimile: (212) 686-0114
E-mail: isquith@whafh.com
- and -
Francis A. Bottini, Jr., Esq.
BOTTINI & BOTTINI, INC.
7817 Ivanhoe Avenue, Suite 102
La Jolla, CA 92037
Telephone: (858) 914-2001
Facsimile: (858) 914-2002
E-mail: fbottini@bottinilaw.com
BMW NA: Faces "Hoar" Antitrust Suit Over Pricey German Cars
-----------------------------------------------------------
Michael Hoar and Elsa Ortiz v. BMW North America, LLC, BMW AG,
Audi AG, Audi of America Inc., Audi of America, LLC, Bentley
Motors Limited, Daimler Aktiengesellschaft, Mercedes-Benz US
International, Mercedes-Benz USA, Mercedes-Benz Vans, LLC, Dr.
Ing. h.c.F. Porsche AG, Porsche Cars of North America, Inc.,
Volkswagen AG, Volkswagen Group of America, Inc., Case No. 2:17-
cv-06210 (D.N.J., August 17, 2017), is brought on behalf of the
Plaintiffs and all others similarly situated pursuant to federal
and state antitrust, unfair competition, consumer protection, and
unjust enrichment laws.
For at least two decades now, the Defendants and other unnamed
conspirators, unlawfully agreed to fix costs, increase prices, and
eliminate competition with respect to key technologies and other
aspects of the luxury cars sold or leased to U.S. consumers under
the Audi, BMW, Bentley, Mercedes-Benz, and Porsche brands ("German
Luxury Vehicles"), the Plaintiffs allege. The Plaintiffs contend
that the Defendants' unlawful collusion substantially affected
interstate trade and commerce in the United States and caused
antitrust injury to the Plaintiffs and members of the Classes in
the United States, including eliminating or restricting technology
choices and causing the Plaintiffs and the Classes to pay
inflated, supra-competitive prices for the German Luxury Vehicles
they bought or leased.
Audi AG is a German corporation with its principal place of
business in Ingolstadt, Germany. Audi AG is the parent of Audi of
America, Inc. and Audi of America, LLC and a wholly owned
subsidiary of Volkswagen AG. Audi of America, Inc., is
incorporated in New Jersey, with its principal place of business
in Herndon, Virginia. Audi of America, LLC is incorporated in
Delaware, with its principal place of business in Herndon.
BMW AG is a German holding company headquartered in Germany. BMW
North America, LLC is a Delaware limited liability corporation
with its principal place of business in Woodcliff Lake, New
Jersey. BMW of North America is the United States importer of BMW
vehicles.
Daimler AG is a foreign corporation headquartered in Stuttgart,
Baden-Wurttemberg, Germany. Daimler AG is the parent company of
and owns 100% of and controls Mercedes-Benz USA, LLC, which acts
as the sole distributor for Mercedes-Benz brand vehicles in the
United States.
Mercedes-Benz USA, LLC is a Delaware limited liability corporation
headquartered in Atlanta, Georgia. Mercedes-Benz USA LLC operates
a regional sales office, a parts distribution center, and a
customer service center in New Jersey. Mercedes-Benz U.S.
International, Inc. is a corporation organized and existing under
the laws of Alabama, with its principal place of business in
Vance, Alabama. Mercedes-Benz U.S. International, Inc. is a
wholly-owned subsidiary of Daimler AG. Mercedes-Benz Vans, LLC is
a Delaware limited liability corporation with its principal place
of business in Ladson, South Carolina. Mercedes-Benz Vans, LLC is
a wholly owned subsidiary of Daimler AG.
Dr. Ing. h.c. F. Porsche AG is a German corporation with its
principal place of business in Stuttgart, Germany. Porsche Cars
North America, Inc. is incorporated in Delaware with its principal
place of business in Georgia. Porsche Cars North America, Inc.
maintains a network of 189 dealers throughout the United States.
Volkswagen AG is a German corporation with its principal place of
business in Wolfsburg, Germany. Volkswagen AG is the parent of
Volkswagen Group of America, Inc., Audi AG, Porsche AG, and
Bentley. Volkswagen Group of America, Inc. is incorporated in New
Jersey, with its principal place of business in Herndon, Virginia.
Bentley is organized under the laws of the United Kingdom.
Bentley has been a subsidiary of Volkswagen AG since 1998. Since
2012, Bentley's U.S. headquarters have been at the offices of
Volkswagen Group of America in Herndon, Virginia. Prior to that,
Bentley was headquartered in Boston, Massachusetts.
The Defendants design, develop, manufacture, and sell the German
Luxury Vehicles at issue that were purchased throughout the United
States.[BN]
The Plaintiffs are represented by:
Ellen Relkin, Esq.
WEITZ & LUXENBERG, P.C.
220 Lake Drive East, Suite 210
Cherry Hill, NJ 08002
Telephone: (212) 558-5500
Facsimile: (212) 344-5461
E-mail: ERelkin@weitzlux.com
- and -
Paul F. Novak, Esq.
Gregory Stamatopoulos, Esq.
WEITZ & LUXENBERG, P.C.
Chrysler House
719 Griswold Street, Suite 620
Detroit, MI 48826
Telephone: (313) 800-4170
Facsimile: (646) 293-7992
E-mail: pnovak@weitzlux.com
gstamatopoulos@weitzlux.com
BMW NA: Court Approves $8.7MM Class Settlement Agreement
------------------------------------------------------
The United States District Court for the District of New Jersey
issued an Opinion granting Plaintiff's Motion for Final Settlement
Approval in the case captioned ROBERT GRAY and MARKUM GEORGE,
individually, and on behalf of a class of similarly situated
individuals, Plaintiff, v. BMW OF NORTH AMERICA, LLC and BMW
AKTIENGESELLSCHAFT, Defendants, Civ. No. 13-cv-3417 (WJM), and
awarded $1.1 million in attorney's fees.
Plaintiffs Robert Gray and Markum George brought this putative
class action against BMW of North America and BMW
Aktiengesellschaft (Defendants). Plaintiffs allege that BMW 6-
Series vehicles contain one or more defects that prevent the
convertible top from functioning properly. The Court certified the
class for the purpose of settlement and preliminarily approved the
parties' proposed settlement agreement.
The Settlement Administrator received timely claims from 2,315
class members, while six members had opted out and two have
objected. Although the small number of negative responses is not
dispositive, it certainly weighs in favor of final approval, the
Court held.
The risks surrounding a trial on the merits are always
considerable. BMW vigorously disputes the merits of Plaintiffs'
claims. A trial would likely provoke conflicting expert testimony
over technical issues and require resolution of difficult issues
of law and fact, including whether BMW had "knowledge" of the
alleged defect.
The Court finds that the attending risk of failing to secure
liability and damages weighs in favor of approving the settlement.
It is far from certain that Plaintiffs' class would survive the
rigorous analysis of certification. For instance, the Court could
find that the class is too broad to comport with the predominance
requirement of Rule 23(b).
This factor weighs decidedly in favor of approving the Settlement.
Certainly, BMW could withstand a much greater judgment, but this
fact has marginal relevance unless the ability of a defendant to
survive a judgment is central to the negotiation process. BMW's
resources do not affect the Court's determination to approve the
Settlement.
The Settlement is reasonable in light of the best possible
recovery and the attendant risks of litigation. The Settlement
allows the owner and lessee of a Class Vehicle to receive a
software update that will cure the convertible top defect. The
update will come with a one-year extended warranty in the event
that the defect recurs. The Settlement also provides Class Members
with reimbursement for repair costs for up to two repair attempts,
even those attempts made by third parties, and for reimbursement
of out-of-pocket expenses incurred to replace the convertible top
entirely.
Objections to the Proposed Settlement
The Oettings' Objection
The Oettings object to the Settlement on the grounds of their
"total lack of trust and confidence" in BMW to administer the
repairs. Instead, the Oettings request compensation reflecting
"the total value of the car over the six-year period of their
ownership as if it were fully functional. While understandably
frustrated, the Oettings' objection provides no basis for
disturbing the settlement in this case, which elicited only one
additional objection.
Perhaps an ideal settlement would provide additional monetary
compensation and additional relief for the Oettings' frustration,
but settlements are by definition the product of compromise, and
the possibility that a settlement could have been better does not
mean the settlement presented was not fair, reasonable or
adequate. The Oettings' objection is overruled.
The Sibley Objection
Sibley, whom Defendants refer to as notorious serial objector,
objects that notice was generally inadequate; that approval would
violate the Supreme Court's intra-class requirements.
The Court disagrees that notice was inadequate. The Claims
Administrator searched application registration databases to
identify the last known addresses of all Class Members notice
consisted of website providing prospective Class Members with
information about the suit; a paper notice mailed to class members
along with claims forms; and a toll-free telephone number
established to field inquiries regarding the litigation.
Attorneys' Fees
The parties agreed to award fees in an amount within the range of
$944,000 and $1,869,000 (inclusive of $65,078.79 in expenses),
subject to the Court's discretion Settlement Agreement. The
agreement states that BMW's payment of attorneys' fees and costs
will be paid separate and apart from any relief provided to the
Settlement Class. Class Counsel are requesting $1,803,921.21,
representing 20.8% of $8,666,000,
Defendants argue that the Court should award $944,000, the minimum
agreed upon under the high-low agreement.
The Court finds that a more reasonable reward is $1,128,461.25,
exclusive of the $65,078.79 in costs. This figure rewards class
counsel with 150% of their actual claimed fees ($752,305), thus
preserving the premium necessary to induce attorneys to assume the
risk of contingency-fee representation, without overstating the
value of the relief obtained in this case or the amount of
discovery required to obtain it.
A full-text copy of the District Court's August 24, 2017 Opinion
is available at http://tinyurl.com/yd6uyp9rfrom Leagle.com.
ROBERT GRAY, Plaintiff, represented by MATTHEW ROSS MENDELSOHN -
mmendelsohn@mskf.net - MAZIE SLATER KATZ & FREEMAN LLC.
ROBERT GRAY, Plaintiff, represented by ADAM M. EPSTEIN -
aepstein@mskf.net - MAZIE SLATER KATZ & FREEMAN LLC.
Markum George, Plaintiff, represented by ADAM M. EPSTEIN, MAZIE
SLATER KATZ & FREEMAN LLC & MATTHEW ROSS MENDELSOHN, MAZIE SLATER
KATZ & FREEMAN LLC.
BMW OF NORTH AMERICA, LLC, Defendant, represented by CHRISTOPHER
J. DALTON - christopher.dalton@bipc.com - BUCHANAN, INGERSOLL &
ROONEY, PC, DANIEL ZEV RIVLIN - daniel.rivlin@bipc.com - BUCHANAN
INGERSOLL & ROONEY PC & ROSEMARY JOAN BRUNO -
rosemary.bruno@bipc.com - BUCHANAN, INGERSOLL & ROONEY, PC.
BMW AKTIENGESELLSCHAFT, Defendant, represented by CHRISTOPHER J.
DALTON, BUCHANAN, INGERSOLL & ROONEY, PC, DANIEL ZEV RIVLIN,
BUCHANAN INGERSOLL & ROONEY PC & ROSEMARY JOAN BRUNO, BUCHANAN,
INGERSOLL & ROONEY, PC.
BROOKS AUTOMATION: Fails to Pay Employees Overtime, Action Claims
-----------------------------------------------------------------
Mark M. Schoemaker, individually and on behalf of all others
similarly situated v. Brooks Automation, Inc., Case No. 5:17-cv-
03872-JLS (E.D. Penn., August 28, 2017), is brought against the
Defendants for failure to pay overtime wages for hours in excess
of 40 hours per week.
Brooks Automation, Inc. is a provider of automation, vacuum and
instrumentation equipment for multiple markets. [BN]
The Plaintiff is represented by:
Derrek W. Cummings, Esq.
Larry A. Weisberg, Esq.
Steve T. Mahan, Esq.
2041 Herr Street
Harrisburg, PA 17103-1624
Telephone: (717)238-5707
Facsimile: (717)233-8133
E-mail: dcummings@mwcfirm.com
lweisberg@mwcfirm.com
smahan@mwcfirm.com
CELLCO PARTNERSHIP: Rosenbohm Seeks to Recover Past-Due Wages
-------------------------------------------------------------
NEIL ROSENBOHM; individually, and on behalf of all others
similarly situated v. CELLCO PARTNERSHIP, a Delaware Corporation,
Case No. 2:17-cv-00731-ALM-CMV (S.D. Ohio, August 19, 2017), is
brought as a nationwide collective action pursuant to the Fair
Labor Standards Act to seek alleged past-due wages and an
equivalent amount in liquidated damages for putative class
members, who opt in.
Cellco Partnership, doing business as Verizon Wireless, is an
American multinational telecommunications conglomerate and the
largest U.S. wireless communications service provider as of
September 2015. The Company is based in Midtown Manhattan, New
York City, but is incorporated in Delaware. The Company owns and
operates stores throughout the United States and employed the
Plaintiff and thousands of other Solution Specialists.[BN]
The Plaintiff is represented by:
Michael L. Fradin, Esq.
LAW OFFICE OF MICHAEL L. FRADIN
8401 Crawford Avenue, Suite 104
Skokie, IL 60076
Telephone: (847) 644-3425
Facsimile: (847) 673-1228
E-mail: mike@fradinlaw.com
CHI ST LUKE'S: "Salcedo" Suit Seeks to Recover Unpaid Wages
-----------------------------------------------------------
LETICIA SALCEDO, individually, and on behalf of all others
similarly situated, Plaintiff, v. CHI ST. LUKE'S HEALTH BAYLOR
COLLEGE OF MEDICINE MEDICAL CENTER and ST. LUKE'S HEALTH SYSTEM
CORPORATION, Defendants, Case No: 4:17-cv-02447 (S.D. Tex., August
9, 2017), implicates the longstanding policy of St. Luke's
Hospitals and Medical Centers, which allegedly fails to properly
compensate non-exempt nurses for work performed during meal
breaks. Defendant's policies and practices result in nurses being
denied wages due under the Fair Labor Standards Act.
Defendant operates a chain of hospitals that provide healthcare
services. Ms. Salcedo was employed as a nurse.[BN]
The Plaintiffs is represented by:
Galvin B. Kennedy, Esq.
KENNEDYHODGES, L.L.P.
4409 Montrose Blvd., Ste. 200
Houston, TX 77006
Phone: (713) 523-0001
Fax: (713) 523-1116
Email: gkennedy@KennedyHodges.com
COCA-COLA CO: Court Upholds Summary Judgment in "Enslin"
--------------------------------------------------------
In the case captioned SHANE K. ENSLIN, on behalf of himself and
all others similarly situated, Plaintiff, v. THE COCA-COLA
COMPANY; COCA-COLA REFRESHMENTS USA, INC.; KEYSTONE COCA-COLA AND
BOTTLING AND DISTRIBUTION CORPORATION; KEYSTONE COCA-COLA BOTTLING
CO.; KEYSTONE COCA-COLA BOTTLING COMPANY, INC.; KEYSTONE COCA-COLA
BOTTLING CORPORATION; THOMAS WILLIAM ROGERS, III; DOE DEFENDANTS
1-50; ABC CORPORATIONS 1-50; and XYZ PARTNERSHIPS AND
ASSOCIATIONS, Defendants, No. 2:14-cv-06476 (E.D. Pa.), Judge
Joseph F. Leeson, Jr., of the U.S. District Court for the Eastern
District of Pennsylvania denied Enslin's move for reconsideration
of the Court's summary judgment in Coca-Cola's favor.
Enslin was employed by the Coca-Cola organization from 1996 to
2007. Five years later after Enslin left, Coca-Cola discovered
that one of its information technology employees had been taking
home old laptop computers that the company was no longer using.
Once it learned of the theft, Coca-Cola attempted to recover all
of the missing laptops. When it examined the laptops it was able
to recover, the company discovered that some of them had been used
by its human resources department and still contained bits and
pieces of personal information from some of its current and former
employees, including Enslin.
Enslin claims that around that same time, he and his spouse were
the victims of identity theft. He believes that the theft of the
laptops was to blame. He brought this suit on behalf of himself
and approximately 74,000 current and former Coca-Cola employees
whose information was stored on those laptops. He claims that the
company promised him -- either expressly or implicitly -- that it
would secure the personal information he provided about himself
during the hiring process and that the company breached that
promise. At summary judgment, the Court concluded that Coca-Cola
had made no such promise and therefore entered judgment in Coca-
Cola's favor. It held that there was no contract, express or
implied, between Coca-Cola and Enslin that imposed a general
contractual duty on Coca-Cola to safeguard his personal
information.
Enslin now moves for reconsideration of that decision, citing to a
number of errors he believes the Court made. He also asks the
Court to consider two new pieces of evidence he did not submit at
summary judgment, which he claims did not come to light until
after the Court had ruled against him.
Enslin believes that the Court made two errors of law in its
previous opinion. First, he contends that the Court neglected to
determine, as a threshold matter, whether the language in the
handbook, which laid out the scope of Coca-Cola's duties to its
employees with respect to their records, was ambiguous. Second,
he contends that the Court neglected to consider the extent of
Coca-Cola's obligations under the covenant of good faith and fair
dealing.
Judge Leeson concludes that neither of these contentions has
merit. He says it is worth pointing out that Enslin's current
position -- that the language of the handbook and other documents
is ambiguous, and the Court erred by construing it as a matter of
law -- flatly contradicts the position he took at summary
judgment. There he said in no uncertain terms that the Court must
construe and apply the plain meaning of the terms used in those
documents because Coca-Cola did not argue that there is any
ambiguity in the language used in any of the operative documents.
In sum, the Court did not err by finding the contractual language
in this case to be clear and construing that language as a matter
of law. It is also true that the Court did not mention the
implied covenant of good faith by name in its previous opinion.
But that was because it was clear that Enslin's theory was not
that the company had tried to evade one of the three express
obligations it assumed in the handbook; he was seeking to imply an
obligation on Coca-Cola's part that was not tied specifically to
the duties the contract imposed on the parties.
With respect to the new pieces of evidence that Enslin has
presented, Judge Leeson held that the evidence does not qualify.
New evidence, for reconsideration purposes, does not refer to
evidence that a party obtains or submits to the court after an
adverse ruling. The documents he wishes to submit were captured
and preserved by the Internet Archive in 2004 and 2005 and
publicly available on the Wayback Machine, and he had in his hands
a copy of the 2008 handbook, with the website address listed on
it, since at least the close of discovery in June 2016. The fact
that it did not strike Enslin to try using that website address to
retrieve older copies of the policies from the Wayback Machine
until after the Court ruled against him does not make this
evidence "new." In any event, the versions of the handbook from
2004 and 2005 would not change the result none of the later
versions of the handbook show that Coca-Cola undertook the sort of
broad contractual duty to protect his personal information that
Enslin believes it did.
Lastly, as to Enslin's claims against Thomas William Rogers, III,
the rogue Coca-Cola employee who stole the laptops from the
company, Judge Leeson denied Enslin's request for an opportunity
to submit further briefing on the certification of a class to
proceed against Coca-Cola on a theory of vicarious liability is
denied. The Judge finds that Enslin's request now to certify a
class against Coca-Cola on a theory of vicarious liability is an
untimely attempt to seek a second bite at the class certification
apple and that Enslin never pleaded a claim against Coca-Cola for
vicarious liability. The Plaintiff's failure to plead a claim of
vicarious liability -- or even plead any allegations that would
support it -- is fatal to his attempt to raise it now. Judge
Leeson says if Enslin wishes, he may proceed with a motion for
default judgment on his own behalf against Rogers, the only
remaining Defendant, in accordance with the accompanying order.
A full-text copy of the Court's Aug. 29, 2017 Opinion is available
at https://is.gd/yCuL10 from Leagle.com.
SHANE K. ENSLIN, Plaintiff, represented by DONALD E. HAVILAND, JR.
-- haviland@havilandhughes.com -- HAVILAND HUGHES LLC.
SHANE K. ENSLIN, Plaintiff, represented by JAY W. CHAMBERLIN --
chamberlin@havilandhughes.com -- HAVILAND HUGHES & WILLIAM H.
PLATT, II, Haviland Hughes LLC.
COLLATERAL MANAGEMENT: Faces "Rodriguez" Lawsuit Under FLSA
-----------------------------------------------------------
ALBERTO RODRIGUEZ, and other similarly situated individuals,
Plaintiffs, v. COLLATERAL MANAGEMENT APPRAISAL LLC d/b/a
COLLATERAL MANAGEMENT LLC, a Wyoming Limited Liability Company,
and JESSICA MASSAD, an individual, Defendants, Case No: 0:17-cv-
61586-WPD (S.D. Fla., August 9, 2017), alleges that Plaintiff
worked approximately an average of 51 hours per week in 2016 and
44 hours per week in 2017 without being properly compensated at
the rate of not less than one and one half times the regular rate
at which he was employed in violation of the Fair Labor Standards
Act.
COLLATERAL MANAGEMENT APPRAISAL LLC provides nationwide valuation
services by certified real estate appraisers. Plaintiff was
employed as an Audit Specialist.[BN]
The Plaintiffs is represented by:
R. Martin Saenz, Esq.
Ilona Demenina Anderson, Esq.
SAENZ & ANDERSON, PLLC
20900 NE 30th Avenue, Ste. 800
Aventura, FL 33180
Phone: (305) 503-5131
Fax: (888) 270-5549
Email: msaenz@saenzanderson.com
Email: iLona@saenzanderson.com
- and -
Joshua M. Entin, Esq.
Candace D. Cronan, Esq.
ENTIN & DELLA FERA, P.A.
633 S. Andrews, Ave, Suite 500
Ft. Lauderdale, FL 33301
Phone: (954) 761-7201
Fax: (954) 764-2443
Email: josh@entinlaw.com
Email: candace@entinlaw.com
CONRAD INDUSTRIES: Shipyard Workers Seek to Recover Unpaid Wages
----------------------------------------------------------------
John Does 1 and 2, on behalf of themselves and other persons
similarly situated, Plaintiffs, v. Conrad Industries, Inc.,
Defendants, Case No. 6:17-cv-01050, (W.D. La., August 20, 2017),
seeks to recover unpaid overtime wages, unpaid wages, interest,
liquidated damages, and attorneys' fees and costs for violation of
the Fair Labor Standards Act.
Conrad Industries contracts with third-party labor-brokers to
obtain a workforce to staff its boat construction business. It
also operates shipyards in Amelia and Morgan City, Louisiana.
Conrad Industries then supervises and controls those workers as de
facto employees. Plaintiffs were employed by Defendant at various
shipyards in St. Mary Parish, Louisiana as painters and blasters.
They claim to have been denied overtime pay under this scheme.
Plaintiffs have opted to remain anonymous for their security. [BN]
Plaintiff is represented by:
Roberto Luis Costales, Esq.
William H. Beaumont, Esq.
Emily A. Westermeier, Esq.
BEAUMONT COSTALES LLC
3801 Canal Street, Suite 207
New Orleans, LA 70119
Telephone: (504) 534-5005
Facsimile: (504) 272-2956
Email: rlc@beaumontcostales.com
whb@beaumontcostales.com
eaw@beaumontcostales.com
CONSUMER CREDIT: Faces Class Action Over Solicitation Calls
-----------------------------------------------------------
Wadi Reformado, writing for Legal Newsline, reports that a Los
Angeles County man alleges a debt consolidation marketer and
seller invaded his privacy with its solicitation calls.
Tim Collins filed a complaint on behalf of himself and all others
similarly situated on Aug. 23 in the U.S. District Court for the
Central District of California against Consumer Credit Card Relief
LLC, Jenssen Varela, Luis Vecchi and Does 1 through 10 citing the
Telephone Consumer Protection Act.
According to the complaint, the plaintiff alleges that beginning
in July, the defendants contacted his cellphone in an attempt to
solicit their services. The plaintiff holds Consumer Credit Card
Relief LLC, Varela, Vecchi and Does 1 through 10 responsible
because the defendants allegedly contacted him without his
permission. He alleges his phone number has been listed on the
National Do-Not-Call Registry since 2005.
The plaintiff requests a trial by jury and seeks $500 in statutory
damages, $1,500 in treble damages and any other relief as this
court deems just. He is represented by Todd M. Friedman, Esq. --
tfriedman@toddflaw.com -- Adrian R. Bacon, Esq. --
abacon@toddlaw.com -- Meghan E. George, Esq. --
mgeorge@toddlaw.com -- and Thomas E. Wheeler, Esq. --
twheeler@toddlaw.com -- of Law Offices of Todd M. Friedman P.C. in
Woodland Hills, Califiornia.
U.S. District Court for the Central District of California case
number 2:17-cv-06251-BRO-JC [GN]
CONVERGYS CORP: 5th Cir. to Review Waiver Case
----------------------------------------------
Olivia Olsen, writing for Louisiana Record, reports that in a
victory for Convergys Corp., the U.S. Court of Appeals for the 5th
Circuit ruled to grant the company's review following the National
Labor Relations Board's (NLRB) decision that the company violated
the National Labor Relations Act.
The board had previously ruled that requiring Convergys employees
to sign a class-action lawsuit waiver and the enforcement of the
waiver violated the National Labor Relations Act. Now the 5th
Circuit will review the matter, and the court denied the NLRB's
application for enforcement.
"The 5th Circuit has made clear that it will enforce class and
collective action waivers in employment agreements," Erin L.
Kilgore, a partner with the Baton Rouge division of Kean Miller
LLP, told the Louisiana Record. "Within days of the Convergys
decision, the 5th Circuit reiterated its conclusion in LogistiCare
Solutions, Inc. v. NLRB, No. 16-60029 (5th Cir. Aug. 9, 2017),
where the court again held that the class and collective action
waiver did not violate the National Labor Relations Act."
Kilgore said that although the employees cannot pursue action
collectively, they can file complaints individually.
"The ruling does not affect employees' substantive rights,"
Kilgore said. "The court specifically emphasized its precedent
that employees do not have a substantive right to participate in
class or collective actions. Employees remain free to pursue
their disputes with employers but would do so on an individual
basis."
While the ruling protects an employee's ability to sue on an
individual basis, it also benefits employers, particularly smaller
businesses that could experience significant distress due to a
class-action tort matter. However, Kilgore heeds a warning for
employers considering an addition of a class-action waiver.
"Employers must be mindful that there currently is a split among
the circuits on the enforceability of class and collective action
waivers, and the Supreme Court is set to consider this issue this
term," Kilgore said. "Employers who require employees to sign
class and collective action waivers should stay tuned for the
Supreme Court's decision this fall."
The Supreme Court's decision is sure to have far-reaching effects.
Until the decision is given, employers should look to explore the
option of the waiver, while employees should be mindful of their
alternative legal routes in the event they seek litigation. [GN]
CVI.CHE 105: Refuses to Pay Overtime Wages, "Madrigal" Suit Says
----------------------------------------------------------------
YOANDRY SANCHEZ MADRIGAL and all others similarly situated under
29 U.S.C. 216(b) v. CVI.CHE 105, INC., CVI.CHE 305, LLC, JUAN
CHIPOCO, Case No. 1:17-cv-23144-JEM (S.D. Fla., August 18, 2017),
accuses the Defendants of willfully and intentionally refusing to
pay the Plaintiff's overtime wages as required by the Fair Labor
Standards Act as Defendants knew of the overtime requirements of
the FLSA.
CVI.CHE 105, INC., and CVI.CHE 305, LLC, are companies that
regularly transact business within Miami-Dade County. They are
joint enterprises as the related activities between the companies,
performed through unified operation and common control, are being
done for a common business purpose. Juan Chipoco is a corporate
officer, owner and manager of the Defendant Corporations.
The Defendants operate restaurants specializing in Peruvian
cuisine.[BN]
The Plaintiff is represented by:
J.H. Zidell, Esq.
J.H. ZIDELL, P.A.
300 71st Street, Suite 605
Miami Beach, FL 33141
Telephone: (305) 865-6766
Facsimile: (305) 865-7167
E-mail: zabogado@aol.com
DIMENSION OILFIELD: "Bellow" Suit Seeks Unpaid Overtime Wages
------------------------------------------------------------- Ryan
Bellow, Individually and for Others Similarly Situated, v.
Dimension Oilfield Products, LLC, Case No. 4:17-cv-02542, (S.D.
Tex., August 18, 2017), seeks to recover unpaid overtime and other
damages under the Fair Labor Standards Act.
Dimension Oilfield provides cost-effective waste management plan
for drilling fluids and solid control group. It assigned Bellow to
work for a client at an oil rig. Dimension Oilfield allegedly paid
Bellow a set amount per day worked, regardless of how many hours
he worked in a week. [BN]
Plaintiff is represented by:
Michael A. Josephson, Esq.
Richard M. Schreiber, Esq.
Andrew Dunlap, Esq.
JOSEPHSON DUNLAP LAW FIRM
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Tel: (713) 352-1100
Fax: (713) 352-3300
Email: mjosephson@mybackwages.com
rschreiber@mybackwages.com
adunlap@mybackwages.com
- and -
Richard J. Burch, Esq.
BRUCKNER BURCH, P.L.L.C.
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Tel: (713) 877-8788
Fax: (713) 877-8065
Email: rburch@brucknerburch.com
E-LOGIC INC: Accused by "Lopez" Class Suit of Not Paying Overtime
-----------------------------------------------------------------
JUAN DANIEL LOPEZ, GUSTAVO ROBERTO LOPEZ, JOSE ROBERTO LOPEZ, and
MIRNA ABIGAIL CASTRO Individually and on Behalf of All Others
Similarly Situated v. E-LOGIC, INC., DWW ABATEMENT, INC., HESTER
ENVIRONMENTAL, d/b/a TEAM ENTERPRISE, CACTUS ABATEMENT &
DEMOLITION, LLC, ONEAL GROUP, INC., CHARLES ONEAL and PHILIP
HESTER, Case No. 3:17-cv-02216-G (N.D. Tex., August 18, 2017),
accuses the Defendants of not paying proper overtime wages
pursuant to the Fair Labor Standards Act to workers, who perform
sanitary services, including asbestos abatement and removal.
The Corporate Defendants operate as sanitary services businesses
and have employed workers to perform asbestos abatement and
removal work at facilities throughout the Dallas-Fort Worth
Metroplex, including at the DFW Airport.
Philip Hester is the general partner and founder of Hester
Environmental. Charles Oneal is the Director and Manager of Oneal
Group, Inc.[BN]
The Plaintiffs are represented by:
Michael O'Keefe Cowles, Esq.
Christopher J. Willett, Esq.
EQUAL JUSTICE CENTER
510 S. Congress Ave., Suite 206
Austin, TX 78704
Telephone: (469) 203-2150
Facsimile: (512) 474-0008
E-mail: mcowles@equaljusticecenter.org
cwillett@equaljusticecenter.org
- and -
Hannah Alexander, Esq.
EQUAL JUSTICE CENTER
1250 W. Mockingbird Lane, Suite 455
Dallas, TX 75247
Telephone: (469) 228-4226
E-mail: halexander@equaljusticecenter.org
ENDO INTERNATIONAL: Bier Sues Over Artificially-Inflated Stocks
---------------------------------------------------------------
Brandon Bier, individually and on behalf of all others similarly
situated, Plaintiff, v. Endo International PLC f/k/a Endo Health
Solutions Inc., Kanishka Liy Anaarchchie De Silva, Terrance J.
Coughlin; Susan Hall and Matthew Davis, Defendants, Case No. 2:17-
cv-03711, (E.D. Pa., August 18, 2017), seeks to recover damages
for violations of the federal securities laws under Sections lO(b)
and 20(a) of the Securities Exchange Act of 1934.
Endo is a Global specialty healthcare company focused on branded
and generic pharmaceuticals and devices. Endo has global
headquarters in Dublin, Ireland and U.S. headquarters in Malvern,
Pennsylvania. One of its branded pharmaceuticals is Opana ER, an
opioid analgesic indicated for the management of severe pain that
requires daily opioid treatment and for which alternative
treatment options are ineffective.
Defendants failed to disclose that Opana was not resistant to
crushing and was not abuse-deterrent carrying an inherent risk of
abuse by grinding, snorting and injecting and posed an opioid
public health crisis with a possibility of removal from the
market.
Bier purchased Endo common stock at artificially inflated prices
and suffered significant losses and damages upon this disclosure.
[BN]
Plaintiff is represented by:
Ryan M. Ernst, Esq.
Daniel P. Murray, Esq.
O'KELLY ERNST & JOYCE, LLC
901 N. Market Street, Suite 100
Wilmington, DE 19801
Tel: (302) 778-400
Fax: (302) 295-2873
Email: renerst@o~legal.com
dmurry@oelegal.com
- and -
Nicholas I. Porritt, Esq.
Adam M. Apton, Esq.
Alexander A. Krot III, Esq.
LEVI & KORSINSKY LLP
30 Broad Street, 24th Floor
New York, NY 10004
Tel: (212) 363-7500
Fax: (212) 363-7171
Email: nporritt@zlk.com
aapton@zlk.com
akrot@zlk.com
ENSIGN UNITED: Court Denies Bid to Approve FLSA Settlement
----------------------------------------------------------
The United States District Court for the District of Colorado
issued an Order denying Plaintiff's Unopposed Motion for Approval
of FLSA Settlement and Stipulation of Dismissal of Lawsuit with
Prejudice in the case captioned MATTHEW PRIM, individually and on
behalf of all others similarly situated, Plaintiff, v. ENSIGN
UNITED STATES DRILLING, INC., Defendant, Civil Action No. 15-cv-
02156-PAB-KMT (D. Colo.).
Plaintiff was employed by defendant and worked in an oilfield as
an hourly employee. Plaintiff and other employees received
bonuses as a component of their compensation including Safety
Bonuses and/or Performance Bonuses. Defendant excluded these
bonuses from calculations of plaintiff's and other employees'
regular rate of pay, and therefore failed to pay plaintiff and the
putative class members overtime at the rate required by the FLSA.
The FLSA provides that an employee or employees may bring an
action on behalf of himself or themselves and other employees
similarly situated Courts determine whether plaintiffs are
"similarly situated" for purposes of FLSA collective action
certification in two stages.
In deciding whether to certify a collective action, courts
consider several factors, including: (1) the disparate factual and
employment settings of individual plaintiffs; (2) various defenses
available to defendant which appear to be individual to each
plaintiff; and (3) fairness and procedural considerations.
As an initial matter, the Court disagrees that the notice stage
standard should be applied to make some final class certification
determination. If this were the case, there would be no need for
the Court to consider class certification prior to approving a
settlement if an initial notice had been approved.
Regardless, under either the notice stage standard or some
heightened standard, plaintiff has not provided information
sufficient to make any determination as to class certification.
Based on the foregoing, the Court finds that no form of class
certification is appropriate. While plaintiff's motion should be
denied on these grounds alone, the Court addresses several other
defects in plaintiff's motion and proposed settlement in
anticipation of a renewed motion for approval of settlement.
To approve the settlement agreement, the Court must find that (1)
the litigation involves a bona fide dispute, (2) the proposed
settlement is fair and equitable to all parties concerned, and (3)
the proposed settlement contains a reasonable award of attorney's
fees.
Parties requesting approval of an FLSA settlement must provide the
Court with sufficient information to determine whether a bona fide
dispute exists.
To meet this obligation, the parties must present: (1) a
description of the nature of the dispute; (2) a description of the
employer's business and the type of work performed by the
employees; (3) the employer's reasons for disputing the employees'
right to a minimum wage or overtime; (4) the employees'
justification for the disputed wages; and (5) if the parties
dispute the computation of wages owed, each party's estimate of
the number of hours worked and the applicable wage.
In a brief manner, plaintiff states that the Parties further
disagreed on whether Plaintiff could satisfy his burden to
demonstrate that Ensign acted willfully, which in turn affects
whether Plaintiff could recover compensation for two (2) years or
three (3) years. There is no description in the motion of the
facts in support of or in opposition to a finding that defendant's
conduct was willful.
In the absence of facts showing a bona fide dispute, the Court
would be unable to approve the parties' proposed settlement.
Fair and Reasonable
To be fair and reasonable, an FLSA settlement must provide
adequate compensation to the employees and must not frustrate the
FLSA policy rationales. Courts considering both individual and
collective settlements under the FLSA turn to the factors for
evaluating the fairness of a class action settlement.
If the Court finds that the settlement is fair and reasonable, the
Court must next determine whether the settlement agreement
undermines the purpose of the FLSA, which is to protect employees'
rights from employers who generally wield superior bargaining
power. To determine whether a settlement agreement complies with
the FLSA, courts look at the following factors: (1) presence of
other similarly situated employees; (2) a likelihood that
plaintiffs' circumstances will recur; and (3) whether defendants
had a history of non-compliance with the FLSA.
Of particular relevance here is the requirement in the claim form
that class members must agree to keep this matter and the
settlement confidential and not disclose it to third parties. A
confidentiality agreement is contrary to the FLSA's legislative
purpose and thwarts the informational objective of the notice
requirement by silencing the employee who has vindicated a
disputed FLSA right. The parties offer no reason why a
confidentiality agreement would be appropriate here.
Attorney's Fees
When addressing a common fund settlement, such as the one at issue
in this case, it is appropriate to calculate an appropriate
attorney's fee based on a percentage of the fund, instead of using
the lodestar method.
Plaintiff's attorneys request an award of thirty-five percent of
the settlement amount, or approximately $285,250. The fact that a
fee is customary, standing alone, does not justify a large award
of fees. Since this case was filed in 2015, there have been no
dispositive motions filed in the case and, based on the materials
before the Court, it is unclear whether the parties engaged in
extensive discovery.
Moreover, as noted above, the Court is also unable to determine
whether the result obtained in this case would militate in favor
of a large fee award. The Court is disinclined to award a
customary" attorney's fee without additional information regarding
the attorneys' conduct in this case.
Plaintiff's Unopposed Motion for Approval of FLSA Settlement and
Stipulation of Dismissal of Lawsuit with Prejudice is denied
without prejudice.
A full-text copy of the District Court's August 24, 2017 Order is
available at http://tinyurl.com/y9alpvsjfrom Leagle.com.
Matthew Prim, Plaintiff, represented by Andrew Wells Dunlap -
adunlap@mybackwages.com -- Josephson Dunlap Law Firm.
Matthew Prim, Plaintiff, represented by Lindsay R. Itkin -
litkin@mybackwages.com - Josephson Dunlap Law Firm, Richard
Jennings Burch, Bruckner Burch PLLC, 8 Greenway Plaza, Suite 1500,
Houston, TX 77046 & Michael Andrew Josephson -
mjosephson@mybackwages.com - Josephson Dunlap Law Firm.
Ensign United States Drilling, Inc., Defendant, represented by
Brooke A. Colaizzi - bcolaizzi@shermanhoward.com - Sherman &
Howard, L.L.C. & Emily Fontelle Keimig - ekeimig@shermanhoward.com
- Sherman & Howard, L.L.C.
EXPERIAN INFORMATION: Crabtree May File Cert. Bid on September 22
-----------------------------------------------------------------
The Clerk of the U.S. District Court for the Northern District of
Illinois made a docket entry on August 24, 2017, in the case
titled Quentin Crabtree v. Experian Information Solutions, Inc.,
Case No. 1:16-cv-10706 (N.D. Ill.), relating to a hearing held
before the Honorable Charles R. Norgle Sr.
The minute entry states that:
-- Plaintiff's motion to certify class is stricken without
prejudice;
-- Plaintiff's motion to certify class shall be filed by
September 22, 2017;
-- Response shall be filed by October 13, 2017;
-- Reply shall be filed by October 27, 2017;
-- Plaintiff's oral motion to extend fact discovery deadline
is granted without objection;
-- Fact discovery is extended to September 29, 2017;
-- Any motions to compel related to fact discovery must also
be filed by September 29, 2017; and
-- Status hearing set for October 24, 2017, at 9:15 a.m.
A copy of the Notification of Docket Entry is available at no
charge at http://d.classactionreporternewsletter.com/u?f=6A3ZaCZQ
FARMERS GROUP: Faces "Baker" Class Suit for Breach of Contract
--------------------------------------------------------------
Dennis and Victoria Baker, husband and wife, on behalf of
themselves and all others similarly situated Plaintiffs, v.
Farmers Group, Inc., Farmers Insurance Exchange and Mid-Century
Insurance Company, Case No. 2:17-cv-06125, (C.D. Cal., August 18,
2017), seeks declaratory, injunctive or other equitable relief,
compensatory damages, attorneys' fees and costs and such further
and other relief for breach of contract.
Farmers Group, Inc. and Farmers Insurance Exchange are insurance
companies incorporated in Nevada, with principal place of business
and headquarters at 6301 Owensmouth Ave., Woodland Hills, Los
Angeles County, CA 91367. They provide property and casualty
insurance, including homeowners' policies and business policies,
throughout the country, including in Arizona.
Plaintiffs are Arizona insureds who received actual cash value
payments and replacement cost for loss to building property under
their policies but were applied depreciation to both materials and
labor, labor being non-depreciating.
Plaintiff is represented by:
Cory S. Fein, Esq.
CORY FEIN LAW FIRM
712 Main St., #800
Houston, TX 77002
Telephone: (281) 254-7717
Facsimile: (530) 748-0601
E-mail: cory@coryfeinlaw.com
FINICITY CORP: Faces "Doman" Suit Over Unsolicited SMS
-------------------------------------------------------
Robert Doman, individually and on behalf of all others similarly
situated, Plaintiff, v. Finicity Corporation, Case No. 2:17-cv-
00942 (D. Utah, August 18, 2017) seeks statutory damages together
with costs and reasonable attorneys' fees under the Telephone
Consumer Protection Act (TCPA).
Defendant operates as "Mvelopes," company that created and
operates a mobile personal finance management application that
provides its users with free and paid-for accounts that offer
users the means to budget their money, receive financial advice
and coaching and engage in a customized financial program.
However, it undertook a massive telemarketing campaign wherein it
sent thousands of unsolicited text messages to consumers across
the nation, Doman being one of them. [BN]
Plaintiff is represented by:
Blake J. Dugger, Esq.
LAW OFFICES OF STEFAN COLEMAN, P.A.
1011 W. Colter St., #236
Phoenix, AZ 85013
Telephone: (602) 441-3704
Facsimile: (888) 498-8946
Email: blake@stefancoleman.com
- and -
Matthew Morrison, Esq.
1887 N 270 E
Orem, UT 84057
Tel: (801) 845-2581
Email: matt@oremlawoffice.com
- and -
Dillon Brozyna, Esq.
EDELSON PC
123 Townsend, Suite 100
San Francisco, CA 94107
Tel: (415)212-9300
Fax: (415)373-9435
Email: dbrozyna@edelson.com
FIRST HAWAIIAN: "Robinson" Remanded to Hawaii State Court
---------------------------------------------------------
The United States District Court for the District Hawaii issued an
Order adopting the Findings and Recommendation of the Magistrate
Judge granting Plaintiff's Motion to Remand the case captioned
LINDA ROBINSON, INDIVIDUALLY AND ON BEHALF OF A CLASS OF ALL
PERSONS SIMILARLY SITUATED, Plaintiff, v. FIRST HAWAIIAN BANK, DOE
DEFENDANTS 1-50, Defendants, Civ. No. 17-00105 DKW-RLP (D. Haw.).
Plaintiff Linda Robinson, on behalf of herself and an unidentified
class of persons similarly situated, filed a class action lawsuit
against FHB in the Circuit Court for the First Circuit, State of
Hawai'I, against her debit card provider, First Hawaiian Bank
(FHB), and Doe Defendants 1-50. In the Complaint, Robinson
challenges FHB's banking practices of imposing initial overdraft
fees on debit card transactions approved and deducted on a
sufficient available balance, and the imposition of a continuous
overdraft fee, which is assessed for each seven-day period that a
customer's account has a negative balance.
FHB removed Robinson's action to federal court. FHB's removal
petition is based on its assertion that Section 521 of the
Depository Institution Deregulation and Monetary Control Act
(DIDA) pre-empts Robinson's fourth, state-law usury/interest
claim.
The Magistrate Judge entered the F&R finding that DIDA does not
completely pre-empt state-law usury claims and does not establish
the federal question jurisdiction necessary for removal of this
action. The Magistrate Judge therefore recommended that Robinson's
Motion to Remand be granted.
Before the Court are FHB's objections to the F&R, which urge the
Court to:
(1) Reject the Magistrate Judge's Findings that:[a] this case
was not properly removed to federal court; [b] DIDA does not
completely preempt state-law usury claims and does not establish
the federal question jurisdiction necessary for removal of this
action; [c] the language contained in Section 521 of DIDA does not
completely pre-empt state usury law and therefore, DIDA does not
provide the basis for federal question jurisdiction or removal.
(2) Reject the Magistrate Judge's Recommendation that this
Court grant Plaintiff's Motion to Remand Pursuant to 28 U.S.C.
Section 1447 (the Remand Motion), F&R at 2, 13; and
(3) Deny the Remand Motion.
Because Robinson's Complaint is based upon Hawaii state law and
does not allege any federal cause of action, the District Court
held that it lacks subject matter jurisdiction over the dispute.
Therefore, FHB's removal to the District Court was improper, its
objections to the F&R are meritless, and the case is remanded to
State Court.
A full-text copy of the District Court's August 24, 2017 Order is
available at http://tinyurl.com/yct2kg5rfrom Leagle.com.
Linda Robinson, Plaintiff, represented by Brandee J. Faria, Perkin
& Faria, 841 Bishop Street, Suite 2000. Honolulu, Hawaii 96813.
Linda Robinson, Plaintiff, represented by Jeffrey D. Kaliel, Tycko
& Zavareei LLP,1828 L Street, NW - Suite 1000, Washington DC
20036, pro hac vice, John F. Perkin, Perkin & Faria, 841 Bishop
Street, Suite 2000. Honolulu, Hawaii 96813. & Jonathan M.
Streisfeld - streisfeld@kolawyers.com - Kopelowitz Ostrow, P.A.,
pro hac vice.
First Hawaiian Bank, Defendant, represented by Craig K. Shikuma -
cks@ksglaw.com - Kobayashi Sugita & Goda, James R. McGuire -
jmcguire@mofo.com - Morrison & Foerster LLP, pro hac vice, Jesse
W. Schiel - jws@ksglaw.com - Kobayashi Sugita & Goda, Jessica
Kaufman - jkaufman@mofo.com - Morrison & Foerster LLP, pro hac
vice & Yuko Funaki - yuf@ksglaw.com - Kobayashi Sugita Goda.
FIRST STUDENT: Court Narrows Claims in "Gould" FLSA Suit
--------------------------------------------------------
Judge Paul Barbadoro of the U.S. District Court for the District
of New Hampshire granted the Defendant's motion to dismiss as to
Counts I, II, and IV, but denied its motion as to Count III, in
the case captioned Darryl Gould, et al., v. First Student
Management, LLC, et al., Civil No. 16-cv-359-PB (D. N.H.).
First Student provides busing services to schools in New
Hampshire. For several years, First Student has employed the
Plaintiffs as bus drivers and driver assistants. Their employment
agreement entitles them to compensation for all time spent in the
service of First Student, including an overtime premium of one-
and-a-half times their regular rate for all hours worked over 40
in a week. They filed the class action alleging that First
Student failed to pay wages due under the Fair Labor Standards Act
("FLSA") and New Hampshire's wage and hour laws.
The drivers base their complaint on three of First Student's
payment practices. First, the drivers claim that they are not
compensated for preliminary and "postliminary" activities that
they must perform before and after driving. These uncompensated
activities take another six minutes each day. The drivers next
claim that First Student substantially undercompensates its
employees by refusing to pay for time spent on trips that exceed
preset limits. Exception reports are routinely ignored, with
drivers receiving compensation only for the preassigned estimate,
not the amount of time they actually spent driving. The third way
in which First Student allegedly undercompensates its employees is
by miscounting the hours they work on charter routes. Compounding
this problem, First Student does not compensate employees for
"dead time" between regular routes and charter routes. The
drivers assert that First Student uses these payment practices to
avoid its duty to pay both overtime and regular hourly wages,
known as "straight time."
First Student has challenged the complaint in a motion to dismiss
for failure to state a claim.
First Student argues that the drivers' state law straight-time
claims fail because the drivers do not sufficiently allege that
they had a contract with First Student that obligated the company
to pay the omitted wages. Judge Barbadoro finds that the drivers
allege that they bargained with First Student to receive certain
rates for all time in its service, and they adequately allege that
through a variety of mechanisms First Student failed to pay them
wages due under that arrangement. That is all that is required to
survive a motion to dismiss. The Plaintiffs have successfully
stated a claim for unpaid straight-time wages under state law.
Next, the Judge agrees with First Student that the Plaintiffs'
claim for straight-time wages under the FLSA is not cognizable
under the FLSA. The FLSA's overtime provision requires employers
to pay their employees a premium rate for each overtime hour. The
claim asserted by the Plaintiffs is not, strictly speaking, for
unpaid overtime hours. Instead, they seek to recover a regular
rate of pay for uncompensated hours worked under 40. He concludes
that the Plaintiffs' overtime gap time claim is not cognizable
under the FLSA (Count I).
The Judge also agrees with First Student that the Plaintiffs fail
to adequately allege an overtime pay violation under the FLSA.
The Named Plaintiffs fail to sufficiently plead that they worked
more than 40 hours. Adding that they were undercompensated in the
"given" week does not suffice. Because the Plaintiffs have not
plausibly alleged a violation of the FLSA's overtime provision, he
granted First Student's motion to dismiss that claim with leave to
amend (Count II).
As to the Plaintiffs' claim for overtime under New Hampshire law,
Judge Barbadoro granted First Student's motion to dismiss this
claim (Count IV). He explains that the state overtime provision
requires employers to pay a premium rate for overtime hours worked
by their employees. But there is an exemption to this statutory
requirement for employers covered under the provisions of the
FLSA. Because the Plaintiffs plead that First Student is an
employer engaged in interstate commerce and covered by the FLSA,
any claim under the state overtime provision fails.
A full-text copy of the Court's Aug. 29, 2017 Memorandum and Order
is available at https://is.gd/4Kc21s from Leagle.com.
Darryl Gould, Plaintiff, represented by Patrick T. Cronin, Cronin
and Berkowitz LLC, pro hac vice.
Darryl Gould, Plaintiff, represented by Steven A. Berkowitz --
sberkowitz@berkpc.com -- Cronin and Berkowitz LLC, pro hac vice &
Shawn J. Sullivan, Law Offices of Shawn J Sullivan PLLC.
Luz Maria Alicea, Plaintiff, represented by Patrick T. Cronin,
Cronin and Berkowitz LLC, pro hac vice, Steven A. Berkowitz,
Cronin and Berkowitz LLC, pro hac vice & Shawn J. Sullivan, Law
Offices of Shawn J Sullivan PLLC.
Matthew LaFave, Plaintiff, represented by Patrick T. Cronin,
Cronin and Berkowitz LLC, pro hac vice, Steven A. Berkowitz,
Cronin and Berkowitz LLC, pro hac vice & Shawn J. Sullivan, Law
Offices of Shawn J Sullivan PLLC.
Sara Gladstone, Plaintiff, represented by Patrick T. Cronin,
Cronin and Berkowitz LLC, pro hac vice, Steven A. Berkowitz,
Cronin and Berkowitz LLC, pro hac vice & Shawn J. Sullivan, Law
Offices of Shawn J Sullivan PLLC.
Meighan Broderick, Plaintiff, represented by Patrick T. Cronin,
Cronin and Berkowitz LLC, pro hac vice, Steven A. Berkowitz,
Cronin and Berkowitz LLC, pro hac vice & Shawn J. Sullivan, Law
Offices of Shawn J Sullivan PLLC.
Jaimie Blombach, Plaintiff, represented by Patrick T. Cronin,
Cronin and Berkowitz LLC, pro hac vice, Steven A. Berkowitz,
Cronin and Berkowitz LLC, pro hac vice & Shawn J. Sullivan, Law
Offices of Shawn J Sullivan PLLC.
Pamela Johnson, Plaintiff, represented by Patrick T. Cronin,
Cronin and Berkowitz LLC, pro hac vice, Steven A. Berkowitz,
Cronin and Berkowitz LLC, pro hac vice & Shawn J. Sullivan, Law
Offices of Shawn J Sullivan PLLC.
Lisa Harvey, Plaintiff, represented by Patrick T. Cronin, Cronin
and Berkowitz LLC, pro hac vice, Steven A. Berkowitz, Cronin and
Berkowitz LLC, pro hac vice & Shawn J. Sullivan, Law Offices of
Shawn J Sullivan PLLC.
Robert Selvitella, Jr., Plaintiff, represented by Patrick T.
Cronin, Cronin and Berkowitz LLC, pro hac vice, Steven A.
Berkowitz, Cronin and Berkowitz LLC, pro hac vice & Shawn J.
Sullivan, Law Offices of Shawn J Sullivan PLLC.
First Student Management, LLC, Defendant, represented by
Christopher B. Kaczmarek -- ckaczmarek@littler.com -- Littler
Mendelson PC, Melissa L. McDonagh -- mmcdonagh@littler.com --
Littler Mendelson PC, pro hac vice & Michael T. Grosso --
mgrosso@littler.com -- Littler Mendelson PC, pro hac vice.
First Student, Inc., Defendant, represented by Christopher B.
Kaczmarek, Littler Mendelson PC, Melissa L. McDonagh, Littler
Mendelson PC, pro hac vice & Michael T. Grosso, Littler Mendelson
PC, pro hac vice.
FITNESS MEMBER: Dawson Sues Over Unsolicited SMSs
-------------------------------------------------
Michael Anakin Dawson, individually and on behalf of all others
similarly situated, Plaintiff, v. Fitness Member Services, LLC,
Defendant, Case No. 1:17-cv-00133 (D. Utah, August 18, 2017),
seeks statutory damages together with costs and reasonable
attorneys' fees under the Telephone Consumer Protection Act
(TCPA).
Fitness Member Services operates as "Vasa Fitness," the largest
operator of fitness and health clubs in the Utah market. It
allegedly sent text messages to Plaintiff's cellular telephones in
an attempt to sign him up for membership. [BN]
Plaintiff is represented by:
Blake J. Dugger, Esq.
LAW OFFICES OF STEFAN COLEMAN, P.A.
1011 W. Colter St., #236
Phoenix, AZ 85013
Telephone: (602) 441-3704
Facsimile: (888) 498-8946
Email: blake@stefancoleman.com
- and -
Matthew Morrison, Esq.
1887 N 270 E
Orem, UT 84057
Tel: (801) 845-2581
Email: matt@oremlawoffice.com
FLOWERS FOODS: Conditional Certification of FLSA Class Denied
-------------------------------------------------------------
The United States District Court, Southern District of New York,
issued an Opinion and Order denying Plaintiffs' Motion for
Conditional Certification of an Fair Labor Standards Act
collective class in the case captioned ROSS SCHUCKER, TOM SHAFFER,
VIRGILIO VALDEZ, EDWARD FRYAR, STEVEN HEINRICH, and SHANE BOWER,
on behalf of themselves and all other employees similarly
situated, Plaintiffs, v. FLOWERS FOODS, INC., LEPAGE BAKERIES PARK
ST., LLC, C.K. SALES CO., LLC, and JOHN DOE 1-10, Defendants. No.
16-CV-3439 (KMK) (S.D.N.Y.)
Plaintiffs Ross Schucker, Tom Shaffer, Virgilio Valdez, Edward
Fryar, Steven Heinrich, and Shane Bower (Plaintiffs) bring this
Action against Flowers Foods, Inc., Lepage Bakeries Park St., LLC,
C.K. Sales Co., LLC, and John Doe 1-10 (Defendants), on behalf of
themselves and all other employees similarly situated, alleging
that Defendants misclassified them as independent contractors and
seeking remedies for statutory and common law violations that
denied them the rights, obligations, privileges, and benefits owed
to them as employees resulting from their misclassification
pursuant to the Fair Labor Standards Act (FLSA).
Before the Court is Plaintiffs' Motion for Conditional
Certification of an FLSA collective class.
Plaintiffs allege that Defendants required Plaintiffs to work more
than 40 hours per week, that Plaintiffs regularly worked 55-60
hours per week, and that they did not receive overtime pay or any
other employment benefits. Plaintiffs further allege that
Defendants derived this plan to make employees independent
contractors as a willful scheme to deprive Plaintiffs of their
employee benefits because they knew that Plaintiffs and all
similarly situated individuals performed work that required
overtime pay.
The FLSA provides that an employee whose rights were violated
under the FLSA may file an action in any state or federal court of
competent jurisdiction for and in behalf of himself or themselves
and other employees similarly situated Although the FLSA does not
require them to do so, the district courts have discretion, in
appropriate cases, to implement Section 216(b) by facilitating
notice to potential plaintiffs of the pendency of the action and
of their opportunity to opt-in as represented plaintiffs.
Defendants argue that Plaintiffs' motion should be denied as
duplicative and unnecessary because conditional certification and
notice has already been granted and issued in pending cases
raising the same claims.
Here, there have been approximately 23 other actions filed against
Flowers Foods distributors under the FLSA (and other state laws)
relating to the alleged misclassification of their employees as
independent contractors. There is no dispute that Plaintiffs are
raising the same claims as other distributors in New York and
across the country and thus no concern that certification is
needed here to vindicate the rights of any distributor, except for
possibly the single unidentified distributor who has not yet
received notice in any case.
Plaintiffs urge the Court to construe the FLSA's remedial
provisions liberally and in the employees' favor. But at issue
here is not a narrow or liberal construction of the statute, but
rather a practical assessment of the relative costs and benefits
of allowing Plaintiffs to maintain a collective action that
appears to serve little purpose in enforcing the FLSA rights of
potential class members.
Plaintiffs contend that the FLSA does not prohibit multiple
collective actions. The Court agrees, but again, that is not the
issue raised by Defendants; the sole question here is whether
certification of a duplicative collective action is a prudent and
reasonable exercise of the Court's discretion. It is not, and
numerous courts have agreed. While Plaintiffs have cited to some
cases holding otherwise.
The weight of authority is against Plaintiffs here. Again,
Plaintiffs are free to pursue their own individual FLSA claims,
and the Court agrees that the first-filed rule is an imperfect fit
that does not warrant outright dismissal here. But here, no
purpose would be served by allowing the FLSA claims to proceed as
a collective action considering the concurrent cases and the
attendant increased expense for Defendants, the risk of confusing
potential collective members about their legal options, the
possibility of inconsistent rulings, and the waste of judicial
resources.
In addition, the distributors who have not yet opted in to a
collective action will not be prejudiced: those individuals can
bring their own individual actions or they can choose to do
nothing and they will not be bound by any judgment.
Plaintiffs' Motion is denied without prejudice to renewal should
circumstances change.
A full-text copy of the District Court's August 24, 2017 Opinion
and Order is available at http://tinyurl.com/ybvh84hn from
Leagle.com.
Ross Schucker, Plaintiff, represented by Gary Steven Graifman -
email@kgglaw.com -- Kantrowitz Goldhamer & Graifman, P.C., 747
Chestnut Ridge Road, Chestnut Ridge, NY 10977
Ross Schucker, Plaintiff, represented by Reginald H. Rutishauser -
- email@kgglaw.com -- Kantrowitz Goldhamer & Graifman, P.C. &
Randy J. Perlmutter -- email@kgglaw.com -- Kantrowitz Goldhamer &
Graifman, P.C..
Tom Shaffer, Plaintiff, represented by Gary Steven Graifman,
Kantrowitz Goldhamer & Graifman, P.C., Reginald H. Rutishauser,
Kantrowitz Goldhamer & Graifman, P.C. & Randy J. Perlmutter,
Kantrowitz Goldhamer & Graifman, P.C..
Virgilio Valdez, Plaintiff, represented by Gary Steven Graifman,
Kantrowitz Goldhamer & Graifman, P.C., Reginald H. Rutishauser,
Kantrowitz Goldhamer & Graifman, P.C. & Randy J. Perlmutter,
Kantrowitz Goldhamer & Graifman, P.C..
Edward Fryar, Plaintiff, represented by Gary Steven Graifman,
Kantrowitz Goldhamer & Graifman, P.C., Reginald H. Rutishauser,
Kantrowitz Goldhamer & Graifman, P.C. & Randy J. Perlmutter,
Kantrowitz Goldhamer & Graifman, P.C..
Steven Heinrich, Plaintiff, represented by Gary Steven Graifman,
Kantrowitz Goldhamer & Graifman, P.C., Reginald H. Rutishauser,
Kantrowitz Goldhamer & Graifman, P.C. & Randy J. Perlmutter,
Kantrowitz Goldhamer & Graifman, P.C..
Shane Bower, Plaintiff, represented by Gary Steven Graifman,
Kantrowitz Goldhamer & Graifman, P.C., Randy J. Perlmutter,
Kantrowitz Goldhamer & Graifman, P.C. & Reginald H. Rutishauser,
Kantrowitz Goldhamer & Graifman, P.C..
Flowers Foods, Inc., Defendant, represented by Craig Friedman --
csfriedman@jonesday.com -- Jones Day, Matthew Willis Lampe --
mwlampe@jonesday.com -- Jones Day, Deborah A. Sudbury --
dsudbury@jonesday.com -- Jones Day & Karen Rosenfield --
krosenfield@jonesday.com -- Jones Day.
LePage Bakeries Park St., LLC, Defendant, represented by Craig
Friedman, Jones Day, Matthew Willis Lampe, Jones Day, Deborah A.
Sudbury, Jones Day & Karen Rosenfield, Jones Day.
C.K. Sales CO., LLC, Defendant, represented by Craig Friedman,
Jones Day, Matthew Willis Lampe, Jones Day, Deborah A. Sudbury,
Jones Day & Karen Rosenfield, Jones Day.
Flowers Foods, Inc., Counter Claimant, represented by Craig
Friedman, Jones Day, Matthew Willis Lampe, Jones Day, Deborah A.
Sudbury, Jones Day & Karen Rosenfield, Jones Day.
Shane Bower, Counter Defendant, represented by Gary Steven
Graifman, Kantrowitz Goldhamer & Graifman, P.C. & Reginald H.
Rutishauser, Kantrowitz Goldhamer & Graifman, P.C..
Edward Fryar, Counter Defendant, represented by Gary Steven
Graifman, Kantrowitz Goldhamer & Graifman, P.C., Reginald H.
Rutishauser, Kantrowitz Goldhamer & Graifman, P.C. & Randy J.
Perlmutter, Kantrowitz Goldhamer & Graifman, P.C..
Steven Heinrich, Counter Defendant, represented by Gary Steven
Graifman, Kantrowitz Goldhamer & Graifman, P.C., Reginald H.
Rutishauser, Kantrowitz Goldhamer & Graifman, P.C. & Randy J.
Perlmutter, Kantrowitz Goldhamer & Graifman, P.C..
Ross Schucker, Counter Defendant, represented by Gary Steven
Graifman, Kantrowitz Goldhamer & Graifman, P.C., Reginald H.
Rutishauser, Kantrowitz Goldhamer & Graifman, P.C. & Randy J.
Perlmutter, Kantrowitz Goldhamer & Graifman, P.C..
Tom Shaffer, Counter Defendant, represented by Gary Steven
Graifman, Kantrowitz Goldhamer & Graifman, P.C., Reginald H.
Rutishauser, Kantrowitz Goldhamer & Graifman, P.C. & Randy J.
Perlmutter, Kantrowitz Goldhamer & Graifman, P.C..
Virgilio Valdez, Counter Defendant, represented by Gary Steven
Graifman, Kantrowitz Goldhamer & Graifman, P.C., Reginald H.
Rutishauser, Kantrowitz Goldhamer & Graifman, P.C. & Randy J.
Perlmutter, Kantrowitz Goldhamer & Graifman, P.C..
LePage Bakeries Park St., LLC, Counter Claimant, represented by
Craig Friedman, Jones Day, Matthew Willis Lampe, Jones Day,
Deborah A. Sudbury, Jones Day & Karen Rosenfield, Jones Day.
Shane Bower, Counter Defendant, represented by Gary Steven
Graifman, Kantrowitz Goldhamer & Graifman, P.C. & Reginald H.
Rutishauser, Kantrowitz Goldhamer & Graifman, P.C..
Edward Fryar, Counter Defendant, represented by Gary Steven
Graifman, Kantrowitz Goldhamer & Graifman, P.C., Reginald H.
Rutishauser, Kantrowitz Goldhamer & Graifman, P.C. & Randy J.
Perlmutter, Kantrowitz Goldhamer & Graifman, P.C..
Steven Heinrich, Counter Defendant, represented by Gary Steven
Graifman, Kantrowitz Goldhamer & Graifman, P.C., Reginald H.
Rutishauser, Kantrowitz Goldhamer & Graifman, P.C. & Randy J.
Perlmutter, Kantrowitz Goldhamer & Graifman, P.C..
Ross Schucker, Counter Defendant, represented by Gary Steven
Graifman, Kantrowitz Goldhamer & Graifman, P.C., Reginald H.
Rutishauser, Kantrowitz Goldhamer & Graifman, P.C. & Randy J.
Perlmutter, Kantrowitz Goldhamer & Graifman, P.C..
Tom Shaffer, Counter Defendant, represented by Gary Steven
Graifman, Kantrowitz Goldhamer & Graifman, P.C., Reginald H.
Rutishauser, Kantrowitz Goldhamer & Graifman, P.C. & Randy J.
Perlmutter, Kantrowitz Goldhamer & Graifman, P.C..
Virgilio Valdez, Counter Defendant, represented by Gary Steven
Graifman, Kantrowitz Goldhamer & Graifman, P.C., Reginald H.
Rutishauser, Kantrowitz Goldhamer & Graifman, P.C. & Randy J.
Perlmutter, Kantrowitz Goldhamer & Graifman, P.C..
C.K. Sales CO., LLC, Counter Claimant, represented by Craig
Friedman, Jones Day, Matthew Willis Lampe, Jones Day, Deborah A.
Sudbury, Jones Day & Karen Rosenfield, Jones Day.
Shane Bower, Counter Defendant, represented by Gary Steven
Graifman, Kantrowitz Goldhamer & Graifman, P.C. & Reginald H.
Rutishauser, Kantrowitz Goldhamer & Graifman, P.C..
Edward Fryar, Counter Defendant, represented by Gary Steven
Graifman, Kantrowitz Goldhamer & Graifman, P.C., Reginald H.
Rutishauser, Kantrowitz Goldhamer & Graifman, P.C. & Randy J.
Perlmutter, Kantrowitz Goldhamer & Graifman, P.C..
Steven Heinrich, Counter Defendant, represented by Gary Steven
Graifman, Kantrowitz Goldhamer & Graifman, P.C., Reginald H.
Rutishauser, Kantrowitz Goldhamer & Graifman, P.C. & Randy J.
Perlmutter, Kantrowitz Goldhamer & Graifman, P.C..
Ross Schucker, Counter Defendant, represented by Gary Steven
Graifman, Kantrowitz Goldhamer & Graifman, P.C., Reginald H.
Rutishauser, Kantrowitz Goldhamer & Graifman, P.C. & Randy J.
Perlmutter, Kantrowitz Goldhamer & Graifman, P.C..
Tom Shaffer, Counter Defendant, represented by Gary Steven
Graifman, Kantrowitz Goldhamer & Graifman, P.C., Reginald H.
Rutishauser, Kantrowitz Goldhamer & Graifman, P.C. & Randy J.
Perlmutter, Kantrowitz Goldhamer & Graifman, P.C..
Virgilio Valdez, Counter Defendant, represented by Gary Steven
Graifman, Kantrowitz Goldhamer & Graifman, P.C., Reginald H.
Rutishauser, Kantrowitz Goldhamer & Graifman, P.C. & Randy J.
Perlmutter, Kantrowitz Goldhamer & Graifman, P.C..
GODADDY INC: Ct. Won't Review Denial of "Schellenbach" Class Cert
-----------------------------------------------------------------
In the case captioned Mark Schellenbach, et al., Plaintiffs, v.
Godaddy Incorporated, a Delaware corporation. Defendants, No.
CV16-0746 PHX DGC (D. Ariz.), Judge David G. Campbell of the U.S.
District Court for the District of Arizona denied the Plaintiff's
request to reconsider the Court's order denying their motion for
class certification.
The Court denied the Plaintiffs' motion to certify a proposed
class and a California subclass under Rule 23(b)(2) and (3) of the
Federal Rules of Civil Procedure. The primary focus of the
parties' briefing and argument was Rule 23(b)(3). The Court found
that individual issues would predominate over common issues in the
class and subclass, making certification inappropriate under Rule
23(b)(3). Doc. 130 at 2-21. It denied certification under Rule
23(b)(2) because the class was not suitable for injunctive relief.
The Plaintiffs ask the Court to reconsider its order denying their
motion for class certification. The Defendants oppose the motion.
Judge Campbell denied the Plaintiffs' motion for reconsideration.
The Plaintiffs' first argument focuses on the sentence from
section III.B of the Court's order which states that given the
target market, it is likely that the class includes sophisticated
computer users, and an individualized inquiry would be required to
determine whether class members had the sophistication to
understand that VM meant virtualized machine even if they did not
visit the/servers webpage. They argue that this language sets
forth the wrong standard for determining if an advertisement was
likely to deceive under the Arizona Consumer Fraud Act ("ACFA").
Judge Campbell finds that the language of the order on which the
Plaintiffs now focus concerns class members who have no claim
because they saw the acronym "VM" on the "/pro/dedicated-server
webpage" and were sophisticated enough to understand that it meant
"virtualized machine." These class members are not an
insignificant percentage of the class. Sophisticated class
members who understood the meaning of "VM" were not subjected to
the Plaintiffs' key omission and cannot establish the first
element of an ACFA claim. Individual inquiries would be needed to
identify them. The conclusion of section III.B is stated that
consequently, on the very first element of the Plaintiffs' claims
-- the existence of a material omission -- individual issues would
predominate if the class were certified. Judge Campbell finds no
error in the section III.B discussion or this conclusion.
The Plaintiffs next argue that the Court erred when it rejected
their suggestion that questionnaires could be used to eliminate
individual issues. The Judge held that using questionnaires or
other standardized forms to pay claims at the end of a class
action is a far cry from determining liability at trial. As the
Court noted , the issue of whether class members were exposed to
the allegedly fraudulent conduct in the case concerns far more
than claims administration -- it "lies at the heart of the
Plaintiffs' liability claim." He remains unpersuaded that the
individualized inquiries needed to resolve this central liability
issue can be eliminated through the use of questionnaires.
The Plaintiffs argue in their third objection that the Court
erroneously applied the materiality standard under Mazza v. Am
Honda Motor Co with regard to the presumption of reliance for the
California sub-class. Judge Campbell simply disagrees with their
reading of Mazza. That case found that the misrepresentations at
issue do not justify a presumption of reliance.
The Plaintiffs' fourth objection argues that the Court's findings
that 30% of the putative class likely viewed the/servers webpage
or could have learned of the virtual nature through word of mouth
or trade publications are unsupported by evidence. Judge Campbell
held that the Court relied on evidence from the declaration of
Paul Bindel in conducting this analysis. The Court did not
attempt to quantify those class members, but cited them as one
more illustration of the most basic problem with the class -- that
each class member had a unique collection of information at the
point of purchase, a reality that would necessitate individualized
inquiries before liability could be established.
The Plaintiffs' final objection is that the Court failed to
narrowly define the class in order to make it acceptable for class
certification. They contend that their class definition may be
cured by simply excluding from the Class, all purchasers who have
viewed the server webpage prior to making their purchase. Judge
Campbell held that even the proposed definition would not account
for class members who learned the servers were virtualized through
phone conversations with GoDaddy representatives or who saw the
servers described as "VM" machines and had the experience to know
that this meant virtualized machine. And it would not address the
other problems the Court found with class certification.
A full-text copy of the Court's Aug. 29, 2017 Order is available
at https://is.gd/pLNL38 from Leagle.com.
Mark Schellenbach, Plaintiff, represented by Christopher D.
Jennings, Johnson Vines PLLC.
Mark Schellenbach, Plaintiff, represented by David G. Scott,
Emerson Scott LLP, John G. Emerson, Emerson Scott LLP, Kathryn Ann
Honecker -- khonecker@roselawgroup.com -- Rose Law Group PC,
Samuel M. Ward -- sward@barrack.com -- Barrack Rodos & Bacine,
Stephen Richard Basser -- sbasser@barrack.com -- Barrack Rodos &
Bacine & Audra Elizabeth Petrolle -- apetrolle@roselawgroup.com --
Bonnett Fairbourn Friedman & Balint PC.
William Ryder, Plaintiff, represented by Christopher D. Jennings,
Johnson Vines PLLC, David G. Scott, Emerson Scott LLP, John G.
Emerson, Emerson Scott LLP, Kathryn Ann Honecker, Rose Law Group
PC, Samuel M. Ward, Barrack Rodos & Bacine, Stephen Richard
Basser, Barrack Rodos & Bacine & Audra Elizabeth Petrolle, Bonnett
Fairbourn Friedman & Balint PC.
GoDaddy.com LLC, Defendant, represented by Aaron M. McKown --
amckown@cozen.com -- Cozen OConnor PC & Paula L. Zecchini --
pzecchini@cozen.com -- Cozen O'Connor PC.
GROUP HEALTH: Faces CA Over Misrepresented Coverage Policy
----------------------------------------------------------
Reuven Blau, writing for New York Daily News, reports that a
retired city police officer claims the largest health insurance
provider for city employees shortchanged them every time they used
an out-of-network doctor, hospital or outpatient facility.
Steven Plavin is suing Group Health Incorporated (GHI), saying the
insurance firm misrepresented what the policy covered.
He says when GHI was confronted by the discrepancy, the company
systematically refused to cover appropriate medical care or
"grossly under-reimbursed members for their medical expenses."
As a result, city employees were forced to pay huge medical bills
that should have been picked up by GHI, which now owes those
workers millions in reimbursements, the lawsuit contends.
Ex-cop riding coasters despite raking in NYPD disability pension
Plavin is seeking class action status to include other municipal
workers who were wronged. He filed the lawsuit Aug. 16 in
Pennsylvania, where he resides.
This isn't the first time that GHI has faced allegations of
mishandling claims.
In 2014, the insurer established a $3.5 million fund to repay
members following a probe by the New York Attorney General's
Office into a similar grievance.
It also agreed to pay a $300,000 penalty, under a deal negotiated
with AG Eric Schneiderman.
Plavin's lawyer, Bill Carmody, Esq. - bcarmody@susmangodfrey.com -
- of Susman Godfrey L.L.P. says the new civil case details
"additional unlawful conduct by GHI with far greater economic
consequences for cheated members."
He plans to discuss the case with the AG "to hold GHI accountable
and secure restitution."
GHI says it plans to fight Plavin's suit.
"Almost three years ago, we came to an agreement with the New York
Attorney General's office with respect to the discussion of out of
network charges in our enrollment materials," said GHI spokeswoman
Courtney Jay.
Ex-cop who says 9/11 gave him cancer tries for disability pension
"We satisfied all terms of the agreement with the attorney general
and will respond to the allegations in this lawsuit."
Under the previous agreement, the health care firm admitted that
its comprehensive benefits plan - with close to 1 million members
- failed to cover members' out-of-network expenses as advertised.
The materials explaining that plan had barely been updated since
1983.
As an example, a 25-minute outpatient office visit out of network
was listed as $36 when in fact it could cost up to $247.
Brooklyn group claims NYPD withheld info about J'Ouvert: suit
"GHI lured city employees into choosing the comprehensive benefits
plan by promising them that they would be taken care of if they
got sick," Carmody said. "Instead, GHI systematically under-
reimbursed these hard-working people every time they chose to go
to an out-of-network provider.
"GHI not only misrepresented what and how much the insurance plan
would cover, but even shortchanged members when they submitted
claims," Carmony added. [GN]
GUIDANCE SOFTWARE: Hernandez Sues Over Sale to Open Text
--------------------------------------------------------
Enrique Hernandez, individually and on behalf of all others
similarly situated, Plaintiff, v. Guidance Software, Inc., Robert
Van Schoonenberg, Reynolds C. Bish, Max Carnecchia, John Colbert,
Patrick Dennis, Michael Mcconnell, Wade W. Loo, Open Text
Corporation and Galileo Acquisition Sub Inc., Defendants, Case No.
2:17-cv-06158 (C.D. Cal., August 18, 2017), seeks to enjoin
defendants and all persons acting in concert with them from
proceeding with, consummating, or closing the acquisition of
Guidance Software, Inc. by Open Text Corporation, rescinding it
and setting it aside or awarding rescissory damages in the event
defendants consummate the merger. The lawsuit also seeks costs of
this action, including reasonable allowance for attorneys' and
experts' fees and such other and further relief under the
Securities Exchange Act of 1934.
According to the complaint, shareholders of Guidance will receive
$7.10 in cash for each share. Defendants locked up the merger by
agreeing to a "no solicitation" provision that prohibits the
solicitation of alternative proposals. The merger documents also
omitted the Company's financial projections, and the analyses
performed Morgan Stanley & Co. including unlevered free cash flow
forecasts for years 2017 through 2021.
Guidance is a global provider of digital investigative solutions.
[BN]
Plaintiff is represented by:
Joel E. Elkins, Esq.
WEISSLAW LLP
9107 Wilshire Blvd., Suite 450
Beverly Hills, CA 90210
Telephone: (310) 208-2800
Facsimile: (310) 209-2348
HAWAII: 9th Circuit Remands "Gregg" Suit
----------------------------------------
In the appeals case captioned ALEXANDRIA GREGG, Individually and
on Behalf of All Others Similarly Situated, Plaintiff-Appellant,
v. STATE OF HAWAII, DEPARTMENT OF PUBLIC SAFETY; TED SAKAI, in his
official capacity as Director of the Department of Public Safety,
State of Hawaii; NEAL WAGATSUMA, in his official capacity as
Warden of the Kauai Community Correctional Center, Department of
Public Safety, State of Hawaii, and in his individual capacity,
Defendants-Appellees, No. 14-16785 (9th Cir.), Judge Raymond C.
Fisher of the U.S. Court of Appeals for the Ninth Circuit vacated
the district court's order denying as futile Gregg's request for
leave to amend to include new assertions to this effect, and
remanded the case.
Gregg was periodically incarcerated at the Kauai Community
Correctional Center ("KCCC") in Hawaii between March and November
2011. She filed her original class action complaint under 42
U.S.C. Section 1983 on Jan. 31, 2014. Her first amended complaint
alleges claims for cruel and unusual punishment and deliberate
indifference to substantial risk of serious harm under the Eighth
Amendment.
The Defendants moved under Rule 12(b)(6) to dismiss and under Rule
12(c) for judgment on the pleadings, arguing Gregg's claims were
untimely. Gregg subsequently sought leave to amend her first
amended complaint to include new factual allegations, submitting a
pair of declarations in support. In the first, Gregg said she
remained unaware of her injuries until well after her release from
custody in May of 2012. After her release, she began to consult
therapists to help process her experience. Toward the end of
2012, she met a former KCCC therapist who encouraged her to seek
professional psychological help. Gregg followed this advice and,
in early 2014, began to see Fran Tyson-Marchino, a therapist who
diagnosed Gregg with traumatic experience and adjustment disorders
caused by her participation in the LTS program. In the second
declaration, Tyson-Marchino stated her professional opinion that
Gregg's psychological conditions were directly attributable to the
trauma and sexual egregious acts Ms. Gregg experienced while she
was incarcerated.
The district court granted the Defendants' motions to dismiss and
for judgment on the pleadings. Because the first amended
complaint alleged Gregg experienced feelings of embarrassment and
humiliation contemporaneously with her participation in the Life
Time Stand ("LTS") program, the court concluded her claims --
brought two years and two months after the sessions ended -- were
untimely under the applicable two-year statute of limitations.
The court ruled Gregg's claims accrued when she was aware that she
suffered injury from the Defendants, and the fact that it was not
until later that she was formally diagnosed and/or that she
learned the full extent of injury does not make the accrual date a
moving target. The court also denied as futile Gregg's request
for leave to amend. The appeal followed.
Judge Fisher finds that if Gregg neither knew nor should have
known of her injuries until after January 2012, her claims are
timely. Gregg was in treatment, and a government official told
her she was being provided therapy, counseling, and mental health
treatment. It may be that Gregg knew or should have known before
January 2012 that her feelings of emotional discomfort were
actually injurious, and that they were caused by the LTS program.
Her request to transfer out of KCCC provides at least some support
for this conclusion. But these are questions of fact. The Judge
holds only that it may be reasonable for an incarcerated
individual who is told she must resurface past sexual traumas to
overcome them to rely on these assurances, and to view associated
feelings of emotional distress as normal, constructive responses
incidental to the healing process. Judge Fisher concludes that
the district court erred in denying Gregg leave to amend to try to
make a plausible showing that it was not until January 2012 that
she first became aware of her injuries from her purported
treatment in the LTS program. He accordingly remanded the case.
Costs of appeal are awarded to Gregg.
A full-text copy of the Ninth Circuit's Aug. 29, 2017 Opinion is
available at https://is.gd/IbZlsP from Leagle.com.
Margery S. Bronster -- mbronster@bfrhawaii.com -- (argued), Andrew
L. Pepper -- Andrew.Pepper@jacksonlewis-hawaii.com -- Robert Hatch
-- rhatch@hatchlawyers.com -- and Anthony Quan --
aquan@bfrhawaii.com -- Bronster Hoshibata, Honolulu, Hawaii; Dan
Hempey, Hempey & Meyers, Lihue, Kauai, Hawaii; for Plaintiff-
Appellant.
Marie Manulele Gavigan (argued) and Caron M. Inagaki, Deputy
Attorneys General; Douglas S. Chin, Attorney General; Department
of the Attorney General, Honolulu, Hawaii; for Defendants-
Appellees.
HDR INC: "Regan" Suit Seeks to Recover Overtime Wages Under FLSA
----------------------------------------------------------------
HELEN REGAN, an individual v. HDR, INC., a Delaware Corporation;
KATE ELDRIDGE, Marketing Manager, HDR, Inc., in her individual
capacity; DENISE TOWNSEND, Visualization Operation Manager, HDR,
Inc., in her individual capacity; MATTHEW CRAFT, Visualization
Manager, HDR, Inc., in his individual capacity, Case No. 1:17-cv-
00342-CWD (D. Idaho, August 17, 2017), seeks damages for unpaid
overtime wages and retaliation for the Plaintiff and others
similarly situated against HDR based on its alleged willful
violation of the Fair Labor Standards Act.
HDR, Inc., is a Delaware Corporation with its principal office in
Omaha, Nebraska. According to its Web site, the Defendant has at
least 10,000 employees in 225 offices around the globe. The
Company specializes in engineering, architecture, environmental
and construction services. The Individual Defendants are managers
and officers of the Company.[BN]
The Plaintiff is represented by:
William H. Thomas, Esq.
THOMAS, WILLIAMS & PARK, LLP
225 N. 9th St., Suite 810
P.O. Box 1776
Boise, ID 83701-1776
Telephone: (208) 345-7800
Facsimile: (208) 345-7894
E-mail: wmthomas@thomaswilliamslaw.com
HIGHPOINT SOLUTIONS: Faces "Moore" Suit Over Data Breach by HR
--------------------------------------------------------------
JACLYN MOORE, Individually and on Behalf of All Others Similarly
Situated v. HIGHPOINT SOLUTIONS LLC, and CHRISTINE M. CUSHMAN,
Case No. 1:17-cv-06266-JHR-JS (D.N.J., August 18, 2017), arises
from a data breach in the Company.
On August 7, 2017, the Montgomery County, PA District Attorney's
office and certain news outlets announced that HighPoint's Human
Resource Director, Christine M. Cushman, had stolen approximately
$1 million from the Company over a two-year period using private
financial information HighPoint maintained concerning
subcontractors. Specifically, from May 5, 2015, to June 15, 2017,
Ms. Cushman used this stolen information to issue herself 45
fraudulent checks totaling $919,301.
Against this backdrop, the Plaintiff, a contract employee of
HighPoint, brings this class action against the Defendants for,
among other things, negligently failing to secure and safeguard
her personal identifying information ("PII"), and that of, at
least, all of HighPoint's past and current employees, agents,
subcontractors, customers and service providers, as well as their
families and dependents.
HighPoint is a corporation organized under the laws of the
Commonwealth of Pennsylvania with its U.S. headquarters in East
Norriton, Pennsylvania, and international headquarters in Geneva,
Switzerland, with additional offices in California, Florida,
Illinois, Massachusetts, New Jersey, India and Switzerland.
HighPoint purports to be a premier provider of specialized
information technology services dedicated to the life sciences and
healthcare industries.
Ms. Cushman, a citizen of Pennsylvania, served as Highpoint's
Human Resources Director in 2007 and again from 2014 until her
termination in July 2017, when HighPoint and police confronted her
about the thefts. At that time, Cushman offered to pay back
$56,000 that she still had, and enter into a payment plan for the
remaining $863,301, according to reports.[BN]
The Plaintiff is represented by:
James M. Ficaro, Esq.
Christopher L. Nelson, Esq.
John J. Gross, Esq.
THE WEISER LAW FIRM, P.C.
22 Cassatt Avenue
Berwyn, PA 19312
Telephone: (610) 225-2677
Facsimile: (610) 408-8062
E-mail: jmf@weiserlawfirm.com
cln@weiserlawfirm.com
jjg@weiserlawfirm.com
HONDA MOTOR: Owners to Get Up to $500 in Settlement
---------------------------------------------------
Nathan Bomey, writing for USA Today, reports that owners of about
16.5 million Honda and Acura vehicles with potentially defective
Takata air bags are eligible for financial aid in getting their
cars fixed and up to $500 in compensation under the terms of a new
consumer settlement.
Japanese automaker Honda agreed to a $605 million class-action
settlement covering economic losses suffered by the U.S. owners of
vehicles fitted with Takata air bags. Victims of the defect will
receive compensation from a separate fund.
The deal comes after similar agreements between Takata air bag
vehicle owners and Nissan, Toyota, BMW, Mazda and Subaru.
But Honda had the most vehicles affected by the Takata defect,
which has been linked to at least 16 deaths after air bags
exploded, hurling fiery shrapnel into passengers.
A federal judge must still authorize the deal.
Among the possible settlement benefits for current and former
owners of the Honda vehicles:
Payments of up to $500 apiece.
Free rental car for use while awaiting repairs.
Reimbursement of reasonable expenses, including transportation,
towing and lost wages or childcare costs, accumulated as a result
of the recall.
The actual extra cost to Honda is $484 million based on a
"recognition of Honda's industry leading efforts to repair
affected vehicles and Honda's ongoing comprehensive free rental or
loaner car policy," Honda spokesman Chris Martin said in an email.
The funds will also support a program to try to convince Honda
owners to get their vehicles repaired. More than 61% of Honda
vehicle owners had gotten their Takata air bags replaced as of
late June.
"This agreement will not only expand awareness of the Takata
recalls and improve driver safety by accelerating the removal of
defective airbags from our roads, but will provide compensation to
affected Honda consumers," said Peter Prieto, court-appointed lead
counsel for the plaintiffs, in a statement.
The deal is the latest in a series of settlements involving
Takata's air bag inflator scandal. The supplier pleaded guilty to
criminal charges in the U.S. and filed for Chapter 11 bankruptcy
protection in June, facing staggering repair costs and more than
$1 billion in penalties.
The company's air bag inflators triggered the largest U.S. recall
of all time, affecting more than 42 million vehicles and 19
automakers.
The latest deal is between Honda and consumers, not involving
Takata directly.
Eligible Honda vehicles: 2001-11 Honda Civic four-door and two-
door; 2001-12 Accord 4D-L4, 2001-02 and 2008-12 Accord 4D-V6,
2001-02 and 2008-12 Accord 2D-L4; 2001-02 and 2008-12 Accord 2D-
V6; 2002-11 CR-V; 2010-14 Accord Crosstour, 2015 (RC) Accord
Crosstour, 2003-15 Pilot, 2002-04 Odyssey, 2006-14 Ridgeline,
2003-11 Element; 2007-14 Fit; 2010-14 Insight; 2011-14 CR-Z; 2015
(RC) CR-Z; 2012-15 Civic 2D and 4D; 2013 Accord 4D-L4, 4D-V6, 2D-
L4 and 2D-V6; 2012-16 CR-V.
Eligible Acura vehicles: 2003 CL; 2009-14 TSX; 2011-14 TSX WGN;
2013-15 ILX; 2003-06 MD-X; 2007-15 RDX; 2002-03 and 2009-14
TL/TLX; 2005-12 RL/RL-X; 2010-13 ZD-X; 2010-14 FCX; 2013-15 ILX;
2016 (RC) ILX; 2014-16 RL/RLX; 2017 (RC) RL/RLX; 2013-16 RDX; 2017
(RC) RDX.
Eligible motorcycles: 2006-2017 GL1800. [GN]
INTELIUS INC: Court Partly Grants Bid to Dismiss "Dobrowolski"
--------------------------------------------------------------
In the case captioned ANNA DOBROWOLSKI, Plaintiff, v. INTELIUS,
INC., and INSTANT CHECKMATE, INC., Defendants, and NICOLE VINCI,
Plaintiff, v. BEENVERIFIED, INC., and SPOKEO, INC., Defendants,
Nos. 17 CV 1406, 17 CV 1446, 17 CV 1447, 17 CV 1519 (N.D. Ill.),
Judge Manish S. Shah of the U.S. District Court for the Northern
District of Illinois, Eastern Division, granted in part and denied
in part Intelius' move to dismiss, and granted the remaining
Defendants' motions to dismiss.
The Defendants provide online reports on people, using information
compiled from public records and other sources. They pay internet
search engines to advertise their reports. Plaintiff Dobrowolski
discovered that Intelius and Instant Checkmate used her name in
these advertisements. She is not an Instant Checkmate or Intelius
customer and has not authorized the use of her name in paid search
ads. Plaintiff Vinci also discovered that BeenVerified and Spokeo
used her name in these advertisements. She is not a BeenVerified
or Spokeo customer and has not authorized the use of her name in
paid search ads. The Plaintiffs' complaints are nearly identical.
Dobrowolski and Vinci bring putative class actions against the
defendants under the Illinois Right of Publicity Act ("IRPA").
Their suits were originally filed in the Circuit Court of Cook
County and then removed by the Defendants pursuant to the Class
Action Fairness Act.
The Defendants move to dismiss for failure to state a claim, and
Intelius also moves to dismiss for lack of personal jurisdiction
and for sanctions.
Judge Shah finds that Dobrowolski's allegations and arguments have
not established a prima facie showing of personal jurisdiction
over Intelius, and her request for jurisdictional discovery is
denied. Because there is no personal jurisdiction over Intelius,
the Judge does not reach its arguments for dismissal based on
failure to state a claim. He also does not reach its related
arguments for "prevailing party" fees under IRPA, as dismissal for
lack of personal jurisdiction does not make Intelius a "prevailing
party" on the merits. Intelius is dismissed for lack of personal
jurisdiction.
With respect to Intelius' move for an award of costs, expenses,
and fees under 28 U.S.C. Section 1927, and the court's inherent
authority to sanction, arguing that Dobrowolski's counsel
unreasonable and vexatiously multiplied the proceedings by
bringing this action, Judge Shah denied it. Under Section 1927 or
the court's inherent authority, sanctions may be appropriate when
the offender has conducted litigation in bad faith. Although
Intelius may be frustrated at defending against various similar
suits, its insistence that Siegel's and Dobrowolski's counsel
deliberately coordinated efforts against Intelius lacks
foundation. Without anything more specific to suggest that there
was willful abuse of the judicial process, Dobrowolski's dismissal
of her federal case and refiling it in state court does not amount
to bad faith.
Judge Shah granted the remaining Defendants' motion for dismissal
under Rule 12(b)(6), asserting that Dobrowolski and Vinci have
failed to state a claim under the IRPA. IRPA requires
appropriation of attributes sufficient identify an individual to a
reasonable audience, and the Plaintiffs have failed to allege
anything more than ads using names matching their names, names
that were populated from the results of third-party searches.
Therefore, the Plaintiffs have failed to state an IRPA claim. And
because the Plaintiffs have failed to state a prima facie IRPA
claim based on the absence of sufficient identification of the
Named Plaintiffs, the Judge does not reach the Defendants'
arguments on their affirmative defenses that their ads fall under
one or more IRPA exceptions, that the First Amendment bars the
Plaintiffs' IRPA claims, that the Plaintiffs' proposed
interpretation of IRPA would be an impermissible extraterritorial
application and violate the dormant Commerce Clause, and that the
Plaintiffs' IRPA claims are barred by the Communications Decency
Act. Whether the Plaintiffs have pleaded themselves out of court
and are blocked by operation of various defenses are issues Judge
Shah says he needs not address at this time.
A full-text copy of the Court's Aug. 29, 2017 Memorandum Opinion
and Order is available at https://is.gd/E6t0nO from Leagle.com.
Nicole Vinci, Plaintiff, represented by Ari Jonathan Scharg --
ascharg@edelson.com -- Edelson P.C..
Nicole Vinci, Plaintiff, represented by Benjamin Harris Richman --
brichman@edelson.com -- Edelson PC.
Beenverified, Inc., Defendant, represented by Steven L. Baron --
sbaron@mandellmenkes.com -- Mandell Menkes LLC, Brendan J. Healey
-- healey@mandellmenkes.com -- Mandell Menkes LLC & Cristina M.
Salvato, Mandell Menkes LLC.
KISLING NESTICO: Lord Challenges Illegal Sending of Text Messages
-----------------------------------------------------------------
FRANK LORD v. KISLING, NESTICO & REDICK, LLC and WIRE2AIR MOBILE
SOLUTIONS, Case No. 1:17-cv-01739-DCN (N.D. Ohio, August 18,
2017), challenges the Defendants' alleged practices of unlawfully
sending predictive and autodialed telemarketing text messages to
wireless/cellular telephones without prior express written consent
as required by the Telephone Consumer Protection Act.
KNR is an Ohio law firm, predominantly focusing on personal injury
plaintiff cases, who aggressively advertise in the state of Ohio
using a tag line, "Hurt in a car? Call KNR."
Wire2Air is a New York company selling its services in Ohio.
Wire2Air offers a litany of services one of which is a program for
a business to build text message campaigns with Wire2Air's bulk
text messaging tool. Wire2Air offers a bulk text message program
and web based application for a business to send and receive
millions of text messages at one time. Another part of Wire2Air's
programs and services allows its business clients to send
thousands of text messages easily from the client's computer.[BN]
The Plaintiff is represented by:
Thomas J. Connick, Esq.
Gary A. Vick, Jr., Esq.
CONNICK LAW, LLC
25550 Chagrin Blvd., Suite 101
Beachwood, OH 44122
Telephone: (216) 364-0512
Facsimile: (216) 609-3446
E-mail: tconnick@connicklawllc.com
gavickjr@connicklawllc.com
KOHL'S CORP: Hit With Proposed Class Action TCPA Lawsuit
--------------------------------------------------------
Gordon Gibb, writing for Lawyers and Settlements, reports that
imagine getting over 100 unwanted calls to your cell phone. Well,
Mark Ankcorn doesn't have to imagine it. He alleges to have
actually experienced such TCPA violations from Kohl's department
Store between July, and October 2014. After receiving upwards of
105 nuisance calls within a four-month period, Ankcorn filed a
lawsuit alleging Kohl's TCPA violations in 2015. The plaintiff has
recently petitioned the courts for Class Action certification.
Plaintiff Goes After Kohl's With Proposed Class Action TCPA
LawsuitKohl's is a formidable retailer with beginnings as a
grocery store in 1927, before morphing into a department store.
The Kohl's we know today was founded in 1962 and is the second-
largest retailer in the US when measured by retail sales volume,
and the largest in terms of storefronts. As of the third quarter
of last year, Kohl's boasts 1,155 locations with its headquarters
in Menomonee Falls, Wisconsin.
A favored ploy for retailers to both market their products, and to
chase customers for payment, is the use of automated dialers that
do not require paid staff. While technology affords business
operators the capacity to contact clients inexpensively and
efficiently, a related increase in nuisance calls paved the way
for the Telephone Consumer Protection Act (TCPA), which was
enacted in 1991.
The federal TCPA was brought in expressly to address automated
telemarketing calls to land lines. The advent of the mobile phone
industry resulted in comparable amendments to the Act to encompass
mobile and cell phones - devices that often carry usage caps eaten
up by nuisance telemarketing calls. Due to the migration of cell
phone numbers to different users over time, the TCPA includes one
free call in the event a retailer may have had prior permission to
call the number from a previous owner, but no longer may have
permission from a subsequent owner of that number.
One free pass. That's it. Beyond that, retailers and marketers
require the express permission from the consumer to place calls to
their cell phone.
That's not what happened in Ankcorn's case, or so it is alleged.
Ankcorn alleges his privacy protection was violated under the
Telephone Consumer Protection Act when Kohl's allegedly placed at
least 105 calls to his mobile phone between July, and October
2014. As part of his allegations, Ankcorn asserts that not only
were the calls automated, but also that a disembodied, or
artificial voice was used in an attempt to collect a loan to which
the plaintiff had no association.
Ankcorn asserts that when he attempted to contact a live operator
in order to expressly direct Kohl's to cease all calls to his cell
phone, the call was disconnected. When he was successful at
reaching a live operator and made his wishes known, Ankcorn
alleges the individuals on the other end of the line refused to
identify themselves to the plaintiff.
Not only does Ankcorn assert that he never issued his express
consent to Kohl's to contact him by cell phone, he also claims
that he never once listed his cell phone number on any documents,
or revealed his mobile phone number in any transaction he may have
made in concert with the retailer.
In seeking class certification, Ankcorn is hoping to represent all
Class participants who may have received similar calls from Kohl's
in violation of the Telephone Consumer Protection Act within the
last four years. Observers conversant with such matters estimate
Class participants in the Ankcorn's TCPA violations lawsuit could
number in the tens of thousands.
The Kohl's TCPA violations lawsuit is Ankcorn v. Kohl's Corp.,
Case No. 1:15-cv-01303, in the US District Court for the Northern
District of Illinois. [GN]
LA LAKERS: Dismissal of Insurance Suit vs. Federal Affirmed
-----------------------------------------------------------
Judge Norman Randy Smith of the U.S. Court of Appeals for the
Ninth Circuit affirmed the district court's order dismissing the
case captioned LOS ANGELES LAKERS, INC., a California corporation,
Plaintiff-Appellant, v. FEDERAL INSURANCE COMPANY, an Indiana
corporation, Defendant-Appellee, No. 15-55777(9th Cir.) without
giving the Lakers leave to amend.
On Oct. 13, 2012, David M. Emanuel attended a basketball game at
the Los Angeles Lakers' home arena -- the Staples Center. While
at the game, Emanuel observed a message on the scoreboard,
inviting attendees to send a text a message to a specific number.
Emanuel sent a text message to the number, hoping the Lakers would
display the message on the scoreboard.
On Nov. 20, 2012, Emanuel, on behalf of himself and others
similarly situated, brought a class action lawsuit against the
Lakers. Emanuel filed a First Amended Complaint in the case on
Feb. 8, 2013, alleging that the Lakers sent the response text
message using an "automatic telephone dialing system," in
violation of the Telephone Consumer Protection Act ("TCPA"). He
asserted, several times, that this message was an invasion of his
privacy, and that the Lakers had invaded the privacy of other
class members. Emanuel brought two claims for relief -- (i)
negligent violation of the TCPA and (ii) knowing and/or willful
violation of the TCPA -- and sought statutory damages and
injunctive relief.
The Lakers promptly asked their insurance provider, Federal, to
defend them against the lawsuit. The Lakers notified Federal of
the lawsuit on Nov. 27, 2012, shortly after the first complaint
was filed. Federal insured the Lakers from Jan. 1, 2012, to Jan.
1, 2013, under a "ForeFront Portfolio" insurance policy.
Specifically, the Policy provided that no coverage will be
available for a claim.
Federal denied coverage and declined to defend the Lakers,
concluding that Emanuel had brought an invasion of privacy suit,
which was specifically excluded from coverage. After asking
Federal to reconsider its position, the Lakers filed the suit in
Los Angeles Superior Court on Sept. 2, 2014. The Lakers asserted
two claims for relief: (i) breach of contract, asserting that
Federal had violated the Policy by denying coverage for the
Emanuel lawsuit; and (ii) tortious breach of the implied covenant
of good faith and fair dealing, based on Federal's denial of
coverage.
After removing the suit to federal court, Federal filed a motion
to dismiss the suit for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6). The district court granted the
motion and dismissed the case without giving the Lakers leave to
amend. The district court found that the Lakers could not succeed
in the suit under any cognizable legal theory, because TCPA claims
are implicit invasion-of-privacy claims that fall squarely within
the Policy's "broad exclusionary clause." The Lakers timely
appealed.
Judge Smith affirmed. He explains that because a TCPA claim is
inherently an invasion of privacy claim, Federal correctly
concluded that Emanuel's TCPA claims fell under the Policy's broad
exclusionary clause. Accordingly, Federal did not breach the
Policy, or the implied covenant of good faith and fair dealing,
under any cognizable legal theory, when it declined to defend
against or cover the Emanuel complaint. As there was no
cognizable legal theory under which the Lakers could establish
that Federal breached the Policy, and there were no known facts to
support any other claim for relief, the district court properly
dismissed the Lakers' complaint.
A full-text copy of the Ninth Circuit's Aug. 23, 2017 Opinion is
available at https://is.gd/zNxlfb from Leagle.com.
Kirk Pasich -- kpasich@PasichLLP.com -- (argued), Pamela M. Woods,
and Anamay M. Carmel -- acarmel@PasichLLP.com -- Liner LLP, Los
Angeles, California, for Plaintiff-Appellant.
Robert M. Traylor -- caplan@scmv.com -- (argued), Seltzer Caplan
McMahon Vitek, San Diego, California, for Defendant-Appellee.
LAMPS PLUS: "Seegert" Suit Removed to S.D. Calif.
-------------------------------------------------
The case captioned HARLEY SEEGERT, on behalf of himself and all
others similarly situated, Plaintiff, v. LAMPS PLUS, INC., a
California corporation, and DOES 1-50, inclusive, Defendants, Case
No. 37-2017-00024439-CU-BT-CTL, filed in the Superior Court of
California - County of San Diego, has been removed to the U.S.
District Court for the Southern District of California and
assigned Case No: 3:17-cv-01602-BAS-JMA on August 9, 2017.
The case alleges that Lamps Plus committed violations of
California's Unfair Competition Law, Business & Professions Code,
California's False Advertising Law, Business & Professions Code,
and California's Consumer Legal Remedies Act, arising from
purported advertisements and statements regarding the pricing of
merchandise at Lamps Plus's stores in California.
LAMPS PLUS, INC. -- http://www.lampsplus.com/-- retails indoor
and outdoor lighting fixtures for homes and offices.[BN]
The Defendant is represented by:
JOHN C. DINEEN, Esq.
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
501 West Broadway, 19th Floor
San Diego, CA 92101-3598
Phone: 619.338.6500
Fax: 619.234.3815
Email: jdineen@sheppardmullin.com
- and -
MOE KESHAVARZI, Esq.
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
333 South Hope Street, 43rd Floor
Los Angeles, CA 90071-1422
Phone: 213.620.1780
Fax: 213.620.1398
Email: mkeshavarzi@sheppardmullin.com
LASERSHIP INC: "Reynosa" Suit Removed to Mass. Dist. Ct.
--------------------------------------------------------
The class action lawsuit filed on July 14, 2017 captioned Edward
Reynoso, individually and on behalf of all others similarly-
situated v. Lasership, Inc. and Blake Averill, Case No.
1781CV02114, was removed on August 28, 2017, from the Middlesex
County Superior Court of the Commonwealth of Massachusetts to the
U.S. District Court for the District of Massachusetts. The
District Court Clerk assigned Case No. 1:17-cv-11607-NMG to the
proceeding.
The Plaintiff asserts labor-related claims.
The Defendants own and operate a delivery company in Vienna,
Virginia. [BN]
The Defendant is represented by:
Douglas J. Hoffman, Esq.
Ethan J. Davis, Esq.
JACKSON LEWIS P.C.
75 Park Plaza
Boston, MA 02116
Telephone: (617) 367-0025
E-mail: hoffmand@jacksonlewis.com
davise@jacksonlewis.com
LEIDOS INC: Supreme Court to Hear IPO Disclosure Case Nov. 6
------------------------------------------------------------
Hazel Bradford, writing for PIOnline, reports the Supreme Court on
September 1 said it will hear arguments Nov. 6 in a case
challenging whether an issuer's duty to disclose certain
information allows for class-action lawsuits.
Leidos Inc. is challenging a decision in favor of the $31 billion
Indiana Public Retirement System, Indianapolis, for losses tied to
allegedly misleading initial public offering documents. At issue
is the Securities and Exchange Commission's regulation S-K, which
requires companies to disclose "any known trends or any known
demands, commitments, events or uncertainties that will result in
or that are reasonably likely to result in the registrant's
liquidity increasing or decreasing in any material way."
The pension fund filed suit over Leido's failure to disclose in
its IPO filings liability connected with a kickback scam when the
company was called Science Applications International Corp., and
building a computerized payroll system for New York City. Two SAIC
employees were charged and SAIC paid more than $500 million in
fines to settle related. [GN]
LVNV FUNDING: Mo. App. Affirms Denial of Class Cert in "Mavaega"
----------------------------------------------------------------
Judge Cynthia L. Martin of the U.S. Court of Appeals of Missouri,
Western District, affirmed the trial court's order granting
summary judgment in favor of LVNV Funding and denying Mavaega's
motion for class certification in the case captioned LVNV FUNDING,
LLC, Respondent, v. LINDA A. MAVAEGA, Appellant, No. WD80294 (Mo.
App.).
On Oct. 21, 2014, LVNV Funding filed suit against Mavaega to
collect $826.83, the amount outstanding on the credit account,
plus interest from and after July 21, 2014. It did not seek to
recover interest from the date of its acquisition of the credit
account to July 21, 2014. Mavaega filed an answer and
counterclaim on April 8, 2015. Her counterclaim alleged that LVNV
Funding violated the Fair Debt Collection Practices Act ("FDCPA")
in three respects: (i) LVNV Funding assessed an interest rate not
allowed by law or agreement; (iii) LVNV Funding falsely stated the
character, amount, or legal status of the debt; and (iii) LVNV
Funding communicated credit information which it knew or should
have known to be false. Underlying Mavaega's counterclaim was her
assertion that once Credit One Bank, N.A. charged off her account,
no contractual interest could be assessed as a matter of law, and
that LVNV Funding had nonetheless charged interest on the account
at a rate in excess of Missouri's statutory rate.
Further, Mavaega's counterclaim sought an order certifying her
suit as a class action, with the proposed class to include all
Missouri persons whose charged-off accounts were purchased by LVNV
Funding wherein it reported a growing balance to a credit
reporting agency with interest rate over 9% within one year of
filing this class counterclaim. She filed a motion for class
certification detailing why class certification was appropriate.
Following briefing by the parties, the trial court denied
Mavaega's motion seeking class certification because Mavaega's
proposed class definition is overly broad and, in its current
state, does not allow for class certification.
LVNV Funding filed a motion for summary judgment on Sept. 9, 2016,
arguing that summary judgment in its favor and against Mavaega was
appropriate on its affirmative claim to collect the debt owed by
Mavaega, and on Mavaega's FDCPA counterclaim. Mavaega filed a
response to LVNV Funding's motion for summary judgment.
Mavaega filed her own motion for summary judgment on her FDCPA
counterclaim, asserting that she was entitled to summary judgment
because: (i) when LVNV Funding took possession of the account, it
had no greater rights than that of Credit One; (ii) Credit One's
rights to collect against Mavaega were limited by Truth in
Lending Act ("TILA") and Regulation Z, which limited the
collection of interest to 9% (the statutory rate) once Credit One
charged off Mavaega's account; and (iii) LVNV Funding charged
Mavaega in excess of 9% when it had no contractual or statutory
right to do so because Mavaega's account was previously charged-
off and periodic statements had ceased.
Following extensive briefing by the parties, the trial court
denied Mavaega's motion for summary judgment on her FDCPA
counterclaim, and granted LVNV Funding's motion for summary
judgment both on its affirmative collection claim and in defense
of the FDCPA counterclaim.
Mavaega appeals asserting that the trial court erred in three
respects: (i) in denying her motion for summary judgment and in
granting LVNV Funding's motion for summary judgment on Mavaega's
claim asserting LVNV Funding violated the FDCPA; (ii) in denying
her motion for class certification; and (iii) in granting LVNV
Funding's motion for summary judgment on its claim against Mavaega
to collect a debt.
Judge Martin concludes that because LVNV Funding was not
prohibited from charging interest on Mavaega's account at a rate
that exceeded the statutory rate, judgment in favor of LVNV
Funding on Mavaega's FDCPA counterclaim is appropriate as a matter
of law. Therefore, the trial court did not err in granting LVNV
Funding's motion for summary judgment on Mavaega's FDCPA
counterclaim and did not err in correspondingly denying Mavaega's
motion for summary judgment on her FDCPA counterclaim,
notwithstanding that it used the wrong rationale to reach the
right result. And because she concludes that the trial court
properly granted summary judgment on the FDCPA counterclaim, she
also concludes that Mavaega's motion for class certification on
her FDCPA counterclaim was properly denied.
With respect to Mavaega's third point on appeal asserting that the
trial court erred in granting LVNV Funding's motion for summary
judgment on its collection claim against her and in awarding an
improper amount to LVNV Funding, Judge Martin concludes that the
trial court committed no reversible error in awarding LVNV Funding
a judgment in the amount of $996.25. The record reflects that the
last periodic statement Mavaega received from Credit One for the
period ending Dec. 4, 2012, indeed showed a balance due of
$826.83, and that the balance subject to interest rate per the
credit contract was $700.50. As the Judge has already explained,
LVNV Funding was lawfully entitled to assess interest at the
contract rate of 23.9%. Had it done so against the amount Credit
One deemed subject to interest per the credit agreement with
Mavaega, the amount of interest that could lawfully have been
awarded by the trial court would have approximated $641.70. Added
to the uncontested amount due on the account, $826.83, the
judgment in favor of LVNV Funding could permissibly have been
$1,468.53. Mavaega has not been legally damaged by the entry of a
judgment against her in the far smaller sum of $996.25.
Accordingly, Judge Martin affirmed the trial court's judgment.
A full-text copy of the Mo. App.'s Aug. 29, 2017 Order is
available at https://is.gd/EnaCsh from Leagle.com.
Joshua C. Dickinson -- jdickinson@spencerfane.com -- Bryant T.
Lamer -- blamer@spencerfane.com -- and Kersten L. Holzhueter --
kholzhueter@spencerfane.com -- Kansas City, MO, for respondent.
A.J. Stecklein, Kansas City, KS, for appellant.
LYFT INC: Accused by "Lowell" Suit of Violating Disabilities Act
----------------------------------------------------------------
HARRIET LOWELL, individually and on behalf of all others similarly
situated v. LYFT, INC., Case No. 7:17-cv-06251 (S.D.N.Y., August
17, 2017), seeks redress for the Defendant's alleged ongoing
discrimination against disabled individuals, particularly people,
who require the use of wheelchairs or other assistive devices for
mobility.
Ms. Lowell is a resident of White Plains, New York. She has a
mobility disability and typically uses a motorized scooter to
travel. She brings the lawsuit pursuant to the Americans with
Disabilities Act, the New York State Human Rights Law and the New
York City Human Rights Law.
Lyft, Inc., is a foreign corporation, organized and existing under
the laws of the State of Delaware, with its principal place of
business located in San Francisco, California. Lyft is a
ridesharing transportation company, providing transportation
services, public conveyance, and public accommodation to customers
in the United States, including New York.[BN]
The Plaintiff is represented by:
Jeremiah Frei-Pearson, Esq.
Bradley F. Silverman, Esq.
Chantal L. Khalil, Esq.
FINKELSTEIN, BLANKINSHIP, FREI-PEARSON & GARBER, LLP
445 Hamilton Avenue, Suite 605
White Plains, NY 10601
Telephone: (914) 298-3281
Facsimile: (914) 824-1561
E-mail: jfrei-pearson@fbfglaw.com
bsilverman@fbfglaw.com
ckhalil@fbfglaw.com
- and -
Michael Hellmann, Esq.
WESTCHESTER INDEPENDENT LIVING CENTER
10 County Center Rd., Suite 203, 2nd Floor
White Plains, NY 10607
Telephone: (845) 228-7457
Facsimile: (745 933-5390
MARK A. CIAVARELLA: Victims' Families Ready for Hearing
-------------------------------------------------------
James Haplin, writing for Citizen's Voice, reports that six years
into a 28-year prison sentence, the disgraced judge who accepted
kickbacks for funneling juvenile defendants to for-profit
detention centers has left federal Bureau of Prisons custody and
is now being held at the Dauphin County Prison ahead of an
evidentiary hearing set for Sept. 14 related to a motion to vacate
his sentence.
As the 67-year-old former judge prepares for his day in court,
some family members of the thousands of child victims are readying
themselves for a trip to the state capital to send a message.
"He wants to get out and he doesn't want to be held accountable
for what he did," said Judy Lorah Fisher, whose niece was featured
in the "Kids for Cash" documentary and is a plaintiff in the
class-action civil lawsuit stemming from the scandal. "We want to
show him that we're always going to be here and we're always going
to fight against (him) getting anything. (He) showed no mercy to
these children. It's not fair for (him) to ask for mercy when (he)
gave no mercy to the children."
Ciavarella, 67, was convicted of 12 of 39 charges for funneling
juvenile defendants to detention centers built by wealthy
developer Robert K. Mericle's construction firm and operated by
companies controlled by local attorney Robert Powell.
According to prosecutors, Ciavarella and judge Michael T. Conahan,
65, took $770,000 in kickbacks from Powell and failed to report
$2.1 million in "finder's fees" paid by Mericle, whose
construction company built the facilities in Pittston Twp. and
Butler County.
Conahan, who pleaded guilty to racketeering conspiracy charges, is
now serving 17´ years in prison at Federal Correctional
Institution, Miami.
But Ciavarella has continued to fight his conviction in what the
victims and their families see as a shameful effort to evade
punishment.
"He should accept what he did. That's a slap in the face to the
children that are no longer here anymore and the children that
survived," Fisher said. "As much as we don't like Mike Conahan,
he's doing his time. He said he's sorry. He said he did what he
did, and the children and the families accept that."
Fisher, who said her niece was incarcerated for about 5´ years for
getting into a fight at school and smoking marijuana, is helping
organize a group to send letters and attend the hearing in an
effort to show Ciavarella and the presiding judge that the victims
won't forget.
So far the group has about 15-20 participants, including Sandy
Fonzo, who famously confronted Ciavarella outside federal court
over the suicide of her son after placement in juvenile detention.
"They need to know beyond a shadow of a doubt that we do not want
him serving any less than the full sentence that he received!"
Fonzo wrote on the group's Facebook page.
Ciavarella is seeking to reverse his conviction on grounds his
trial attorneys, Al Flora Jr. and William Ruzzo, were ineffective
for failing to argue the statute of limitations applied to some of
the offenses that were more than five years old by the time of his
2011 trial.
Ciavarella also alleges prosecutors failed to provide him and his
attorneys with evidence that could have impeached Mericle, denying
Ciavarella his due-process rights.
In a separate motion, Ciavarella is seeking to have his conviction
on four counts of honest services mail fraud tossed based on a
U.S. Supreme Court decision last year that held an official must
exercise governmental power in order to be guilty of the crime.
Ciavarella argues he did nothing in his official capacity as judge
that caused Powell to hire Mericle, and therefore the payment
Mericle gave Ciavarella did not amount to a bribe.
Chief U.S. District Judge Christopher C. Conner recently ruled
that next week's hearing will be limited to the first two issues
and that attorneys will have more time to file briefs related to
the honest services mail fraud motion. [GN]
MARRIOTT OWNERSHIP: McComack Sues Over FCRA/Labor Code Violations
-----------------------------------------------------------------
STACY MCCOMACK, an individual, on behalf of herself, and on behalf
of all persons similarly situated v. MARRIOTT OWNERSHIP RESORTS,
INC., a Corporation, Case No. 3:17-cv-01663-BEN-WVG (S.D. Cal.,
August 18, 2017), alleges violations of the Fair Credit Reporting
Act, the California Business & Professions Code and the California
Labor Code.
The Defendant uniformly violated the rights of the FCRA class
members by, among other things, unlawfully, unfairly and
deceptively having in place company policies, practices and
procedures that uniformly obtained credit reports on prospective
employees without first obtaining valid authorization consent
forms, the Plaintiff alleges.
Marriott Ownerships Resorts, Inc., develops, markets, sells, and
manages vacation ownership and related products under the Marriott
Vacation Club and Grand Residences by Marriott brands. The
Company also develops, markets, and sells vacation ownership and
related products under The Ritz-Carlton Destination Club brand and
holds right to develop, market, and sell ownership residential
products under The Ritz-Carlton Residences brand.[BN]
The Plaintiff is represented by:
Norman B. Blumenthal, Esq.
Kyle R. Nordrehaug, Esq.
Aparajit Bhowmik, Esq.
BLUMENTHAL, NORDREHAUG & BHOWMIK LLP
2255 Calle Clara
La Jolla, CA 92037
Telephone: (858)551-1223
Facsimile: (858) 551-1232
E-mail: norm@bamlawlj.com
kyle@bamlawca.com
aj@bamlawlj.com
MCDONALD'S: Deal Reached in Payroll Cards Suit
----------------------------------------------
Bob Kalinowski, writing for the Times-Tribune, reports that the
home of the "Happy Meal" has reached a deal in a local class-
action lawsuit over paying employees exclusively with fee-laden
debit cards.
The Clarks Summit couple that owns 16 McDonald's restaurants in
the region has reached an undisclosed settlement with attorneys
for the nearly 2,400 plaintiffs.
Luzerne County Judge Thomas F. Burke Jr. on September 1 gave
preliminary approval to the settlement. He scheduled an Oct. 24
hearing to finalize the deal.
"The kids won and McDonald's lost," said West Pittston-based
attorney Michael Cefalo, Esq. of Cefalo & Associates, who filed
the suit on behalf of the workers. "The problem with this case,
these were mostly young kids. This was their first job and they
were getting docked with fees."
Cefalo wouldn't reveal details about the terms of the settlement.
A spokeswoman for Albert and Carol Mueller, the franchise owners,
said the couple declined to comment.
In June 2015, Burke ruled in favor of the plaintiffs. He ruled
that paying employees exclusively with a debit card did not fall
in line with the Pennsylvania Wage Payment and Collection Law,
which mandates "wages shall be paid in lawful money of the United
States or check." The state Superior Court last year upheld
Burke's decision. In May, the state Supreme Court denied an appeal
filed by the Muellers.
"We won every step of the way," Cefalo said.
The J.P. Morgan Chase payroll cards issued to local McDonald's
employees carried fees for nearly every type of transaction,
according to Cefalo's lawsuit, including a $1.50 charge for ATM
withdrawals, $5 for over-the-counter cash withdrawals, $1 to check
the card's balance, 75 cents per online bill payment and $10 per
month if the card is left inactive for more than three months.
After Cefalo filed the lawsuit, it quickly gained national
attention, including a front-page story in The New York Times and
an investigation by federal officials. Soon after, the Muellers
announced they were abandoning the pay practice and would give
employees the choice of being paid by check, direct deposit or by
payroll card. [GN]
MDL 2184: Ct. Affirms Arborist Panel Ruling, Junks Beddor Appeal
----------------------------------------------------------------
The United States District Court for the Eastern District of
Pennsylvania issued a Memorandum affirming the Arborist Panel
decision and deny Ms. Beddor's appeals case captioned IN RE:
IMPRELIS HERBICIDE MARKETING, SALES PRACTICES AND PRODUCTS
LIABILITY LITIGATION. THIS DOCUMENT APPLIES TO: ALL ACTIONS. MDL
No. 2184, No. 11-md-02284.(E.D. Pa.).
Marilyn Beddor appeals the decision of the Imprelis Arborist
Panel, claiming that 53 trees on her property were damaged by
Imprelis and should be removed and replaced.
DuPont introduced Imprelis, a new herbicide designed to
selectively kill unwanted weeds without harming non-target
vegetation. After widespread reports of damage to non-target
vegetation, the Environmental Protection Agency (EPA) began
investigating Imprelis, leading to lawsuits, a suspension of
Imprelis sales, and an EPA order preventing DuPont from selling
Imprelis.
DuPont started its own Claim Resolution Process to compensate
victims of Imprelis damage. Despite this voluntary process,
various plaintiffs continued to pursue their lawsuits, alleging
consumer fraud/protection act violations, breach of express and/or
implied warranty, negligence, strict products liability, nuisance,
and trespass claims based on the laws of numerous states.
The Settlement
The Imprelis Class Action Settlement covers three classes of
Imprelis Plaintiffs. Among the three settlement classes is a
property owner class. That class includes all persons or entities
who own or owned property in the United States to which Imprelis
was applied, all persons who own or owned property adjacent to
property to which Imprelis was applied and whose trees showed
damage from Imprelis on or before the date of entry of the
Preliminary Approval Order.
The Court retained exclusive jurisdiction over any action relating
to the Settlement, holding, "[w]ithout affecting the finality of
this Order, the Court shall retain jurisdiction over the
implementation, enforcement, and performance of the Settlement
Agreement, and shall have exclusive jurisdiction over any suit,
action, motion, proceeding, or dispute arising out of or relating
to the Settlement Agreement or the applicability of the Settlement
Agreement that cannot be resolved by negotiation and agreement by
Plaintiffs and DuPont."
Marilyn Beddor's Appeal
A representative of Ms. Beddor's lawn care operator inspected nine
trees on Ms. Beddor's property for Imprelis damage. He rated each
of the nine trees for tree care, and DuPont offered Ms. Beddor a
claims resolution agreement that reflected those ratings. Ms.
Beddor objected to DuPont's offer and claimed that, as assessed by
an arborist she hired, she had 12 trees that had been damaged by
Imprelis and that all 12 should be removed and replaced.
Ms. Beddor, through counsel, then submitted an additional arborist
report alleging that 53 trees required removal and replacement and
identifying 29 more "trees of concern. Ultimately, Ms. Beddor
appealed her claims resolution agreement to the Arborist Panel.
With that appeal, she submitted both arborist reports, but failed
to submit more than a sampling of photographs or to tie the trees
identified by the arborists she hired to the trees identified in
the original inspection. The Panel denied the appeal.
DuPont urged the Court to adopt the standard of review used for
arbitration, meaning that the Arborist Panel's fact finding should
only be displaced when there was evident partiality or corruption
in the arbitrators, where the arbitrators refused to hear evidence
pertinent and material to the controversy," or where the
arbitrators exceeded their powers.
Ms. Beddor's appeal primarily focuses on 53 trees she claims were
damaged by Imprelis and should be removed and replaced.5 She
argues that it was error for the Appeals Panel to credit the
inspector from her lawn care operator, who she calls an interested
party, over her own highly qualified arborist, who set forth in
her report a coherent methodology for inspecting the trees and her
credentials for doing so.
Ms. Beddor also argues that it was unclear what she would need to
submit to support her claim, and that to the extent that the
Arborist Panel found the sampling of photographs insufficient, she
should have an opportunity to submit additional photographs.
However, the form for appealing a claim resolution agreement to
the Appeals Panel is clear an appellant is instructed to "attach
any evidence (including photographs, arborist reports, invoices,
digital pictures, etc.) that you believe supports your appeal,
which you would like the Appeals Panel to consider" and, if
objections are made "to the value, rating, or care assigned to a
specific tree, [an appellant should] be sure to reference that
specific tree according to the tree number that was assigned to it
on the Site Inspection Form attached to your Claim Resolution ."
Agreement
Despite having a CD with hundreds of pictures supporting her
arborist's report, Ms. Beddor did not submit those pictures to the
Appeals Panel, but rather chose to submit only the report itself
and a small sampling of pictures, as described above. Although she
included the full CD of pictures with her reply, the Court will
not consider evidence that was not part of the record before the
Arborist Panel. Applequist's report provides much more detail and
identifies 53 trees for removal and replacement and 29 trees of
concern.
The Court cannot say that the Arborist Panel acted arbitrarily or
capriciously in relying on the chart and photographs7 from the
original inspection, rather than crediting Ms. Applequist or Mr.
Paulsen's reports, which did not include sufficient photographic
evidence to corroborate their findings, the Court will deny Ms.
Beddor's appeal.
A full-text copy of the District Court's August 24, 2017
Memorandum and Order is available at http://tinyurl.com/y7tt7s65
from Leagle.com.
MDL 2284: Court Denies R. Adams' Appeal
---------------------------------------
The United States District Court for Eastern District of
Pennsylvania issued a Memorandum affirming the Arborist Panel
decision and denying Ronald Adams's appeal in the case captioned
IN RE: IMPRELIS HERBICIDE MARKETING, SALES PRACTICES AND PRODUCTS
LIABILITY LITIGATION. THIS DOCUMENT APPLIES TO: ALL ACTIONS. MDL
No. 11-md-02284. (E.D. Pa.).
Ronald Adams appeals the decision of the Imprelis Arborist Panel,
claiming that several trees have continued to deteriorate and
should be assigned higher ratings.
DuPont introduced Imprelis, a new herbicide designed to
selectively kill unwanted weeds without harming non-target
vegetation. After widespread reports of damage to non-target
vegetation, the Environmental Protection Agency (EPA) began
investigating Imprelis, leading to lawsuits, a suspension of
Imprelis sales, and an EPA order preventing DuPont from selling
Imprelis.
DuPont started its own Claim Resolution Process to compensate
victims of Imprelis damage. Despite this voluntary process,
various plaintiffs continued to pursue their lawsuits, alleging
consumer fraud/protection act violations, breach of express and/or
implied warranty, negligence, strict products liability, nuisance,
and trespass claims based on the laws of numerous states. After
months of settlement discussions, including mediation, the parties
came to a settlement agreement.
The Imprelis Class Action Settlement (Settlement) covers three
classes of Imprelis Plaintiffs. Among the three settlement classes
is a property owner class. That class includes all persons or
entities who own or owned property in the United States to which
Imprelis was applied as well as all persons who own or owned
property adjacent to property to which Imprelis was applied and
whose trees showed damage from Imprelis on or before the date of
entry of the Preliminary Approval Order.
The inspector determined that Imprelis had not caused any damage
to Mr. Adams's trees, and the claim was therefore denied. After
some delay in Mr. Adams receiving the claim resolution agreement,
Mr. Adams objected to DuPont's findings, but DuPont deemed the
response untimely and denied the objections.
Mr. Adams then appealed the decision to the Arborist Panel. After
reviewing evidence submitted by Mr. Adams and photographs from the
original site visit, the Appeals Panel granted Mr. Adams's appeal
in part, finding that 21 trees on Mr. Adams's property exhibited
signs of Imprelis damage.
DuPont urged the Court to adopt the standard of review used for
arbitration, meaning that the Arborist Panel's fact finding should
only be displaced when there was evident partiality or corruption
in the arbitrators, where the arbitrators refused to hear evidence
pertinent and material to the controversy, or where the
arbitrators exceeded their powers.
In support of his appeal, he attaches photographs which were not
presented to the Appeals Panel. Because of the procedural posture
of this appeal, however, the Court will not consider evidence that
was not before the Arborist Panel. The Court's role is not to
review new claims of increased damage, but to review the Arborist
Panel's decision and to ensure that the Panel did not act
arbitrarily or capriciously in making its decision. Because Mr.
Adams does not argue that the Panel's decision should have been
different based on the evidence that they had before them, the
Court will deny his appeal.
Mr. Adams argues that the original inspector should have more
thoroughly inspected his property and documented the evidence of
Imprelis damage and that his original objections should have been
considered because he never received the original claim resolution
agreement until he hired an attorney to help him with the process.
Again, however, these complaints are not within the scope of an
appeal of the Arborist Panel's decision.
The Court will affirm the Arborist Panel decision and deny Mr.
Adams's appeal.
A full-text copy of the District Court's August 24, 2017
Memorandum is available at http://tinyurl.com/y8ygpqu5from
Leagle.com.
MDL 2284: Court Denies B. Groves' Appeal
----------------------------------------
The United States District Court, Eastern District of
Pennsylvania, issued a Memorandum affirming the Arborist Panel
decision and denying Brian Graves's appeal in the case captioned
IN RE: IMPRELIS HERBICIDE MARKETING, SALES PRACTICES AND PRODUCTS
LIABILITY LITIGATION. THIS DOCUMENT APPLIES TO: ALL ACTIONS. MDL
No. 11-md-02284. (E.D. Pa.).
Brian Groves appeals the decision of the Imprelis Arborist Panel,
claiming that Imprelis damaged trees on his property and he is
therefore due compensation.
DuPont introduced Irnprelis, a new herbicide designed to
selectively kill unwanted weeds without harming non-target
vegetation. After widespread reports of damage to non-target
vegetation, the Environmental Protection Agency (EPA) began
investigating Imprelis, leading to lawsuits, a suspension of
Imprelis sales, and an EPA order preventing DuPont from selling
Imprelis.
DuPont started its own Claim Resolution Process to compensate
victims of Imprelis damage. Despite this voluntary process,
various plaintiffs continued to pursue their lawsuits, alleging
consumer fraud/protection act violations, breach of express and/or
implied warranty, negligence, strict products liability, nuisance,
and trespass claims based on the laws of numerous states. After
months of settlement discussions, including mediation, the parties
came to a settlement agreement.
The Imprelis Class Action Settlement (Settlement) covers three
classes of Imprelis Plaintiffs. Among the three settlement classes
is a property owner class. That class includes all persons or
entities who own or owned property in the United States to which
Imprelis was applied as well as all persons who own or owned
property adjacent to property to which Imprelis was applied and
whose trees showed damage from Imprelis on or before the date of
entry of the Preliminary Approval Order.
Mr. Groves purchased and applied Imprelis to his property four
times. After he filed a claim for Imprelis damage to his property,
a DuPont arborist inspected Mr. Groves's property and found no
evidence of Imprelis damage Mr. Groves had already removed many
trees which he believed were killed by Imprelis. Mr. Groves
appealed DuPont's decision to the Arborist Panel and included two
photographs with his appeal.
DuPont urged the Court to adopt the standard of review used for
arbitration, meaning that the Arborist Panel's fact finding should
only be displaced when there was evident partiality or corruption
in the arbitrators, where the arbitrators refused to hear evidence
pertinent and material to the controversy, or where the
arbitrators exceeded their powers.
Mr. Groves claims that the original inspector told him that his
claim was worth upwards of $100,000. However, that same inspector
indicated that there was no evidence of Imprelis damage on the
claim form he filled out and submitted to DuPont. Aside from the
supposed statement of a DuPont arborist, Mr. Groves submits a few
unlabeled pictures that he claims show evidence of Imprelis
damage.
However, as the Arborist Panel found, the pictures are not
sufficient to prove that Imprelis damaged his trees or to properly
rate those trees, and they certainly do not depict as many trees
as Mr. Groves claims were affected by Imprelis.
Given the lack of evidence, the Court finds that the Panel's
decision was not arbitrary or capricious.
The Court will affirm the Arborist Panel decision and deny Mr.
Groves's appeal.
A full-text copy of the District Court's August 24, 2017
Memorandum is available at http://tinyurl.com/y8h3cgtqfrom
Leagle.com.
MDL 2284: Court Denies K. Starr's Appeal
----------------------------------------
The United States District Court, Eastern District Pennsylvania,
issued a Memorandum affirming Arborist Panel decision and denying
Kay Starr's appeal in the case captioned IN RE: IMPRELIS HERBICIDE
MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION. THIS
DOCUMENT APPLIES TO: ALL ACTIONS. MDL No. 11-md-02284 (E.D. Pa.).
Kay Starr appeals the decision of the Imprelis Arborist Panel,
claiming that one tree, which was rated for tree care, should have
been rated for removal.
DuPont introduced Imprelis, a new herbicide designed to
selectively kill unwanted weeds without harming non-target
vegetation. After widespread reports of damage to non-target
vegetation, the Environmental Protection Agency (EPA) began
investigating Imprelis, leading to lawsuits, a suspension of
Imprelis sales, and an EPA order preventing DuPont from selling
Imprelis.
DuPont started its own Claim Resolution Process to compensate
victims of Imprelis damage. Despite this voluntary process,
various plaintiffs continued to pursue their lawsuits, alleging
consumer fraud/protection act violations, breach of express and/or
implied warranty, negligence, strict products liability, nuisance,
and trespass claims based on the laws of numerous states. After
months of settlement discussions, including mediation, the parties
came to a settlement agreement.
The Imprelis Class Action Settlement (Settlement) covers three
classes of Imprelis Plaintiffs. Among the three settlement classes
is a property owner class. That class includes all persons or
entities who own or owned property in the United States to which
Imprelis was applied as well as all persons who own or owned
property adjacent to property to which Imprelis was applied and
whose trees showed damage from Imprelis on or before the date of
entry of the Preliminary Approval Order.
Ms. Starr's property was inspected and three trees were rated for
removal and replacement, while another (tree #2) was rated for
tree care. DuPont then sent Ms. Starr a claim resolution agreement
reflecting those ratings, and Ms. Starr accepted the agreement.
Just over a month later, Ms. Starr sent a letter to DuPont seeking
replacement value for tree #2.
A DuPont arborist re-inspected Ms. Starr's property, but by then
tree #2 had been removed at Ms. Starr's request. DuPont then
denied the warranty claim. Ms. Starr objected and eventually
appealed the denial to the Arborist Panel.
DuPont urged the Court to adopt the standard of review used for
arbitration, meaning that the Arborist Panel's fact finding should
only be displaced when there was evident partiality or corruption
in the arbitrators, where the arbitrators refused to hear evidence
pertinent and material to the controversy," or where the
arbitrators exceeded their powers.
Ms. Starr seeks removal and replacement value for the one
Imprelis-damaged tree on her property that was rated for tree
care. She includes one photo of all four of her trees before they
were removed, from which it is difficult to tell the percentage of
damage to tree #2. She also includes a letter from an employee of
her lawn care operator who originally inspected the tree. In that
letter, the employee states that he did not photograph die back at
the top of the tree, but that the dieback was an indication that
the tree would not survive.
In her opinion, therefore, she believed the tree should have been
removed, and she claims to have spoken with a Davey Tree Service
representative who agreed with his assessment. This letter,
however, was not part of the record before the Appeals Panel, and
therefore the Court will not consider it. Looking only at the
record before the Panel, the Court does not conclude that the
Panel acted arbitrarily or capriciously in denying Ms. Starr's
appeal.
Therefore, the Court will affirm the Panel's decision and deny Ms.
Starr's appeal.
A full-text copy of the District Court's August 24, 2017
Memorandum is available at http://tinyurl.com/y8gqe8gnfrom
Leagle.com.
MDL 2284: Court Denies B. Wang's Appeal
---------------------------------------
The United States District Court, Eastern District Pennsylvania,
issued a Memorandum affirming the Arborist Panel decision and
denying Bill Wang's appeal in the case captioned IN RE: IMPRELIS
HERBICIDE MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY
LITIGATION. THIS DOCUMENT APPLIES TO: ALL ACTIONS. Case No. 2:11-
md-02284-GEKP. (E.D. Pa.)
Bill Wang appeals the decision of the Imprelis Arborist Panel,
claiming that his offer from DuPont does not come close to
compensating him for the cost to replace his 70-foot Spruce.
DuPont introduced Imprelis, a new herbicide designed to
selectively kill unwanted weeds without harming non-target
vegetation. After widespread reports of damage to non-target
vegetation, the Environmental Protection Agency (EPA) began
investigating Imprelis, leading to lawsuits, a suspension of
Imprelis sales, and an EPA order preventing DuPont from selling
Imprelis.
DuPont started its own Claim Resolution Process to compensate
victims of Imprelis damage. Despite this voluntary process,
various plaintiffs continued to pursue their lawsuits, alleging
consumer fraud/protection act violations, breach of express and/or
implied warranty, negligence, strict products liability, nuisance,
and trespass claims based on the laws of numerous states. After
months of settlement discussions, including mediation, the parties
came to a settlement agreement.
The Imprelis Class Action Settlement ("Settlement") covers three
classes of Imprelis Plaintiffs. Among the three settlement classes
is a property owner class. That class includes all persons or
entities who own or owned property in the United States to which
Imprelis was applied as well as all persons who own or owned
property adjacent to property to which Imprelis was applied and
whose trees showed damage from Imprelis on or before the date of
entry of the Preliminary Approval Order.
A DuPont arborist inspected Mr. Wang's property and one tree, a
70-foot Spruce, was rated for removal and replacement, and another
tree was recommended for no action. DuPont then offered Mr. Wang a
claims resolution agreement reflecting the removal and replacement
cost for a tree of that size, as determined by the Settlement
Agreement.
Mr. Wang objected, arguing that because of the location of the
removed tree, the cost of replacing that tree, including
landscaping costs and possible damage to his indoor pool room, far
exceeded DuPont's offer. He eventually appealed his claim to the
Arborist Panel.
DuPont urged the Court to adopt the standard of review used for
arbitration, meaning that the Arborist Panel's fact finding should
only be displaced when there was evident partiality or corruption
in the arbitrators, where the arbitrators refused to hear evidence
pertinent and material to the controversy, or where the
arbitrators exceeded their powers.
Mr. Wang does not argue that DuPont inaccurately rated his tree or
recorded its height. Rather, Mr. Wang's sole issue is that the
actual cost to replace his 70-foot Spruce with another tree of
similar height would far exceed the amount offered to him through
the Settlement.
However, neither the Appeals Panel nor this Court can offer Mr.
Wang the remedy he seeks. Because he is a class member, he is
bound by the terms of the Settlement Agreement, and the Agreement
governs the amount of compensation offered for removal and
replacement of Imprelis-damaged trees. If Mr. Wang believed the
compensation offered through the Settlement Agreement would be
inadequate to cover his losses, he could have opted out of the
Settlement and brought his own independent action.
The Court will deny his appeal and affirm the Arborist Panel
decision in this case.
A full-text copy of the District Court's August 24, 2017
Memorandum is available at http://tinyurl.com/yakjod4lfrom
Leagle.com.
MDL 2437: Court Rejects Indirect Purchaser Class Certification
--------------------------------------------------------------
The United States District Court, Eastern District Pennsylvania,
issued a Memorandum rejecting the proposed indirect purchaser
class action in the case captioned IN RE: DOMESTIC DRYWALL
ANTITRUST LITIGATION. THIS DOCUMENT RELATES TO: All Indirect
Purchaser Actions. MDL No. 13-MD-2437 (E.D. Pa.).
Several domestic gypsum wallboard (drywall) manufacturers
announced substantial changes to their pricing. These
announcements ended a long-standing pricing practice called job
quotes" and scheduled a very large price increase to commence in
January and to be effective for the entire year. Then, in fall,
the same manufacturers again announced a similar price increase to
take effect.
In this multidistrict litigation (MDL), Plaintiffs allege that the
Defendants' price increases and other changes in pricing practices
were the result of an agreement, in violation of federal and state
antitrust laws.
Pending now before the Court is the Indirect Purchaser Plaintiffs'
("Plaintiffs" or "IPPs") Motion for Class Certification. Also
pending before the Court is the Defendants' Motion to Dismiss
IPPs' Third Amended Complaint in Part.
Under Illinois Brick v. Illinois, 461 U.S. 720 (1977), indirect
purchasers lack antitrust standing to bring claims for damages
under federal antitrust laws. As a result, IPPs bring their
damages claims under the laws of 11 different states. These claims
fall under the states' antitrust, consumer protection, and unjust
enrichment laws.
IPPs seek certification of (1) a group of statewide classes
seeking damages ("Statewide Damages Class") and (2) a nationwide
class seeking injunctive relief. In the alternative, IPPs seek
certification of alternate issue classes that would allow the
Court to adjudicate for the class all issues on which the Court
finds that common issues predominate.
Plaintiffs define their Statewide Damages Class as follows: All
persons and entities who through present indirectly purchased
gypsum board in STATE manufactured by any of the Defendants, their
subsidiaries, affiliates, or joint-venturers for end use and not
for resale.
State Damages Classes
Rule 23(a) Prerequisite
Numerosity
Rule 23(a)(1) requires that the class be so numerous that joinder
of all class members be impracticable. Though there is no minimum
number to meet this threshold, the Third Circuit has held that a
proposed class of at least 40 members will satisfy this
requirement.
Here, Plaintiffs state that the third-party transactional data
produced in this case shows millions of individual purchases.
Defendants do not challenge Plaintiffs' ability to meet this
requirement. The numerosity requirement is met.
Commonality
The Third Circuit has held that the bar to meeting this
requirement is not a high one a single common question can
suffice. The question of whether there was an agreement to fix
prices here is common to all class members, and is critical to all
class members' claims. Defendants do not argue otherwise.
The commonality requirement is met.
Typicality and Adequacy
Though typicality and adequacy are distinct requirements, they are
often discussed together. Here, Defendants challenge the
typicality and adequacy of certain class representatives. In
making these challenges, Defendants discuss typicality and
adequacy together, and at times confuse the two requirements in
their argument.
Applicable Law
Rule 23(a)(3) requires that the claims or defenses of the
representative parties are typical of the claims or defenses of
the class. The purpose of the typicality requirement is to ensure
that the class representatives are similarly situated to the rest
of the class so that their representation of the class as a whole
is fair.
Defendants identify nine named Plaintiffs, from eight different
states, who they argue are either not typical of the putative
class, or do not adequately represent the class.4 These arguments
can be grouped into three categories: (1) the class representative
is not a member of the class; (2) the class representative is
subject to unique defenses; and (3) the class member lacks
knowledge about their case.
Defendants argue that the evidence shows that the named plaintiffs
from Florida and Minnesota purchased drywall that was manufactured
by a company that is not a Defendant in this case. As a result,
Defendants argue that they do not fit the class definition, and
cannot represent the class.
Although Defendants couch this as an adequacy problem, their
argument fits more neatly into a typicality analysis. That is, if
the named Plaintiffs did not make a purchase of drywall
manufactured by one of the Defendants or their affiliates or
subsidiaries, they are not typical of a putative class of
plaintiffs whose claims are based on their purchase of drywall
made by a Defendant.
Turning to the second category of Defendants' typicality and
adequacy arguments, Defendants argue that several named Plaintiffs
vary in factual circumstances and are subject to unique defenses
which make their claims atypical of the class.
The Court notes that the types of purchasers included in the
putative IPP class vary widely, which raises questions about
typicality. However, the Third Circuit has made clear that
variation in factual circumstances between putative class members
do not generally defeat typicality except where those factual
differences create a conflict between class members. That is, in a
circumstance like this one, where one unlawful scheme is alleged,
the differences between class members will not be enough to defeat
typicality.
Defendants argue that certain Plaintiffs lack knowledge about
their case, and therefore cannot adequately represent the class.
Courts have declined to find that a lack of knowledge on the part
of a named Plaintiff can defeat adequacy, except in the most
egregious of cases.
Practically speaking, class counsel, not named Plaintiffs
themselves, are protecting the rights and interests of the class
members. The lack of knowledge alleged by Defendants does not rise
to the level required to defeat adequacy.
Rule 23(b)(3) Requirements
Implied Ascertainability Requirement
First, plaintiffs must show that the class is defined with
reference to objective criteria, then second, that there is a
reliable and administratively feasible mechanism for determining
whether putative class members fall within the class definition.
Predominance
Rule 23(b)(3) requires that "questions of law or fact common to
class members predominate over any questions affecting only
individual class members.
IPPs have not met their burden here to show that common issues
predominate amongst their state law claims. Having largely failed
to address this issue in their Motion, IPPs attempt to remedy this
oversight in their Reply. However, IPPs' analysis of the State
Laws in their Reply is overly-simple. For example, IPPs state that
all antitrust laws require the same elements: antitrust violation,
antitrust impact, and measurable damages. However, IPPs do not
engage with any potential differences in state law as to those
elements.
Plaintiffs have not carried their burden to prove by a
preponderance of the evidence that common issues predominate among
their various state law claims.
Superiority
Variation in state law creates additional management problems,
raising questions about superiority. Under Shutts, this Court must
apply the laws of each individual state. Shutts, 472 U.S. at 821.
Managing the myriad statutes and state law quirks already apparent
to the Court presents questions regarding the superiority of the
nationwide class action to adjudicate this case. Is the superior
method of adjudicating IPPs' 22 claims brought under the laws of
11 states (none of which is Pennsylvania) a nationwide class
action conducted in Philadelphia?
Plaintiffs have not proven by a preponderance of the evidence that
class action is the superior method for adjudicating their claims.
This is an additional reason to deny certification.
Alternative Classes
Nationwide Injunctive Class
IPPs, in the alternative, seek to certify a Nationwide Injunctive
Class under Rule 23(b)(2), defined as follows: All persons and
entities who as residents of the United States, indirectly
purchased gypsum board manufactured by any of the Defendants,
their subsidiaries, affiliates, or joint-venturers for end use and
not for resale.
Here, Plaintiffs must show that final injunctive relief or
corresponding declaratory relief is appropriate respecting the
class as a whole, with respect to: (1) actual or threatened injury
'from an impending violation of the antitrust laws or from a
contemporary violation likely to continue or recur;' (2)
causation; and (3) likelihood that the equitable relief will
redress the injury.
It is clear from the Third Circuit's articulation of the rule that
similar concerns are present in a Rule 23(b)(2) cohesiveness
inquiry as are present in a predominance inquiry. Here, the
causation element required to prevail under the Clayton Act is
similar to the impact requirement for damages claims. Therefore,
the same issues that prevented certification there, in particular
the differences in factual circumstances between class members,
also prevent a finding of cohesiveness here.
The factual circumstances among indirect purchasers vary widely.
For some class members, causation would be very complicated to
prove, and for others, it would be less complicated. It would be
unfair to saddle some indirect purchasers who may have an easier
time proving causation than others with a binding negative
judgment, without the opportunity to opt out.
The Court rejects the proposed indirect purchaser class action.
A full-text copy of the District Court's August 24, 2017
Memorandum is available at http://tinyurl.com/yc4fhfa6from
Leagle.com.
MED FOODS: Court Certifies Two Purchaser Classes in "Koller" Suit
-----------------------------------------------------------------
The Hon. Richard Seeborg certified two classes in the lawsuit
entitled SCOTT KOLLER v. MED FOODS, INC., et al., Case No. 3:14-
cv-02400-RS (N.D. Cal.):
(1) An "Imported from Italy" class ("IFI Class"), defined as,
All purchasers in California of liquid Bertolli Extra
Light, Classico, or Extra Virgin olive oil, between
May 23, 2010 and May 30, 2014, except for those bearing
labels "Organic," "Robusto," "Gentile," or "Fragrante;"
and
(2) An "Extra Virgin Olive Oil" class ("EVOO Class"), defined
as All purchasers in California of bottles of Bertolli
Extra Virgin olive oil, between May 23, 2010 and
August 15, 2015, except for those bearing labels
"Organic," "Robusto," "Gentile," or "Fragrante."
The Plaintiff brought the action seeking to establish on behalf of
purchasers of Bertolli and Carapelli brand olive oil that certain
of those oils are misleadingly labeled. Specifically, Scott
Koller first alleges that several products marketed as "extra
virgin" olive oil do not warrant that designation because they do
not meet the applicable quality standards when bottled and/or
degrade too quickly as the result of defendants' packaging,
handling, and storage practices. Second, the Plaintiff contends
that both "extra virgin" and non-extra virgin olive oil products
are deceptively marketed as "imported from Italy," when in fact
the olives used to make the oil come from any of a number of other
countries.
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=rmd1rjuW
MELTING POT: Fails to Pay Servers Earned Wages, "Kafka" Suit Says
-----------------------------------------------------------------
BROOKE N. KAFKA, on behalf of herself and all other similarly
situated persons v. THE MELTING POT RESTAURANTS, INC., KC DIPPER
LLC, AND FRONT BURNER BRANDS, INC., a/k/a TGS RESTAURANT
MANAGEMENT, INC., Case No. 4:17-cv-00683-HFS (W.D. Mo., August 17,
2017), accuses the Defendants of deliberately failing to pay
similarly situated servers their earned wages, in violation of the
Fair Labor Standards Act, as well as Missouri state laws.
The Melting Pot Restaurants, Inc., is a Florida corporation with
its principal place of business in Tampa, Florida. The Melting
Pot operates a restaurant in Kansas City, Missouri.
KC Dipper LLC is a Wisconsin LLC with its principal place of
business in Brookfield, Wisconsin. KC Dipper operates a
restaurant in Kansas City, Missouri.
Front Burner Brands, Inc., a/k/a TGS Restaurant Management, Inc.,
is a Florida corporation with its principal place of business in
Tampa, Florida. Front Burner operates a restaurant in Kansas
City, Missouri.
Front Burner and Melting Pot share the same principal place of
business located in Tampa. Front Burner and Melting Pot share the
same registered agent in the state of Florida, and the same
officers/directors in CEO Robert Johnston and CFO Scott
Pierce.[BN]
The Plaintiff is represented by:
Virginia Stevens Crimmins, Esq.
Laura C. Fellows, Esq.
Matthew R. Crimmins, Esq.
CRIMMINS LAW FIRM LLC
214 S. Spring Street
Independence, MO 64050
Telephone: (816) 974-7220
Facsimile: (855) 974-7020
E-mail: v.crimmins@crimminslawfirm.com
l.fellows@crimminslawfirm.com
m.crimmins@crimminslawfirm.com
MIDDLESEX CORP: EBI's Bid to Quash Subpoenas in "Myrick" OK'd
-------------------------------------------------------------
In the case captioned In re SUBPOENA of EMPLOYMENT BACKGROUND
INVESTIGATIONS, INC. MARWILL MYRICK, on behalf of himself and on
behalf of all others similarly situated, Plaintiff, v. THE
MIDDLESEX CORP., Defendant, Civil Action No. ELH-17-1850 (D. Md.),
Judge Ellen Lipton Hollander of the U.S. District Court for the
District of Maryland granted EBI's Motion to Quash.
Myrick initiated the Florida Case on Feb. 1, 2017, alleging that
Middlesex violated the Fair Credit Reporting Act ("FCRA"). In
particular, Myrick alleges that, through an outside consumer
reporting firm, Middlesex conducts background checks on the
majority of its prospective employees and on current employees
from time to time. But, he complains that Middlesex does not
provide prospective or current employees with a copy of their
consumer reports before taking adverse action against them based
on the information in such reports.
Middlesex answered the Complaint on March 17, 2017. Judge James
Whittemore, to whom the case is assigned, issued a Scheduling
Order on May 2, 2017. Among other things, the Scheduling Order
sets March 15, 2018, as the deadline for the completion of
discovery and provides that trial will begin on Aug. 6, 2018.
On June 19, 2017, the Plaintiff issued a subpoena to EBI,
commanding a corporate representative to appear at a deposition in
Baltimore on July 14, 2017, pursuant to Fed. R. Civ. P. 45 and
Fed. R. Civ. P. 30(b)(6). ECF 1-2. The Deposition Subpoena
provided that the corporate representative must have knowledge
sufficient to testify as to 39 topics. According to EBI, Lowe's
and Sterling have been targeted in other FCRA lawsuits, but
neither company has any relationship to the underlying lawsuit.
In addition, on June 23, 2017, the counsel for the Plaintiff
issued a subpoena to EBI for the production of documents,
information, or objects by July 10, 2017 which sought 31 items.
According to EBI, Myrick did not consult with EBI prior to serving
the subpoenas. EBI states that it reached out to Myrick's counsel
on both June 29 and 30, 2017, in a good faith effort to confer
before filing the Motion to Quash, but the parties were unable to
reach an agreement.
EBI's Motion to Quash concerns two subpoenas served on EBI by the
Plaintiff in the class action lawsuit captioned Myrick v. The
Middlesex Corporation, pending in the Middle District of Florida
("Florida Case"). EBI is not a party to the Florida case. The
Motion was filed in the District of Maryland because compliance
with the subpoenas is required in this District.
Judge Hollander concludes that EBI's assertion that Myrick's
subpoenas are tantamount to a "fishing expedition" is an apt
characterization. Myrick's subpoenas would impose an undue burden
on EBI, without substantial benefits for the litigation. To be
sure, Rule 45(d)(3)(A) permits a court to modify a subpoena rather
than quash it. But, the Judge declines to do so. Myrick is in
the best position to justify the purpose of each of his requests
in the subpoenas. But, he has opted not to do so by failing to
respond to the Motion. Therefore, Judge Hollander granted the
motion to quash, without prejudice to Myrick's right to
reformulate his subpoenas, consistent with the applicable rules
and any orders of the court in the underlying case. She urged the
parties to confer prior to the issuance of further subpoenas.
A full-text copy of the Court's Aug. 29, 2017 Memorandum is
available at https://is.gd/7oCrIg from Leagle.com.
Employment Background Investigations, Inc., Petitioner,
represented by Jeffrey S. Jacobovitz -- jeffrey.jacobovitz@agg.com
-- Arnall Golden Gregory LLP.
MONSANTO CO: Claassen Farms Seeks Damages Over Herbicide System
---------------------------------------------------------------
Jed R. Claassen, individually, as Representative of CLAASSEN FARMS
and on behalf of themselves and all others similarly situated v.
Monsanto Company, BASF SE, BASF Corporation and John Doe Companies
A-Z, Defendants, Case No. 6:17-cv-01210 (D. Kan., August 18,
2017), seeks compensatory and punitive damages, costs, expert
fees, disbursements and attorneys' fees incurred in prosecuting
this action, disgorgement of profits, pre-judgment and post-
judgment interest at the maximum rate and such other relief
resulting from unjust enrichment, negligence, fraud, fraudulent
concealment, breach of implied warranty of merchantability and
violation of the Arkansas Deceptive Trade Practices Act.
The Monsanto Company developed and released genetically modified
soybeans designed to combat problematic weeds that have become
resistant to certain herbicides over time where its most popular
herbicide are Roundup and Dicamba. Monsanto partnered with BASF, a
German chemical company, a joint licensing agreement to accelerate
the development of dicamba-based weed control products. Monsanto
insists that dicamba-resistant seeds and the dicamba-based
herbicides should be used in tandem. However, Monsanto sold the
seeds before approval by the Environmental Protection Agency of
its partner herbicide. The farmers can no longer use the old
herbicide because of volatility issues. [BN]
Plaintiff is represented by:
Dustin DeVaughn, Esq.
Richard James, Esq.
Cody Claassen, Esq.
DEVAUGHN JAMES INJURY LAWYERS
3241 N Toben St.
Wichita, KS 67226
Telephone: (316) 977-9999
Email: ddevaughn@devaughnjames.com
rjames@devaughnjames.com
cclaassen@devaughnjames.com
- and -
Paul Byrd, Esq.
Joseph Gates, Esq.
PAUL BYRD LAW FIRM, PLLC
415 N. McKinley St. Suite 210
Little Rock, AR 72205
Email: paul@paulbyrdlawfirm.com
joseph@paulbyrdlawfirm.com
- and -
Mr. Jerry Kelly, Esq.
KELLY LAW FIRM, P.A.
P.O. Box 500
Lonoke, AR 72086
Email: jkelly@kellylawfirm.net
MONTANA: Hit With Class Action Over Driver's License Suspension
---------------------------------------------------------------
Phil Drake, writing for Great Falls Tribune, reports that a class
action lawsuit has been filed against the state of Montana in a
case by a Bozeman man who said the state unfairly takes away the
licenses of safe drivers who are too poor to pay court-ordered
fines.
The lawsuit, filed on August 31 by attorneys on behalf of Michael
DeFrancesco, 22, in U.S. District Court in Butte, names Gov. Steve
Bullock, Attorney General Tim Fox, Sarah Garcia, administrator of
the state's Motor Vehicle Division and Michele Snowberger, bureau
chief of the state's Driver Services Bureau.
A spokesman for the attorney general, who oversees the Motor
Vehicle Division, said the state had not seen the lawsuit and was
unable to offer comment.
The plaintiff accuses the state of running a "wealth-based
driver's license suspension scheme that traps some of the state's
poorest residents in a cycle of poverty."
The plaintiff, in a 36-page filing, said the state's Motor Vehicle
Division "automatically" suspends the licenses of people who owe
court-ordered fines, costs and restitution, even if they cannot
afford to pay. His attorneys claim that every year the state
suspends the licenses of 10,000 residents for failing to pay court
debts.
It alleges people must pay the Motor Vehicle Division $100 before
the license can be reinstated, unless the person is found
indigent.
A spokeswoman for Equal Justice Under Law said some other
states/jurisdictions handle the traffic violations such as
Montana. But others take the driver's ability to pay in
consideration before suspension and offer a payment plan or a
community service option.
Telfeyan said he has filed a similar suit in Michigan.and said
lawmakers have responded to the issue and new laws were in
progress. He said hoped that the suit against Montana would not
make it to court and the state would see a benefit to a new
policy.
The suit asks for a judgment that the acts practiced by the state
are unlawful and violate certain constitutional laws and can no
longer be enforced. It also asks that the driver's licenses of the
plaintiffs and other class-action members be returned and they
would no longer required to pay the fees and grant reasonable
attorneys' fees to the plaintiffs' counsel.
Attorneys for the plaintiff include Phil Telfeyan, Esq. --
ptelfeyan@equaljusticeunderlaw.org -- of Equal Justice Under Law,
a national civil rights legal nonprofit, and Robert Farris-Olsen,
Esq. -- rfolsen@mswdlaw.com -- of Morrison, Sherwood, Wilson &
Deola, PLLP, who is also a Helena city commissioner.
The attorneys say DiFrancesco, who they said now has court debts
in excess of $4,000, was too poor to pay a $185 fine for a civil
infraction of possessing alcohol when he was 14.
"Although Montana's automatic suspension of driver's licenses is
designed to coerce payment for people who are unable to pay, the
state's practice will never accomplish its intended goal; no
incentive or punishment will increase the likelihood of a person
paying a debt if he or she does not have the money," the lawsuit
states.
The plaintiff claims the state's action violates the Equal
Protection Clause of the 14th Amendment. And they note a lack of
public transit and the vastness of the state as other reasons a
driver's license is necessary.
The suit notes DiFrancesco has been convicted of driving without a
license five times in the past three years.
"Montana has trapped Plaintiff Michael DeFrancesco in an
inescapable cycle of poverty by suspending his license, thereby
severely limiting his job opportunities," the suit states. [GN]
NEXTEP FUNDING: Prayitno's Cert. Bid Denied; Hearing on Sept. 28
----------------------------------------------------------------
The Clerk of the U.S. District Court for the Northern District of
Illinois made a docket entry on August 24, 2017, in the case
captioned Chan-Li Prayitno v. Nextep Funding, LLC, Case No. 1:17-
cv-04310 (N.D. Ill.), relating to a hearing held before the
Honorable Jorge L. Alonso.
The minute entry states that:
-- Status hearing held and continued to September 28, 2017, at
9:30 a.m.;
-- For the reasons stated on the record, Plaintiff's motion
for class certification is denied as premature;
-- Defendant's unopposed motion for extension of time to
answer complaint or otherwise plead is granted to
September 20, 2017;
-- Pursuant to the Mandatory Initial Discovery Pilot Program,
this is the only extension of time for filing an answer;
and
-- Parties' joint status report shall be filed by
September 25, 2017.
A copy of the Notification of Docket Entry is available at no
charge at http://d.classactionreporternewsletter.com/u?f=TCjJx5nc
OCHSNER HEALTH: Louisiana Court Narrows Claims in ERISA Suit
------------------------------------------------------------
The United States District Court for the Eastern District of
Louisiana issued an Order and Reasons granting in part and denying
in part defendants' partial motion to dismiss the named
plaintiffs' third amended complaint in the case captioned DESIREE
BERGERON ET AL., v. OCHSNER HEALTH SYSTEM ET AL., SECTION 1, Civil
Action No. 17-519 (E.D. La.).
The named plaintiffs are current and former employees of
defendants Ochsner Health System and Ochsner Clinic Foundation
(Ochsner). They include certified registered nurse anesthetists,
registered nurses, and nurse first assistants -- all full-time
hourly positions involved in direct patient care.
For a number of years Ochsner failed to correctly calculate
employee weekly pay both regular and overtime by excluding shift
differentials and hourly on-call and callback pay from employees'
regular rates of pay. Moreover, the named plaintiffs allege that
Ochsner automatically deducted lunch periods from employees' shift
times even when employees worked during those periods, which
likewise short changed employees come payday.
They allege that Ochsner's underpayment of employees violated both
the Fair Labor Standards Act (FLSA) and the Employee Retirement
Income Security Act of 1974 (ERISA), as well as Louisiana law.
Under Federal Rule of Civil Procedure 12(b)(6), a district court
may dismiss a complaint, or any part of it, where a plaintiff has
not set forth well-pleaded factual allegations that would entitle
him to relief.
Ochsner seeks dismissal of the named plaintiffs' Louisiana Wage
Payment Act (LWPA) claims; state law claims to the extent that
they request unpaid overtime wages; and all ERISA claims.
Ochsner also seeks to strike the named plaintiffs' state law class
action allegations.
Lastly, Ochsner suggests that the possibility of double recovery
by the named plaintiffs at the end of the litigation warrants the
dismissal of certain claims now.
Ochsner argues that the named plaintiffs' claims under the LWPA
should be dismissed for failure to make demand for payment prior
to the commencement of the present litigation.
The Louisiana Supreme Court has held that in order to recover
penalty wages and attorney's fees under the LWPA, the claimant
must show that (1) wages were due and owing; (2) demand for
payment was made where the employee was customarily paid; and (3)
the employer did not pay upon.
The duty to pay the actual wages due is not dependent on the
employee making a demand for payment. As such, an employee's
alleged failure to make demand prior to filing suit does not merit
dismissal of an LWPA claim for unpaid wages.
A claim for penalty wages and attorney's fees is a different
matter, as demand is required to recover them.
However, one of the elements of a claim for penalty wages and
attorney's fees -- on which the named plaintiffs have the burden
of proof -- is that "demand for payment was made where the
employee was customarily paid. As such, the named plaintiffs have
failed to allege facts necessary to support a required element of
a claim for penalty wages and attorney's fees -- and so they have
failed to state a claim upon which relief can be granted.
Therefore, the Court will dismiss the named plaintiffs' claims for
penalty wages and attorney's fees under the LWPA.
Next, Ochsner argues that the named plaintiffs' state law claims,
including the remaining LWPA claims, should be dismissed to the
extent that those claims seek payment of overtime wages.
According to Ochsner, Louisiana law does not mandate the payment
of overtime wages and such wages cannot be recovered via the named
plaintiffs' state law claims.
A review of the complaint reveals that the named plaintiffs
explicitly exclude payment of unpaid overtime wages from the
damages sought pursuant to those state law claims. The named
plaintiffs have therefore addressed Ochsner's concern.
Ochsner also argues that the Court should dismiss the named
plaintiffs, ERISA claims.
Congress enacted ERISA to 'protect the interests of participants
in employee benefit plans and their beneficiaries' by setting out
substantive regulatory requirements for employee benefit plans and
to 'provide for appropriate remedies, sanctions, and ready access
to the Federal courts.
A fiduciary who breaches any of the responsibilities, obligations,
or duties imposed upon fiduciaries by ERISA shall be personally
liable to make good to such plan any losses to the plan resulting
from each such breach and shall be subject to such other equitable
or remedial relief as the court may deem appropriate.
Neither the named plaintiffs nor Ochsner has submitted plan
documents to the Court. Therefore, the Court must rely on the
named plaintiffs' factual allegations in their complaint. Those
factual allegations show that the benefits under the written terms
of Ochsner's plan are based on eligible compensation, which is
defined to include wages and overtime compensation. Ochsner, as
plan administrator, has a fiduciary duty to credit the named
plaintiffs with the compensation that is required to be credited
under the terms of the plan.
Thus Ochsner has a fiduciary duty to credit all compensation that
the plan documents require it to credit -- and a failure to do so
would violate that duty. Accepting the named plaintiff's factual
allegations as true and construing them in the light most
favorable to the named plaintiffs, the named plaintiffs have
stated claims against Ochsner for breach of fiduciary duty under
ERISA.
The named plaintiffs also allege that Ochsner violated ERISA's
recordkeeping requirements.
With respect to their claims that Ochsner violated this
recordkeeping requirement, the named plaintiffs' allege that
Ochsner failed to record and/or report all of the hours worked by
the named plaintiffs and other Ochsner employees. Ochsner seizes
on the word hours to argue that the Court should dismiss these
recordkeeping claims, as the named plaintiffs admit that plan
benefits stem from eligible compensation, not hours.
Accepting the factual allegations in the complaint as true and
construing them in the light most favorable to the named
plaintiffs, the Court concludes that the named plaintiffs have
stated claims for recordkeeping violations against Ochsner.
In addition, Ochsner contends and the named plaintiffs admit that
the named plaintiffs failed to exhaust administrative remedies
prior to bringing their ERISA claims.
In this case, the named plaintiffs do not seek the distribution of
any benefits, but instead assert fiduciary breach and
recordkeeping claims not requiring exhaustion of administrative
remedies. Accordingly, the Court will not dismiss the named
plaintiffs' ERISA claims for failure to exhaust administrative
remedies.
Further, Ochsner argues that all of the named plaintiffs' state
law class action allegations should be stricken from the
complaint. (Ochsner's motion does not challenge the named
plaintiffs' ERISA class action allegations.
Ochsner contends that the named plaintiffs' class allegations
cannot satisfy Rule 23(b)(3)'s predominance requirement, as
adjudication of their state law claims will require an individual
assessment of liability and individualized calculation of damages
as to each individual member of each of the three proposed
classes. However, the Court concludes that striking the named
plaintiffs' state law class action allegations from the complaint
is not appropriate at this stage in the litigation.
Finally, the introduction of Ochsner's memorandum in support of
its motion alludes to a putative double recovery problem namely,
that some of the named plaintiffs' claims seek recovery for the
same unpaid wages. Ochsner suggests that the possibility of double
recovery in the future justifies the dismissal of some of the
claims now.
A potential double recovery problem down the road is simply not an
appropriate ground on which to dismiss claims under Rule 12(b)(6).
Named plaintiffs' claims for penalty wages and attorney's fees
under the LWPA are dismissed.
In all other respects, the motion is denied.
A full-text copy of the District Court's August 24, 2017 Order and
Reasons is available at http://tinyurl.com/yaojuple from
Leagle.com.
Desiree Bergeron, Plaintiff, represented by Kenneth Charles Bordes
- kcb@kennethbordes.com - Kenneth C. Bordes, Attorney at Law, LLC
Desiree Bergeron, Plaintiff, represented by Gordon E. Jackson,
Jackson, Shields, Yeiser & Holt, pro hac vice, Joseph Russ Bryant,
Jackson, Shields, Yeiser & Holt, pro hac vice & Paula Rachelle
Jackson, Jackson, Shields, Yeiser & Holt, pro hac vice, 262 German
Oak Dr, Cordova, TN 38018, USA.
Lillian Fogarty, Plaintiff, represented by Kenneth Charles Bordes,
Kenneth C. Bordes, Attorney at Law, LLC, Gordon E. Jackson,
Jackson, Shields, Yeiser & Holt, pro hac vice, Joseph Russ Bryant,
Jackson, Shields, Yeiser & Holt, pro hac vice & Paula Rachelle
Jackson, Jackson, Shields, Yeiser & Holt, pro hac vice.
Patricia Gremillion, Plaintiff, represented by Kenneth Charles
Bordes, Kenneth C. Bordes, Attorney at Law, LLC, Gordon E.
Jackson, Jackson, Shields, Yeiser & Holt, pro hac vice, Joseph
Russ Bryant, Jackson, Shields, Yeiser & Holt, pro hac vice & Paula
Rachelle Jackson, Jackson, Shields, Yeiser & Holt, pro hac vice.
Natalie Illg, Plaintiff, represented by Kenneth Charles Bordes,
Kenneth C. Bordes, Attorney at Law, LLC, Gordon E. Jackson,
Jackson, Shields, Yeiser & Holt, pro hac vice, Joseph Russ Bryant,
Jackson, Shields, Yeiser & Holt, pro hac vice & Paula Rachelle
Jackson, Jackson, Shields, Yeiser & Holt, pro hac vice.
Michele Kraft, Plaintiff, represented by Kenneth Charles Bordes,
Kenneth C. Bordes, Attorney at Law, LLC, Gordon E. Jackson,
Jackson, Shields, Yeiser & Holt, pro hac vice, Joseph Russ Bryant,
Jackson, Shields, Yeiser & Holt, pro hac vice & Paula Rachelle
Jackson, Jackson, Shields, Yeiser & Holt, pro hac vice.
Kevin Millet, Plaintiff, represented by Kenneth Charles Bordes,
Kenneth C. Bordes, Attorney at Law, LLC, Gordon E. Jackson,
Jackson, Shields, Yeiser & Holt, pro hac vice, Joseph Russ Bryant,
Jackson, Shields, Yeiser & Holt, pro hac vice & Paula Rachelle
Jackson, Jackson, Shields, Yeiser & Holt, pro hac vice.
Elizabeth Nelson, Plaintiff, represented by Kenneth Charles
Bordes, Kenneth C. Bordes, Attorney at Law, LLC, Gordon E.
Jackson, Jackson, Shields, Yeiser & Holt, pro hac vice, Joseph
Russ Bryant, Jackson, Shields, Yeiser & Holt, pro hac vice & Paula
Rachelle Jackson, Jackson, Shields, Yeiser & Holt, pro hac vice.
Kevin Branford, Plaintiff, represented by Kenneth Charles Bordes,
Kenneth C. Bordes, Attorney at Law, LLC, Gordon E. Jackson,
Jackson, Shields, Yeiser & Holt, pro hac vice, Joseph Russ Bryant,
Jackson, Shields, Yeiser & Holt, pro hac vice & Paula Rachelle
Jackson, Jackson, Shields, Yeiser & Holt, pro hac vice.
Valerie Walker, Plaintiff, represented by Kenneth Charles Bordes,
Kenneth C. Bordes, Attorney at Law, LLC, Gordon E. Jackson,
Jackson, Shields, Yeiser & Holt, pro hac vice, Joseph Russ Bryant,
Jackson, Shields, Yeiser & Holt, pro hac vice & Paula Rachelle
Jackson, Jackson, Shields, Yeiser & Holt, pro hac vice.
Ochsner Health System, Defendant, represented by Jennifer F. Kogos
- jkogos@joneswalker.com - Jones Walker & David K. Theard -
dtheard@joneswalker.com - Jones Walker.
Ochsner Clinic Foundation, Defendant, represented by Jennifer F.
Kogos, Jones Walker & David K. Theard, Jones Walker.
ONE TECHNOLOGIES: Ct. Approves Amended Case Schedule in "Hoffman"
-----------------------------------------------------------------
In the case captioned MARK HOFFMAN, on his own behalf and on
behalf of other similarly situated persons, Plaintiff, v. ONE
TECHNOLOGIES, LP, Defendant, Case No. 2:16-cv-01006-RSL (W.D.
Wash.), Judge Robert S. Lasnik of the U.S. District Court for the
Western District of Washington, Seattle, granted the parties'
stipulation amending the case schedule.
The Defendant removed the Plaintiff's putative class action
complaint to the Court on June 28, 2016. On July 25, 2016, the
Defendant moved to dismiss for failure to state a claim and for
other relief. On July 28, 2016, the Plaintiff moved to remand.
The Court issued its first and current scheduling order on Aug.
29, 2016.
On Oct. 26, 2016, the Court denied the Plaintiff's motion to
remand and denied the Defendant's motion to dismiss on Jan. 17,
2017. The Defendant subsequently filed its answer to the
Plaintiff's amended complaint on Feb. 26, 2017. Thus, the claims
and defenses genuinely in dispute in the case were identified and
put at issue only six months ago.
The Court issued an Order Setting Trial and Related Dates which
set these dates and deadlines for the case: (i) motion for class
certification due and noted on the Court's calendar for the fifth
Friday thereafter - Sept. 07, 2017; (ii) deadline for amending
pleadings - Oct. 7, 2017; (iii) reports from expert witnesses
under FRCP 26(a)(2) due Dec. 6, 2017; (iv) all motions related to
discovery must be noted on the motion calendar no later than the
Friday before discovery closes pursuant to LCR 7(d) or LCR
37(a)(2); (v) settlement conference held no later than Jan. 19,
2018; (vi) discovery completed by Feb. 4, 2018; (vii) all
dispositive motions must be filed by and noted on the motion
calendar no later than the fourth Friday thereafter; (viii) March
6, 2018 - all motions in limine must be filed by and noted on the
motion calendar no earlier than the second Friday thereafter; (ix)
replies will be accepted - April 15, 2018; (x) agreed pretrial
order due May 3, 2018; (xi) pretrial conference to be scheduled by
the Court Trial briefs, proposed voir dire questions, proposed
jury instructions, and trial exhibits due May 30, 2018; and (xii)
trial - June 4, 2018.
At all phases of the case, the parties have worked together in the
spirit of Local Rules W.D. Wash. to balance the interest of a
prompt resolution of the case together with the need to minimize
the costs of discovery. Likewise under the aegis of this rule,
the parties now stipulate to and request amendments to the current
case schedule as follows: (i) motion for class certification due
and noted on the Court's calendar for the fifth Friday thereafter
- March 8, 2018; (ii) deadline for amending pleadings - April 6,
2018; (iii) reports from expert witnesses under FRCP 26(a)(2) due
June 6, 2018; (iv) all motions related to discovery must be noted
on the motion calendar no later than the Friday before discovery
closes pursuant to LCR 7(d) or LCR 37(a)(2); (v) settlement
conference held no later than July 25, 2018 Discovery completed by
Aug. 3, 2018; (vi) all dispositive motions must be filed by and
noted on the motion calendar no later than the fourth Friday
thereafter; (vii) Sept. 6, 2018 - all motions in limine must be
filed by and noted on the motion calendar no earlier than the
second Friday thereafter; (viii) replies will be accepted - Oct.
15, 2018; (ix) agreed pretrial order due Nov. 2, 2018; (x)
pretrial conference to be scheduled by the Court Trial briefs,
proposed voir dire questions, proposed jury instructions, and
trial exhibits due Nov. 30, 2018; (xi) trial - Dec. 3, 2018.
The parties also stipulate and request that the Plaintiff's
pending Motion for Relief from Deadlines and New Case Schedule
should be withdrawn and stricken as being now moot.
Judge Lasnik adopted the parties' stipulation. The Plaintiff's
pending Motion for Relief from Deadlines and New Case Schedule was
stricken as being now moot.
A full-text copy of the Court's Aug. 29, 2017 Order is available
at https://is.gd/A45R6X from Leagle.com.
Mark Hoffman, Plaintiff, represented by Albert H. Kirby --
ahkirby@soundjustice.com -- SOUND JUSTICE LAW GROUP PLLC.
Mark Hoffman, Plaintiff, represented by Kim Williams --
kim@williamslaw.com -- WILLIAMSON & WILLIAMS & Roblin John
Williamson -- roblin@williamslaw.com -- WILLIAMSON & WILLIAMS.
One Technologies, LLC, Defendant, represented by Ari N. Rothman --
anrothman@Venable.com -- VENABLE LLP, pro hac vice, Danielle
Sunberg -- desunberg@Venable.com -- VENABLE LLP, pro hac vice,
Joseph L. Robbins -- jlrobbins@Venable.com -- VENABLE LLP, pro hac
vice, Aaron Scott Okrent -- okrentlaw@msn.com -- STERNBERG THOMSON
OKRENT & SCHER PLLC & Craig Steven Sternberg -- craig@stoslaw.com
-- STERNBERG THOMSON OKRENT & SCHER PLLC.
OSTEOMED: Accused of Wrongful Conduct Over Sale of OsteoPower
-------------------------------------------------------------
Anthony G. Sclar, DMD, individually, and on behalf of all those
similarly situated v. Osteomed, L.P., Case No. 1:17-cv-23247-FAM
(S.D. Fla., August 28, 2017), is an action for damages as a result
of the Defendant's unconscionable acts or practices, and unfair or
deceptive acts or practices in the conduct of its trade and
commerce in directly participating in the manufacturing,
marketing, and sale of OsteoPower System (TM) without disclosing
the dangers of the product to their purchasers or warning the
purchasers of such danger.
Osteomed, L.P. develops, manufactures, and markets specialty
medical devices, surgical implants, and powered surgical
instruments to surgeons and hospitals. [BN]
The Plaintiff is represented by:
Tod Aronovitz, Esq.
Barbara Perez, Esq.
ARONOVITZ LAW
2 South Biscayne Boulevard
One Biscayne Tower, Suite 3700
Miami, FL 33131
Telephone: (305) 372-2772
Facsimile: (305) 397-1886
E-mail: ta@aronovitzlaw.com
bp@aronovitzlaw.com
- and -
Bruce W. Steckler, Esq.
L. Kirstine Rogers, Esq.
STECKLER GRESHAM COCHRAN, PLLC
12720 Hillcrest Road, Suite 1045
Dallas, TX 75230
Telephone: (972) 387-4040
Facsimile: (972) 387-4041
E-mail: bruce@stecklerlaw.com
krogers@stecklerlaw.com
PARKWAY INC: Faces "Scarantino" Suit Over Canada Pension Merger
---------------------------------------------------------------
LOUIS SCARANTINO, individually and on behalf of all others
similarly situated, Plaintiff, v. PARKWAY, INC., PARKWAY
PROPERTIES LP, JAMES A. THOMAS, JAMES H. HANCE, JR., FRANK J.
"TRIPP" JOHNSON, III, R. DARY STONE, AVI BANYASZ, JAMES R.
HEISTAND, CRAIG JONES, CANADA PENSION PLAN INVESTMENT BOARD, REAL
ESTATE HOUSTON US TRUST, REAL ESTATE HOUSTON US LLC, and REAL
ESTATE HOUSTON US LP, Defendants, Case No: 4:17-cv-02441 (S.D.
Tex., August 9, 2017), was filed in relation to a transaction
pursuant to which Parkway, Inc. and Parkway Properties LP will be
acquired by affiliates of Canada Pension Plan Investment Board.
Pursuant to the terms of the Merger Agreement, shareholders of
Parkway will receive $23.05 per share in cash.
The case alleges that the Defendants issued a Proxy Statement in
connection with the Proposed Transaction that omits material
information with respect to the Proposed Transaction, which
renders the Proxy Statement false and misleading.
According to the complaint, the Proxy Statement omits material
information regarding Parkway's financial projections and the
analyses performed by the Company's financial advisor, HFF
Securities L.P. Second, the Proxy Statement fails to disclose
whether any confidentiality agreements executed by Parkway and the
prospective bidders, including "Party A," contained "don't ask,
don't waive" provisions that are or were preventing those
counterparties from submitting superior offers to acquire the
Company. Third, the Proxy Statement omits material information
regarding potential conflicts of interest of HFF Securities.
Parkway is an independent, publicly traded, self-managed real
estate investment trust that owns and operates office properties
located in submarkets in Houston, Texas. Plaintiff is, and has
been continuously throughout all times relevant hereto, the owner
of Parkway common stock.[BN]
The Plaintiff is represented by:
Joe Kendall, Esq.
Jamie J. McKey, Esq.
3232 McKinney Avenue, Suite 700
Dallas, TX 75204
Phone: (214) 744-3000
Fax: (214) 744-3015
Email: jkendall@kendalllawgroup.com
Email: jmckey@kendalllawgroup.com
PNC FINANCIAL: Partly Wins Bid to Strike Affirmative Defenses
-------------------------------------------------------------
The United States District Court for the Eastern District of
Pennsylvania issued a Memorandum granting in part and denying in
part the plaintiffs' motion to strike PNC's affirmative defenses
in the case captioned NELSON WHITE, JR., et al., Plaintiffs, v.
THE PNC FINANCIAL SERVICES GROUP, INC., et al., Defendants, Civil
Action No. 11-7928 (E.D. Pa.).
This is a putative class action brought by homeowners claiming
violations of the Real Estate Settlement Procedures Act (RESPA).
The plaintiffs filed a Motion to Strike several of the defendants'
affirmative defenses.
The plaintiffs claim the defendants carried on a captive
reinsurance scheme in which the defendants enjoyed kickbacks,
referrals, and fees that are prohibited by RESPA. Plaintiffs
allege that the defendant insurers, lenders, and reinsurers have
colluded to create a scheme that violates RESPA. Plaintiffs
maintain that the lenders, as a general practice, form subsidiary
companies that become the reinsurers.
The plaintiffs move to strike PNC's affirmative defenses.
Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, a
party may move to strike from a pleading an insufficient defense
or any redundant, immaterial, impertinent, or scandalous matter.
The pleading standard for an affirmative defense is set forth in
Rule 8(c), which requires a party to affirmatively state any
avoidance or affirmative defense. An affirmative defense is a
matter asserted by defendant which, assuming the complaint to be
true, constitutes a defense to it.
First and Third Defenses: Statute of Limitations
At this stage of the litigation, the Court said it will deny the
plaintiffs' motion to strike PNC's first and third affirmative
defenses. The sufficiency of these defenses depends upon disputed
issues of fact that remain unclear because discovery has not
concluded.
Seventh Defense: Filed Rate Doctrine
PNC may be correct that there is a circuit split regarding the
filed rate doctrine's applicability to claims brought under
Section 8(a) of RESPA. However, the Court said it is not its job
to resolve circuit splits. The Third Circuit has squarely ruled on
the filed rate doctrine's applicability to the exact claims
brought in this case. The Third Circuit clearly held that the
filed rate doctrine does not apply in these kinds of cases.
Alston, 585 F.3d at 763-65. The Court said it is bound to follow
this precedent. Granting plaintiffs' motion to strike filed-rate-
doctrine defense in a RESPA case, under the law of the case
doctrine, and rejecting defendants' position that relied on non-
binding out-of-circuit precedent. PNC's seventh affirmative
defense is clearly insufficient under this Circuit's precedent.
Accordingly, the Court grants the plaintiffs' motion to strike
PNC's seventh affirmative defense.
Eighth Defense: Standing
PNC purports to challenge the named plaintiffs' standing to bring
claims on behalf of purported class members whose loans are not
impacted by a reinsurance arrangement. To the extent that PNC does
not raise the same sort of standing argument already foreclosed by
Alston, the Court denies the plaintiffs' motion to strike PNC's
eighth affirmative defense. Although the plaintiffs argue that
PNC's eighth affirmative defense is not exactingly clear, it
provides fair notice of the issue involved.
Accordingly, the plaintiffs' motion to strike PNC's eighth
affirmative defense is denied to the extent PNC's standing
argument relates to issues not already resolved in Alston.
The plaintiffs' motion to strike PNC's affirmative defenses is
granted in part and denied in part.
A full-text copy of the District Court's August 24, 2017
Memorandum is available at http://tinyurl.com/yaa3sm8ufrom
Leagle.com.
NELSON WHITE, JR., Plaintiff, represented by EDWARD W. CIOLKO -
eciolko@ktmc.com - Kessler Topaz Meltzer & Check, LLP.
NELSON WHITE, JR., Plaintiff, represented by JOSEPH H. MELTZER -
jmeltzer@ktmc.com - Kessler Topaz Meltzer & Check, LLP, AMANDA
TRASK -trask@ktmc.com - Kessler Topaz Meltzer & Check, LLP, DONNA
SIEGEL MOFFA - dmoffa@ktmc.com - Kessler Topaz Meltzer & Check,
LLP, NATALIE LESSER - nlesser@ktmc.com - KESSLER TOPAZ MELTZER &
CHECK, LLP & TERENCE S. ZIEGLER - tziegler@ktmc.com - Kessler
Topaz Meltzer & Check, LLP.
LISA WHITE, Plaintiff, represented by EDWARD W. CIOLKO, Kessler
Topaz Meltzer & Check, LLP, JOSEPH H. MELTZER, Kessler Topaz
Meltzer & Check, LLP, AMANDA TRASK, Kessler Topaz Meltzer & Check,
LLP, DONNA SIEGEL MOFFA, Kessler Topaz Meltzer & Check, LLP,
NATALIE LESSER, KESSLER TOPAZ MELTZER & CHECK, LLP & TERENCE S.
ZIEGLER, Kessler Topaz Meltzer & Check, LLP.
CHARLES HIGHTOWER, Plaintiff, represented by EDWARD W. CIOLKO,
Kessler Topaz Meltzer & Check, LLP, JOSEPH H. MELTZER, Kessler
Topaz Meltzer & Check, LLP, AMANDA TRASK, Kessler Topaz Meltzer &
Check, LLP, DONNA SIEGEL MOFFA, Kessler Topaz Meltzer & Check,
LLP, NATALIE LESSER, KESSLER TOPAZ MELTZER & CHECK, LLP & TERENCE
S. ZIEGLER, Kessler Topaz Meltzer & Check, LLP.
COLLEEN HIGHTOWER, Plaintiff, represented by EDWARD W. CIOLKO,
Kessler Topaz Meltzer & Check, LLP, JOSEPH H. MELTZER, Kessler
Topaz Meltzer & Check, LLP, AMANDA TRASK, Kessler Topaz Meltzer &
Check, LLP, DONNA SIEGEL MOFFA, Kessler Topaz Meltzer & Check,
LLP, NATALIE LESSER, KESSLER TOPAZ MELTZER & CHECK, LLP & TERENCE
S. ZIEGLER, Kessler Topaz Meltzer & Check, LLP.
GEORGE G. DONALD, Plaintiff, represented by JOSEPH H. MELTZER,
Kessler Topaz Meltzer & Check, LLP, EDWARD W. CIOLKO, Kessler
Topaz Meltzer & Check, LLP, NATALIE LESSER, KESSLER TOPAZ MELTZER
& CHECK, LLP & TERENCE S. ZIEGLER, Kessler Topaz Meltzer & Check,
LLP.
LUZ GARCIA, Plaintiff, represented by JOSEPH H. MELTZER, Kessler
Topaz Meltzer & Check, LLP, EDWARD W. CIOLKO, Kessler Topaz
Meltzer & Check, LLP, NATALIE LESSER, KESSLER TOPAZ MELTZER &
CHECK, LLP & TERENCE S. ZIEGLER, Kessler Topaz Meltzer & Check,
LLP.
MICHELLE B. JOHNSTON, Plaintiff, represented by JOSEPH H. MELTZER,
Kessler Topaz Meltzer & Check, LLP, EDWARD W. CIOLKO, Kessler
Topaz Meltzer & Check, LLP, NATALIE LESSER, KESSLER TOPAZ MELTZER
& CHECK, LLP & TERENCE S. ZIEGLER, Kessler Topaz Meltzer & Check,
LLP.
KEVIN ZIELINSKI, Plaintiff, represented by JOSEPH H. MELTZER,
Kessler Topaz Meltzer & Check, LLP, EDWARD W. CIOLKO, Kessler
Topaz Meltzer & Check, LLP, NATALIE LESSER, KESSLER TOPAZ MELTZER
& CHECK, LLP & TERENCE S. ZIEGLER, Kessler Topaz Meltzer & Check,
LLP.
DAN B. JOHNSTON, Plaintiff, represented by JOSEPH H. MELTZER,
Kessler Topaz Meltzer & Check, LLP, EDWARD W. CIOLKO, Kessler
Topaz Meltzer & Check, LLP, NATALIE LESSER, KESSLER TOPAZ MELTZER
& CHECK, LLP & TERENCE S. ZIEGLER, Kessler Topaz Meltzer & Check,
LLP.
JILL CRUMPLER, Plaintiff, represented by JOSEPH H. MELTZER,
Kessler Topaz Meltzer & Check, LLP, EDWARD W. CIOLKO, Kessler
Topaz Meltzer & Check, LLP, NATALIE LESSER, KESSLER TOPAZ MELTZER
& CHECK, LLP & TERENCE S. ZIEGLER, Kessler Topaz Meltzer & Check,
LLP.
THE PNC FINANCIAL SERVICES GROUP, INC., Defendant, represented by
DANIEL I. BOOKER - dbooker@reedsmith.com - REED SMITH LLP, JOSEPH
J. MAHADY - jmahady@reedsmith.com - REED SMITH LLP, LOUIS W.
SCHACK, REED SMITH LLP, ROBERT A. NICHOLAS, REED SMITH LLP &
THOMAS P. REILLY - rreilly@reedsmith.com - REED SMITH LLP.
R.F. FISHER: Faces "Smith" Suit Under Kansas Wage Payment Act
-------------------------------------------------------------
MICHELLE C. SMITH, on behalf of herself and all others similarly
situated, Plaintiff, v. R.F. FISHER ELECTRIC COMPANY, LLC,
Registered Agent: K & E Services 111 S. Kansas Ave. Olathe, KS
66061, Defendant, Case No: 2:17-cv-02457 (D. Kan., August 9,
2017), alleges that Michelle C. Smith, who is a former
receptionist/administrative assistant for R.F. Fisher Electric
Company, LLC, was not paid for all hours she worked and was not
paid at the proper rate of pay. Ms. Smith was also terminated for
complaining to superiors about wage and hour violations.
The case was filed under the Kansas Wage Payment Act.
Defendant is an electrical contractor. Plaintiff is a former
receptionist/administrative assistant.[BN]
The Plaintiff is represented by:
Michael A. Williams, Esq.
WILLIAMS DIRKS DAMERON LLC
1100 Main Street, Suite 2600
Kansas City, MO 64105
Phone: 816-945-7175
Fax: 816-945-7118
Email: mwilliams@williamsdirks.com
RALPH LAUREN: Court Partly Grants Bid to Dismiss "Dennis" Suit
--------------------------------------------------------------
Judge William Q. Hayes of the U.S. District Court for the Southern
District of California granted in part and denied in part the
Defendants' motion to dismiss the case captioned COURTNEY DENNIS,
Plaintiff, v. RALPH LAUREN CORPORATION; RALPH LAUREN RETAIL, INC.;
DOES 1-20, inclusive, Defendants, Case No. 16cv1056-WQH-BGS (S.D.
Cal.).
On May 2, 2016, Plaintiff Dennis commenced the action by filing a
complaint on behalf of herself and all others similarly situated.
On July 18, 2016, the Plaintiff filed the first amended complaint
("FAC"). On Aug. 22, 2016, the Defendants filed a motion to
dismiss for failure to state a claim. On Dec. 20, 2016, the Court
granted the Defendants' motion to dismiss and dismissed the
Complaint in its entirety without prejudice.
On Jan. 17, 2017, the Plaintiff filed a motion for leave to file
the second amended complaint. On Jan. 25, 2017, the Court granted
the joint motion to continue hearing on the Plaintiff's motion for
leave to file second amended complaint ("SAC"). On April 18,
2017, the Plaintiff filed the SAC, which is the operative pleading
in this case.
The Plaintiff, on behalf of herself and others similarly situated,
asserts the following causes of action against the Defendants: (i)
violation of California's Unfair Competition Law ("UCL"); (ii)
violation of California's False Advertising Laws ("FAL"); and
(iii) violations of California Consumer Legal Remedies Act
("CLRA"). The Plaintiff alleges that the Court has original
jurisdiction pursuant to the Class Action Fairness Act,.
On May 2, 2017, the Defendants filed their motion to dismiss
pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). On May 30, 2017, the Plaintiff filed a response in
opposition. On June 9, 2017, the Defendants filed a reply.
Judge Hayes finds that the Plaintiff has satisfied the
particularity requirement of Rule 9(b) by alleging facts to show
the "who, what, when, where, how" of the Defendants' alleged
misconduct. He concludes that the Plaintiff states a claim under
the FAL, CLRA, and UCL because the Plaintiff alleges facts that
support an inference that the "Our Price" price advertised by the
Defendants was not the prevailing market price.
The Judge further finds that the Plaintiff has demonstrated
sufficient similarities in the Defendants' alleged pricing scheme
to avoid dismissal of any claims at this stage of the proceedings.
The Defendants' contentions regarding the differences in purchases
and advertisements are best addressed at the class certification
stage rather than the motion to dismiss stage.
Lastly, Judge Hayes finds that the Plaintiff has failed to allege
facts that would show that she faces a "real and immediate threat
of repeated injury." They Plaintiff lacks Article III standing to
seek injunctive relief therefore the Defendants' motion to dismiss
the Plaintiff's request for injunctive relief is granted. The
Judge explains that the SAC alleges that the Defendants'
systematic scheme of discounting their merchandise without ever
offering the merchandise for sale at its supposed "Our Price"
price was pervasive and continuous. The Plaintiff alleges that
she would not have purchased the Shirt but for the Defendants'
alleged misrepresentation of the "Our Price" price and
corresponding false discounts. The facts alleged in the SAC are
insufficient to suggest that the Plaintiff would purchase another
Polo Ralph Lauren retail item in the future.
A full-text copy of the Court's Aug. 29, 2017 Order is available
at https://is.gd/w7KEqL from Leagle.com.
Courtney Dennis, Plaintiff, represented by Brittany Courtney
Casola -- bcasola@carlsonlynch.com -- Carlson Lynch Sweet Kilpela
& Carpenter LLP.
Courtney Dennis, Plaintiff, represented by Todd D. Carpenter --
tcarpenter@carlsonlynch.com -- Carlson Lynch Sweet Kilpela &
Carpenter, LLP & Deval R. Zaveri -- dev@zaveritabb.com -- Zaveri
Tabb, APC.
Ralph Lauren Corporation, Defendant, represented by Jeffrey
Warshafsky -- jwarshafsky@proskauer.com -- Proskauer Rose LLP, pro
hac vice, Lary Alan Rappaport -- lrappaport@proskauer.com --
Proskauer Rose LLP, Lawrence Ira Weinstein --
lweinstein@proskauer.com -- Proskauer Rose LLP, pro hac vice &
Qian Jennifer Yang -- jyang@proskauer.com -- Proskauer Rose LLP,
pro hac vice.
Ralph Lauren Retail, Inc., Defendant, represented by Lary Alan
Rappaport, Proskauer Rose LLP.
RMK REALTY: "Lipski" Class Suit Seeks to Recover Wages Under FLSA
-----------------------------------------------------------------
DEBORAH LIPSKI, on behalf of herself and all others similarly
situated v. RMK REALTY, LLC f/k/a LOGOTASTIC SCREEN PRINTING &
EMBROIDERY, and ROBERT KNOBEL, an Individual, Case No. 0:17-cv-
61662-WPD (S.D. Fla., August 18, 2017), seeks to recover
compensation and other relief under the Fair Labor Standards Act.
RMK Realty, LLC, formerly known as Logotastic Screen Printing &
Embroidery, is a Florida Limited Liability. At all material
times, the Company was the employer or former employer of the
Plaintiff and class members. Robert Knobel is a manager, officer
or agent of the Company.[BN]
The Plaintiff is represented by:
Chad E. Levy, Esq.
David M. Cozad, Esq.
LAW OFFICES OF LEVY & LEVY, P.A.
1000 Sawgrass Corporate Parkway, Suite 588
Sunrise, FL 33323
Telephone: (954) 763-5722
Facsimile: (954) 763-5723
E-mail: chad@levylevylaw.com
david@levylevylaw.com
SAFECO INSURANCE: Sued in Cal. Over Vehicle Insurance Policies
--------------------------------------------------------------
Subhash Kundanmal and Bindu Kundanmal, individually and on behalf
of all others similarly situated v. Safeco Insurance Company Of
America, Safeco Corporation, Liberty Mutual Agency, Liberty
Insurance Holdings, Inc., Liberty Mutual Insurance Company,
Liberty Mutual Holding Company, Inc. American States Preferred
Insurance Company, and Does 1 through 10, inclusive, Case No.
2:17-cv-06339-SVW-JEM (C.D. Cal., August 28, 2017), arises out of
the Defendants' practice of failing to comply with the express
terms of its automotive vehicle insurance policies, its fraudulent
misrepresentations concerning those policies, and its violation of
the California Consumer protection statutes.
The Defendants operate one of the largest insurance companies in
the world and sells automotive policies to consumers throughout
the State of California. [BN]
The Plaintiff is represented by:
Gregory L. Bentley, Esq.
Evan W. Grant, Esq.
BENTLEY & MORE LLP
4 Park Plaza, Suite 500
Irvine, CA 92614
Telephone: (949) 870-3800
Facsimile: (949) 732-6291
E-mail: gbentley@bentleymore.com
egrant@bentleymore.com
- and -
William A. Kershaw, Esq.
Stuart C. Talley, Esq.
KERSHAW, COOK & TALLEY PC
401 Watt Avenue
Sacramento, CA 95864
Telephone: (916) 779-7000
Facsimile: (916) 721-2501
E-mail: bill@kctlegal.com
stuart@kctlegal.com
SB NATION: Faces Class Action by Former Employees
-------------------------------------------------
Andrew Bucholtz, writing for Awful Announcing, reports Deadspin's
August piece on the low or no pay (despite executives' comments)
SB Nation offers many writers and editors for its team sites has
now led to a class-action lawsuit. Deadspin's Laura Wagner, who
wrote the initial "How SB Nation Profits Off An Army Of Exploited
Workers" piece, now has the details on a lawsuit filed on
Spetember 1 in U.S. District Court in Washington, D.C. by Cheryl
Bradley, a site manager at SB Nation Colorado Avalanche blog Mile
High Hockey between 2013 and 2015.
Bradley's lawsuit says she regularly worked 30 to 40 hours per
week for SB Nation and was paid $125 a month. Her lawsuit is filed
both "individually and on behalf of all persons similarly
situated," which is then later specified to be "all current and
former site managers, managing editors or similar employees who
performed work for Vox Media in the last three years" (although
that class can be redefined).
Its chief contention is that site managers pass the legal standard
to be considered as employees rather than contractors, and thus
deserve to be paid at least the hourly minimum wage under U.S.
labor laws. If that finds success, it could lead to massive
changes for SB Nation.
As that lawsuit details, the key question here is the standard of
what makes an employee. It cites two cases in particular, Morrison
v. Int'l Programs Consortium Inc. (from 2001) and Donovan v. Dial
America Marketing, Inc. (from 1985), and mentions factors such as
hiring and firing power, degree of control over work performed,
supervision and control over employee schedules, and if the
service is an integral part of the company's business.
Bradley's lawsuit makes a notable argument on the firing power and
degree of control fronts in particular, mentioning how SB Nation
NHL league manager Travis Hughes deleted a controversial post on
her site and fired the writer without talking to her in February
2015, then fired Bradley "under false pretexts" less than a week
later.
We'll see how Vox Media responds to this. For one thing, they'll
undoubtedly point out that their site editor agreements (at least
the one we obtained from 2014) spell out that "Blogger's
relationship with Vox Media is that of an independent contractor,
and nothing in this agreement is intended to, or should be
construed to, create a partnership agency, joint venture, or
employment relationship. Blogger will not be entitled to any of
the benefits that Vox Media may make available to its employees."
Of course, just putting that in an agreement doesn't mean workers
are not employees, and that's where those aforementioned tests
come in.
Some of those tests could be interesting, as arguments can be made
both ways as to if the site manager relationship meets the
employee criteria. Vox undoubtedly has that hiring and firing
power, as aforementioned, but degree of control over work
performed could be a debate; those agreements do spell out a lot
of specific requirements for site managers, including posts-per-
week, posts on each game within a certain timeframe and so on, but
they also state that "blogger shall exercise editorial control
over the work product" (within corporate guidelines).
Similarly, Wagner's initial piece had some notable information on
how league managers interact with site managers, which could be
argued as supervision or not. One site manager told her "They tell
me every day to do more posts, more on social, more video," but
the she later wrote "Perhaps because site managers aren't
technically employees, edicts about posts and traffic, according
to the managers I spoke to, are always couched as suggestions." So
the arguments on that front will be worth keeping an eye on.
Another big question is the "no opportunity for profit or loss"
claim in Bradley's lawsuit. The lawsuit notes that Bradley
received the same monthly compensation regardless of the quality
and quantity of articles she created, and states that "Vox did not
allow Plaintiff to advertise her brand or her content," "Plaintiff
did not share in Vox's advertising revenue," and says she was
required to turn advertising inquiries over to her league manager.
However, AA's Sean Keeley wrote last month about his 2008-2016
stint as a SB Nation site editor, and mentioned that he did see
some opportunities for profit.
So even though my monthly check from SBNation barely paid my
electric bill, I started generating other income on the back of my
blog. I edited a Syracuse basketball preview magazine back when
that was still a thing. I wrote a book all about Syracuse sports.
I made editorial advertising deals with local sponsors, something
that SB Nation encouraged and let me keep entirely for myself.
Writing the blog also gave me opportunities to write for other
outlets and raise my profile.
None of that necessarily disproves this lawsuit or means that SB
Nation site managers won't eventually be ruled to be employees. It
sounds like that's going to be a complicated question, and with
arguments on both sides. We'll see how Vox Media approaches this.
In any case, the lawsuit's certainly newsworthy, and it elevates
criticism of SB Nation from internet talk into a legal matter. And
if it does find some success on behalf of a large class, it could
dramatically change how things work at SB Nation. We'll see where
this goes. [GN]
SCENIC TOURS: Vows to Appeal Judgment in Flood-Disrupted Cruises
----------------------------------------------------------------
Helen Hutcheon, writing for Seatrade Cruise News, reports that a
spokesperson for Scenic, the luxury river cruise and tour company
founded by Australian Glen Moroney, said it will appeal the
decision handed down on August 31 in favour of the lead plaintiff
in a class action.
The class action began in the New South Wales Supreme Court with
1,265 plaintiffs claiming 'expensive luxury river cruises' turned
into 'cheap second-rate bus tours' because of extensive flooding
in Europe in 2013.
Heavy rain in France and Germany in April and May 2013 caused
extensive flooding and water levels on the Rhine, Saone, Rhone and
Danube rivers rose so high that river cruise ships were unable to
operate as scheduled for about six weeks.
The 13 affected Scenic and Evergreen voyages included Amsterdam to
Budapest, Amsterdam to Basel and river cruises in southern France.
Instead of visiting cities via the river and spending nights
aboard the river ships, passengers endured long bus rides and in
some cases stayed overnight at low-budget hotels, the plaintiffs'
barrister told Justice Peter Garling.
In a statement of claims the group said Scenic had breached
Australian Consumer Law by failing to cancel or delay the cruises,
offer alternative tours or warn of expected disruptions.
Scenic defended the case, saying the terms and conditions of the
contract allowed it to make changes to itineraries due to road,
river or weather conditions.
However, Justice Garling found that Scenic had breached consumer
guarantees and these breaches represented a major failure. He
ordered Scenic to pay the lead plaintiff, David Moore, a 100%
refund of the A$10,990 he paid for the cruise, plus a further
A$2,000 in damages based on the provisions of the Australian
Consumer Law.
Scenic argued that passengers had got at least part of what they
paid for, but the judge found Moore would not have taken the
cruise if Scenic had made him aware of the problems as soon as it
knew about them.
The judgment in favour of Moore cleared the way for compensation
to be made to the other 1,264 plaintiffs.
In today's statement, Scenic said estimates for payouts based on
the August 31 decision have been premature.
'it is important to note that not all cruises were affected in the
same way,' the statement said. 'A blanket estimate cannot be drawn
from Mr Moore's individual award.'
It is understood the case has been relisted for further argument
in November. [GN]
SCRANTON CITY, PA: Judge Hears Arguments on Trash-Fee Lawsuit
-------------------------------------------------------------
Jim Lockwood, writing for The Times Tribune, reports that
attorneys for a Scranton man suing the city over its annual $300
garbage fee asked a judge on September 1 to allow the lawsuit to
proceed as a class action.
However, a city solicitor argued that keeping the lawsuit as an
individual case would be less cumbersome and get it resolved
quicker.
After hearing both sides, Lackawanna County Court Judge James
Gibbons said he would issue a ruling on the matter soon.
If deemed a class action, the lawsuit filed in December by Adam
Guiffrida potentially would open up to as many as 18,000 payers of
the garbage fee, attorneys said.
Guiffrida's attorneys, Patrick Howard, Esq. -- phoward@smbb.com --
of Saltz Mongeluzzi Barrett & Bendesky, Paul Batyko, Esq. --
pbatyko@batykolaw.com -- of Batyko Law LLC and Joseph Healey, Esq.
argued that a class action would be a more effective way to get
any potential refunds to people. It would result in notices sent
to affected people, giving them the option to voluntarily join the
class. Without class certification, residents essentially would be
on their own and likely would not know about a refund or how to go
about getting one, Howard said.
"Without a class-notice device, there will be minimal effort by
people to come forward to get a refund," he said.
Assistant City Solicitor Joseph Price contended an individual
complaint would be more efficient, as it would more readily
resolve central questions of whether the $300 trash fee is
arbitrary and excessive and, if so, determine a refund amount.
Under this route, called a "taxpayer lawsuit," if the fee is
determined to be excessive, a judge then could simply order the
city to give refunds to individuals who would come forward to City
Hall with their garbage bills to prove they qualify for a refund,
Price said. This method also would be fairer, because it would
apply to all fee payers, while the class-action track would only
result in refunds for those who join the class, Price said.
"If they don't opt in (to the join the class), they're not
entitled to a refund," Price said. "A class action just is not
necessary to do this."
Howard countered that not allowing a class action would be akin to
"putting the fox (city) in charge of the henhouse (refunds)."
Gibbons noted that the plaintiff's attorneys would stand to gain
more in attorney's fees from a class action suit, in the form of a
percentage of each refund obtained for those who joined the class,
than the attorneys would get from an individual lawsuit. He asked
for Howard to submit a brief detailing the matter of attorney
fees. Price then will get a chance to submit a reply brief.
The lawsuit argues that the $300 annual fee is excessive and the
city profited $935,498 in 2013, $1.26 million in 2014, $1.82
million in 2015, and a projected $1.54 million in 2016.
The dispute involves an interpretation of the city's trash
collection ordinance, which says the fee is to be used solely for
"costs incurred directly for the disposal of refuse." Guiffrida
maintains that means fee revenue cannot be used for other
purposes. The city disagrees.
If Gibbons ultimately rules in Guiffrida's favor that the trash
fees were excessive, residents who paid the fees would be entitled
to pro-rated refunds. The first step, however, is for the judge to
determine if the case should proceed individually or as a class
action. [GN]
SEQUANS COMMUNICATIONS: Faces "Renner" Securities Class Suit
------------------------------------------------------------
ANDREW RENNER, individually and on behalf of all others similarly
situated, Plaintiff, vs. SEQUANS COMMUNICATIONS S.A., GEORGES
KARAM, and DEBORAH CHOATE, Defendants, Case No: 1:17-cv-04665
(E.D.N.Y., August 9, 2017), is a federal securities suit on behalf
of a purported class consisting of all persons and entities other
than Defendants who purchased or otherwise acquired the publicly
traded securities of Sequans from April 29, 2016 through July 31,
2017, both dates inclusive.
The case alleges that statements made by Defendants and referenced
in (i) a Form 20-F for the fiscal year ended December 31, 2015
with the U.S. Securities and Exchange Commission, which provided
the Company's annual financial results and position; and
(ii) a Form 20-F for the fiscal year ended December 31, 2016 with
the SEC, which provided the Company's annual financial results and
position, were materially false and/or misleading because they
misrepresented and failed to disclose that the Company was
improperly recognizing revenue.
The Second Quarter 2017 Highlights of the company states that
revenue was $13.2 million, after a reduction of $740,000 related
to a product return from an early 2016 tablet-related sale.
Excluding the impact of the return, revenue would have been $14.0
million. Revenue for the second quarter of 2017 increased 6.3%
compared to the first quarter of 2017 (12.3% without the impact of
the return) and increased 33.7% compared to the second quarter of
2016 (41.2% without the impact of the return), reflecting
increases in both product and other revenue.
Defendant Sequans is a 4G LTE chipmaker and provider of single-
mode LTE chipset solutions to wireless device manufacturers
worldwide. Plaintiff is a shareholder.[BN]
The Plaintiff is represented by:
Laurence M. Rosen, Esq.
Phillip Kim, Esq.
THE ROSEN LAW FIRM, P.A.
275 Madison Ave., 34th Floor
New York, NY 10016
Phone: (212) 686-1060
Fax: (212) 202-3827
Email: lrosen@rosenlegal.com
Email: pkim@rosenlegal.com
SHO-ME POWER: Multi-State Team Wins $130MM Missouri Jury Verdict
----------------------------------------------------------------
Dave Stafford, writing for Indiana Lawyer, reports that the second
time was a greater charm for a legal team led by an Indianapolis
lawyer who won a $130 million jury verdict for Missouri property
owners. The judgment in a class-action lawsuit against a
telecommunications company is likely to be among the largest in
the nation this year.
Indianapolis lawyer Ron Waicukauski, Esq. -- rwaicukauski@price-
law.com -- of Price Waicukauski Joven & Catlin LLP served as lead
plaintiffs' counsel during the trial in federal court in Jefferson
City, Missouri, that concluded on August 29. The class prevailed
on its claim that Sho-Me Power Electric Cooperative trespassed for
more than 12 years by running fiberoptic cable lines across nearly
800 miles of property without paying owners of 3,560 parcels of
property. The jury award was nearly twice that of a prior jury
verdict in the same case that was vacated on appeal.
Waicukauski said the jury on retrial returned the verdict that he
and the legal team argued for based on similar fiberoptic
easements and use rights around the country -- compensatory
damages of $129.2 million and punitive damages of $1.3 million.
The compensatory damages reimburse thousands of property owners
including farmers, ranchers, homeowners and small businesses, at a
rate of $2.44 per foot for 796 miles of trespass over 12.6 years.
"This has been a hard-fought battle to defend landowners' rights,"
Waicukauski said in a statement. "The jury verdict's precise
calculation of the damages demonstrates the jury's careful
understanding of the facts, and is a victory for Missouri
landowners."
In an interview, Waicukauski credited the legal team that also
included firm colleague Brad Catlin, and attorneys Kathleen
Kauffman, Esq. -- kck@rockwellandkaufman.com -- of Rockwell &
Kaufman, LLC, F. Alexander O'Neill, Esq. and Heidi Doerhoff
Vollet, Esq. Along with Price Waicukauski Joven & Catlin, other
firms representing the property owners in the case were Cook
Vetter Doerhoff & Landwehr of Jefferson City and Ackerson Kauffman
Fex of Washington, D.C.
"We had some celebrations in Jefferson City before I left,"
Waicukauski said. "This was really a team effort, and we had a
really good team."
"This verdict is a victory for the judicial system as well as the
landowners," said Kauffman, who led the liability and class
certification briefing. "It affirms the rule of law and the simple
concept that no person or company is above the law. No one can
take private property without consent or legal right, regardless
of commercial benefit."
Waicukauski expects an appeal unless the matter is resolved by a
settlement. He said there are no settlement discussions at the
current time.
Attorneys for Sho-Me have petitioned the court for judgment as a
matter of law and decertification of the class -- matters that
were not before the jury.
Two years ago, a jury hearing the same case awarded $79 million in
damages on unjust enrichment. The award in 2015 was the ninth-
largest jury verdict nationwide that year, according to the
National Law Journal's Big Money Wins compilation.
The 8th Circuit Court of Appeals vacated the $79 million judgement
on appeal, finding no remedy in law for unjust enrichment damages.
However, the appellate court affirmed the district court's class
certification, grant of summary judgment for unjust enrichment,
and liability for trespass. The 8th Circuit remanded for this
damages trial on the trespass judgment.
Waicukauski is becoming a regular on annual lists of America's
largest jury verdicts. He was lead counsel for a legal team that
won a $31.3 million judgment against the Indiana Department of
Child Services for the Finnegan family in northwest Indiana. A
federal jury found DCS had falsified documents to wrongfully
pursue neglect charges against a daughter who died as a result of
a prescription error. A settlement was later reached for $25
million.
Waicukauski said the string of big recent jury verdicts is a
credit to his experience in the courtroom, having argued in more
than 80 jury trials. "That experience helps a lot," he said.
"We've gotten some good results, and I think it's because we've
gotten good cases where people deserve compensation and the jury
realizes that."
The case in the U.S. District Court for the Western District of
Missouri is Chase Barfield, et al. v. Sho-Me Power Electric
Cooperative, et al., 2:11-cv-4321NKL. [GN]
SIGNET JEWLERS: Faces New Shareholder Lawsuit
---------------------------------------------
Akron Beacon Journal reports that Signet Jewlers Ltd. is facing
another securities fraud lawsuit that accuses the company of
making false or misleading statements about the severity of sexual
harassment claims against the company.
The lawsuit also names as defendants various company officials and
former CEO Mark Light.
Lawyers for Signet shareholder Josanne Aungst of Madison, Ala.,
filed the lawsuit on September 1 in Summit County Common Pleas
Court.
The lawsuit is among those filed following a Washington Post story
in February that made public court documents alleging widespread
sexual harassment at the company.
Aungst claims that the defendants breached their fiduciary duties
and engaged in "abuse of control, gross mismanagement and unjust
enrichment."
The lawsuit says the defendants breached their fiduciary duties by
allowing Light and other executives to sexually harass women and
"by causing the company to disseminate false or misleading
statements to the investing public about the true nature and
severity of the allegations in the arbitration."
The sexual harassment allegations discussed in the Post story grew
out of a March 2008 gender discrimination arbitration case that
evolved into a class action lawsuit.
The lawsuit filed on September 1 noted that other shareholders
have filed suit against the company, and pointed out that the
company's stock price fell after the Post article.
Signet has corporate offices in Akron and employs thousands in the
area.
Signet spokesman David Bouffard released this statement on
September 1 evening:
"While we do not have notice of the suit," it has "generally been
our policy not to comment on legal matters."
In March, in response to the filing of another shareholder lawsuit
involving similar claims, Signet said, "The shareholder lawsuits
are wholly without merit and we will vigorously defend ourselves
against them. Since the arbitration case was filed in 2008, Signet
has fully met its disclosure requirements."
Virginia C. Drosos is Signet's new chief executive officer. She
succeeded Light last month. Light, 55, said he was resigning as of
July 31 because of health reasons. [GN]
SM ENERGY: Court Denies Bid to Dismiss "Chieftain" Suit
-------------------------------------------------------
In the case captioned CHIEFTAIN ROYALTY COMPANY, Plaintiff, v. SM
ENERGY COMPANY, et al., Defendants, Case No. CIV-11-177-D (W.D.
Okla.), Judge Timothy D. DeGiusti of the U.S. District Court for
the Western District of Oklahoma denied the SME's Motion for
Summary Judgment with Respect to Claims of Named Plaintiff and
Motion to Dismiss Class Action for Mootness.
Chieftain alleges SME underpaid royalties due it and others for
the production of natural gas from wells located in Oklahoma. The
proposed class consisted of, among others, all non-excluded
persons or entities who are or were royalty owners in Oklahoma
wells where: (i) SME, including its predecessors or affiliates, is
or was the operator or, as a nonoperator, SME separately marketed
gas. The wells identified in Chieftain's Complaint were the Wilt
#1-10 well, Hicklin #1-28 well, McDaniel #1-8 well, Edward #1-19
well, Brown #1-26 well, Opitz #1 well, Haley #1 well, Haley #2-31
well, Haley #3-31 well, Haley #4-31 well, Haley #5-31 well, and
the Hart #1-31 well.
Pursuant to a Purchase and Sale Agreement between SME and
Defendant EnerVest, EnerVest purchased certain assets in Oklahoma
from SME, including the listed wells and their associated oil and
gas leases. EnerVest subsequently conveyed an undivided 50%
interest in the assets to Defendant FourPoint Energy, LLC.
On Aug. 5, 2015, Chieftain, EnerVest, and FourPoint executed a
"Stipulation and Agreement of Settlement" with respect to
Chieftain's claims against those Defendants. Under the
Settlement, Chieftain agreed to release all claims associated with
the marketing of, the calculation, reporting and payment of
royalty on, gas and its constituents during the Claim Period for
each Class Well ("Released Claims"). The term "Class Wells"
included every oil and gas well that is located within properties
and units acquired by certain of the Settling Parties under the
aforementioned Purchase and Sale Agreement with SM dated Nov. 4,
2013. The parties prepared a list of the wells to be included as
part of the Settlement, which specified the aforementioned wells.
However, the Settlement specifically stated it did not cover
certain wells not sold by SME.
Chieftain's claims were to be released upon the Effective Date,
which was defined as the first date by which the Settlement became
"Final and Non-Appealable." In November 2015, Danny George and
Charles David Nutley objected to the Settlement. Initially, the
Objectors challenged the settlement on notice and procedural
grounds, and contested the proposed attorney's fees and case
contribution/incentive award. On Dec. 23, 2015, the Court
overruled the objections, approved the Settlement, and, after
significant reductions, awarded attorney's fees and an incentive
award to class counsel and Chieftain. In January 2016, Objectors
appealed the Court's attorney's fees/case contribution award.
Chieftain was granted leave to amend its pleading, and on Feb. 21,
2017, it filed its Third Amended Complaint where it sought damages
relating to its interests in four additional wells -- the Duncan
Shores #1-1 well, Duncan Shores #2-1 well, Avanzini #3-1H well,
and the Simmons #3-32 well. SME admits these wells were not part
of the Settlement.
On July 3, 2017, the Tenth Circuit reversed and remanded the
attorney's fees and case contribution awards. The Tenth Circuit's
order did not address or affect the validity and fairness of the
Settlement.
Before the Court is SME's Motion for Summary Judgment with Respect
to Claims of Named Plaintiff and Motion to Dismiss Class Action
for Mootness. Chieftain has filed its response in opposition and
SME has replied. On Jan. 13, 2017, Chieftain filed a Supplemental
Brief regarding SME's Motion, to which SME responded.
Judge DeGiusti held that although the Settlement intended to
release Chieftain's claims with respect to those wells identified
in the Second Amended Complaint and Settlement, SME has not shown
the Settlement intended to release it as to all claims in the
litigation, specifically the "SM-Retained" properties and those
identified in the Third Amended Complaint. As he noted, the SM-
Retained wells were specifically excluded from the Settlement and
the parties agree that the additional wells enumerated in the
Third Amended Complaint were not included. The exclusionary
language in the Settlement is clear and unambiguous. Accordingly,
he finds that Chieftain has shown that there remain outstanding
litigation issues regarding wells beyond those identified in the
Settlement, and, thus, SME's Motion for Summary Judgment should be
denied. Lastly, the Judge finds that since there remains
outstanding litigation between the parties, Chieftain's class
allegations are not moot and SME's Motion on this issue should be
denied as well. Therefore, he denied SME's Motion for Summary
Judgment with Respect to Claims of Named Plaintiff and Motion to
Dismiss Class Action for Mootness.
A full-text copy of the Court's Aug. 29, 2017 Order is available
at https://is.gd/FmwGnw from Leagle.com.
Chieftain Royalty Company, Plaintiff, represented by Bradley Earl
Beckworth, Nix Patterson & Roach LLP.
Chieftain Royalty Company, Plaintiff, represented by David N.
Smith -- dneilsmith@me.com -- Nix, Patterson & Roach LLP, Jeffrey
J. Angelovich, Nix Patterson & Roach LLP, Lisa P. Baldwin, Nix
Patterson & Roach LLP, Michael B. Angelovich, Sr., Nix Patterson &
Roach LLP, Patranell Britten Lewis, Barnes & Lewis LLP, Robert N.
Barnes, Barnes & Lewis LLP, Susan R. Whatley, Nix Patterson &
Roach LLP & Trey N. Duck, III, Nix Patterson & Roach LLP.
SM Energy Company, Defendant, represented by J. Kevin Hayes --
khayes@hallestill.com -- Hall Estill & Pamela S. Anderson --
anderson@hallestill.com -- Hall Estill.
Enervest Energy Institutional Fund XIII-A LP, Defendant,
represented by Mark D. Christiansen --
mark.christiansen@mcafeetaft.com -- McAfee & Taft.
Enervest Energy Institutional Fund XIII-WIB LP, Defendant,
represented by Mark D. Christiansen, McAfee & Taft.
Enervest Energy Institutional Fund XIII-WIC LP, Defendant,
represented by Mark D. Christiansen, McAfee & Taft.
Enervest Operating LLC, Defendant, represented by Mark D.
Christiansen, McAfee & Taft.
Fourpoint Energy LLC, Defendant, represented by Mark D.
Christiansen, McAfee & Taft.
Charles David Nutley, Objector, represented by Charles T. Battle,
Battle Law Firm PLLC, Charles B. Nutley, C Benjamin Nutley
Attorney at Law & John W. Davis, Law Office of John W Davis.
Danny George, Objector, represented by John J. Pentz, Law Office
of John J Pentz & Stephen C. Griffis, The Griffis Law Firm PLLC.
SOUTH DAKOTA: Court Dismisses "Anderson" Suit without Prejudice
---------------------------------------------------------------
In the case captioned TERRY ALLEN ANDERSON, AND ANY AND ALL
PERSONS SIMILAR; Plaintiff, v. D. KAEMINGK, SECRETARY OF
CORRECTIONS AT DEPT. OF CORRECTIONS FOR STATE OF SD, IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY; D. YOUNG, WARDEN AT SIOUX FALLS
PRISON SYSTEM, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; T. PONTO,
ASSOC. WARDEN AT JAMESON ANNEX, IN HIS INDIVIDUAL AND OFFICIAL
CAPACITY; A. ALLCOCK, ASSOC. WARDEN AT SDSP, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; T. MEIROSE, A. MADSEN, O. BERTSCH, (SECTION
MANAGERS); Defendants, No. 4:17-CV-04096-KES (D. S.D.), Judge
Karen E. Schreier of the U.S. District Court for the District of
South Dakota, Southern Division, granted Anderson's motion to
proceed in forma pauperis, denied his motion to appoint counsel,
denied his motion for class certification, and dismissed his
complaint.
Anderson, is an inmate at the South Dakota State Penitentiary in
Sioux Falls. The Plaintiff alleges that he and other similar
persons are subjected to punitive punishment through the "48hr
Awareness Program." He alleges that this program causes physical
and emotional injuries, which lead to colds, flues, and denial of
recreation and showers. Anderson also alleges that while placed
in administrative and segregated housing, inmates are denied
direct access to Inmate Legal Assistance, Inmate Law Library, and
material to bring forth grievance. He alleges these denials have
extended anywhere from 5 days, to 3 years. Anderson further
alleges that the Department of Correction's programs operate with
deliberate indifference to the offender's safety. He alleges that
prisoners, after filing grievances, are placed in double cells, as
opposed to single cells, for the purpose of causing an injury
through assault. Anderson alleges this practice causes physical
and emotional injuries.
Anderson filed a pro se civil rights lawsuit under 42 U.S.C.
Section 1983 and requested leave to proceed in forma pauperis
under 28 U.S.C. Section 1915. He also moves the Court to appoint
him counsel and certify a class.
In his first count, Anderson alleges that the "48hr Awareness
Program" is retaliatory discipline. Judge Schreier finds that
liberally construed, these factual allegations fail to allege a
prima facie retaliation claim. Anderson has not alleged that he
was exercising a constitutional right, nor has he alleged that
such exercise was the motivation for the alleged retaliation.
Absent such allegations, the Judge finds that Anderson's
retaliation claim does not survive initial review under 28 U.S.C.
Section 1915(e)(2)(B). He therefore dismissed Anderson's
retaliation claim.
As to Anderson's claim of deliberate indifference to a prisoner's
serious health care needs, Judge Schreier concludes that Anderson
has not pleaded sufficient facts to show that he has been actually
diagnosed with disc degeneration disease or other disability. Nor
has Anderson pleaded facts tending to show that defendants
actually knew of his condition and deliberately disregarded those
needs. Thus, Anderson's deliberate indifference claim is
dismissed.
With respect to the Defendants' alleged violation of Title II of
the ADA by forcing disabled inmates to sleep on concrete or solid
steel, without proper bedding and clothing, and fed them a sack
lunch containing two sandwiches, the Judge held that Anderson does
not allege that he is disabled. Furthermore, he does not clearly
allege facts sufficient to satisfy the second or third elements.
Therefore, Anderson fails to state a claim against the Defendants
under the ADA. Accordingly, Judge Schreier dismissed this claim.
The Judge further dismissed Anderson's claim that the Defendants
had violated his rights under the First, Eighth, and Fourteenth
Amendments, specifically his right to access to the courts and
grievance process. Anderson does not allege that he has suffered
an actual injury or harm, hence, his access to the courts claim is
dismissed. Anderson does not also allege that he suffered any
deprivation of his right to petition prison staff. Therefore,
Judge Schreier dismissed Anderson's access to the grievance
process.
As to Anderson's complaint alleging that the Defendants violated
the Prison Rape Elimination Act ("PREA") and prison policy, the
Judge dismissed the claim. Courts have found that PREA, does not
create a private right of action enforceable by an individual
civil litigant. Further, Anderson cannot state a claim that
defendants violated prison policy because there is no Section 1983
liability for violating prison policy.
For his moves to appoint him counsel, the Judge explains that a
pro se litigant has no statutory or constitutional right to have
counsel appointed in a civil case. Moreover, Anderson's claims
are not complex, and he appears able to adequately present his
Section 1983 claims at this time. Therefore, his motion is
denied.
After screening Anderson's original complaint and his motion for
class certification, Judge Schreier concludes that it is apparent
that Anderson is incapable of fairly and adequately protecting the
legal interests of his purported class. Anderson has therefore
failed to satisfy two of the four prerequisites to class
certification. Thus, Anderson's motion for certification of a
class is denied.
In sum, Anderson fails to state a claim against the Defendants.
Judge Schreier accordingly dismissed without prejudice Anderson's
claims. Because Anderson is proceeding pro se, Judge Schreir
allowed him until Sept. 29, 2017, to amend his complaint if he
wishes. He granted Anderson's motion for leave to proceed in
forma pauperis Docket 2. The Plaintiff's institution will collect
the additional monthly payments in the manner set forth in 28
U.S.C. Section 1915(b)(2), and will forward those installments to
the Court until the $350 filing fee is paid in full. Anderson
will keep the Court informed of his current address at all times.
All parties are bound by the Federal Rules of Civil Procedure and
by the court's Local Rules while this case is pending. The Judge
directed the clerk of the Court to send a copy of the Order to the
appropriate official at Anderson's institution.
A full-text copy of the Court's Aug. 29, 2017 Order is available
at https://is.gd/OzJviH from Leagle.com.
Terry Allen Anderson, Plaintiff, Pro Se
SPARTON CORP: "Jacobs" Suit Challenges Acquisition by Ultra
-----------------------------------------------------------
HENRY JACOBS, On Behalf of Himself and All Others Similarly
Situated v. SPARTON CORPORATION, JOSEPH J. HARTNETT, ALAN L.
BAZAAR, JAMES D. FAST, JOHN A. JANITZ, CHARLES R. KUMMETH, DAVID
P. MOLFENTER, JAMES R. SWARTWOUT and FRANK A. WILSON, Case No.
1:17-cv-01731 (N.D. Ohio, August 17, 2017), seeks to enjoin the
vote on a proposed transaction, pursuant to which Sparton will be
acquired by Ultra Electronics Holdings plc through its indirect
wholly owned subsidiary, Ultra Electronics Aneira Inc. ("Merger
Sub").
On July 7, 2017, Sparton and Ultra issued a joint press release
announcing that they had entered into an Agreement and Plan of
Merger to sell Sparton to Ultra. Under the terms of the Merger
Agreement, Ultra will acquire all outstanding shares of Sparton
for $23.50 in cash per Sparton common share. The Proposed
Transaction is valued at approximately $235 million.
Sparton is an Ohio corporation with its principal executive
offices located at in Schaumburg, Illinois. The Individual
Defendants are directors and officers of the Company. Sparton
designs, develops, and manufactures complex electronics and
electrochemical devices. The Company serves the Medical &
Biotechnology, Military & Aerospace and Industrial & Commercial
markets.
Ultra is a company organized under the laws of England and Wales
with its principal executive offices located in Middlesex, UK.
Ultra is an international defense, security, transport and energy
company. Merger Sub is an Ohio corporation and an indirect wholly
owned subsidiary of Ultra.[BN]
The Plaintiff is represented by:
John C. Camillus, Esq.
LAW OFFICE OF JOHN C. CAMILLUS, LLC
P.O. Box 141410
Columbus, OH 43214
Telephone: (614) 558-7254
Facsimile: (614) 559-6731
E-mail: jcamillus@camilluslaw.com
- and -
Richard A. Acocelli, Esq.
Michael A. Rogovin, Esq.
Kelly C. Keenan, Esq.
WEISSLAW LLP
1500 Broadway, 16th Floor
New York, NY 10036
Telephone: (212) 682-3025
Facsimile: (212) 682-3010
E-mail: racocelli@weisslawllp.com
mrogovin@weisslawllp.com
kkeenan@weisslawllp.com
SPOTIFY: Fights Copyright Infringement Class Action
---------------------------------------------------
Erik Gardner, writing for Billboard Biz, reports that Spotify,
facing a lawsuit claiming "staggering" copyright infringement, is
attempting to distinguish itself from illegal file sharing
services of yore and putting an issue front and center that will
likely command notice throughout the entertainment and tech
sectors. Namely, in court papers filed on August 30, Spotify
argues that "streaming" implicates neither reproduction nor
distribution rights under copyright law.
Bob Gaudio, a songwriter and founding member of the group Frankie
Valli and the Four Seasons, is suing Spotify in the wake of the
company's proposed $43 million settlement in a class action. In
Gaudio's lawsuit, that settlement is called an "empty gesture that
encourages infringement and is entirely insufficient to remedy
years of illegal activity."
Spotify licenses sound recordings from record labels and also has
blanket licenses from the likes of ASCAP and BMI so that it may
publicly perform musical compositions.
What Gaudio's lawsuit alleges -- as did the prior class action --
is Spotify violating the reproduction rights of publishers and
songwriters. Those making a mechanical reproduction of a musical
composition can obtain a compulsory license and bypass having to
negotiate terms with publishers. However, those doing so have to
follow certain protocol like sending out notices and making
payments. The lawsuit claims that Spotify hasn't done an adequate
job of doing this.
In the past, Spotify has pointed to the difficulty of locating the
co-authors of each of the tens of millions of copyrighted musical
works it streams. It fought the class action mainly on
jurisdictional grounds as well as challenging whether the lawsuits
were ripe for class treatment.
But Spotify seems prepared to go another step and set off a legal
firestorm by now challenging what rights are truly implicated by
streaming.
"Plaintiffs allege that Spotify 'reproduce[s]' and 'distribute[s]'
Plaintiffs' works, thereby facilely checking the boxes to plead an
infringement of the reproduction and distribution rights," states
a Spotify motion for a more definitive statement from the
plaintiffs. "But Plaintiffs leave Spotify guessing as to what
activity Plaintiffs actually believe entails 'reproduction' or
'distribution.' The only activity of Spotify's that Plaintiffs
identify as infringing is its 'streaming' of sound recordings
embodying Plaintiffs' copyrighted musical compositions. But
'streaming' -- by its very definition -- cannot infringe upon
either the reproduction right under 17 U.S.C. Sec 106(1) or the
distribution right under 17 U.S.C. Sec 106(3). As a consequence,
Plaintiffs' allegations simply do not inform Spotify how Spotify
is alleged to have violated the law."
Spotify rejects the proposition it is the new Napster.
"Spotify bears no resemblance to Napster," its lawyers write.
"[I]t is likewise wholly unlike any other 'primitive illegal file
sharing company' (i.e., Napster, Scour, Aimster, Audiogalaxy,
Morpheus, Grokster, Kazaa, iMesh, and LimeWire). Its business
practices bear no resemblance to those piratical and unlawful
peer-to-peer networks. Nor does its technology."
Adds Spotify, "In fact, courts have acknowledged a key distinction
between streaming and downloading -- like the downloading
facilitated by the 'illegal file sharing companies' that
Plaintiffs reference in their Complaint... If a service enables
users to download a song, then that service engages in the
'reproduction and distribution of a sound recording' and of the
musical composition that sound recording embodies. But if the
service streams a song, then the stream is an 'isolated public
performance of a sound recording,' and of the musical composition
that sound recording embodies."
To be clear, Spotify is acknowledging that it must pay for the
public performance of works. But the argument that streaming
entails no reproduction is likely to be controversial. It also
flies in the face of what Spotify has previously said. For
example, Spotify's head of licensing James Duffett-Smith wrote in
a comment to the U.S. Copyright Office in 2014, "To operate the
Spotify Service, Spotify needs to secure multiple rights from
multiple copyright owners. These rights include, among others, the
right to reproduce sound recordings and the musical works embodied
therein, the right to distribute sound recordings and the musical
works embodied therein, and the right to publicly perform sound
recordings and the musical works embodied therein by means of
digital audio transmissions."
There have been cases that have dealt with some of the issues that
appear to be coming. For example, see the 2nd Circuit's opinion
nearly a decade ago regarding Cablevision's remote-DVR service and
buffer copies of transitory duration. More often than not,
however, copyright holders have asserted violations of
reproduction rights by streaming services with judges gliding past
the issue. For example, the Supreme Court opinion in Aereo focused
more on public performance even though broadcasters had claims
over reproduction rights too. The 9th Circuit affirmed a ruling
that VidAngel's streaming service infringed movie studios'
reproduction rights, but spent most of the discussion on other
issues.
In its brief, Spotify discusses some case law and scholarly work,
and says that if Gaudio is really alleging temporary copying, then
it's prepared to assert a fair use defense.
Spotify, represented by Simpson Thacher attorneys Jeffrey Ostrow,
Esq. -- jostrow@stblaw.com -- and Christopher Sprigman, Esq. --
cspringman@stblaw.com -- and local counsel, is also skeptical
about the timing of the lawsuits.
"A Rule 12(e) motion is particularly appropriate here, where
Plaintiffs' dishonest portrayal of Spotify's (licensed) streaming
service as willful infringement on a 'staggering scale,' and their
failure to specify the conduct that is alleged to infringe, is no
accident," states the brief. "It is, rather, a bid to interfere
with the court-approved settlement in Ferrick. It appears that, by
falsely painting Spotify as a new Napster and by holding out the
prospect of hundreds of millions of dollars in statutory damages,
Plaintiffs and their counsel hope to entice additional class
members to opt out." [GN]
SUNBEAM PRODUCTS: Gorss Motels Amends Bid for Class Certification
-----------------------------------------------------------------
The Plaintiff in the lawsuit styled GORSS MOTELS, INC., a
Connecticut corporation, individually and as the representative of
a class of similarly-situated persons v. SUNBEAM PRODUCTS, INC., a
Delaware corporation, and SYSCO GUEST SUPPLY, LLC, a Delaware
limited liability company, Case No. 3:17-cv-00969-VLB (D. Conn.),
filed with the Court its second amended motion for class
certification.
Gorss Motels moves the Court for an order:
A. taking the Motion under submission and deferring further
activity on it until after the discovery cutoff date to be
set in the Court's upcoming Rule 23 scheduling order, or
alternatively;
B. granting the Plaintiff's motion for class certification
pursuant to Rule 23 of the Federal Rules of Civil
Procedure.
A copy of the Amended Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=beHllTmz
The Plaintiff is represented by:
Ryan M. Kelly, Esq.
ANDERSON + WANCA
3701 Algonquin Road, Suite 500
Rolling Meadows, IL 60008
Telephone: (847) 368-1500
E-mail: rkelly@andersonwanca.com
SUNEDISON SEMICONDUCTOR: "Usenko" Suit Alleges ERISA Violation
--------------------------------------------------------------
ALEXANDER Y. USENKO, derivatively on behalf of the SUNEDISON
SEMICONDUCTOR LTD. RETIREMENT SAVINGS PLAN, Plaintiff, vs.
SUNEDISON SEMICONDUCTOR, LLC, THE INVESTMENT COMMITTEE OF THE
SUNEDISON SEMICONDUCTOR RETIREMENT SAVINGS PLAN, and JOHN DOES 1-
10, Defendants, Case No: 4:17-cv-02227 (E.D. Mo., August 9, 2017),
accuses Defendants of breaching fiduciary duties.
Specifically, Defendants allegedly permitted the Plan to continue
to hold and/or offer SunEdison Stock as an investment option to
Plan participants even after Defendants knew or should have known
that during the Relevant Period -- between July 20, 2015 and April
21, 2016 -- that: (1) SunEdison was in extremely poor financial
condition; and (2) SunEdison faced equally poor long-term
prospects, making it an imprudent retirement investment for the
Plan. Defendants were empowered, as fiduciaries, to remove
SunEdison Stock as an asset held by the Plan, yet they failed to
do that, or to act in any way to protect the interests of the Plan
or its participants, in violation of their legal obligations under
Employee Retirement Income Security Act, says the complaint.
Plaintiff brings the action, in the alternative, as a purported
class action.
SunEdison Semiconductor, LLC operates as a subsidiary of SunEdison
Semiconductor Limited. SunEdison Semiconductor Limited develops,
manufactures, and sells silicon wafers in the United States and
internationally.[BN]
The Plaintiffs is represented by:
Don R. Lolli, Esq.
DYSART TAYLOR COTTER McMONIGLE & MONTEMORE, P.C.
4420 Madison Avenue, Suite 200
Kansas City, MO 64111
Phone: (816) 931-2700
Email: dlolli@DysartTaylor.com
- and -
Robert I. Harwood, Esq.
Daniella Quitt, Esq.
HARWOOD FEFFER LLP
488 Madison Ave., 8th Floor
New York, NY 10022
Phone: 212-935-7400
Email: rharwood@hfesq.com
Email: dquitt@hfesq.com
- and -
Thomas J. McKenna, Esq.
Gregory M. Egleston, Esq.
GAINEY McKENNA & EGLESTON
440 Park Avenue South, 5th Floor
New York, NY 10016
Phone: (212) 983-1300
Email: tjmckenna@gme-law.com
gegleston@gme-law.com
SUPERVALU INC: 8th Circuit Adds to Litigation Uncertainty
---------------------------------------------------------
Alison Frankel, writing for Reuters, reports that U.S. appellate
courts cannot seem to make up their minds about whether data
breach victims have the right to sue in federal court. Some, as
I'll explain, have ruled that the risk of identity theft is
sufficiently concrete to meet constitutional standing
requirements. Others have held that risk to be too speculative to
give breach victims a right to sue. The 8th U.S. Circuit Court of
Appeals weighed in, reviving a class action against SuperValu Inc,
with a whole new appellate interpretation of standing in data
breach litigation.
The 8th Circuit opinion doesn't simply deepen the split amongst
the circuits but digs a new trench. The decision adds to ongoing
appellate uncertainty about standing in data breach litigation,
just as the defendant in a recently decided data breach case in
the District of Columbia moved for a stay so it can bring the
issue to the U.S. Supreme Court.
Until the 8th Circuit ruling, federal appeals courts have focused
on data breach victims' risk of identity theft or credit card
fraud. In a landmark decision in 2015, the 7th Circuit upended
conventional wisdom when it ruled in Remijas v. Neiman Marcus that
the risk alone is substantial enough to grant constitutional
standing to people whose information has been hacked. As Kevin
LaCroix recently detailed at the D&O Diary, the 3rd and 6th
Circuits subsequently reached the same conclusion.
Most recently, the D.C. Circuit held on Aug. 1 that CareFirst
policyholders have standing to sue over a 2014 breach of the
insurer's computers. Hackers allegedly stole data including not
just identifying information about CareFirst subscribers, such as
birthdates and email addresses, but also credit card and social
security numbers. The appeals court said the theft gave rise to a
substantial risk for breach victims, "simply by virtue of the hack
and the nature of the data that the plaintiffs allege was taken."
The 2nd and 4th Circuits, however, have both ruled this year that
the risk is not sufficiently imminent or concrete to meet the
tests the Supreme Court laid out in 2013's Clapper v. Amnesty
International and 2016's Spokeo v. Robins. The 2nd Circuit's
decision in Whalen v. Michaels Stores is just a summary order, but
the 4th Circuit's published opinion in Beck v. McDonald concluded
that the link between data theft and potential harm to people
whose information was stolen is too attenuated to establish
standing.
The 8th Circuit actually agreed with that reasoning in the
SuperValu decision, written by Judge Jane Kelly for a panel that
also included Judges Lavenski Smith and Steven Colloton. The
SuperValu breach did not expose social security numbers,
birthdates or driver's license numbers, the court said. Without
that information, the court concluded, it's unlikely that hackers
could steal victims' identities, so plaintiffs in the class action
could not rely on the risk of imminent harm to establish their
right to sue.
But one of the named plaintiffs in the case claimed that after the
data breach, someone used his credit card to make an unauthorized
purchase -- and the 8th Circuit said his allegation of misuse was
a concrete injury that met constitutional standing requirements
for the class action. SuperValu's lawyers at Ropes & Gray argued
there was no evidence the supposedly unauthorized purchase was the
result of the SuperValu hack, but the 8th Circuit said the
allegation is enough to establish standing. Causation arguments,
the opinion said, are more appropriate for a dismissal motion.
By holding that a supposedly unauthorized use of a data breach
victim's information establishes standing regardless of whether
that use was actually the result to the breach, the 8th Circuit
seems to me to have opened a new door for data breach class
actions. (SuperValu lawyer Harvey Wolkoff of Ropes & Gray declined
to comment.)
So far, according to Westlaw records, the Supreme Court has
considered only one data breach petition, from the 4th Circuit
case I mentioned above. The justices denied review last June. But
based on a motion in the CareFirst case at the D.C. Circuit, the
court will have another chance to consider standing in data breach
class actions in the upcoming terms.
CareFirst's lawyers at Eversheds Sutherland asked the appeals
court to stay its mandate reviving the policyholders' class action
for 90 days so the insurer can file a petition for Supreme Court
review. Its motion argued there's a good likelihood the Supreme
Court will take the case "to guide courts in sorting out the
claims of truly injured victims of data breaches from those who
file class actions without being able to allege that any harm is
real or immediate."
The stakes are going up in cyber breach cases. Anthem agreed in
June to pay a record $115 million to settle a class action in
federal court in San Jose. The judge who presided over the Anthem
case, U.S. District Judge Lucy Koh refused to dismiss gargantuan
consolidated data breach class actions against Yahoo. As cyber
attacks proliferate, the threshold issue of standing becomes ever
more important -- and sooner than later, the Supreme Court is
going to have to get involved. [GN]
SYNERGY ENTERPRISES: "Tshiteya" Suit Invokes FLSA, Md. Wage Laws
----------------------------------------------------------------
JOLEARRA TSHITEYA, 1949 Alabama Ave SE Washington, D.C. 20020
Resident of Washington, D.C. Plaintiff, individually and on behalf
of all similarly situated employees, v. SYNERGY ENTERPRISES, INC.,
8757 Georgia Avenue, Suite 1440 Silver Spring, MD 20910, Serve:
Prachee Jakatdar Devadas, R.A. 11233 Greenbriar Preserve Lane
Potomac, MD 20854, Defendant, Case No: 8:17-cv-02272-TDC (D. Md.,
August 9, 2017), alleges that Defendant failed to properly
compensate Plaintiff and others similarly situated for their work.
The complaint says Defendant routinely denied Plaintiff and other
coordinators overtime compensation. Overtime pay should have
resulted from Plaintiff and others similarly situated working
through their meal breaks and after their scheduled shifts. It was
Defendant's practice to discourage its employees from recording
all of their work hours. Defendant's practice deprived Plaintiff
and others similarly situated of their wages, it adds.
The case alleges violations of the Fair Labor Standards Act, the
Maryland Wage and Hour Law and Maryland Wage Payment and
Collection Law.
Defendant is in the business of logistical consulting. It serves
government agencies and clients in the private sector. Plaintiff
and others similarly situated were given the title of logistics
coordinator. Their duties centered on administrative work.[BN]
The Plaintiffs is represented by:
Benjamin L. Davis, III, Esq.
George E. Swegman, ESq.
THE LAW OFFICES OF PETER T. NICHOLL
36 South Charles Street, Suite 1700
Baltimore, MD 21201
Phone: (410) 244-7005
Fax: (410) 244-8454
Email: bdavis@nicholllaw.com
Email: gswegman@nicholllaw.com
TDJ OILFIELD: "Barnhill" Suit to Recover Unpaid Overtime
--------------------------------------------------------
Cory Barnhill, Individually and on behalf of all others similarly
situated vs. TDJ Oilfield Services, LLC and Joey Moore, Case No.
7:17-cv-00160, (W.D. Tex., August 18, 2017), seeks monetary
damages, liquidated damages, prejudgment interest, civil penalties
and costs, including reasonable attorneys' fees under the Fair
Labor Standards Act.
TDJ Oilfield Services, LLC provides products and services in the
oil and gas industry that involves fracking. TDJ's principal
address is 5857 U.S. 80, Princeton, Louisiana 71037, with business
locations in Odessa and San Antonio, Texas.
Plaintiff was employed by Defendants as an Oil Field Worker at
their San Antonio, Texas location. Barnhill was misclassified as a
salaried employee and paid a flat weekly rate with no overtime.
[BN]
Plaintiff is represented by:
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
One Financial Center
650 South Shackleford, Suite 411
Little Rock, AR 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
Email: josh@sanfordlawfirm.com
TIMEPAYMENT CORP: Faces "Martell" Suit Over Failure to Pay OT
-------------------------------------------------------------
Meghan Martell, on behalf of herself and all others similarly
situated v. Timepayment Corp., Richard Latour, and Does 1 to 10,
Case No. 1:17-cv-11610 (D. Mass., August 28, 2017), is brought
against the Defendants for failure to pay overtime wages in
violation of the Fair Labor Standards Act.
The Defendants operate an equipment leasing company that
specializes in leasing equipment to small companies. [BN]
The Plaintiff is represented by:
Josh Gardner, Esq.
Nicholas J. Rosenberg, Esq.
GARDNER & ROSENBERG P.C.
One State Street, Fourth Floor
Boston, MA 02109
Telephone: (617) 390-7570
E-mail: josh@gardnerrosenberg.com
TRG CUSTOMER: Court Defers Ruling on Class Certification Bid
------------------------------------------------------------
The United States District Court, Middle District of Tennessee,
Columbia Division, issued a Memorandum saying the court will defer
ruling on the Motion to Certify and direct the parties to file a
joint status report in the case captioned MYLEE MYERS,
individually and on behalf of all others similarly situated,
Plaintiff, v. TRG CUSTOMER SOLUTIONS, INC. d/b/a IBEX GLOBAL
SOLUTIONS, Defendant, Case No. 1:17-cv-00052 (M.D. Tenn.).
Plaintiff Mylee Myers brings this action under the Fair Labor
Standards Act (FLSA), individually and on behalf of all similarly
situated current and former employees of the defendant, TRG
Customer Solutions, Inc., doing business as IBEX Global Solutions
(IBEX).
Myers filed her Motion to Certify on June 2, 2017, seeking to
certify a collective action class defined as:
"All current and former hourly-paid, FLSA non-exempt call
center workers at Defendant's United States call centers who have
worked in positions in which employees handle telephone calls on
behalf of IBEX clients (for example, AT&T, Apple, DirecTV, etc.),
including without limitation current and former employees who
provide or provided customer service and/or technical support."
Myers avers that she received a notice in the mail about her right
to join Andrews, and she brought the notice with her to work. She
was told by senior management in the Operations Department and
Human Resources Department not to join the Andrews case. She saw
the same senior management discouraging other employees from
joining the case. She states that she was intimidated and,
therefore, did not join the Andrews case.
Eventually, she did contact the lawyers representing the Andrews
plaintiffs but was told that it was too late to opt into that
case. She states that she wishes to pursue claims on her own
behalf and on behalf of other IBEX employees who were dissuaded
from joining the Andrews case or were otherwise unable to join.
She is aware of "many other IBEX workers who want to pursue their
claims in this lawsuit.
The motion has been fully briefed and is ripe for review. The
court finds, however, that the question of whether the plaintiffs'
claims must be arbitrated individually is a threshold question
which, in the interest of preserving party and court resources,
should be resolved before the court addresses whether conditional
certification is warranted.
In addition, the court is also aware that, in the related case,
Andrews v. TRG Customer Solutions, No. 1:14-cv-00135 (M.D. Tenn.),
the parties successfully avoided litigating the issues of (1)
whether arbitration agreements signed by the plaintiffs were
enforceable and (2) whether the arbitration agreements precluded
collective action by agreeing to collective action arbitration.
The parties are strongly encouraged to engage in discussions to
determine whether a similar agreed resolution is feasible in this
case.
Accordingly, the court will defer ruling on the Motion to Certify
and direct the parties to submit a joint status report to notify
the court of any progress regarding the discussions.
A full-text copy of the District Court's August 24, 2017
Memorandum is available at http://tinyurl.com/ycxl952ufrom
Leagle.com.
Mylee Myers, Plaintiff, represented by Charles P. Yezbak, III,
Yezbak Law Offices, 2002 Richard Jones Road B200, Nashville, TN
37215
Mylee Myers, Plaintiff, represented by David W. Garrison -
dgarrison@barrettjohnston.com - Barrett Johnston Martin &
Garrison, LLC, John L. Mays, Poole Huffman LLC, Joshua A. Frank -
jfrank@barrettjohnston.com - Barrett Johnston Martin & Garrison,
LLC, Scott P. Tift - stift@barrettjohnston.com - Barrett Johnston
Martin & Garrison, LLC & Seth Marcus Hyatt -
shyatt@barrettjohnston.com - Barrett Johnston Martin & Garrison,
LLC.
TRG Customer Solutions, Inc., Defendant, represented by Amanda E.
Colvin - Amanda.colvin@bryancave.com - Bryan Cave, LLP,
Christopher P. Galanek - chris.galanek@bryancave.com - Bryan Cave,
LLP, Daniel M. O'Keefe - dmokeefe@bryancave.com - Bryan Cave, LLP,
James Craig Oliver, Bradley Arant Boult Cummings LLP, , John P.
Rodgers, Bradley Arant Boult Cummings LLP & Matthew C. Lonergan,
Bradley Arant Boult Cummings LLP, 1600 Division St Ste 700, Po Box
340025, Nashville, TN, 37203-277
TRIPLE J PRODUCE: Court Grants Cy Pres Distribution in Wage Suit
----------------------------------------------------------------
The United States District Court for the Eastern District of North
Carolina, Southern Division, issued an Order granting in part
Plaintiff's motion for cy pres distribution in the case captioned
MANUEL MATEO-EVANGELIO, JAIME TREJO-CARDONA, GILBERTO CERVANTES-
VEGA, REYNALDO VILLALOBOS-MARTINEZ, EMILIO REYES, MARIA DE LOS
ANGELES GONZALEZ-ROMAN, RAMIRO CERVANTES-VEGA, FRANCISCO CARMELO
MATIAS-CASTRO, PABLO GONZALEZ-ROMAN, BENIGNO VILLA-GOMEZ, and
SERGIO NARCISO LOPEZ-JUAREZ, Plaintiffs, v. TRIPLE J PRODUCE,
INC.; HOCUTT BROTHERS, INC.; HOCUTT FARMS, INC., JUDY HOCUTT; JOEY
M. HOCUTT; JAMES MICHAEL HOCUTT; and M. JAY HOCUTT, Defendants,
No. 7:14-CV-302-FL (E.D.N.C.), and Defendant's motion for
reversion is denied.
The first two named plaintiffs in this action filed suit asserting
violations of federal and state fair labor standards laws, based
on alleged conduct by defendants in not paying properly wages for
overtime work packaging sweet potatoes and other agricultural
commodities. Plaintiffs amended their complaint several times,
with a third amended complaint brought by all of the plaintiffs
against the settling defendants, asserting the following claims,
inter alia:
-- Two class action claims for failure to pay the promised wage
under the North Carolina Wage and Hour Act (NCWHA), N.C. Gen.
Stat. Sections 95-25.1 et seq.
-- One collective action claim for minimum wage and overtime
violations under the Fair Labor Standards Act (FLSA), 29 U.S.C.
Sections 201 et seq. (except plaintiff Sergio Narciso Lopez-
Juarez).
-- One class action claim failure to pay sufficient wages in
violation of the Migrant and Seasonal Agricultural Worker
Protection Act (AWPA). 29 U.S.C. Sections 1801, et seq.
-- Individual claims for wrongful discharge by plaintiff Jaime
Trejo-Cardona and for retaliation by nine of eleven named
plaintiffs.
The court granted final approval of the settlement and final class
notice.
The instant motions ask the court to determine the recipient for
any unclaimed NCHWA, FLSA, and AWPA funds.
Regarding reversion, the settlement agreement provides: "Except
with respect to the Sergio class identified in paragraph 3 of the
settlement agreement, the parties agree that the Court will decide
the recipients of all unclaimed settlement funds. As to the Sergio
class, the Parties stipulate that no defendant is eligible to be
the recipient of any unclaimed settlement funds for the members
of the Sergio class."
As a preliminary matter, the court notes that the parties disputed
in the course of argument and briefing whether any remaining NCWHA
and FLSA settlement funds should be reverted to defendants or
whether the court should first reallocate remaining NCWHA and FLSA
settlement funds to existing identified class members before
determining reversion.
Those arguments may be rendered moot by provisions of the consent
order designating such funds for payment of Simpluris's fees,
depending on ultimate calculation of such fees. In any event,
provided there are any NCWHA and FLSA settlement funds remaining
after payment of Simpluris's fees, the court rejects both
defendants' and plaintiffs' arguments pertaining to NCWHA an FLSA
settlement funds.
The court rejects defendants' contention that NCWHA and FLSA
settlement funds should revert to defendants, where a cy pres
distribution is more consistent with the purposes of the statutes.
The court also rejects plaintiffs' contention that the court
should reallocate remaining funds to existing identified class
members. The parties did not provide for such reallocation in
their settlement agreement, but rather provided for the court to
decide the recipient of reversion.
Accordingly, to the extent there are any remaining NCWHA and FLSA
settlement funds upon filing of joint final report of the parties,
the court directs that such funds be distributed in the aggregate
with the remaining AWPA funds, upon final accounting of valid
claims, to the cy pres recipient as set forth below. In this part,
with respect to NCWHA and FLSA settlement funds, defendant's
motion for reversion is denied.
In sum, a cy pres recipient in this instance should be an
organization whose interests and purposes align with farmworker
interests in receiving correct wages and disclosures that are the
subject of this lawsuit, and with the purposes of the AWPA in
protecting those interests of farmworkers. Of all the
organizations proposed by the parties and considered by this
court, while none is a perfect match, the court finds SAF,
proposed as an alternative recipient by plaintiffs, to have
interests and purposes closer than the others to the lawsuit,
farmworkers, and the AWPA.
According to the declaration of its executive director, Melinda
Wiggins, Student Action with Farmworkers (SAF) was incorporated in
1992 and is housed at the Center for Documentary Studies at Duke
University. It is a Section 501(c)(3) non-profit organization
whose mission is to bring students and farmworkers together to
learn about each other's lives, share resources and skills,
improve conditions for farmworkers, and build diverse coalitions
working for social change.
Annually, SAF conducts outreach to 5,000 farmworkers and conducts
one presentation each week to congregations, university classes,
and community groups, within North Carolina, including in Wilson
county. SAF would serve as a good steward to cy pres funds to
ensure that the funds are used exclusively to educate and assist
both undocumented and documented farmworkers to exercise their
rights under the FLSA, the AWPA, and the NCWHA. SAF has a long
history of educating farmworkers about their protections under the
AWPA, NCWHA, and FLSA.
Plaintiffs' motion for cy pres distribution is granted and
defendants' motion for reversion is denied. Pursuant to paragraph
five of the settlement agreement in this case, the court direct
that Student Action With Farmworkers (SAF) will be the recipient
of all unclaimed settlement funds.
A full-text copy of the District Court's August 24, 2017 Order is
available at http://tinyurl.com/y7d5udfsfrom Leagle.com.
Manuel Mateo-Evangelio, Plaintiff, represented by Robert J.
Willis, P.O. Box 12695 West Hargett Street, Suite 404, Raleigh, NC
27602
Jaime Trejo-Cardona, Plaintiff, represented by Robert J. Willis.
Gilberto Cervantes-Vega, Plaintiff, represented by Robert J.
Willis.
Reynaldo Villalobos-Martinez, Plaintiff, represented by Robert J.
Willis.
Emilio Reyes, Plaintiff, represented by Robert J. Willis.
Maria de Los Angeles Gonzalez-Roman, Plaintiff, represented by
Robert J. Willis.
Ramiro Cervantes-Vega, Plaintiff, represented by Robert J. Willis.
Francisco Carmelo Matias-Castro, Plaintiff, represented by Robert
J. Willis.
Pablo Gonzalez-Roman, Plaintiff, represented by Robert J. Willis.
Benigno Villa-Gomez, Plaintiff, represented by Robert J. Willis.
Triple J Produce, Inc., Defendant, represented by R. Daniel Boyce,
Nexsen Pruet, PLLC & William H. Floyd, III, Nexsen Pruet, LLC.
4141 Parklake Avenue, Suite 200, Raleigh, NC 27612
Hocutt Brothers, Inc., Defendant, represented by R. Daniel Boyce,
Nexsen Pruet, PLLC & William H. Floyd, III, Nexsen Pruet, LLC.
Judy Hocutt, Defendant, represented by L. Lamar Armstrong, Jr.,
Armstrong & Armstrong & Law Lamar Armstrong, III, The Armstrong
Law Firm, P.A.
Joey M. Hocutt, Defendant, represented by R. Daniel Boyce, Nexsen
Pruet, PLLC & William H. Floyd, III, Nexsen Pruet, LLC.
M. Jay Hocutt, Defendant, represented by R. Daniel Boyce, Nexsen
Pruet, PLLC & William H. Floyd, III, Nexsen Pruet, LLC.
James Michael Hocutt, Defendant, represented by R. Daniel Boyce,
Nexsen Pruet, PLLC & William H. Floyd, III, Nexsen Pruet, LLC.
Hocutt Farms, Inc., Defendant, represented by R. Daniel Boyce,
Nexsen Pruet, PLLC & William H. Floyd, III, Nexsen Pruet, LLC.
UBER: Investor Suit Against Ex-CEO Moved to Arbitration
-------------------------------------------------------
Randall Chase, writing for The Associated Press, reports that a
Delaware judge ruled on Aug. 30 that an investor lawsuit targeting
Uber Technologies' former CEO must be moved to private
arbitration.
The judge granted former CEO Travis Kalanick's request to put the
lawsuit on hold while an arbitrator considers claims raised by
venture capital firm Benchmark Capital Partners.
The ruling came one day after Uber confirmed in a note to
employees of the San Francisco-based ride-hailing company that
former Expedia CEO Dara Khosrowshahi had agreed to become Uber's
new chief executive. Uber's board voted unanimously to offer him
the job on Aug. 27.
Benchmark, which holds more than a third of Uber's preferred stock
voting power, claims Kalanick concealed material information
regarding internal problems and external litigation threats facing
the company last year when investors granted him authority to fill
three new board seats.
Mr. Kalanick has said the lawsuit is a baseless attempt to slander
him with false allegations, and that Benchmark's claims are
subject to mandatory arbitration.
Mr. Kalanick resigned under pressure in June but quickly appointed
himself to one of the three board seats. Benchmark, which says
Mr. Kalanick is attempting to entrench himself on Uber's board and
increase his power over the company "for his own selfish ends," is
trying to prevent him from filling the two other seats.
"I think what we have here is a political battle that belongs in
the boardroom, not the courtroom," Donald Wolfe Jr., an attorney
representing Mr. Kalanick, told Vice Chancellor Sam Glasscock III
at the Aug. 30 hearing.
The dispute involves Mr. Kalanick's successful effort last year to
expand Uber's board from eight members to 11 members, with
authority given to him to designate the individuals who would fill
the three new board seats. The change required an amendment to an
existing voting rights agreement among Mr. Kalanick, Benchmark and
other investors, as well as an amendment to Uber's certificate of
incorporation.
Benchmark said it would not have voted to create the new board
seats had it known about the information they said Mr. Kalanick
concealed, including his "gross mismanagement and other
misconduct."
"Knowing what we know now, we never would have agreed to give him
that influence and dilute our board position," Benchmark attorney
Gregory Joseph argued on Aug. 30.
The key issue for the judge was whether a mandatory arbitration
provision in the voting rights agreement extended more broadly to
the related change in the company's certificate of incorporation.
Mr. Glasscock concluded that the change in the certificate of
incorporation was done to facilitate the voting agreement, and
that Mr. Kalanick had put forth a nonfrivolous argument that the
two documents were sufficiently intertwined to make the
arbitration clause apply.
The judge nevertheless agreed only to stay the lawsuit, not
dismiss it. Mr. Glasscock noted that he may have to revisit the
dispute if stockholders who are not subject to the voting
agreement and therefore unable to intervene in the arbitration
come forward and seek to enforce their rights under the company's
corporate charter.
Benchmark says Mr. Kalanick knew, but failed to disclose, that
Uber might be accused of stealing trade secrets from a Google
spin-off, Waymo, to build self-driving cars. Waymo sued Uber
earlier this year. More broadly, Benchmark has accused Kalanick
of allowing a pervasive culture of sexism, discrimination and
harassment to fester at Uber, which led to the company retaining
former attorney general Eric Holder and his law firm to conduct an
internal investigation of Uber's workplace culture. Among the
recommendations included in Mr. Holder's report, which was
released in June, was reallocating Mr. Kalanick's
responsibilities.
Other board members and investors have criticized Benchmark's
decision to sue Mr. Kalanick.
"This was a bilateral dispute between Benchmark and Travis
Kalanick and it should never have been brought in the court," said
Shervin Pishevar, an early investor in Uber who intervened in the
lawsuit, accusing Benchmark of unscrupulously trying to gain
control of Uber at the expense of other investors. "We continue
to believe that Benchmark filed this to vilify Travis Kalanick in
the court of public opinion." [GN]
UNITED STATES: ICE Abusing Clients Due to Involvement in Suit
-------------------------------------------------------------
Emma Niles, writing for Truth Dig, reports that the American Civil
Liberties Union is alleging that its clients are facing "a series
of abuses" at the hands of Immigration and Customs Enforcement
(ICE), purportedly due to the detainees' involvement in an ACLU
class-action lawsuit.
In a blog post on August 31, the ACLU's Rebecca Wallace, Sara Neel
and Arash Jahanian explain how detained Iraqi men, clients of the
ACLU, "have been singled out and denied food, water, and access to
the restroom."
"One man, who came to the United States as a refugee in 1976,
reflected that if he goes back to Iraq, he will be tortured and
killed. Still, he feels that his experiences at the hands of ICE
are 'a different way of torture,' " the blog states. "ICE guards
in Arizona and Colorado have openly pressured Iraqi nationals to
sign away their right to fight their immigration cases. Some
guards told the detainees that their situations were hopeless and
urged them to sign forms agreeing to voluntary deportation,
without counsel present."
The "brave men" the ACLU cites in the blog are participants in a
class-action lawsuit against the Trump administration.
"In March, Trump struck a deal with the Iraqi government: If that
government accepted individuals deported from the United States,
he would omit Iraq from the list of six Muslim-majority countries
banned from traveling to the U.S.," the ACLU notes. "In May, ICE
began making mass arrests of Iraqis with open removal orders with
the intent to deport them immediately."
But in July, the ACLU's Iraqi clients secured a stay of this order
from a federal judge.
"The judge said the court needed additional time to determine
whether the court has jurisdiction over the case in the first
place, according to court documents," CNN explains. It continues:
Shortly after the initial stay was granted, the ACLU asked to
expand the class-action lawsuit to cover all Iraqi nationals in
the US with final orders of removal for deportation. The judge
granted their request, expanding the temporary stay on June 26 to
cover this group of 1,444 Iraqi nationals on June 26. Eighty-five
of them face deportation when the stay is lifted, according to
court documents.
While the stay is in place, Iraqi nationals, both those being held
in detention centers and those still going about their normal
lives but who have final orders of removal, are able to take their
case before an immigration court judge and argue why they believe
they should be allowed to stay in the U.S.
Many of those detained are Chaldean Christians, a religious and
ethnic minority, as well as Iraqi Kurds. Both groups would face
extreme persecution if sent back to Iraq. On top of this, all of
the men fear violence from Islamic State because they have now
spent time living in the United States.
"Since the court's ruling, ICE appears to have ramped up its
efforts to make the lives of Iraqis in custody so unbearable that
they will 'voluntarily' sign away their rights to reopen their
immigration cases or pursue asylum," the ACLU writes. "It is
tragic that these individuals, who fear persecution in Iraq
because of their religion and connection to America, are now being
persecuted by agents of the United States government."
At a court hearing in Detroit on August 31, lawyers for the
detained Iraqis asked Judge Mark Goldsmith to order ICE to stop
threatening the detainees. Miriam Aukerman, a lawyer with the ACLU
of Michigan, told Goldsmith that Iraqi detainees are feeling
pressured "to give up their rights."
"In a status report filed with the court, attorneys wrote of what
they called 'coercive effects of detention.' It says that some of
the detainees are being 'abused or harassed . . . told that they
will suffer in prolonged detention if they get a lawyer,' " the
Detroit Free Press reports. " 'ICE employees, contractors, and
agents . . . are misrepresenting this litigation and the
detainees' rights' when interacting with the Iraqi detainees, the
report said."
This is not the first time ICE has been accused of psychologically
and physically abusing detainees. The ACLU reported that ICE has
asked for the destruction of "11 kinds of records, including those
related to sexual assaults, solitary confinement and even deaths
of people in its custody."
"Many of the records that ICE proposes for destruction offer proof
of the mistreatment endured by people in detention," the ACLU
says. "Given the Trump administration's plans to increase the size
and scope of the system substantially, it is all the more
disturbing that the agency wants to reduce transparency and
accountability." [GN]
UNITED STATES: People Denied Entry Under Travel Ban Can Reapply
---------------------------------------------------------------
Margaret Hartmann, writing for New York Mah, reports that the case
that halted President Trump's initial travel ban less than two
days after he signed the executive order has been settled, and
under the terms, those blocked from entering the U.S. will get a
chance to reapply for visas.
Shortly after the ban -- which temporarily blocked refugees and
people from seven Muslim-majority countries from entering the U.S.
-- sparked protests at airports nationwide, President Trump
claimed on Twitter that "Only 109 people out of 325,000 were
detained and held for questioning." Documents newly obtained by
the American Civil Liberties Union show there were actually 2,000
detained during the 26.5 hours the order was in effect, from
January 28 to January 29. Roughly 140 were denied entry and sent
back to their country of origin.
Two Iraqi nationals, Hameed Khalid Darweesh and Haider Sameer
Abdulkhaleq Alshawi, filed a lawsuit after being detained a JFK
Airport, and the next day a federal judge issued a temporary
injunction. Because it was a class-action suit, the injunction
prevented the order from being enforced across the country.
The case was quietly settled in a Brooklyn courtroom. Under the
terms, the federal government must send a letter to every person
who was blocked from entering the country due to Trump's executive
order, notifying them that they're eligible to reapply for a visa.
There's no guarantee that applicants will be admitted, but the
Department of Justice will designate a liaison to review their
applications for the next three months, using the normal criteria
for admission.
The Justice Department said in a statement, "Although this case
has been moot since March, when the president rescinded the
original executive order and issued a new one that does not
restrict the entry of Iraqi nationals, the U.S. government has
elected to settle this case on favorable terms."
Parts of President Trump's revised travel ban were allowed to go
into effect in June, and the Supreme Court will hear oral
arguments on the case in October.
"I'm glad that the lawsuit is over," Darweesh said of the class-
action suit. "Me and my family are safe; my kids go to school; we
can now live a normal life. I suffered back home, but I have my
rights now. I'm a human." [GN]
VAL-U CAR: Faces "Yates" Suit Alleging Non-payment of OT Work
-------------------------------------------------------------
CHRISTOPHER YATES, on behalf of himself and others similarly
situated, Plaintiff, v. VAL-U CAR OF GAINESVILLE, INC. Defendant,
Case No: 1:17-cv-00207-MW-GRJ (N.D. Fla., August 9, 2017), alleges
that despite performing work that is not within the Fair Labor
Standards Act's exemption from overtime pay, Defendant paid
Plaintiff a salary of between $500 and $600 per week. Plaintiff
routinely worked between 50 and 60 hours per week, but he received
no additional compensation for any hours worked beyond the 40th.
Defendant operates a store. Defendant hired PLAINTIFF to perform
a variety of tasks, including detailing cars, cleaning bathrooms,
mopping floors, taking out trash and washing windows.[BN]
The Plaintiffs is represented by:
Matthew W. Birk, Esq.
THE LAW OFFICE OF MATTHEW BIRK
309 NE 1st Street
Gainesville, FL 32601
Phone: (352) 244-2069
Fax: (352) 372-3464
Email: mbirk@gainesvilleemploymentlaw.com
WEBLOYALTY.COM INC: Court Allows Additional Affirmative Defenses
----------------------------------------------------------------
The United States District Court for the District of Connecticut
issued an Order granting Defendants' Motion to Amend/Correct their
Answer in the case captioned L.S., a minor, by P.S., his parent
and next friend, on behalf of himself and all others similarly
situated, Plaintiff, v. WEBLOYALTY.COM, INC., GAMESTOP
CORPORATION, and VISA INC., Defendants, No. 3:10-CV-1372 (CSH)(D.
Conn.).
Before the Court is Defendants' Motion to Amend/Correct], which
seeks to add two additional affirmative defenses namely, release
and statute of limitations to Defendants' Answer.
Plaintiff argues that Defendants' proposed motion for judgment on
the pleadings Represented that the pleadings were closed, casting
doubt on the good faith of Defendants in bringing the instant
Motion to re-open the pleadings.
The Court is not convinced by this line of reasoning, nor by the
cases Plaintiff cites to support it. The bare facts do not suggest
bad faith by any objective standard. Defendants, by the Amended
Rule 26(f) Report, notified Plaintiff and the Court of their
intention to file a dispositive motion at a future point in this
litigation.
The Court is likewise unconvinced by Plaintiff's contention that
the instant Motion moots Defendant's proposed motion for judgment
on the pleadings. The cases Plaintiff cites for this proposition
all concern extant motions for judgment on the pleadings, pending
on the docket when motions for leave to amend the pleadings were
decided.
Plaintiff also objects to the proposed amendments on the grounds
that Defendants' conduct is prejudicial to Plaintiff.
Plaintiff has not established that the proposed amended answer
would result in undue prejudice, as defined by the Second Circuit.
Plaintiff is free to renew his arguments against Defendants'
conduct in future filings and at trial, but the instant Motion is
not a referendum on Defendants' general conduct in this matter it
is a determination as to whether any of the very limited
circumstances enumerated by Foman exist, so as to frustrate
amendment.
Plaintiff has failed to demonstrate that allowing the proposed
amendments will result in undue prejudice.
The standard for judging the futility of a proposed amendment to
the pleadings is most often phrased in the context of a motion for
leave to amend the complaint, where, an amendment is considered
'futile' if the amended pleading fails to state a claim or would
be subject to a successful motion to dismiss on some other basis.
In the Second Circuit, an affirmative defense may be deemed
'futile' where it is either clearly 'meritless' based on the well-
pleaded factual allegations contained within the pleadings or
would have no impact on the outcome of the action itself.
Furthermore, as this Court has previously stated, a party opposing
a motion for leave to amend has the burden of proving that such
amendment is futile. The Court will examine Defendants' proposed
additional affirmative defenses to determine whether they meet
this low standard.
While the propriety and significance of the purported releases is
obviously in dispute, the Court is convinced by that very dispute,
and the legal authority cited by each side, that Defendants'
proposed release defense is colorable not futile. At this stage of
the litigation, governed by Rule 15, the Court expresses no
opinion concerning the merits of the movants' proposed release
defense, or the arguments Plaintiff marshals against that defense.
Plaintiff has cited no authority that compels the Court to deny
leave to add this affirmative defense, and so leave will be
granted.
Plaintiff asserts that Defendants' proposed affirmative defense of
statute of limitations would be futile. Defendants propose this
defense only as to the remaining federal claim under the
Electronic Funds Transfer Act (EFTA) which might be brought by
possible members of the class Plaintiff seeks to represent not as
to Plaintiff himself.
The filing of a class action lawsuit tolls the statute of
limitations for members of the class. American Pipe & Const. Co.
v. Utah, 414 U.S. 538 (1974).
The Court expresses no view as to the persuasiveness of the
Parties' conflicting arguments on the proper application of the
American Pipe line of cases and the consequent tolling of
limitations with respect to the class claims raised by this case.
It is sufficient, at this stage in the proceedings, to conclude,
as the Court does, that Defendants' proposed additional
affirmative defense of statute of limitations is colorable and not
frivolous.
As the Court finds that defense to be so colorable, leave to amend
as to this defense will be granted.
For these reasons, the Motion of Defendants to Amend/Correct their
Answer is granted.
A full-text copy of the District Court's August 24, 2017 Order is
available at http://tinyurl.com/ybhml2gmfrom Leagle.com.
L. S., Plaintiff, represented by David C. Katz -
dkatz@weisslawllp.com -WeissLaw LLP, pro hac vice.
L. S., Plaintiff, represented by James E. Miller -
jmiller@sfmslaw.com - Shepherd, Finkelman, Miller & Shah, LLP &
Laurie Rubinow, Sheperd Finkelman Miller & Shah, LLP.
Webloyalty.Com, Inc., Defendant, represented by James T. Fawcett -
james.fawcett@wilmerhale.com - Wilmer, Cutler, Pickering, Hale &
Dorr, LLP, James E. Nealon - james.nealon@withersworldwide.com -
Withers Bergman, LLP, Jessica R. Lisak -
essica.lisak@wilmerhale.com - Wilmer Cutler Pickering Hale & Dorr,
pro hac vice, John J. Butt -, john.butts@wilmerhale.com - Wilmer
Cutler Pickering Hale & Dorr, pro hac vice & John J. Regan -
john.regan@wilmerhale.com - Wilmer Cutler Pickering Hale & Dorr,
pro hac vice.
Visa Inc., Defendant, represented by Jonathan B. Orleans -
jborleans@pullcom.com - Pullman & Comley, Matthew A. Eisenstein -
matthew.eisenstein@apks.com - Arnold & Porter, pro hac vice &
Robert C. Mason - Robert.mason@apks.com - Arnold & Porter Kaye
Scholer LLP, pro hac vice.
GameStop Corporation, Defendant, represented by James E. Nealon,
Withers Bergman, LLP, Jessica R. Lisak, Wilmer Cutler Pickering
Hale & Dorr, pro hac vice & James T. Fawcett -
james.fawcett@wilmerhale.com - Wilmer, Cutler, Pickering, Hale &
Dorr, LLP.
WELLS FARGO: Faces "Muniz" Suit Over Rate Lock Extension Fees
-------------------------------------------------------------
Victor Muniz, individually and on behalf of all others similarly
situated v. Wells Fargo & Company, Wells Fargo Bank, N.A., and
Wells Fargo Home Mortgage, Case No. 3:17-cv-04995 (N.D. Cal.,
August 28, 2017), is brought on behalf of all persons who obtained
a Wells Fargo mortgage, including a refinance, for a residential
property and were charged one or more fees to extend a mortgage
interest rate lock period ("Rate Lock Extension Fees") based on
Wells Fargo's practice of delaying loan approval and charging
customers Rate Lock Extension Fees.
The Defendants operate a financial services company that provides
banking, insurance, investments, mortgage, and consumer and
commercial finance through more than 8,500 locations,
13,000 ATMs, the internet and mobile banking, and has offices in
42 countries and territories. [BN]
The Plaintiff is represented by:
Matthew J. Preusch, Esq.
KELLER ROHRBACK L.L.P.
801 Garden Street, Suite 301
Santa Barbara, CA 93101
Telephone: (805) 456-1496
Facsimile: (805) 456-1497
E-mail: mpreusch@kellerrohrback.com
- and -
Derek Loeser, Esq.
Gretchen Freeman Cappio, Esq.
KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200
Seattle, WA 98101-3052
Telephone: (206) 623-1900
Facsimile: (206) 623-3384
E-mail: dloeser@kellerrohrback.com
gcappio@kellerrohrback.com
WRIGLEY CO: Accused of Mislabeling Caloric Content of Starburst
---------------------------------------------------------------
Jonathan Bilyk, writing for Cook County Record, reports that when
eating a bag of gummy candy, every calorie -- or every 10 calories
-- should count, according to a class action lawsuit brought by a
man who claims the Wrigley company should pay for stating on the
front of the bag in which it sells its Starburst-brand Sour Gummy
candies that the candy contains 10 fewer calories per serving than
it states in the nutrition content panel on the bag's backside.
On Aug. 30, attorneys for McGuire Law P.C., of Chicago, filed suit
in Cook County Circuit Court on behalf of named plaintiff Artur
Tyksinski against Chicago-based candy maker Wm. Wrigley Jr.
Company, asserting the lower calorie estimates printed on the
front of the bag constitutes misleading marketing and consumer
fraud.
Wrigley, the lawsuit said, has "designed their packaging
deceptively in order to conceal the true caloric value from the
front of the package which consumers such as Plaintiff are more
likely to consider in advance of their buying decision."
The lawsuit centers on a purchase Tyksinski purportedly made
sometime in 2017, when he bought a bag of Starburst Gummies Sours
from an unidentified retail pharmacy in Chicago, according to the
complaint.
The lawsuit asserts Tyksinski purchased the candy, in part,
because the front of the bag indicated the product contained only
130 calories per serving. The government-regulated nutritional
information panel on the back of the bag, however, indicated the
candy actually contained 140 calories per serving, or about 60
more calories per package than was advertised on the front of the
package. A serving of the candy is about 10 pieces, according to
that nutritional label.
"As the manufacturer and distributor of Starburst, Defendants
(Wrigley Co.) were responsible for determining the caloric value
of the product and accurately displaying the true caloric value on
the front of the package," the lawsuit said. "Instead, in an
effort to increase profits and prey on calorie-conscious consumers
such as Plaintiff, Defendants marketed the product as having 130
calories per serving on the front of the product, typically the
side of the product the consumer sees while the product is sitting
on the shelf, despite knowing that in reality the product
contained 140 calories per serving."
The plaintiffs asked the court to expand the lawsuit to include a
class of additional plaintiffs from throughout the U.S., and a
special "subclass" of Illinois residents, who "purchased a product
manufactured by Defendants that was labeled on the front of the
packaging as containing fewer calories per serving than the amount
identified on the back of the packaging."
Tyksinski and his attorneys alleged the mislabeling violates the
Illinois consumer fraud law and the state's Food, Drug and
Cosmetic Act.
The plaintiffs asked the court to award damages including actual
damages, treble damages, statutory damages and punitive damages,
plus attorney fees.
Attorneys for the plaintiffs include Myles McGuire, Esq. Eugene Y.
Turin, Esq. and David L. Gerbie, Esq. -- info@mcgpc.com -- of the
McGuire firm. [GN]
WEBMD HEALTH: Faces "Rubin" Suit Over Sale to Kohlberg Kravis
-------------------------------------------------------------
JEFFREY RUBIN, on behalf of himself and all others similarly
situated, Plaintiff, vs. WEBMD HEALTH CORP., STEVEN L. ZATZ,
MARTIN J. WYGOD, MARK J. ADLER, IAN G. BANWELL, NEIL F. DIMICK,
JAMES V. MANNING, WILLIAM J. MARINO, JOSEPH E. SMITH, STANLEY S.
TROTMAN, JR., and KRISTIINA VUORI, Defendants, Case No: 1:17-cv-
06019 (S.D.N.Y., August 9, 2017), seeks to enjoin the expiration
of a tender offer on a proposed transaction, pursuant to which
WebMD will be acquired by Kohlberg Kravis Roberts & Co. L.P.,
through its affiliate Internet Brands, and Internet Brands'
affiliates MH Sub I, LLC and Diagnosis Merger Sub, Inc.
The Tender Offer was commenced on August 7, 2017 was scheduled to
expire at 11:59 p.m., New York City time on September 7, 2017. The
Proposed Transaction is valued at approximately $2.8 billion.
The case alleges that the Solicitation/Recommendation Statement on
Schedule 14D-9 with the U.S. Securities and Exchange Commission
omits or misrepresents material information concerning, among
other things: (i) WebMD's financial projections, relied upon by
WebMD's financial advisor, J.P.
Morgan Securities LLC ("J.P. Morgan") in connection with rendering
its fairness opinion; (ii) the data and inputs underlying the
financial valuation analyses that support the fairness opinion
provided by J.P. Morgan; (iii) J.P. Morgan's potential conflicts
of interest; (iv) the background process leading to the Proposed
Transaction; and (v) WebMD insiders' potential conflicts of
interest.
WEBMD HEALTH CORP. is a provider of health information to
consumers, physicians and other healthcare professionals.
Plaintiff is, and has been at all times relevant hereto, a
continuous stockholder of WebMD.[BN]
The Plaintiffs is represented by:
Richard A. Acocelli, Esq.
WEISSLAW LLP
1500 Broadway, 16th Floor
New York, NY 10036
Phone: 212/682-3025
Fax: 212/682-3010
Email: racocelli@weisslawllp.com
WIRELESS TIME: Perry Seeks to Recover Unpaid Wages and Overtime
---------------------------------------------------------------
CASANDRA PERRY, ZULEICA MANCILLA v. WIRELESS TIME GEORGIA, LLC,
Case No. 1:17-cv-03143-ELR (N.D. Ga., August 18, 2017), is a
collective action seeking payment for alleged unpaid wages,
overtime wages, liquidated damages, actual damages and
compensatory damages arising from the Defendant's violation of the
Fair Labor Standards Act of 1938.
Based in Montgomery, Alabama, Wireless Time Georgia, LLC, is a
foreign Limited Liability Company existing under the state laws of
Texas and foreign qualified in the state of Georgia. The Company
is in the cellular telephone retail business, selling cellular
telephones, accessories, and cellular telephone service.[BN]
The Plaintiffs are represented by:
Christopher D. Vaughn, Esq.
Frank DeMelfi, Esq.
A. Brian Henson, Esq.
THE VAUGHN LAW FIRM, LLC
315 West Ponce de Leon Avenue, Suite 380
Decatur, GA 30030
Telephone: (404) 378-1290
Facsimile: (40) 378-1295
E-mail: cvaughn@thevaughnlawfirm.com
fdemelfi@gmail.com
bhenson@thevaughnlawfirm.com
WISCONSIN HOSPITALITY: Court Certifies Class in "Meetz" FLSA Suit
-----------------------------------------------------------------
Judge William S. Griesbach of the U.S. District Court for the
Eastern District of Wisconsin granted Meetz's motion for
conditional certification and Court-facilitated notice in the case
the case captioned WAYNE MEETZ, Plaintiff, v. WISCONSIN
HOSPITALITY GROUP LLC, et al., Case No. 16-C-1313 (E.D. Wis.).
Meetz was employed by the Defendants as a delivery driver at an
Appleton Pizza Hut location between Jan. 26, 2015, and Nov. 19,
2015. He brought this action against, on his own behalf and on
behalf of other similarly situated pizza delivery drivers, who he
claims were subject to a common vehicle expense reimbursement
policy that failed to reasonably approximate their actual
expenses, resulting in their failure to receive the federal
minimum wage in violation of the Fair Labor Standards Act of 1938
("FLSA"). Since the filing of the Complaint on Sept. 30, 2016, a
net total of 25 opt-in Plaintiffs have consented to join the
action by filing written consent forms with the Court.
In the motion currently before the Court, Meetz originally asked
for conditional certification of the class of all persons who have
worked as a delivery driver for a Pizza Hut franchise operated by
Wisconsin Hospitality Group, LLC and PH Hospitality Group, LLC,
doing business as Pizza Hut, at any time since Sept. 30, 2013.
After briefing on the motion, however, Meetz indicates that he is
willing to narrow the proposed collective class to those that have
paid employees an in-restaurant wage of $7.25 per hour and a
delivery wage of $5.25 per hour.
Presently before the Court is Meetz's motion for conditional
certification of a collective action and court-facilitated notice
to potential class members. As part of the motion, he requests
that the Court appoints his counsel of record as Collective Action
Counsel, approve his proposed notice to potential class members,
order the Defendants to provide Collective Action Counsel with an
updated list of potential class members, and establish a deadline
for putative class members to opt into this lawsuit.
Regardless of whether the lenient standard or the heightened
intermediate standard applies here, Judge Griesbach concludes that
conditional certification of a collective action under the FLSA is
proper because Meetz has made an adequate showing that he and the
other current and former delivery drivers in the putative class
are similarly situated. Ample evidence in the record indicates
that delivery drivers at all of the Defendants' Pizza Hut
restaurants shared consistent job requirements, including
responsibility for providing a delivery vehicle, maintaining it in
a safe, working condition, and procuring an insurance policy that
provided minimum coverage levels.
He conditionally certified a class of similarly situated employees
defined as all persons who have worked as a delivery driver for a
Pizza Hut franchise operated by the Defendants at any time since
Sept. 30, 2013, and who received an in-restaurant wage of $7.25
per hour and a delivery wage of $5.25 per hour. By incorporating
Meetz's concession narrowing the class, the definition
appropriately, according to the Judge, captures the common policy
that the potential Plaintiffs were subject to in the case.
Judge Griesbach finds that the language the Defendants' identify
in Section I is not misleading. He also finds that the language
added to Sections I and IV of the revised proposed notice
accurately describes the Defendants' characterization of their own
defenses and therefore neutralizes any mischaracterization of
their position by the original proposed notice. The revised
proposed notice adopts the Defendant's suggestion by adding
language to Section VI informing the potential Plaintiffs that, by
opting into the lawsuit, they will not be able to bring a separate
claim to recover wages, if the suit is unsuccessful. Finally, the
revised proposed notice adopts the Defendants' suggested 45-day
notice period. Because he is satisfied that these changes address
the objections raised in the Defendants' brief in opposition,
Judge Griesbach allowed Meetz to send his revised proposed notice
to the conditionally certified class.
Based on the record before him, Judge Griesbach granted Meetz's
motion for conditional certification and court authorization to
send notice to potential class members. He appointed the counsel
of record as the Collective Action Counsel. He approved the form
and content of the revised Notice of Right to Join Lawsuit for
Unpaid Wages Against Wisconsin Hospitality Group, LLC and PH
Hospitality Group, LLC d/b/a Pizza Hut. The Defendants must
within 10 days provide Collective Action Counsel a Microsoft Excel
spreadsheet with an updated list identifying all persons known to
them to meet the definition of the collective class set forth in
the Order. The collective class members are allowed 45 days from
the mailing of the notice to opt into the action.
A full-text copy of the Court's Aug. 29, 2017 Order is available
at https://is.gd/krCwjP from Leagle.com.
Wayne Meetz, Plaintiff, represented by Summer H. Murshid --
smurshid@hq-law.com -- Hawks Quindel SC.
Wayne Meetz, Plaintiff, represented by Timothy P. Maynard --
tmaynard@hq-law.com -- Hawks Quindel SC & Larry A. Johnson --
ljohnson@hq-law.com -- Hawks Quindel SC.
Wisconsin Hospitality Group LLC, Defendant, represented by Brian
C. Spahn -- bspahn@gklaw.com -- Godfrey & Kahn SC, Joshua L.
Johanningmeier -- jjohanningmeier@gklaw.com -- Godfrey & Kahn SC &
Rebeca M. Lopez -- rlopez@gklaw.com -- Godfrey & Kahn SC.
PH Hospitality Group LLC, Defendant, represented by Brian C.
Spahn, Godfrey & Kahn SC, Joshua L. Johanningmeier, Godfrey & Kahn
SC & Rebeca M. Lopez, Godfrey & Kahn SC.
WORLD ACCEPTANCE: Settlement in "Epstein" Has Prelim. Approval
--------------------------------------------------------------
Judge Mary Geiger Lewis of the U.S. District Court for the
District of South Carolina, Greenville Division, preliminarily
approves the class settlement in the case captioned EDNA SELAN
EPSTEIN, Individually and on Behalf of All Others Similarly
Situated, Plaintiff, v. WORLD ACCEPTANCE CORPORATION, et al.,
Defendants, Civil Action No. 6:14-cv-01606-MGL (D. S.C).
On Aug. 24, 2017, the parties in this securities class action
entered into the Stipulation of Settlement, which is subject to
review under Rule 23 of the Federal Rules of Civil Procedure and
which sets forth the terms and conditions for the proposed
settlement of the claims alleged in any of the complaints filed in
the Litigation on the merits and with prejudice.
The Lead Plaintiff has made an application for an order
preliminarily approving the Settlement in accordance with the
Stipulation, certifying the Settlement Class for purposes of the
Settlement only, and allowing notice to Members of the Settlement
Class. The parties to the Stipulation have consented to the entry
of the Amended Order.
Having read and considered the Lead Plaintiff's motion for
preliminary approval of the Settlement, and the papers filed and
arguments made in connection therewith; and the Stipulation and
the accompanying Exhibits attached thereto, Judge Lewis
preliminarily certified for purposes of settlement only, a
Settlement Class consisting of all persons who purchased or
otherwise acquired World Acceptance common stock between Jan. 30,
2013 and Aug. 10, 2015, inclusive.
The Judge appointed the Lead Counsel as the class counsel for the
Settlement Class. The Settlement Hearing is scheduled to be held
on Dec. 18, 2017, at 11:00 a.m. (ET). The Notice of the
Settlement and the Settlement Hearing will be given to the Members
of the Settlement Class as set forth in the Amended Order.
The Defendants will no later than 10 calendar days following the
filing of the Stipulation with the Court serve upon the
appropriate notice parties a notice of the proposed Settlement in
compliance with the requirements of the Class Action Fairness Act
of 2005 ("CAFA"). They are solely responsible for the costs of
the CAFA notice and administering the CAFA notice. At least 14
calendar days before the Settlement Hearing, the Defendants will
cause to be served on Lead Counsel and filed with the Court proof,
by affidavit or declaration, regarding compliance with CAFA
Section 1715(b).
Judge Lewis approved the Notice of Proposed Settlement of Class
Action; the Proof of Claim and Release; and the Summary Notice,
annexed to the Stipulation. The date and time of the Settlement
Hearing will be included in the Notice and Summary Notice before
they are mailed and published, respectively. She also approved
the appointment of Epiq Systems, Inc. as the Claims Administrator
to supervise and administer the notice procedure in connection
with the proposed Settlement as well as the processing of Proofs
of Claim.
Within five business days of the date of entry of the Amended
Order, World Acceptance will provide or cause World Acceptance's
transfer agent to provide to the Claims Administrator transfer
records in electronic searchable form, such as Excel, containing
the names and addresses of Persons who purchased or otherwise
acquired World Acceptance common stock during the Class Period.
Within 21 calendar days of the entry of Amended Order, the Claims
Administrator will cause the Notice and the Proof of Claim, to all
potential Settlement Class Members who can be identified with
reasonable effort as well as nominee purchasers who purchased or
otherwise acquired World Acceptance common stock during the Class
Period as record owners but not as beneficial owners. Such
nominee purchasers are directed, within seven business days of
their receipt of the Notice, to either forward copies of the
Notice and Proof of Claim to their beneficial owners or to provide
the Claims Administrator with lists of the names and addresses of
the beneficial owners, and the Claims Administrator is ordered to
send the Notice and Proof of Claim promptly to such identified
beneficial owners.
The Lead Counsel will, at least 15 calendar days prior to the
Settlement Hearing, file with the Court proof, by affidavit or
declaration, of mailing of the Notice and Proof of Claim.
The Judge authorized and directed the Escrow Agent or its agents
to prepare any tax returns and any other tax reporting form
required to be filed on behalf of or in respect of the Settlement
Fund, to cause any Taxes due and owing to be paid from the
Settlement Fund, and to otherwise perform all obligations with
respect to Taxes and any reporting or filings in respect thereof
as contemplated by the Stipulation without further order of the
Court.
The Lead Counsel will submit its papers in support of final
approval of the Settlement, the Plan of Allocation, and
application for attorneys' fees and expenses, including Lead
Plaintiff's expenses, by no later than 45 calendar days prior to
the Settlement Hearing. All reply papers in support of such
motions will be filed and served by no later than 15 calendar days
of the Settlement Hearing.
The Claims Administrator will cause the Summary Notice to be
published once in the national edition of The Wall Street Journal
and once over the Business Wire within seven calendar days of the
Notice Date. The Lead Counsel will, at least 15 calendar days
prior to the Settlement Hearing, file with the Court proof, by
affidavit or declaration, of the publication of the Summary
Notice.
In order to be entitled to participate in the Net Settlement Fund,
in the event the Settlement is effected in accordance with the
terms and conditions set forth in the Stipulation, each Settlement
Class Member must submit to the Claims Administrator, online at
www.WorldAcceptanceSecuritiesSettlement.com a properly executed
Proof of Claim no later than Dec. 26, 2017, or at the Post Office
Box indicated in the Notice, postmarked no later than Dec. 26,
2017.
Any Settlement Class Member that does not request exclusion from
the Settlement Class may file objections to the Settlement, the
Plan of Allocation, and/or the application by Lead Counsel for an
award of attorneys' fees and expenses, including Lead Plaintiff's
expenses on or before Oct. 6, 2017.
Judge Lewis stayed all proceedings in the Litigation until further
order of the Court. She approved the passage of title and
ownership of the Settlement Fund to the Escrow Agent in accordance
with the terms and obligations of the Stipulation. The contents
of the Settlement Fund held by the Escrow Agent will be deemed and
considered to be in custodia legis, and will remain subject to the
jurisdiction of the Court until such time as such funds will be
distributed pursuant to the Amendec Order, the Stipulation, the
Plan of Allocation and/or further orders of the Court.
All reasonable costs incurred in identifying Settlement Class
Members and notifying them of the Settlement as well as in
administering the Settlement will be paid as set forth in the
Stipulation.
The Court retains jurisdiction over the Litigation to consider all
further matters arising out of or connected with the Settlement.
A full-text copy of the Court's Aug. 29, 2017 Amended Order is
available at https://is.gd/TQlfpY from Leagle.com.
Edna Selan Epstein, Plaintiff, represented by William Douglas
Smith -- dsmith@jshwlaw.com -- Johnson Smith Hibbard and Wildman.
Operating Engineers Construction Industry and Miscellaneous
Pension Fund, Plaintiff, represented by Bailie L. Heikkinen --
bheikkinen@rgrdlaw.com -- Robbins Geller Rudmand and Dowd, pro hac
vice, Janine D. Arno -- jarno@rgrdlaw.com -- Robbins Geller Rudman
and Dowd LLP, pro hac vice, Marlon E. Kimpson --
mkimpson@motleyrice.com -- Motley Rice, William Paul Tinkler --
wtinkler@motleyrice.com -- Motley Rice, Elizabeth A. Shonson --
eshonson@rgrdlaw.com -- Robbins Geller Rudmand and Dowd, pro hac
vice, Jack Reise -- JReise@rgrdlaw.com -- Robbins Geller Rudman
and Dowd LLP, pro hac vice, Stephen R. Astley --
SAstley@rgrdlaw.com -- Robbins Geller Rudmand and Dowd, pro hac
vice & William H. Narwold -- bnarwold@motleyrice.com -- Motley
Rice.
World Acceptance Corporation, Defendant, represented by Benjamin
A. Johnson -- bjohnson@robinsonbradshaw.com -- Robinson Bradshaw
and Hinson, Bethany M. Rezek -- brezek@kslaw.com -- King and
Spalding, pro hac vice, Benjamin Warren Pope -- wpope@kslaw.com --
King and Spalding, pro hac vice, David C. Wright, III --
dwright@robinsonbradshaw.com -- Robinson Bradshaw and Hinson, pro
hac vice, Emily Shoemaker Newton -- enewton@kslaw.com -- King and
Spalding, pro hac vice & Michael R. Smith -- mrsmith@kslaw.com --
King and Spalding, pro hac vice.
A Alexander Mclean, III, Defendant, represented by Benjamin A.
Johnson, Robinson Bradshaw and Hinson, Bethany M. Rezek, King and
Spalding, pro hac vice, Benjamin Warren Pope, King and Spalding,
pro hac vice, David C. Wright, III, Robinson Bradshaw and Hinson,
pro hac vice, Emily Shoemaker Newton, King and Spalding, pro hac
vice & Michael R. Smith, King and Spalding, pro hac vice.
John L Calmes, Jr, Defendant, represented by Benjamin A. Johnson,
Robinson Bradshaw and Hinson, Bethany M. Rezek, King and Spalding,
pro hac vice, Benjamin Warren Pope, King and Spalding, pro hac
vice, David C. Wright, III, Robinson Bradshaw and Hinson, pro hac
vice, Emily Shoemaker Newton, King and Spalding, pro hac vice &
Michael R. Smith, King and Spalding, pro hac vice.
Kelly M Malson, Defendant, represented by Benjamin A. Johnson,
Robinson Bradshaw and Hinson, Bethany M. Rezek, King and Spalding,
pro hac vice, Benjamin Warren Pope, King and Spalding, pro hac
vice, David C. Wright, III, Robinson Bradshaw and Hinson, pro hac
vice, Emily Shoemaker Newton, King and Spalding, pro hac vice &
Michael R. Smith, King and Spalding, pro hac vice.
Mark Roland, Defendant, represented by Benjamin A. Johnson,
Robinson Bradshaw and Hinson, Bethany M. Rezek, King and Spalding,
pro hac vice, Benjamin Warren Pope, King and Spalding, pro hac
vice, David C. Wright, III, Robinson Bradshaw and Hinson, pro hac
vice, Emily Shoemaker Newton, King and Spalding, pro hac vice &
Michael R. Smith, King and Spalding, pro hac vice.
ZOEK INC: Accused by "Naiman" Class Suit of Violating TCPA
----------------------------------------------------------
SID NAIMAN, individually and on behalf of all others similarly
situated v. ZOEK INC. AKA GOZOEK.COM; and DOES 1 through 10,
inclusive, Case No. 3:17-cv-04839-JSC (N.D. Cal., August 19,
2017), accuses the Defendants of negligently, knowingly and
willfully contacting the Plaintiff on his cellular telephone, in
violation of the Telephone Consumer Protection Act.
Zoek Inc., also known as Gozoek.com, is a company engaged in
marketing and selling Internet marketing services. The true names
and capacities of the Doe Defendants are currently unknown to the
Plaintiff.[BN]
The Plaintiff is represented by:
Todd M. Friedman, Esq.
Adrian R. Bacon, Esq.
Meghan E. George, Esq.
Thomas E. Wheeler, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard St., Suite 780
Woodland Hills, CA 91367
Telephone: (877) 206-4741
Facsimile: (866) 633-0228
E-mail: tfriedman@toddflaw.com
abacon@toddflaw.com
mgeorge@toddflaw.com
twheeler@toddflaw.com
* DOL Posts Enforcement Policy on BIC Arbitration Limitation CA
---------------------------------------------------------------
Stephen W. Kraus, of Carlton Fields, writing for Mondaq, wrote
that in order for fiduciaries to receive compensation that varies
based on their investment advice (e.g., commissions) or from third
parties in connection with their advice (e.g., revenue sharing),
they must comply with a prohibited transaction exemption. In
connection with the release of the new "investment advice"
regulation, the Department of Labor (DOL) also issued two new
class exemptions: the best interest contract (BIC) exemption and
the Principal Transactions In Certain Assets Between Investment
Advice Fiduciaries and Employee Benefit Plans and IRAs ("Principal
Transactions") exemption.
Section II(f)(2) of both the BIC and Principal Transactions
exemptions makes the exemptions unavailable if a financial
institution's contract with the advice recipient (a requirement of
both exemptions) includes a waiver or qualification of the advice
recipient's right to bring or participate in a class action.
Section II(g)(5) of both exemptions applies this condition to
ERISA plans, which are not required to enter into the contract
discussed previously.
The DOL's current litigating position is that it will no longer
defend these provisions prohibiting class action waivers as
applied to arbitration agreements. In light of this change of
position, the DOL has announced a new enforcement policy
indicating it will not pursue a claim against any fiduciary based
on the failure to satisfy the BIC or Principal Transactions
exemption, or treat any fiduciary as being in violation of either
exemption, if the sole failure of the fiduciary to comply with
either exemption is a failure to comply with the exemptions'
arbitration limitation. The DOL indicated that the policy will
continue to apply as long as the exemptions include the
arbitration limitation. [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
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Copyright 2017. All rights reserved. ISSN 1525-2272.
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