/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/170918.mbx C L A S S A C T I O N R E P O R T E R Monday, September 18, 2017, Vol. 19, No. 184 Headlines 2 WITH DELI: "Valente" Suit Seeks Minimum Wages & OT under FLSA 727 WEST SEVENTH: "Pursell" Suit Seeks Overtime Pay ACACIA COMMUNICATIONS: Faces "Tharp" Suit over Securities Laws ADEPTUS HEALTH: Retirement Group Appointed Lead Plaintiff ALLTRAN FINANCIAL: Faces "Orzel" Suit in E.D. of New York APPLIED OPTOELECTRONICS: Rizzo Sues over Inflated Stock Price ARCADIA RECOVERY: Faces "Shrem" Suit in E.D. of New York ASIA MARKET: "Yang" Suit Seeks Unpaid Minimum Wages under FLSA AUTOGRILL GROUP: Acey Files Suit Over Unpaid Off-the-Clock Work BANGLADESH HINDU: Faces "Bhattacharjya" Class Action BEHR PROCESS: Hamilton Sues Over Defective DeckOver Product BOCA LANDINGS: Hilton Sues Over Illegal Fees and Dues CALIFORNIA: Ruling on Subclass of Unrepresented Workers Reversed CDI CORP: "Jurmu" Suit Seeks to Stop Sale to AE Industrial Units CIRCLE K STORES: Bid to Compel Compliance w/ Rule30(b)(6) Denied COMMONWEALTH FINANCIAL: Violates FDCPA, FCRA, "Johnson" Suit Says CONNECTICUT GENERAL: "Rain" Sues Over Denied Insurance Claim CUSTOM COMFORT: "Walewski" Suit Seeks Unpaid OT Wages under FLSA CVS PHARMACY: Court Grants Summary Judgment in NJ Suit DAIRYAMERICA INC: Can't Compel Written Discovery Reply DISCOVER FINANCIAL: Romero Sues over Robocalls DISCOVER PRODUCTS: Fails to Pay Overtime Wages, Griffith Alleges EBELL OF LOS ANGELES: Register Sues over Wage & Hour Violations ENVOY AIR: Court Certifies Sick Leave Class in "Schroeder" Suit EQUIFAX INFORMATION: Faces "Pantaze" Suit over Data Breach EQUIFAX INFORMATION: Faces "Vonwiller" Suit over Data Breach EQUIFAX INC: Pavitt et al. Sue over Data Breach EQUIFAX INC: Faces "Dixon" Suit over Data Security Breach EQUIFAX INC: Faces "Christensen" Suit over Data Breach EQUIFAX INC: Faces "Waszkelewicz" Suit in N.D. of Georgia EQUIFAX INC: Faces "O'Neill" Suit in N.D. of Georgia EQUIFAX INC: Faces "Englert" Suit in N.D. of Georgia EQUIFAX INC: Faces "Pleasant" Suit in N.D. of Georgia EQUILON ENTERPRISES: Court Denies Bid to Dismiss "Berlanga" EUROPEAN AMERICAN WASTE: Failed to Pay Wages, Guerrero Says EVANSTON, IL: Two Due Process Classes Certified in "Wilson" Suit FOSSIL GROUP: Faces "Safransky" Suit in S.D. of California GATESTONE & CO: Ballaj Seeks Prelim. Approval of Class Settlement HOSPITAL SERVICE: "Leet" Suit Remanded to Louisiana State Court IPAWN RODNEY: Court Refuses to Dismiss Complaints in "Jones" Suit J RECKNER ASSOCIATES: Lyngaas Seeks TCPA Class Certification KSJC ENTERPRISES: "Edmontson" Suit Seeks Unpaid Overtime Premium LACY ONE: Court Certifies Class of Deliverymen in "Lamar" Suit LBC IRWINDALE: Haskell Seeks Regular Wages under Labor Code LEE LAW OFFICES: Accused by "Matthies" Suit of Violating FDCPA LEMONADE RESTAURANT: "Velasco" Suit Seeks OT Pay under Labor Code LIFEWAY FOOD: Court Narrows Claims in "Block" Suit LIQUIDITY SERVICES: Court Certifies Class of Investors LONE STAR: "Anderson" Labor Suit Seeks Unpaid Overtime Wages LOVED ONES: Mayhew Moves for Class Certification Under FLSA MCNEIL INDUSTRIAL: "Fontenot" Suit Seeks Unpaid Overtime Wages MDL 2284: Court Affirms Arborist Panel's Denial of Huls' Appeal MDL 2284: Ct. Affirms Arborist Panel's Denial of Mattie's Appeal MDL 2284: Court Affirms Denial of Kochmanski's Appeal MDL 3354: Court Dismisses State of Wyoming's Suit MIDLAND CREDIT: Collection Letter Violates FDCPA, Laurenzo Claims MONSANTO CO: "Martin" Suit Transferred to E.D. Mo. NATIONAL GAS: Shelton Sues over Automated Telemarketing Calls NAVIENT CORP: Court Dismisses Securities Suit with Leave to Amend NELSON & KENNARD: Pratt Sues over Debt Collection Practices OAK HARBOR: "Alvarado" Suit Seeks Unpaid Wages under Labor Code OCEANPRO INDUSTRIES: Leon Seeks Unpaid OT Wages OZZ LAND: "Lattig" Suit Seeks to Recover Unpaid Minimum Wages PARK STERLING: Faces "Roskopf" Securities Class Suit PEPSI BEVERAGES: "Grice" Suit Moved to S.D. California PLATINUM GROUP: Colindres et al. Seek Overtime Pay PRIMELENDING: "Shockley" Suit Seeks Unpaid Wages under FLSA R.J. REYNOLDS: "Tarrow" Suit Moved to Central Dist. of California RASH CURTIS: Court Certifies 4 Classes in "McMillion" Suit RDR CORPORATION: "Maurer" Suit Asserts ADA Violation RENT-A-CENTER: Sept 28 Hearing on "Blair" Arbitration Bid ROSANN LANDSCAPE: "Contreras" Labor Suit Seeks Unpaid Overtime SANOFI PASTEUR: Ct. Grants Bid for Summary Judgment in "Weitzner" SID'S SEALANTS: Court Denies Bid to Dismiss "Holmes" SIRIUS XM: "Andrews" Sues Over Unauthorized Use of Personal Info SKYE RENTALS: Faces "Hernandez" Suit over Wage & Hour Violations SMITH & ROUCHON: Wallis Sues over Unsolicited Telephone Calls SO CAL PETROLEUM: Faces "Rosales" Suit in C.D. of California SP BEACH: Avila Moves to Certify Banquet Servers Class Under FLSA STATE NATIONAL: Violates Securities Laws, Sciabacucchi Says TAMPA BAY SURGERY: Court Tosses Complaints in "Stapleton" Suit STEPHEN A BROWN: Faces "Marchese" Suit in E.D. of New York TENNESSEE: Robinson Files Suit v. TDOS TIME WARNER: Court Denies Class Certification in "Johnson" UBER TECHNOLOGIES: Corrective Notice in "O'Connor" Suit Entered UMAMI RESTAURANT: Facilities Not Accessible for PWDs, Dixson Says UNITED AIRLINES: Status Hearing in "Pumputyte" Suit on Oct. 11 UNITED PARCEL: Court Denies Bid to Stay/Dismiss "Solo" Suit UNITED STATES: Rejection of Holiday Premium Pay Affirmed USA: Faces "Milton" Suit in Court of Federal Claims WACKO'S TOO: "Cervello" Suit Seeks to Recover Unpaid Wages WELLS FARGO: Court Denies Bid to Strike Class Claims in "Merino" YOUNIQUE LLC: Faces "Schmitt" Suit over Mascara Product ZTO EXPRESS: Faces "Nurlybayev" Securities Class Suit ZURICH AMERICAN: Not Obligated to Pay W.G. for Class Settlement ********* 2 WITH DELI: "Valente" Suit Seeks Minimum Wages & OT under FLSA --------------------------------------------------------------- FELIPE VALENTE and JUAN AMIGON, on behalf of themselves, and others similarly situated, the Plaintiffs, v. 2 WITH DELI CORP. dba SARGES DELI, and ANDREW WENGROVER, the Defendants, Case No. 1:17-cv-06889 (S.D.N.Y., Sep. 11, 2017), seeks to recover unpaid minimum wages and overtime compensation, liquidated damages, prejudgment and post-judgment interest, attorneys' fees and costs, pursuant to the New York Labor Law and the Fair Labor Standards Act. According to the complaint, the Defendants knowingly and willfully failed to pay Plaintiffs lawfully earned "spread of hours" premiums in contravention of the New York Labor Law.[BN] The Plaintiff is represented by: Justin Cilenti, Esq. Peter H. Cooper, Esq. CILENTI & COOPER, PLLC 708 Third Avenue - 6111 Floor New York, NY 10017 Telephone: (212) 209 3933 Facsimile: (212) 209 7102 E-mail: info@jcpclaw.com 727 WEST SEVENTH: "Pursell" Suit Seeks Overtime Pay --------------------------------------------------- JESSICA PURSELL, an individual, MONICA MARQUEZ, an individual, on behalf of themselves and all others similarly situated, the Plaintiffs, v. 727 WEST SEVENTH, LLC, a California limited liability corporation; and DOES 1 through 50, inclusive, Case No. BC675509 (Cal. Super. Ct., Sep. 11, 2017), seeks to recover unpaid wages for all time worked including overtime under the state Labor Code. The case is a class action complaint for Defendant's failure to provide meal periods; failure to provide rest breaks; failure to pay overtime wages; failure to pay all wages upon separation; failure to furnish timely and accurate wage statements; failure to pay all wages owed every pay period; and violation of unfair competition law.[BN] The Plaintiffs are represented by: Joshua H. Haffner, Esq. Graham G. Lambert, Esq. HAFFNER LAW PC 445 South Figueroa Street, Suite 2325 Los Angeles, CA 90071 Telephone: (213) 514 5681 Facsimile: (213) 514 5682 E-mail: jhh@haffherlawyers.com gl@haffnerlawyers.com - and - Hrag Kouyoumjian, Esq. SEVEN HILL LAW, APC 411 West 7th Street, Suite 310 Los Angeles, CA 90014 Telephone: (213) 235 3532 Facsimile: (213) 488 1588 E-mail: hragk@sevenhilllaw.com ACACIA COMMUNICATIONS: Faces "Tharp" Suit over Securities Laws -------------------------------------------------------------- STEVEN THARP, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, v. ACACIA COMMUNICATIONS, INC., MURUGESAN SHANMUGARAJ, and JOHN F. GAVIN, the Defendants, Case No. 1:17-cv- 11504 (D. Mass., Aug. 14, 2017), seeks to recover damages sustained by Plaintiff and the Class under Securities Exchange Act. This is a federal securities class action on behalf of a class consisting of all persons other than defendants who purchased or otherwise acquired Acacia securities between August 11, 2016 and July 13, 2017, both dates inclusive, seeking to recover damages caused by defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b- 5 promulgated thereunder, against the Company and certain of its top officials. According to the complaint, the Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) the Company's manufacturing and quality control processes were deficient; (ii) the foregoing deficiencies were likely to disrupt the Company's manufacturing, thereby impacting the Company's revenues; and (iii) as a result of the foregoing, Acacia's public statements were materially false and misleading at all relevant times. On May 31, 2017, Acacia issued a press release and filed a Current Report on Form 8-K with the SEC, advising investors that "the Company has identified a quality issue" affecting "a portion" of several thousand modules manufactured by one of Acacia's three contract manufacturers, citing as the "root cause of this quality issue a circuit board cleaning process that has since been eliminated." On July 14, 2017, Acacia issued a press release announcing the Company's preliminary financial and operating results for the quarter ended June 30, 2017. The Company reported profit and revenue that missed estimates, and revised its current-quarter guidance downward. Acacia stated that the Company's "second- quarter results were adversely affected by the quality issue identified at one of our three contract manufacturers that we announced on May 31." On this news, Acacia's share price fell $2.62, or 6.30%, to close at $39.00 per share on July 14. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages. Acacia designs, develops, manufactures, and markets communication equipment. The Company offers high-speed coherent optical interconnect products for cloud infrastructure operators and content and communication service providers. Acacia Communications serves customers worldwide. Founded in 2009, the Company is headquartered in Maynard, Massachusetts.[BN] The Plaintiff is represented by: Theodore M. Hess-Mahan, Esq. HUTCHINGS BARSAMIAN MANDELCORN, LLP 110 Cedar Street, Suite 250 Wellesley Hills, MA 02481 Telephone: (781) 207 1717 Facsimile: (781) 431 8726 E-mail: thess-mahan@hutchingsbarsamian.com - and - Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. Hui M. Chang, Esq. Patrick V. Dahlstrom, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661 1100 Facsimile: (212) 661 8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com hchang@pomlaw.com pdahlstrom@pomlaw.com ADEPTUS HEALTH: Retirement Group Appointed Lead Plaintiff --------------------------------------------------------- The United States District Court for the Eastern District of Texas, Sherman Division, issued a memorandum opinion and order granting the Motion of Alameda County Employees' Retirement Association and Arkansas Teacher Retirement System for Appointment as Lead Plaintiff, Approval of Selection of Counsel, and Consolidation of Related Actions in the case captioned OKLAHOMA LAW ENFORCEMENT RETIREMENT SYSTEM. v. ADEPTUS HEALTH INC., et al., Civil Action No. 4:17-CV-00449 (E.D. Tex.). Named Plaintiff Oklahoma Law Enforcement Retirement System filed the federal securities class action on behalf of all person who purchased the Class A common shares of Adeptus Health, Inc. (Adeptus Health) pursuant to Adeptus Health's secondary public and on behalf of purchasers of Adeptus Health's common shares. Six different movants have filed eight different motions seeking appointment as lead plaintiff, with their choice of lead counsel, under the Private Securities Litigation Reform Act (PSLRA). Three movants withdrew from lead plaintiff consideration, and three movants remain: (1) David Swehla, Rodeo Plastic Bag & Film Inc., Wissam Mattar, Heriberto Vale, and Yixin Shi (Adeptus Investor Group); (2) Alameda County Employees' Retirement Association (ACERA) and Arkansas Teacher Retirement System (Arkansas Teacher) (Retirement Group); and (3) Michigan Laborers' Pension Fund (Pension Fund). There is no dispute that the Retirement Group and the Pension Fund met the procedural requirements of Section 78u-4(a)(3)(A)(i) because both the Retirement Group and the Pension Fund timely moved for appointment of lead counsel. If a motion is timely filed, the presumptive lead plaintiff must have the largest financial interest. The Retirement Group argues that it has the largest financial interest of any other movant, which is not contested by any of the movants. Therefore, the Court is satisfied that the Retirement Group has the largest financial interest, followed by the only remaining movant, the Pension Fund. Rule 23 Requirements Typicality Both the Retirement Group and the Pension Fund assert that their claims are typical of the class. Neither challenges the other's claims of typicality. The Court is satisfied that both the Retirement Group and the Pension Fund's claims are typical of the class; in other words, they have "the same essential characteristics as those of the other class members. Fair and Adequate Representation The Pension fund argues that the Retirement Group will not fairly and adequately represent the class because it is an improper group under the PSLRA and because Arkansas Teacher is a professional plaintiff barred from serving as a lead plaintiff pursuant the PSLRA. The Court will address each argument. Accordingly, because the Retirement Group timely filed its motion, has the largest financial interest, and satisfies the requirements of Federal Rule of Civil Procedure 23, the Retirement Group is the presumptive lead plaintiff. Further, the presumption has not been overcome. Therefore, the Court appoints the Retirement Group as lead plaintiff in this action. Lead Counsel The Retirement Group seeks to appoint Bernstein Litowitz and Kessler Topaz as co-lead counsel for the class and George L. McWilliams as liaison counsel for the class. The Retirement Group instructed Bernstein Litowitz and Kessler Topaz to enter into a Joint Prosecution Agreement. The Court has reviewed the resumes provided for each attorney, and is satisfied that each could adequately represent the plaintiff in this action. It is therefore ordered that the Motion of Alameda County Employees' Retirement Association and Arkansas Teacher Retirement System for Appointment as Lead Plaintiff, Approval of Selection of Counsel, and Consolidation of Related Actions is granted. The Retirement Group's choice of lead counsel and liaison counsel are appointed. Accordingly, Michigan Laborers' Pension Fund's Motion for Consolidation, Appointment as Lead Plaintiff and for Approval of its Selection of Lead Counsel and the Motion of Adeptus Investor Group to be Appointed Lead Plaintiff and to Approve Proposed Lead Plaintiff's Choice of Counsel are denied. A full-text copy of the District of Court's August 31, 2017 Memorandum Opinion and Order is available at http://tinyurl.com/ycjq2uf7from Leagle.com. Oklahoma Law Enforcement Retirement System, Plaintiff, represented by Andrea Leigh Fair -- andrea@wsfirm.com -- Ward, Smith & Hill, PLLC. Oklahoma Law Enforcement Retirement System, Plaintiff, represented by Mario Alba, Jr. -- malba@rgrdlaw.com -- Robbins Geller Rudman & Dowd, Samuel H. Rudman -- Srudman@rgrdlaw.com -- Robbins Geller Rudman & Dowd, pro hac vice, Thomas John Ward, Jr. -- tjw@wsfirm.com -- Ward, Smith & Hill, PLLC & Claire Abernathy Henry, -- claire@wsfirm.com -- Ward, Smith & Hill, PLLC. Laborers' Local 235 Benefit Funds, Consolidated Civil Action 6:16cv1391, Consol Plaintiff, represented by Shorty Craig Barrett, Shorty Barrett, 611 Pecan St, Texarkana, AR 71854-5337 Winston Kim, Consolidated Civil Action 6:17cv150, Consol Plaintiff, represented by Jacob A. Goldberg -- jgoldberg@rosenlegal.com -- The Rosen Law Firm, PA, pro hac vice, Keith Robert Lorenze -- klorenze@rosenlegal.com -- The Rosen Law Firm, PA, Andy Tindel, Mann -- atindel@andytindel.com -- Tindel & Thompson -- Attorneys at Law, Laurence Rosen -- lrosen@rosenlegal.com -- The Rosen Law Firm, PA, pro hac vice & Phillip Kim -- pkim@rosenlega.com -- The Rosen Law Firm, PA, pro hac vice. Sascha Troll, Consolidated Civil Action 6:17cv241, Consol Plaintiff, represented by Willie Charles Briscoe -- wbriscoe@thebriscoelawfirm.com -- The Briscoe Law Firm. Li-Kuan Chen, Consol Plaintiff, Pro se. Yvonne Chen, Consol Plaintiff, Pro se. Victor Sardar, Consol Plaintiff, Pro se. Michael Frick, Consol Plaintiff, Pro se. Adeptus Health Inc., Defendant, represented by Xenia Nicole Figueroa -- nicole.figueroa@dlapiper.com -- DLA Piper US LLP. Thomas S. Hall, Defendant, represented by Jill Rickershauser Carvalho -- jcarvalho@kslaw.com -- King & Spalding LLP, Michael John Biles -- mbiles@kslaw.com -- King & Spalding LLP, Paul Richard Bessette -- pbessette@kslaw.com -- King & Spalding LLP, Srimath Saliya Subasinghe -- ssubasinghe@kslaw.com -- King & Spalding LLP & Tyler Wayne Highful -- thighful@kslaw.com -- King & Spalding LLP. Timothy L. Fielding, Defendant, represented by Jill Rickershauser Carvalho, King & Spalding LLP, Michael John Biles, King & Spalding LLP, Paul Richard Bessette, King & Spalding LLP, Srimath Saliya Subasinghe, King & Spalding LLP & Tyler Wayne Highful, King & Spalding LLP. Richard Covert, Defendant, represented by David Dykeman Sterling - - david.sterling@bakerboots.com -- Baker Botts LLP, Amy Heard -- amy.heard@bakerbotts.com -- Baker Botts LLP, Jessica B. Pulliam - - Jessica.pulliam@bakerbotts.com -- Baker Botts LLP, John Benjamin Lawrence -- john.lawrence@bakerbotts.com -- Baker Botts LLP & Mysha Webster Lubke -- mysha.lubke@bakerbotts.com -- Baker Botts LLP. Daniel W. Rosenberg, Defendant, represented by David Dykeman Sterling, Baker Botts LLP, Amy Heard, Baker Botts LLP, Jessica B. Pulliam, Baker Botts LLP, John Benjamin Lawrence, Baker Botts LLP & Mysha Webster Lubke, Baker Botts LLP. Gregory W. Scott, Defendant, represented by David Dykeman Sterling, Baker Botts LLP, Amy Heard, Baker Botts LLP, Jessica B. Pulliam, Baker Botts LLP, John Benjamin Lawrence, Baker Botts LLP & Mysha Webster Lubke, Baker Botts LLP. Ronald L. Taylor, Defendant, represented by David Dykeman Sterling, Baker Botts LLP, Amy Heard, Baker Botts LLP, Jessica B. Pulliam, Baker Botts LLP, John Benjamin Lawrence, Baker Botts LLP & Mysha Webster Lubke, Baker Botts LLP. Jeffery S. Vender, Defendant, represented by David Dykeman Sterling, Baker Botts LLP, Amy Heard, Baker Botts LLP, Jessica B. Pulliam, Baker Botts LLP, John Benjamin Lawrence, Baker Botts LLP & Mysha Webster Lubke, Baker Botts LLP. Steven V. Napolitano, Defendant, represented by David Dykeman Sterling, Baker Botts LLP, Amy Heard, Baker Botts LLP, Jessica B. Pulliam, Baker Botts LLP, John Benjamin Lawrence, Baker Botts LLP & Mysha Webster Lubke, Baker Botts LLP. ALLTRAN FINANCIAL: Faces "Orzel" Suit in E.D. of New York --------------------------------------------------------- A class action lawsuit has been filed against Alltran Financial, LP. The case is styled as Usher Orzel, on behalf of himself and all others similarly situated, Plaintiff v. Alltran Financial, LP, Defendant, Case No. 1:17-cv-05338 (E.D.N.Y., September 12, 2017). Alltran Financial is a debt collector.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. Joseph H. Mizrahi Law, P.C. 337 Avenue W, Suite 2f Brooklyn, NY 11223 Tel: (917) 299-6612 Fax: (347) 665-1545 Email: jmizrahilaw@gmail.com APPLIED OPTOELECTRONICS: Rizzo Sues over Inflated Stock Price ------------------------------------------------------------- GIANLUCA RIZZO, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. APPLIED OPTOELECTRONICS, INC., CHIH- HSIANG (THOMPSON) LIN and STEFAN J. MURRY, the Defendants, the Defendants, Case No. 1:17-cv-05313 (E.D.N.Y. Sep. 11, 2017), seeks remedies under the Securities Exchange Act of 1934. According to the complaint, Defendants made, or caused to be made, false statements that artificially inflated the prices of Applied Opto securities during the Class Period. The Individual Defendants, because of their positions with the Company, possessed the power and authority to control the contents of Applied Opto's quarterly reports, press releases and presentations to securities analysts, money and portfolio managers and institutional investors, i.e., the market. They were provided with copies of the Company's reports and press releases alleged to be misleading prior to or shortly after their issuance and had the ability and opportunity to prevent their issuance or cause them to be corrected. Because of their positions with the Company and their access to material non-public information available to them but not to the public, the Individual. Defendants knew that the adverse facts specified herein had not been disclosed to and were being concealed from the public and that the positive representations being made were then materially false and misleading. The Individual Defendants are liable for the false and misleading statements. Defendants are liable for (i) making false statements; or (ii) failing to disclose adverse facts known to them about Applied Opto. Defendants' fraudulent scheme and course of business that operated as a fraud or deceit on purchasers of Applied Opto securities was a success, as it: (i) deceived the investing public regarding Applied Opto's prospects and business; (ii) artificially inflated the prices of Applied Opto securities; and (iii) caused Plaintiff and other members of the Class to purchase Applied Opto securities at artificially inflated prices. Applied Opto manufactures lasers and transceivers used to build fiberoptic networking equipment. Its biggest customer is Amazon.com, Inc. ("Amazon"), which was responsible for 56.4% of its 2016 sales.[BN] The Plaintiff is represented by: Mary K. Blasy, Esq. Samuel H. Rudman, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: (631) 367 7100 Facsimile: (631) 367 1173 E-mail: srudman@rgrdlaw.com mblasy@rgrdlaw.com - and - Frank J. Johnson, Esq. JOHNSON FISTEL, LLP 600 West Broadway, Suite 1540 San Diego, CA 92101 Telephone: (619) 230 0063 Facsimile: (619) 255 1856 E-mail: FrankJ@johnsonfistel.com - and - W. Scott Holleman, Esq. JOHNSON FISTEL, LLP 99 Madison Avenue, 5th Floor New York, NY 10016 Telephone: (212) 802 1486 Facsimile: (212) 602 1592 E-mail: Scott@johnsonfistel.com ARCADIA RECOVERY: Faces "Shrem" Suit in E.D. of New York -------------------------------------------------------- A class action lawsuit has been filed against Arcadia Recovery Bureau. The case is styled as Abraham Shrem, on behalf of himself and all others similarly situated, Plaintiff v. Arcadia Recovery Bureau, Defendant, Case No. 1:17-cv-05347 (E.D.N.Y., September 12, 2017). Arcadia Recovery Bureau is an accounts receivables agency.[BN] The Plaintiff appears PRO SE. ASIA MARKET: "Yang" Suit Seeks Unpaid Minimum Wages under FLSA -------------------------------------------------------------- Lian Yang, individually and on behalf of all other employees similarly situated, the Plaintiff, v. Asia Market Corp., Jie Ming Liang, Wen "Doe" (last name unknown), Naomi Kwong, "John" (first name unknown) Kwong, the Defendants, Case No. 1:17-cv-06886 (S.D.N.Y., Sep. 11, 2017), seeks to recover unpaid minimum wages, overtime wages, liquidated damages, prejudgment and post-judgment interest; and attorneys' fees and costs under the Fair Labor Standards Act. The case is an action brought by Plaintiff on her own behalf and on behalf of similarly situated employees, alleging violations of the FLSA and the New York Labor Law, arising from Defendants' various willful and unlawful employment policies, patterns and/or practices. The Defendants have willfully and intentionally committed widespread violations of the FLSA and NYLL by engaging in a pattern and practice of failing to pay their employees, including Plaintiff, compensation for all hours worked, including overtime compensation for all hours worked over 40 each workweek. Asia Market is an ethnic grocery store and wholesale distributor providing hard-to-find Asian products -- countless varieties of ingredients and fresh produce.[BN] The Plaintiff is represented by: Jian Hang, Esq. HANG & ASSOCIATES, PLLC 136-18 39th Avenue, Suite 1003 Flushing, New York 11354 Telephone: (718) 353 8588 E-mail: jhang@hanglaw.com AUTOGRILL GROUP: Acey Files Suit Over Unpaid Off-the-Clock Work --------------------------------------------------------------- Janeen Acey and Amber Hopkins, Individually, and on behalf of himself and other similarly situated current and former employees, Plaintiff, v. Autogrill Group, Inc., a Delaware Corporation, and HMS Host USA, Inc., a Delaware Corporation, Defendants, Case No. 2:17-cv-02618, (W.D. Tenn., August 24, 2017), seeks to recover unpaid straight time wages, unpaid minimum wages, overtime compensation and other damages owed under the Fair Labor Standards Act. HMS Host USA, Inc. owns and operates food and beverage franchises, such as Starbucks, Moe's and others, in major airports across the United States and in malls and travel centers located in the northeastern United States. Autogrill Group, Inc. is the parent company of HMS Host USA, Inc. Acey and Hopkins were employed by Defendants as shift supervisors at Starbucks franchises located within the Memphis International Airport. Both claim to have rendered unpaid off-the-clock work. [BN] Plaintiff is represented by: Gordon E. Jackson, Esq. James L. Holt, Jr., Esq. J. Russ Bryant, Esq. Paula R. Jackson, Esq. JACKSON, SHIELDS, YEISER & HOLT 262 German Oak Drive Memphis, TN 38018 Tel: (901) 754-8001 Fax: (901) 759-1745 Email: gjackson@jsyc.com jholt@jsyc.com rbryant@jsyc.com pjackson@jsyc.com BANGLADESH HINDU: Faces "Bhattacharjya" Class Action ---------------------------------------------------- A class action lawsuit has been filed against Bangladesh Hindu Mandir, Inc. The case is styled as Bhattacharjya, Dwijen et al., Ashok Saha, Md., Dipak Karmakar, Shyamal Chakraborty, Probir Roy, Pronobendu Chakraborty, Subash Majumder, Joydeb Dey, Pienaky Sen Chowdhury, Purnima Bhattacharjya, Dilip Nath, Deepok Bhattacharjya, Madhabi Chakravarty, Ranesh Chakravarty, Santosh Debnath, and other similarly situated, individually and on behalf of Bangladesh Hindu Mandir, Plaintiffs v. Bangladesh Hindu Mandir, Inc., Defendant, Case No. 3:17-cv-00695 (W.D. Wis., September 12, 2017). The Bangladesh Hindu Mandir is a non-profit Hindu religious organization, actively fulfilling the spiritual, cultural, and social needs of the Hindu community of the tri state area of New York, New Jersey, and Connecticut.[BN] The Plaintiffs are represented by: Andrew Moulinos, Esq. 23-52 31ST STREET Astoria, NY 11105 Tel: (718) 545-2600 BEHR PROCESS: Hamilton Sues Over Defective DeckOver Product ----------------------------------------------------------- MICHAEL HAMILTON, individually and on behalf of all others similarly situated v. BEHR PROCESS CORP.; BEHR PAINT CORP.; MASCO CORP.; THE HOME DEPOT, INC.; and HOME DEPOT U.S.A., INC., Case No. 2:17-cv-01765-KJM-EFB (E.D. Cal., August 23, 2017), is brought on behalf of all persons, who purchased a Behr Premium DeckOver product in the state of California. Behr manufactures a line of deck resurfacers: "Behr's Premium DeckOver," which the Plaintiff says is defective. In contrary to Behr's marketing campaign, DeckOver is not durable or long-lasting, Mr. Hamilton alleges. Instead, he contends, within mere months of application, DeckOver begins to flake, peel, and separate from deck and concrete surfaces. Behr Process Corporation and Behr Paint Corporation are California corporations, with their principal place of business in Santa Ana, California. Masco Corporation is a Delaware corporation, with its principal place of business in Taylor, Michigan. Masco acquired Behr Process Corporation in 1999. The Home Depot, Inc. is a Delaware corporation, with its principal place of business in Georgia. The Home Depot, Inc. is the parent company of Home Depot U.S.A., Inc. and describes itself in annual reports filed with the Securities Exchange Commission as the world's largest home improvement retailer. Home Depot U.S.A., Inc. is a Delaware corporation, with its principal place of business in Georgia.[BN] The Plaintiff is represented by: Michael McShane, Esq. S. Clinton Woods, Esq. Ling Y. Kuang, Esq. AUDET & PARTNERS, LLP 711 Van Ness Avenue, Suite 500 San Francisco, CA 94102 Telephone: (415) 568-2555 Facsimile: (415) 568-2556 E-mail: mmcshane@audetlaw.com cwoods@audetlaw.com lkuang@audetlaw.com - and - Charles E. Schaffer, Esq. LEVIN, SEDRAN & BERMAN 510 Walnut Street, Suite 500 Philadelphia, PA 19106-3697 Telephone: (877) 882-1011 Facsimile: (215) 592-4663 E-mail: CSchaffer@lfsblaw.com - and - Charles LaDuca, Esq. CUNEO GILBERT & LADUCA LLP 4725 Wisconsin Avenue, NW, Suite 200 Washington, DC 20016 Telephone: (202)789-3960 Facsimile: (202) 789-1813 E-mail: charles@cuneolaw.com - and - Melissa S. Weiner, Esq. HALUNEN LAW 80 South 8th Street IDS Center Suite 1650 Minneapolis, MN 55402 Telephone: (612) 548-5286 Facsimile: (612) 605-4099 E-mail: weiner@halunenlaw.com BOCA LANDINGS: Hilton Sues Over Illegal Fees and Dues ----------------------------------------------------- Aaron Hilton, individually and on behalf of all others similarly situated, Plaintiff, v. Boca Landings Homeowners Association, Inc. and Stevens & Goldwyn, P.A., Defendants, Case No. 0:17-cv-61693 (S.D. Fla., August 24, 2017), seeks declaratory and monetary relief, as well as additional individual damages and attorney's fees and costs for violation of the Florida Consumer Collection Practices Act and the federal Fair Debt Collection Practices Act. Boca is a private residential community in Boca Raton, Florida, governed by the Boca Landings Homeowners Association, Inc. with Stevens as its property manager. Plaintiff owns a home in the Boca community. Defendants improperly sought fees that have not been incurred, nor have they been agreed to by the Plaintiff in the written contractual agreement that governs the conduct between Plaintiff and his homeowner's association. [BN] Plaintiff is represented by: Darren R. Newhart, Esq. J. Dennis Card, Jr. Consumer Law Organization, P.A. 721 US Highway 1, Suite 201 North Palm Beach, FL 33408 Telephone: (561) 822-3446 Facsimile: (305) 574-0132 E-mail: darren@cloorg.com dennis@cloorg.com CALIFORNIA: Ruling on Subclass of Unrepresented Workers Reversed ---------------------------------------------------------------- Plaintiffs in the case captioned KURT STOETZL et al., Plaintiffs and Appellants, v. STATE OF CALIFORNIA et al., Defendants and Respondents, No. A142832 (Cal. App.), are current and former correctional peace officers who work or worked at various state correctional facilities. They brought these coordinated class actions alleging they were improperly denied pay for time they spent under their employer's control before and after their work shifts. Plaintiffs alleged they were not paid for all the time they spent at the correctional institutions under defendants' control. Specifically, they were expected to sign in and sign out on time sheets that reflected only their officially assigned work day. Plaintiffs were required to be at their assigned posts at the beginning of their official shifts. They sought unpaid overtime wages, unpaid California minimum wages, liquidated damages, and injunctive relief. The State moved for judgment on the pleadings. The trial court granted the motion without leave to amend as to the causes of action for failure to pay overtime in violation of sections 222 and 223 and failure to keep accurate records of hours worked, and denied the motion as to the remaining causes of action. The Court of Appeals of California, First District, Division Four, reversed the judgment in part as to the subclass of unrepresented employees and affirm as to the subclass of represented employees. As to the unrepresented employees, the trial court concluded the Department of Human Resources (CalHR) had acted within its legislatively delegated authority in applying the Fair Labor Standards Act of 1938 as the standard for measuring compensable hours. The trial court concluded the FLSA also provided the legal standard for measuring the compensable hours worked by the subclass of unrepresented employees. The court reasoned that CalHR had established work week groups detailed in the California Pay Scale Manual, that all the job classifications in the subclass were contained in Work Week Group 2, and that CalHR had determined that Work Week Group 2 positions were subject to the FLSA. The Work Week Group Definitions" in the Pay Scale Manual included a section describing "Work Week Groups Established Under [FLSA]. We conclude it is possible to harmonize the California Pay Scale Manual and Wage Order 4, as we must seek to do under Brinker. (Brinker, supra, 53 Cal.4th at p. 1027.) The manual does not expressly state that law enforcement employees are not subject to the provisions of the wage orders applicable to their job classifications, nor does it contain any provisions concerning compensation for pre- and post-work activities. Accordingly, the state court of appeal concludes the unrepresented employees are entitled to pay for all hours worked under the applicable California standard rather than the FLSA's standard. The court of appeal therefore remands the matter to the trial court for further proceedings, in which it will determine whether, and to what extent, the unrepresented employees were not compensated for their work. Accordingly, the court of appeal reverses the judgment as to the subclass of unrepresented employees as to the second and fourth causes of action, and the matter is remanded to the trial court for further proceedings. A full-text copy of the August 31, 2017, Opinion is available at http://tinyurl.com/ycquv6kzfrom Leagle.com. Carroll, Burdick & McDonough LLP, Jack T. Friedman, Jonathan D. Yank, Laurie J. Hepler, and David M. Rice, 44 Montgomery Street, Suite 400San Francisco, CA 94104; Messing Adam & Jasmine LLP, Gregg McLean Adam -- gregg@majlabor.com -- and Goyette and Associates, Inc., Gary G. Goyette -- goyetteg@goyette-assoc.com -- Counsel for Plaintiffs and Appellants. Kronick, Moskovitz, Tiedemann & Girard, David W. Tyra -- dtyra@kmtg.com -- and Kristianne T. Seargeant -- SeargeK@sutterhealth.org -- California Department of Human Resources, Joan A. Markoff, Chief Counsel, Frolan R. Aguiling, Deputy Chief Counsel, Christopher E. Thomas, Labor Relations Counsel, and David D. King, Labor Relations Counsel, Counsel for Defendants and Respondents. CDI CORP: "Jurmu" Suit Seeks to Stop Sale to AE Industrial Units ---------------------------------------------------------------- ROBERT J. JURMU, individually and on behalf of all others similarly situated v. CDI CORP., WALTER R. GARRISON, LAWRENCE C. KARLSON, ALBERT E. SMITH, MICHAEL J. EMMI, RONALD J. KOZICH, BARTON J. WINOKUR, ANNA M. SEAL, and JOSEPH L. CARLINI, Case No. 2:17-cv-03787-MAK (E.D. Pa., August 23, 2017), seeks to enjoin the proposed sale of CDI to Nova Intermediate Parent, LLC, and its wholly-owned subsidiary, Nova Merger Sub, Inc., which are affiliates of private equity firm AE Industrial Partners, LLC. On July 31, 2017, the Company announced that it had entered into an agreement and plan of merger, by which AEI would commence a tender offer to acquire all of the outstanding shares of CDI at a purchase price of $8.25 per share in cash. The Tender Offer was set to expire on September 12, 2017. CDI, a Pennsylvania corporation, provides engineering and technology solutions, as well as recruitment and staffing services to leading companies with operations around the world. The Company maintains its principal executive offices in Philadelphia, Pennsylvania. The Individual Defendants are directors and officers of the Company.[BN] The Plaintiff is represented by: Richard A. Maniskas, Esq. RM LAW, P.C. 1055 Westlakes Drive, Suite 300 Berwyn, PA 19312 Telephone: (484) 324-6800 Facsimile: (484) 631-1305 E-mail: rm@maniskas.com - and - Donald J. Enright, Esq. Elizabeth K. Tripodi, Esq. LEVI & KORSINSKY LLP 1101 30th Street, N.W., Suite 115 Washington, DC 20007 Telephone: (202) 524-4290 Facsimile: (202) 333-2121 E-mail: denright@zlk.com etripodi@zlk.com CIRCLE K STORES: Bid to Compel Compliance w/ Rule30(b)(6) Denied ---------------------------------------------------------------- The United States District Court for the District of Nevada issued an Order denying Plaintiff's Motion to Compel Defendant Circle K Stores, Inc.'s Compliance with Fed. R. Civ. P. 30(b)(6) in the case captioned CHARLES GRAHL, individually and on behalf of all others similarly situated, Plaintiff, v. CIRCLE K STORES, INC., a foreign corporation, Defendant, No. 2:14-cv-305-RFB-VCF (D. Nev.). This matter involves Plaintiff Charles Grahl's class action against Defendant Circle K Stores, Inc. (Circle K) for allegedly violating the Fair Labor Standards Act (FLSA). Before the Court are Grahl's Motion to Compel Defendant Circle K Stores, Inc.'s Compliance with Fed. R. Civ. P. 30(b)(6). Grahl filed a complaint against Defendant Circle K, on behalf of himself and others similarly situated. In the Complaint, Grahl alleged, inter alia, that as a Nevada resident, he worked for Circle K as a store manager. Grahl that he and other putative class members were paid on a salary basis during their employment as store managers and were classified by Circle K as exempt from the overtime provisions of the FLSA. According to the Complaint, Grahl and other putative class members were required to work an average of 65 hours per week, which was a policy applied nationwide by Circle K. Grahl's Motion to Compel presents two questions: (1) Whether Defendant Circle K has improperly designated a disproportionate number of Rule 30(b)(6) designees along division lines for Topics 5-14 and 17 of the Amended Deposition Notice, and (2) Whether Circle K properly prepared and educated its Rule 30(b)(6) designee Kimberley Hoppa for her deposition. The Court finds that Circle K's corporate designations for topics 5-14 and 17 are not contrary to Rule 30(b)(6). Under the text of the rule, Circle K is required to designate other persons to testify on its behalf and Circle K may set out the matters on which each person designated will testify. Circle K has a duty to make a conscientious, good-faith effort to designate knowledgeable persons for Rule 30(b)(6) depositions and to prepare them to fully and unevasively answer questions about the designated subject matter. The rule, however, permits the corporation to designate different people to address different topics. A corporation served with a Rule 30(b)(6) notice of deposition has a duty to produce such number of persons as will satisfy the request [and] more importantly, prepare them so that they may give complete, knowledgeable and binding answers on behalf of the corporation. The persons Circle K designates must testify about information known or reasonably available to Circle K. Nor is the Court persuaded that Circle K's corporate designations for topics 5-14 and 17 are contrary to the purposes of Rule 30(b)(6). The Court's role in such a discovery dispute is not dissimilar to that of a referee whose job it is to ensure that both sides are adhering to Rule 30(b)(6)'s objective of fair access to corporate information and, at the same time, to guard against overreaching by the party seeking discovery and failure of the corporate party to satisfy its obligations under the rule. To that end, the Court is guided by several objectives, including Rule 30(b)(6)'s objectives to streamline discovery and curb bandying, and at a more general level, the common-sense concept of proportionality and the need to actively manage discovery to secure the just, speedy, and inexpensive determination of every action and proceeding. Accordingly, the Court will deny Grahl's Motion to Compel on this ground. To be sure, Ms. Hoppa was not prepared to testify about the specific differences among the divisions from the company-wide basic templates for, among other matters, job descriptions. But Circle K proposed HR representatives from each division to testify about those specific division differences. This seems consistent with Circle K's Rule 30(b)(6) witness designations and the matters that Circle K 'set out on which each person designated would testify. While deposing six different corporate designees for certain topics will undoubtedly require Grahl to depose more witnesses, this is not unduly unfair or unreasonable. To the contrary, it would be impractical to require Circle K to designate one Rule (30)(b)(6) witness to learn all of the differences between each division and testify competently. Accordingly, the Court has no basis to conclude that Ms. Hoppa was not prepared for her deposition. Plaintiff Charles Grahl's Motion to Compel is denied. A full-text copy of the District of Court's August 31, 2017 Order is available at http://tinyurl.com/y75o7luh from Leagle.com. Charles Grahl, Plaintiff, represented by Andrew L. Rempfer, Law Offices of Steven J. Parsons, 10091 Park Run Drive, Suite 200, Las Vegas, NV 89145-8868 Charles Grahl, Plaintiff, represented by Anthony M. Carter, Tostrud Law Group, P.C., pro hac vice, Erik H. Langeland, Erik H. Langeland, P.C., 500 5th Ave #1610, New York, NY 10110, USA pro hac vice, Jon A. Tostrud, Tostrud Law Group, P.C., pro hac vice, Joseph Nathan Mott, Law Offices of Steven J. Parsons, 10091 Park Run Drive, Suite 200,Las Vegas, NV -- 89145-8868, U.S.A. Scott E. Lundy, Law Offices of Steven J. Parsons & Steven J. Parsons, Steven J. Parsons, Law Office Of. 10091 Park Run Drive, Suite 200,Las Vegas, NV -- 89145-8868 U.S.A. Circle K Stores, Defendant, represented by Anthony L. Martin -- Anthony.martin@ogleetre.com -- Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Dana B. Salmonson -- dana.salmonson@ogletree.com -- Ogletree Deakins Nash Smoak & Stewart, P.C., Patrick Hulla -- patrick.hulla@ogletree.com -- Ogletree, Deakins, Nash Smoak & Stewart, P.C., pro hac vice & Jill Garcia -- jill.garcia@ogletree.com -- Ogletree, Deakins, Nash, Smoak & Stewart, P.C. COMMONWEALTH FINANCIAL: Violates FDCPA, FCRA, "Johnson" Suit Says ----------------------------------------------------------------- Teresa Johnson, individually and on behalf of all others similarly situated v. Commonwealth Financial Systems, Inc., a Pennsylvania corporation, Case No. 1:17-cv-02906-JMS-DML (S.D. Ind., August 23, 2017), alleges violations of the Fair Debt Collection Practices Act and the Fair Credit Reporting Act. Ms. Johnson, a citizen of the state of Indiana, contends that the Defendant attempted to collect a delinquent consumer debt by pulling/accessing her credit report after she received a discharge of all her debts from the bankruptcy court. Commonwealth Financial Systems, Inc., is a Pennsylvania corporation that acts as a debt collector.[BN] The Plaintiff is represented by: David J. Philipps, Esq. Mary E. Philipps, Esq. Angie K. Robertson, Esq. PHILIPPS & PHILIPPS, LTD. 9760 S. Roberts Road, Suite One Palos Hills, IL 60465 Telephone: (708) 974-2900 Facsimile: (708) 974-2907 E-mail: davephilipps@aol.com mephilipps@aol.com angiekrobertson@aol.com - and - John T. Steinkamp, Esq. 5214 S. East Street, Suite D1 Indianapolis, IN 46227 Telephone: (317) 780-8300 Facsimile: (317) 217-1320 E-mail: steinkamplaw@yahoo.com CONNECTICUT GENERAL: "Rain" Sues Over Denied Insurance Claim ------------------------------------------------------------ Karen Rain, as duly appointed personal representative of the estate of Elinor G. Crandall, deceased, individually and behalf of all others similarly situated, Plaintiff, v. Connecticut General Corporation, Insurance Company of North America, Life Insurance Company of North America, Towers Administrators, Inc., Defendant, Case No. 3:17-cv-30115, (D. Mass., August 24, 2017), seeks refund of all premiums collected that should not have been collected, reinstatement of policies otherwise cancelled for lack of coverage for Defendant's breach of contract, compensatory, consequential, statutory and punitive damages and interest, declaratory and injunctive relief, disgorgement of all ill-gotten profits and gains, attorneys' fees, costs and any other relief for violation of the Connecticut Unfair Insurance Practices Act and the Connecticut Unfair Trade Practices Act and Massachusetts General Law. Crandall was an 86-year-old individual who resided at "The Arbors," an assisted living facilities at Amherst, Massachusetts. She was a certificate holder under the group long-term care insurance policy issued and administered by Defendants. Karen Rain, her daughter, claimed unpaid benefits on her behalf under their policy. Defendants improperly denied her mother's claim stating that assisted living facilities are not covered under her policy and are not "medically-necessary" care requirements and is not considered a "treatment." [BN] Plaintiff is represented by: Sean K. Collinsm, Esq. LAW OFFICES OF SEAN K. COLLINS 184 High Street, Suite 503 Boston, MA 02110 Telephone: (617) 320-8485 Fax: (617) 227-2843 Email: sean@neinsurancelaw.com - and - Lionel Z. Glancy, Esq. Ex Kano S. Sams II, Esq. Melissa Wright, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Fax: (310) 201-9160 Email: lglancy@glancylaw.com esams@glancylaw.com mwright@glancylaw.com - and - Jeffrey Goldenberg, Esq. GOLDENBERG SCHNEIDER, LPA One West Fourth Street, 18th Floor Cincinnati, OH 45202 Telephone: (513) 345-8291 Fax: (513) 345-8294 Email: jgoldenberg@gs-legal.com - and - Janet Pecquet, Esq. Peter Cassady, Esq. BECKMAN WEIL SHEPARDSON, LLC 895 Central Ave., Suite 300 Cincinnati, OH 45202 Telephone: (513) 621-2100 Fax: (513) 621-0106 Email: jpecquet@beckman-weil.com petercassady@beckman-weil.com - and - Steven M. Dunn, Esq. STEVEN M. DUNN, ATTORNEY AT LAW 1135 Kane Concourse Suite #5 Bay Harbor Islands, FL 33154 Telephone: (305) 868-1400 Fax: (305) 868-1409 Email: sdunn@smdunnlaw.com CUSTOM COMFORT: "Walewski" Suit Seeks Unpaid OT Wages under FLSA ---------------------------------------------------------------- LAWRENCE WALEWSKI, on behalf of himself and those similarly situated, the Plaintiff, v. CUSTOM COMFORT MEDTECK, LLC, a Florida For Profit Corporation, and PETER GAUGHN, Individually, the Defendant, Case No. 6:17-cv-01483-PGB-GJK (M.D. Fla., Aug. 14, 2017), seeks to recover unpaid overtime wages, liquidated damages and all other applicable relief pursuant to the Fair Labor Standards Act. The Plaintiff and those similarly situated was an hourly paid employee who worked at Defendants' property within the last three years in Orange County, Florida. During his employment with Defendant, the Plaintiff as not paid time and one-half hid regular rate of pay for all hours worked in excess of 40 hours per work week during one or more work weeks. Custom Comfort is in the hospital furniture business.[BN] The Plaintiff is represented by: Matthew R. Gunter, Esq. MORGAN & MORGAN, P.A. 20 N Orange Ave., 16th Floor P.O. Box 4979 Orlando, FL 32802-4979 Telephone: (407) 420 1414 Facsimile: (407) 867 4791 E-mail: mgunter@forthepeople.com CVS PHARMACY: Court Grants Summary Judgment in NJ Suit ------------------------------------------------------ In the case captioned KEITH ROBERT DEAN, JR., and ERIKA PRESSLEY, on behalf of themselves and all others similarly situated, Plaintiffs, v. CVS PHARMACY, INC., and CVS CAREMARK CORPORATION, Defendants, Civil Action No. 14-2136 (E.D. Pa.), Judge Gerald Austin McHugh of the U.S. District Court for the Eastern District of Pennsylvania granted the Defendants' motion for summary judgment as to the New Jersey action brought by Pressley and denied as to the Pennsylvania action brought by Dean. This is a putative class action case on behalf of pharmacy technicians claiming that Defendants CVS Pharmacy Inc. and CVS Caremark Corporation ("CVS") forced them to complete necessary educational certifications without pay in violation of state wage protection statutes and basic contract law. The Named Plaintiffs, Dean and Pressley, are former CVS workers from Pennsylvania and New Jersey, respectively. Pressley claims CVS violated the New Jersey Wage and Hour Law ("NJWHL"), breached a contract with her, and was unjustly enriched by her unpaid work. Dean, on the other hand, alleges that CVS violated the Pennsylvania Wage Payment and Collection Law ("PWPCL"), breached its contract with him, and was unjustly enriched by his work. After extensive discovery, the Defendants now move for summary judgment. Judge McHugh concludes that because Pressley could have, but did not, obtain and fill out timesheets for her hours, her claims fail. Though the parties agree that Pressley's LEARNet time was compensable, and that she was not paid, the Judge nonetheless cannot find that CVS violated the NJWHL. In the simplest sense, CVS did not deny Pressley wages for any hours that she worked; Pressley herself failed to ask CVS for payment for her time. CVS created a legitimate, reasonable system for its employees to report at-home LEARNet training hours. There is no real evidence to suggest that employees were discouraged from using the system; instead, Pressley simply neglected to follow it. Her failure to log her hours precludes her statutory claim for relief. Pressley next alleges that CVS breached its contract with her by refusing to pay her the agreed-upon wage for hours she worked. The evidence, however, does not support Pressley's conclusion that CVS breached the contract, Judge McHugh finds. It was CVS policy that employees should get paid for at-home LEARNet hours. Pressley's supervisor correctly followed that policy when she told Pressley to record those hours on a timesheet. By informing Pressley that she was entitled to be paid, and telling her how to put in for her time, CVS did what it was required to do. Pressley's failure to ask follow-up questions, and thus determine how to put in for her time, cannot be explained as a breach of contract by CVS. Thus, summary judgment on this claim is thus appropriate. As for Pressley's unjust enrichment claim, the Judge finds it fails for the same reason that her other claims fail. CVS was willing to pay her for her at-home work, and her superior told her how to go about being paid for the work. CVS was not unjustly enriched by Pressley's free labor, because it did not expect the labor to be free. Pressley's actions, rather than the actions of CVS, were what caused her to not be paid. Accordingly, this claim cannot succeed. Judge McHugh concludes that Dean has raised an issue of material fact on his claims. As with Pressley, CVS claims that no contract existed here, and that Dean's claim fails as a result. The Judge disagrees. Like Pressley, there is evidence from which a jury could reasonably conclude that Dean formed an implied unilateral contract with CVS when he worked hours on the company's behalf. Unlike Pressley, however, Dean was left unpaid through no fault of his own. Instead, it was the fault of misinformed supervisors who told Dean he had to work the hours for free. The analysis for Dean's breach of contract claim is nearly identical to the analysis of Pressley's. Issues of material fact exist about whether CVS breached its implied, unilateral contract with Dean. Accordingly, summary judgment for this claim is denied. Lastly, Judge McHugh finds that there is no need to decide whether the nature of the Dean's unjust enrichment claim is predominately legal in nature, such that it should be decided by a jury, or predominately equitable in nature, and either submitted for an advisory jury verdict under FRCP 39(c), or reserved for presentation to the Court if the jury finds no legal remedy. To resolve this pending motion, the Judge needs only decide whether there are facts of record that would support recovery under such a theory, and he concludes that there are. Accordingly, Judge McHugh granted the Defendants' motion for summary judgment as to the New Jersey action brought by Pressley and denied as to the Pennsylvania action brought by Dean. A full-text copy of the Court's Sept. 6, 2017 Memorandum is available at https://is.gd/LNpOA3 from Leagle.com. KEITH ROBERT DEAN, JR., Plaintiff, represented by MICHAEL D. DONOVAN, DONOVAN LITIGATION GROUP, LLC. KEITH ROBERT DEAN, JR., Plaintiff, represented by PHILIP J. GORDON -- pgordon@gordonllp.com -- GORDON LAW GROUP LLP. MARILYN MONROE, Plaintiff, represented by MICHAEL D. DONOVAN, DONOVAN LITIGATION GROUP, LLC. ERIKA PRESSLEY, Plaintiff, represented by MICHAEL D. DONOVAN, DONOVAN LITIGATION GROUP, LLC. CVS PHARMACY, INC., Defendant, represented by STEPHANIE JILL PEET -- stephanie.peet@jacksonlewis.com -- JACKSON LEWIS P.C. & FELICE B. EKELMAN -- EkelmanF@jacksonlewis.com -- JACKSON LEWIS. CVS CAREMARK CORPORATION, Defendant, represented by STEPHANIE JILL PEET, JACKSON LEWIS P.C. & FELICE B. EKELMAN, JACKSON LEWIS. DAIRYAMERICA INC: Can't Compel Written Discovery Reply ------------------------------------------------------ In the case captioned GERALD CARLIN, JOHN RAHM, PAUL ROZWADOWSKI and DIANA WOLFE, individually and on behalf of themselves and all others similarly situated, Plaintiffs, v. DAIRYAMERICA, INC., and CALIFORNIA DAIRIES, INC., Defendants, Case No. 1:09-cv-00430-AWI- EPG (E.D. Cal.), Magistrate Judge Erica P. Grosjean of the U.S. District Court for the Eastern District of California, Fresno Division, denied Defendant DairyAmerica's Motion to Compel. The case commenced on March 6, 2009 as a class action complaint against the Defendants DairyAmercia, Inc. by the Plaintiffs. On July 19, 2017, the parties filed a joint statement regarding discovery disputes. Dairy America has filed a motion to compel the Plaintiffs to respond to written discovery. The Plaintiffs have filed an opposition response to the motion. The Court held oral argument on July 26, 2017, and took the matter under advisement. DairyAmerica requested documents relating to the Plaintiffs' draft declarations and communications with DairyAmerica's former employees: Doug White, Candice Bimemiller, and Lani Ellingsworth and counsel for these individuals. DairyAmerica also requested documents relating to the Plaintiffs' communications with John Bunting, who is now deceased. The Plaintiffs have withheld the documents on the basis that they are protected by the attorney work product doctrine. The Plaintiffs argue that the draft affidavits and related correspondence between these former employee witnesses and their counsel are squarely protected as attorney work product, and that there is no applicable exception warranting the production of these materials. They state in their opposition motion that DairyAmerica has already deposed one of the three key witnesses and will have the opportunity to depose the other two witnesses pending this motion to amend the complaint, and therefore will have the opportunity to obtain the substantial equivalent of the information it seeks by other means. At oral argument, the Plaintiffs further assert there to be only four types of communication at issue: (i) communications with and between witness Ms. Lani Ellingsworth; (ii) communications with and between witness Ms. Candice Bimemiller; both and all of which were exclusively communicated in anticipation for litigation and for securing their declarations for trial; (iii) four email communications with Ms. Ellingsworth's lawyer, one of which was a "follow-up question about the testimony of the witness"; and (iv) five email communications with Ms. Bimemiller's lawyer, both and all of which is claimed as attorney "impressions, analyses, and thoughts on the case," and constitute classic opinion work product. Magistrate Judge Grosjean agrees with the Plaintiffs and holds that all documents between the Plaintiffs' counsel and witnesses Ms. Bimemiller and Ms. Elligsworth obtained in anticipation of litigation are protected under work product immunity because they were made in furtherance of anticipation of litigation. She further agrees with the Plaintiffs' claim that communications between them and the witnesses' counsels, Mr. Dalmat and Mr. Goldberg, are opinion work product and entitled to additional protections as opinion work product because they contain mental impressions, strategies, conclusions, or legal impressions. The Plaintiffs state in their motion that a vast majority of the communications with lawyers have been produced for the Defendants and that they withheld only those which contained the counsel's mental impressions and strategies. DairyAmerica must now make a showing of waiver or substantial need and undue hardship. Magistrate Judge Grosjen finds that the Defendant's evidence does not support a sufficient showing of substantial need for the communications requested. DairyAmerica appears to want communications for preparation only of their case and has shown no reason why they could not obtain everything they sought by doing their own work rather than utilizing that of their] adversary. DairyAmerica have already deposed Mr. White and are free to depose Ms. Bimemiller and Ms. Elligsworth to obtain the information they seek. The Petitioner has made more than an ordinary request for relevant, non-privileged facts in the possession of his adversaries or their counsel. He has sought discovery as of right of oral and written statements of witnesses whose identity is well known and whose availability to petitioner appears unimpaired. The Magistrate Judge assumes that DairyAmerica intended to correctly cite to Fed. R. Civ. P. 26(b)(3)(C) instead of Fed. R. Civ. P. 26(b)(2)(C) in making its independent claim that it has the right to its own previous statements in the possession of opposing party. This section allows any party on request and without the required showing, to obtain the person's own previous statement about the action or its subject matter. The statements in question of the former employees are not the statements of DairyAmerica, therefore, DairyAmerica has no right to them under this provision, she concludes. Accordingly, Magistrate Judge denied the Defendant DairyAmerica's Motion to Compel. A full-text copy of the Court's Sept. 6, 2017 Order is available at https://is.gd/7aPKBT from Leagle.com. Gerald Carlin, Plaintiff, represented by A. Chowning Poppler -- cpoppler@bermandevalerio.com -- Berman Tabacco. Gerald Carlin, Plaintiff, represented by Anthony David Phillips, Berman DeValerio, Benjamin Doyle Brown -- -- bjohnson@cohenmilstein.com -- bbrown@cohenmilstein.com -- Cohen Milstein Sellers & Toll PLLC, Brent W. Johnson Cohen Milstein Hausfeld and Toll PLLC, pro hac vice, Cari C. Laufenberg -- claufenberg@kellerrohrback.com -- Keller Rohrback L.L.P., pro hac vice, Christopher Heffelfinger -- cheffelfinger@bermandevalerio.com -- Berman Tabacco, George F. Farah, Cohen Milstein Hausfeld and Toll PLLC, pro hac vice, Juli E. Farris -- jfarris@kellerrohrback.com -- Keller Rohrback LLP, Justin N. Saif -- jsaif@bermandevalerio.com -- Berman DeValerio, pro hac vice, Leslie M. Kroeger, Cohen Milstein Sellers & Toll PLLC, pro hac vice & Ryan McDevitt -- rmcdevitt@kellerrohrback.com -- Keller Rohrback L.L.P., pro hac vice. John Rahm, Plaintiff, represented by A. Chowning Poppler, Berman Tabacco, Anthony David Phillips, Berman DeValerio, Benjamin Doyle Brown, Cohen Milstein Sellers & Toll PLLC, Brent W. Johnson, Cohen Milstein Hausfeld and Toll PLLC, pro hac vice, Cari C. Laufenberg, Keller Rohrback L.L.P., pro hac vice, Christopher Heffelfinger, Berman Tabacco, George F. Farah, Cohen Milstein Hausfeld and Toll PLLC, pro hac vice, Juli E. Farris, Keller Rohrback LLP, Justin N. Saif, Berman DeValerio, pro hac vice, Leslie M. Kroeger, Cohen Milstein Sellers & Toll PLLC, pro hac vice & Ryan McDevitt, Keller Rohrback L.L.P., pro hac vice. Paul Rozwadowski, Plaintiff, represented by A. Chowning Poppler, Berman Tabacco, Anthony David Phillips, Berman DeValerio, Benjamin Doyle Brown, Cohen Milstein Sellers & Toll PLLC, Brent W. Johnson, Cohen Milstein Hausfeld and Toll PLLC, pro hac vice, Cari C. Laufenberg, Keller Rohrback L.L.P., pro hac vice, Christopher Heffelfinger, Berman Tabacco, George F. Farah, Cohen Milstein Hausfeld and Toll PLLC, pro hac vice, Juli E. Farris, Keller Rohrback LLP, Justin N. Saif, Berman DeValerio, pro hac vice, Leslie M. Kroeger, Cohen Milstein Sellers & Toll PLLC, pro hac vice & Ryan McDevitt, Keller Rohrback L.L.P., pro hac vice. Diana Wolfe, Plaintiff, represented by A. Chowning Poppler, Berman Tabacco, Anthony David Phillips, Berman DeValerio, Benjamin Doyle Brown, Cohen Milstein Sellers & Toll PLLC, Brent W. Johnson, Cohen Milstein Hausfeld and Toll PLLC, pro hac vice, Cari C. Laufenberg, Keller Rohrback L.L.P., pro hac vice, Christopher Heffelfinger, Berman Tabacco, George F. Farah, Cohen Milstein Hausfeld and Toll PLLC, pro hac vice, Juli E. Farris, Keller Rohrback LLP, Justin N. Saif, Berman DeValerio, pro hac vice & Ryan McDevitt, Keller Rohrback L.L.P., pro hac vice. DairyAmerica, Inc., Defendant, represented by Charles M. English - - chipenglish@dwt.com -- Davis Wright Tremaine LLP, pro hac vice, E. John Steren -- ejsteren@ober.com -- Ober Kaler, pro hac vice, Joseph Michael Marchini -- jmarchini@bakermanock.com -- Baker, Manock & Jensen, Wendy M. Yoviene -- wyoviene@ober.com -- Ober Kaler, pro hac vice, Allison Ann Davis -- allisondavis@dwt.com -- Davis Wright Tremaine LLP, Joy G. Kim -- joykim@dwt.com -- Davis Wright Tremaine LLP & Sanjay Mohan Nangia -- sanjaynangia@dwt.com -- Davis Wright Tremaine LLP. California Dairies, Inc., Defendant, represented by Lawrence Michael Cirelli -- lcirelli@hansonbridgett.com -- Hanson Bridgett, Shannon Marie Nessier -- snessier@hansonbridgett.com -- Hanson Bridgett LLP & Megan Oliver Thompson -- moliverthompson@hansonbridgett.com -- Hanson Bridgett LLP. Bimemiller Candice, Unknown, represented by Edward Zusman -- ezusman@mzclaw.com -- Markun Zusman Freniere & Compton LLP. James Rehberg, ThirdParty Plaintiff, represented by J. Barton Goplerud, Hudson Law Firm, pro hac vice & Jon A. Tostrud -- tostrud@tostrudlaw.xom -- Tostrud Law Group, P.C.. Ronald Hayek, ThirdParty Plaintiff, represented by J. Barton Goplerud, Hudson Law Firm, pro hac vice & Jon A. Tostrud, Tostrud Law Group, P.C.. Michael K. Schugg, ThirdParty Plaintiff, represented by J. Barton Goplerud, Hudson Law Firm, pro hac vice & Juli E. Farris, Keller Rohrback LLP. Timothy L. Rawlings, ThirdParty Plaintiff, represented by J. Barton Goplerud, Hudson Law Firm, pro hac vice, Juli E. Farris, Keller Rohrback LLP, Mark A. Griffin -- mgriffin@kellerrohrback.com -- Keller Rohrback LLP, pro hac vice & Raymond J. Farrow -- rfarrow@kellerrohrback.com -- Keller Rohrback LLP, pro hac vice. Land O' Lakes, Inc., Amicus, represented by Gregory M. Schweizer - - gschweizer@eimerstahl.com -- Eimer Stahl LLP, pro hac vice, Scott C. Solberg -- ssolberg@eimerstahl.com -- Eimer Stahl LLP, pro hac vice & Seth D. Hilton -- sethhilton@stoel.com -- Stoel Rives LLP. California Farmers Union, Amicus, represented by Daniel Bennett Harris -- dbh2007@sbcglobal.net. California Dairy Campaign, Amicus, represented by Daniel Bennett Harris. Lani Ellingsworth, Movant, represented by Darin M. Dalmat -- dmdalmat@jamhoff.com -- James & Hoffman, P.C. & Glenn Rothner, Rothner, Segall & Greenstone. DISCOVER FINANCIAL: Romero Sues over Robocalls ---------------------------------------------- MARLON ROMERO, on behalf of himself and all others similarly situated, the Plaintiff, v. DISCOVER FINANCIAL SERVICES, INC.; and DOES 1 through 10, inclusive, and each of them, the Defendants, Case No. 5:17-cv-01849 (S.D. Cal., Sep. 11, 2017), seeks to recover damages and any other available legal or equitable remedies resulting from the illegal actions of the Defendant, in negligently, knowingly, and/or willfully contacting Plaintiff on his cellular telephone in violation of the Telephone Consumer Protection Act. According to the complaint, on July 12, 2017, the Plaintiff specifically revoked any purported consent to be called by Discover, which Plaintiff denies giving in the first place, informed them again that he did not owe any money to discover, and requested that they stop the harassing phone calls to him. The Plaintiff followed up with calls made to Discover in which he repeated the fact that he did not know an "Alexander," and that he did not want to be contacted any further by Discover. Discover acknowledged Plaintiff's complaints, and even verified that Plaintiff could not be found in their system as an existing customer. Despite receiving this information on numerous occasions, Defendant continued to place daily calls to Plaintiff, on his cellular telephone, using an "automated telephone dialing system" and/or an "artificial or prerecorded voice." The Defendant provides financial credit and card services.[BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Meghan E. George, Esq. Adrian R. Bacon, 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 mgeorge@toddflaw.com abacon@toddflaw.com DISCOVER PRODUCTS: Fails to Pay Overtime Wages, Griffith Alleges ---------------------------------------------------------------- Renita Griffith, On behalf of herself and other members of the general public similarly situated v. Discover Products, Inc. & Discover Financial Services, Case No. 2:17-cv-00743-JLG-EPD (S.D. Ohio, August 23, 2017), is brought against the Defendants for their alleged joint failure to pay employees overtime wages. The Plaintiff seeks all available relief under the Fair Labor Standards Act of 1938, the Ohio Minimum Fair Wage Standards Act and the Ohio Prompt Pay Act. Discover Products, Inc., is a domestic for-profit corporation with its principal place of business located in Riverwoods, Illinois. Discover is a subsidiary of DFS. DFS is a foreign, for-profit bank and financial holding corporation formed under the laws of the state of Delaware with its corporate headquarters also located in Riverwoods. DFS provides direct banking and payment services through its subsidiaries, including Discover, and owns and operates a variety of networks.[BN] The Plaintiff is represented by: Matthew J.P. Coffman, Esq. COFFMAN LEGAL, LLC 1457 S. High St. Columbus, OH 43207 Telephone: (614) 949-1181 Facsimile: (614) 386-9964 E-mail: mcoffman@mcoffmanlegal.com - and - Daniel I. Bryant, Esq. BRYANT LEGAL, LLC 1457 S. High St. Columbus, OH 43207 Telephone: (614) 704-0546 Facsimile: (614) 573-9826 E-mail: dbryant@bryantlegalllc.com EBELL OF LOS ANGELES: Register Sues over Wage & Hour Violations --------------------------------------------------------------- TARYN REGISTER, On Behalf of Herself and All Others Similarly Situated and On Behalf of the General Public as Private Attorneys General; the Plaintiffs, v. THE EBELL OF LOS ANGELES, a California Corporation; and DOES 1 through 100, the Defendant, Case No. BC675450 (Cal. Super. Ct., Sep. 11, 2017), seeks to recover remedies under the California Labor Code. According to the complaint, the Plaintiff began working for Defendant in September 2016. The Plaintiff's position is that of Special Events Coordinator, and a non-exempt employee, getting paid approximately $15.00 an hour. During the course of her employment, Plaintiff regularly would work after clocking out for the day. Specifically, Plaintiff was required to answer work- related texts and emails after she clocked-out for the day, or during her days off, however Plaintiff was never compensated for this time. On other occasion, Plaintiff was asked by Defendant to continue working after clocking out for the day, which would require Plaintiff to work overtime hours that was never paid to her. Also, Plaintiff was forced to either skip or eat through her lunch, but was instructed to write down that she "took lunch" even if that were not actually the case. As a result of Defendants' violation of California Labor Code section 226(a), Plaintiff suffered injury and damage to his statutorily protected rights. Specifically Plaintiff was injured by Defendants' intentional violation of California Labor Code section 226(a) because he was denied both his legal right to receive, and his protected interest in receiving, accurate, itemized wage statements under California Labor Code. Ebell of Los Angeles is a women's club housed in a complex in the Mid-Wilshire section of Los Angeles, California. It includes a clubhouse building and the renowned 1,270-seat Wilshire Ebell Theatre.[BN] The Plaintiffs are represented by: Brent S. Buchsbaum, Esq. Ronald L. Zambrano, Esq. LAW OFFICES OF CARLIN & BUCHSBAUM LLP 555 East Ocean Blvd,, Suite 818 Long Beach, CA 90802 Telephone: (562) 432 8933 Facsimile: (562) 435 1656 E-mail: ronald@carlinbuchsbaum.com ENVOY AIR: Court Certifies Sick Leave Class in "Schroeder" Suit --------------------------------------------------------------- The Honorable Michael W. Fitzgerald granted in part and denied in part the motion for class certification filed by Karla Schroeder and Osvaldo Guerro, the Putative Lead Plaintiffs in the lawsuit entitled K. Schroeder v. Envoy Air, Inc., Case No. 2:16-cv-04911- MWF-KS (C.D. Cal.). The Motion is granted as to these Class and Subclasses: 1. The Sick Leave Class: All California non-exempt Passenger Service Agents who received one or more wage statements from Enjoy from July 18, 2013, to the present; 2. The Overtime Subclass: All California Passenger Service Agents who were not paid overtime at rates computed with reference to the correct "regular rate" (i.e. whose nondiscretionary bonuses were not included in the overtime rate calculation); 3. The Wage Statement Subclass: All California Passenger Service Agents who received one or more wage statements from Envoy starting one year prior to the filing of the Second Amended Complaint (i.e. July 18, 2015), to the present; and 4. The Former Employee Subclass: All California Passenger Service Agents who are members of the Overtime Subclass and whose employment with Envoy terminated on or before May 15, 2015. The Motion is denied as to the remaining proposed Subclasses. According to the Court's Civil Minutes, the Motion is granted in part and denied in part, as follows: -- The Motion is GRANTED as to the Sick Leave Class. Plaintiffs have identified a policy that, if it operates as Plaintiffs contend, could determine Envoy's liability on a classwide basis; -- The Motion is GRANTED in part and DENIED in part as to the Overtime Subclass. Whether or not the bonuses Envoy awards its employees are required to be included in their regular rate for purposes of calculating overtime is susceptible to class treatment. Whether the Overtime Subclass was improperly denied wages for attendance at and travel to various trainings and meetings is not; -- The Motion is DENIED as to the Meal and Rest Break Subclass because Plaintiffs fail to present clear evidence of any specific policy governing employees' ability to take off-duty meal and rest breaks, and thus individualized testimony about each class member's experience taking meal and rest breaks is likely to overwhelm the common issues; -- The Motion is GRANTED as to the Wage Statement Subclass. There are no individualized issues that would prevent assignment of liability for noncompliant wage statements on a systematized, paystub-by-paystub basis; -- The Motion is DENIED as to the Living Wage Ordinance Subclass. Determining Envoy's remaining liability as to any given member of the proposed Subclass would require an individualized analysis as to how much the employee had already been paid, their health care benefits, and so forth; and -- The Motion is GRANTED in part and DENIED in part as to the Former Employee Subclass, which as proposed is derivative of the Overtime, Meal and Rest Break, and Living Wage Ordinance Subclasses. A copy of the Civil Minutes is available at no charge at http://d.classactionreporternewsletter.com/u?f=xdkoIK96 EQUIFAX INFORMATION: Faces "Pantaze" Suit over Data Breach ---------------------------------------------------------- NIKOLAOS C. PANTAZE, an individual, individually and on behalf of those similarly situated, the Plaintiffs, v. EQUIFAX INFORMATION SERVICES, LLC, a foreign limited liability company, the Defendant, Case No. 2:17-cv-01530-UJB-MHH (N.D. Ala., Sep. 11, 2017), seeks to recover damages and equitable relief on behalf of himself and all other similarly situated consumers. This lawsuit stems from the data breach of Equifax. Between May 2017 and August 2017, sensitive financial and personal data of up to 143 million consumers was compromised as a result of Equifax's failure to adequately secure the consumers' personal and private consumer data and information, including payment information on its systems. Equifax's security protocols were so deficient that the breach was not immediately stemmed. The consumers -- affected class members -- have suffered substantial losses as a result of Equifax's failure to adequately protect its sensitive payment data. This includes, but is not limited to, sums associated with notifying customers of the data breach, reissuing debit and credit cards, reimbursing customers for fraudulent transactions, monitoring customer accounts to prevent fraudulent charges, addressing customer confusion and complaints, changing or canceling accounts, and the decrease or suspension of their customers' use of affected cards. Equifax Information Services LLC collects and reports consumer information to financial institutions.[BN] The Plaintiffs are represented by: Jason L. Yearout, Esq. YEAROUT & TRAYLOR, PC www.yearout.net 3300 Cahaba Road, Suite 300 Birmingham, AL 35223 Telephone: 205.414 8169 Facsimile: 205.795.7169 E-mail: jyearout@yearout.net - and - M. Stan Herring, Esq. WATTS & HERRING, LLC 301 19th Street North Birmingham, AL 35203 Telephone: (205) 879 2447 E-mail: john@wattsherring.com stan@wattsherring.com - and - Robert S. Dooley, Esq. STONE, PATTON, KIERCE & FREEMAN 118 North 18th Street Bessemer, AL 35020 Telephone: (205) 424 1150 E-mail: robert@stonepatton.com EQUIFAX INFORMATION: Faces "Vonwiller" Suit over Data Breach ------------------------------------------------------------ KRISTA VONWILLER, on behalf of herself and all others similarly situated, the Plaintiff, v. EQUIFAX INFORMATION SERVICES, LLC, the Defendant, Case No. 3:17-cv-01839-CAB-NLS (S.D. Cal., Sep. 11, 2017), seeks an award of actual and statutory damages against Defendant pursuant to the Fair Credit Reporting Act, California Customer Records Act, and California Unfair Competition Law. The Plaintiff contends that the Defendant failed to properly safeguard the personal information of Plaintiff and Class members, as required under 15 U.S.C. section 1681e(a). The Defendant also failed to properly safeguard the information of Plaintiff and Class members, as required by the California Customer Records Act. Additionally, Defendant's failure to properly safeguard the personal information of Plaintiff and the Class members is an unfair and unlawful business act and practice. On July 29, 2017, Equifax discovered that one or more of its servers, which contained Plaintiff's sensitive personal information including Plaintiff's name, full Social Security number, birth date, address, and, upon belief, her driver's license numbers and possibly one or more of her credit cards, had been breached or "hacked" by a still unknown third party. When Equifax discovered this breach, Equifax immediately began an internal investigation and contracted with an unidentified third- party cybersecurity firm to conduct a comprehensive forensic review to determine the scope of the hack including identifying the specific data impacted. As of the filing of this Complaint, that investigation remains ongoing and has not yet been completed despite over six weeks elapsing since the initial breach. Equifax Information Services LLC collects and reports consumer information to financial institutions.[BN] The Plaintiff is represented by: Jack Fitzgerald, Esq. Trevor M. Flynn, Esq. Melanie Persinger, Esq. THE LAW OFFICE OF JACK FITZGERALD, PC Hillcrest Professional Building 3636 Fourth Avenue, Suite 202 San Diego, CA 92103 Telephone: (619) 692 3840 Facsimile: (619) 362 9555 E-mail: jack@jackfitzgeraldlaw.com trevor@jackfitzgeraldlaw.com melanie@jackfitzgeraldlaw.com EQUIFAX INC: Pavitt et al. Sue over Data Breach ----------------------------------------------- JODIE PAVITT, JENNIFER MERTLICH, and SIMON KAUFMAN, individually and on behalf of other similarly situated persons, the Plaintiffs, v. EQUIFAX, INC., the Defendant, Case No. 2:17-cv-01363-MJP (W.D. Wash., Sep. 11, 2017), seeks declaratory relief, injunctive relief, and damages under Washington and federal laws. The Plaintiffs file this Complaint as a national class action lawsuit on behalf of approximately 140 million consumers -- including green card holders and business customers -- across the United States, who have been and continued to be harmed as a result of Defendant Equifax's 2017 data breach because of Equifax's failure to utilize proper safeguards in the storage and collection of sensitive Personally Identifying Information. To worsen matters, Equifax immediately exploited the harm it brought to its roughly 143 million customers, with its hastily erected incident response site, EquifaxSecurity2017.com. According to the lawsuit, by way of EquifaxSecurity2017.com, Defendant offered the deceptive promise of one year of "free" credit monitoring in exchange for waiving their right to pursue legal action in a court of law. Plaintiffs seek injunctive relief that will prohibit Defendant from (a) pursuing a class action ban that would violate federal and state laws and (b) persisting in its unfair, deceptive and abusive trade practices that lull consumers into a false state of complacency after accepting Defendant's offer of "free" credit file monitoring. This Complaint also seeks fair compensation for all class members who have been or will be injured by the deceptive, unfair, and otherwise wrongful business practices and conduct of Defendant and its agent(s) that violate Washington and federal laws. This Complaint's allegations are based on (1) information provided by the Securities and Exchange Commission (SEC), the Federal Trade Commission (FTC), and other governmental agencies along with (2) personal knowledge as to Defendant's conduct relative to its negligent data security practices before and after the September 7, 2017 announcement and (3) personal knowledge as to Defendant's conduct with regard to stocks sold over the New York Stock Exchange. Defendant is in the business of collecting and selling consumer credit data to other businesses, including, but not limited to, banks, utilities, insurance firms, and government agencies.[BN] The Plaintiffs are represented by: Catherine J. Fleming, Esq. Brad J. Moore, Esq. Ray W. Kahler, Esq. STRITMATTER KESSLER WHELAN KOEHLER MOORE KAHLER 3600 15th Avenue West, #300 Seattle, WA 98119 Telephone: (206) 448 1777 Facsimile: (206) 728 2131 E-mail: Catherine@stritmatter.com Brad@stritmatter.com Ray@stritmatter.com EQUIFAX INC: Faces "Dixon" Suit over Data Security Breach --------------------------------------------------------- CHRISTOPHER TANKS and BRITTANY DIXON, on behalf of themselves and all others similarly situated, the Plaintiffs, v. EQUIFAX, INC., a Georgia corporation; and DOES 1-10, inclusive, the Defendants, Case No. 3:17-cv-01832-BAS-BLM (S.D. Cal., Sep. 11, 2017), seeks to recover damages, including actual and statutory damages, equitable relief, reimbursement of out-of-pocket losses, other compensatory damages, a lifetime of credit monitoring services with accompanying identity theft insurance, and injunctive relief including an order requiring Equifax to implement improved data security measures. Equifax's failure to adequately protect consumers' most sensitive information has far reaching implications, the complaint says. The stolen Personal Identifying Information (PII) includes detailed personal data, including names, social security numbers, birth dates, addresses, driver's license numbers, credit card numbers, bank account numbers, and more. According to its September 7, 2017 press release, Equifax acknowledged it experienced "a cybersecurity incident potentially impacting approximately 143 million U.S. consumers. Criminals exploited a U.S. website application vulnerability to gain access to certain files. Based on the company's investigation, the unauthorized access occurred from mid-May through July 2017." The lawsuit notes that Equifax claims it discovered the breach on July 29, 2017, yet it did nothing to notify affected consumers until September 8, leaving Plaintiffs and half of America vulnerable to identity thieves. As of the date of the filing of this complaint, Equifax still has not bothered to notify Plaintiffs or Class Members of the Data Breach. Meanwhile, Equifax's top executives have been busy protecting themselves rather than focusing on Plaintiffs' vulnerabilities, selling off millions of dollars of their stock before notifying the public. Other stock trading activity suggests other insiders secretly traded Equifax stock, capitalizing on their knowledge there would be a dramatic decline of the stock following the announcement. The Data Breach was a direct result of Equifax's failure to implement adequate security measures to safeguard consumers' PII. Equifax willfully ignored known weaknesses in its data security, including prior hacks into its information systems. Unauthorized parties routinely attempt to gain access to and steal personal information from networks and information systems, like Equifax. Inasmuch as Equifax is known to possess a massive amount of our nation's PII, Equifax had a duty to implement effective procedures to avoid a breach of this magnitude. Equifax utterly failed in its duty, causing potential harm of gargantuan proportions -- potentially impacting consumers for life. According to the complaint, Equifax's failure to adequately protect the PII of Plaintiffs and Class Members will allow identity thieves to commit a variety of crimes that harm victims of the Data Breach. For instance, the thieves can take out loans, mortgage property, open bank accounts and credit cards in a victim's name; use a victim's information to obtain government benefits or file fraudulent returns to obtain a tax refund, obtain a driver's license or identification card in a victim's name, gain employment in a victim's name, obtain medical services in a victim's name, and/or give false information to police during an arrest. Hackers also routinely sell individuals' PII to other nefarious individuals who intend to misuse the information. As a direct result of Equifax's willful failure to prevent the Data Breach, Plaintiffs and Class Members have been exposed to a significant likelihood of fraud, identity theft, and financial harm, and to a substantial, heightened, and imminent risk of such harm in the near and indefinite future. Defendant is in the business of collecting and selling consumer credit data to other businesses, including, but not limited to, banks, utilities, insurance firms, and government agencies.[BN] The Plaintiffs are represented by: Helen I. Zeldes, Esq. David Peck, Esq. Lauren Stewart, Esq. COAST LAW GROUP, LLP 1140 S. Coast Hwy 101 Encinitas, CA 92024 Telephone: (760) 942 8505 Facsimile: (760) 942 8515 E-mail: helen@coastlaw.com - and - Tammy Gruder Hussin, Esq. HUSSIN LAW 1596 N. Coast Highway 101 Encinitas, CA 92024 Telephone: (877) 677 5397 Facsimile: (877) 667 1547 E-mail: tammy@hussinlaw.com EQUIFAX INC: Faces "Christensen" Suit over Data Breach ------------------------------------------------------ Tom Partridge, Zane L. Christensen, Jennifer J. Christensen, Zachary A. Christensen, Cameron Christensen, et al and unknown Plaintiffs 1-143,000,000, the Plaintiffs, v. Equifax, Incorporated, Equifax Information Services, LLC and Does 1-1,000, the Defendants, Case No. 2:17-cv-01017-DBP (D. Utah, Sep. 11, 2017), seeks to recover damages, including actual and statutory damages, equitable relief, reimbursement of out-of-pocket losses, other compensatory damages, credit monitoring services with accompanying identity theft insurance, and injunctive relief including an order requiring Equifax to implement improved data security measures. On September 7, 2017, Plaintiffs were advised that Equifax were the subject of a data breach, in which unauthorized individuals accessed Equifax's website. The Plaintiffs believe the unauthorized individuals who accessed the website have already used information gained in the breach, including names, addresses, Social Security numbers, alternative identification numbers, driver's license information, wage information, employment information, and other personal information, to sell and compromise Plaintiffs' information. According to the lawsuit, Equifax was aware of the Data Breach in July 2017, but refused to comment on the Data Breach, or provide any notification directly to affected individuals at that time, and it was not until September 7 that the information became public. The Data Breach occurred because Equifax failed to implement adequate security measures to safeguarded consumers' Personal Identifying Information (PII) and willfully ignored known weaknesses in its data security, including prior hacks into its information systems. Unauthorized parties routinely attempt to gain access to and steal personal information from networks and information systems-especially from entities such as Equifax, which are known to possess a large number of individuals' valuable personal and financial information. Armed with this personal information, identity thieves can commit a variety of crimes that harm victims of the Data Breach. For instance, they can take out loans, mortgage property, open financial accounts, purchase cars, and open credit cards in a victim's name; use a victim's information to obtain government benefits or file fraudulent returns to obtain a tax refund; obtain a driver's license or identification card in a victim's name; gain employment in a victim's name; obtain medical services in a victim's name; or give false information to police during an arrest. Hackers also routinely sell individuals' PII to other individuals who intend to misuse the information. As a result of Equifax's willful failure to prevent the Data Breach, Plaintiff and Class Members have been exposed to fraud, identity theft, and financial harm and to a substantial, heightened, and imminent risk of such harm in the future. It cannot be questioned that the PII of Plaintiffs and Class Members was taken for the purpose of stealing the identity of Plaintiffs and Class Members which has already resulted in and will continue to result in damage to them. Plaintiffs and Class Members have to monitor their financial accounts and credit histories more closely and frequently to guard against identity theft. Plaintiffs and Class Members also have incurred, and will continue to incur, additional out-of-pocket costs for obtaining credit reports, credit freezes, credit monitoring services, and other protective measures in order to detect, protect, and repair the Data Breach's impact on their PII for the remainder of their lives. Going forward, Plaintiffs and Class Members anticipate spending considerable time and money for the rest of their lives in order to detect and respond to the impact of the Data Breach. Defendant is in the business of collecting and selling consumer credit data to other businesses, including, but not limited to, banks, utilities, insurance firms, and government agencies.[BN] The Plaintiffs are represented by: Steven A. Christensen, Esq. CHRISTENSEN YOUNG & ASSOCIATES, PLLC 9980 South 300 West No. 200 Sandy, UT 84070 Telephone: (801) 676 6447 Facsimile: (888) 569 2786 E-mail: steven@christensenyounglaw.com EQUIFAX INC: Faces "Waszkelewicz" Suit in N.D. of Georgia --------------------------------------------------------- A class action lawsuit has been filed against Equifax, Inc. The case is styled as John Eastman and Paul Waszkelewicz, individually and on behalf of other similarly situated persons, Plaintiffs v. Equifax, Inc., Defendant, Case No. 1:17-cv-03512-TWT (N.D. Ga., September 13, 2017). Equifax Inc. is a global provider of information solutions and human resources business process outsourcing services for businesses, governments and consumers.[BN] The Plaintiffs are represented by: Joel B. Strauss, Esq. Kaplan Kilsheimer & Fox 850 Third Avenue New York, NY 10022 Tel: (212) 687-1980 - and - Laurence D. King, Esq. Kaplan Fox & Kilsheimer, LLP 14th Floor 850 Third Avenue New York, NY 10022 Tel: (212) 687-1980 Email: lking@kaplanfox.com - and - Matthew B. George, Esq. Girard Gibbs, LLP 601 California Street 14th Floor San Francisco, CA 94108 Tel: (415) 981-4800 Fax: (415) 981-4846 Email: mgeorge@kaplanfox.com - and - Ranse M. Partin, Esq. Conley Griggs Partin, LLP- GA 4200 Northside Parkway, NW Atlanta, GA 30327 Building One, Suite 300 Tel: (404) 467-1155 Fax: (404) 467-1166 Email: ranse@conleygriggs.com - and - Robert N. Kaplan, Esq. Kaplan Fox & Kilsheimer, LLP 14th Floor 850 Third Avenue New York, NY 10022 Tel: (212) 687-1980 Fax: (212) 687-7714 Email: rkaplan@kaplanfox.com EQUIFAX INC: Faces "O'Neill" Suit in N.D. of Georgia ---------------------------------------------------- A class action lawsuit has been filed against Equifax, Inc. The case is styled as Kevin O'Neill, on behalf of himself and all others similarly situated, Plaintiff v. Equifax, Inc. and Does 1- 10 inclusive, Defendants, Case No. 1:17-cv-03523-ELR (N.D. Ga., September 13, 2017). Equifax Inc. is a global provider of information solutions and human resources business process outsourcing services for businesses, governments and consumers.[BN] The Plaintiff is represented by: Aaron M. Olsen Esq. Zeldes Haeggquist & Eck, LLP -CA 625 Broadway, Suite 1000 San Diego, CA 92101 Tel: (619) 342-8000 Fax: (619) 342-7878 - and - Alreen Haeggquist, Esq. Zeldes Haeggquist & Eck, LLP -CA 625 Broadway, Suite 1000 San Diego, CA 92101 Tel: (619) 342-8000 Fax: (619) 342-7878 - and - David Andrew Bain, Esq. Law Offices of David A. Bain, LLC 1050 Promenade II 1230 Peachtree Street, NE Atlanta, GA 30309 Tel: (404) 724-9990 Fax: (404) 724-9986 Email: dbain@bain-law.com EQUIFAX INC: Faces "Englert" Suit in N.D. of Georgia ---------------------------------------------------- A class action lawsuit has been filed against Equifax, Inc. The case is styled as Gina Englert, Steven Wininger and Brian Curtis, individually and on behalf of all others similarly situated, Plaintiffs v. Equifax, Inc., Defendant, Case No. 1:17-cv-03509-ODE (N.D. Ga., September 13, 2017). Equifax Inc. is a global provider of information solutions and human resources business process outsourcing services for businesses, governments and consumers.[BN] The Plaintiffs are represented by: David James Worley, Esq. Evangelista Worley, LLC 8100 A Roswell Road, Suite 100 Atlanta, GA 30350 Tel: (404) 205-8400 Fax: (404) 205-8395 Email: david@ewlawllc.com - and - James M. Evangelista, Esq. Evangelista Worley, LLC 8100 A Roswell Road, Suite 100 Atlanta, GA 30350 Tel: (404) 205-8400 Fax: (404) 205-8395 Email: jim@ewlawllc.com - and - Kristi Stahnke McGregor, Esq. Evangelista Worley, LLC 8100 A Roswell Road, Suite 100 Atlanta, GA 30350 Tel: (404) 205-8400 Fax: (404) 205-8395 Email: kristi@ewlawllc.com EQUIFAX INC: Faces "Pleasant" Suit in N.D. of Georgia ----------------------------------------------------- A class action lawsuit has been filed against Equifax, Inc. The case is styled as Thomas W. Pleasant, M. Justin Holoman, Mallory E. Haddon, Robert Kinsman, Courtenay Byrd, Gail Byrd and Evans Byrd, individually, and on behalf of all other similarly situated, Plaintiffs v. Equifax, Inc., Defendant, Case No. 1:17-cv-03507-LMM (N.D. Ga., September 13, 2017). Equifax Inc. is a global provider of information solutions and human resources business process outsourcing services for businesses, governments and consumers.[BN] The Plaintiffs are represented by: George Edwin Butler, II, Esq. Office of George E. Butler, II 132 Hawkins Street Dahlonega, GA 30533 Tel: (404) 873-2544 Email: geb@lawyers.com - and - Joel R. Rhine, Esq. Law Office of Rhine Law Firm, P.C. 1612 Military Cutoff Road, Suite 300 Wilmington, NC 28403 Tel: (910) 772-9960 Fax: (910) 772-9062 EQUILON ENTERPRISES: Court Denies Bid to Dismiss "Berlanga" ------------------------------------------------------------ The United States District Court for the Northern District of California issued an Order denying Defendant Shell's Motion to Dismiss the case captioned DAVID BERLANGA, et al., Plaintiffs, v. EQUILON ENTERPRISES LLC, et al., Defendants, Case No. 17-cv-00282- MMC (N.D. Cal.). Before the Court is defendants Shell Pipeline Company LP, Equilon Enterprises LLC, CRI U.S. LP and CRI Catalyst Company LP's (Shell) Motion to Dismiss Plaintiffs' Amended Complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiffs are six individuals who work as operators at Shell's refining and distribution facilities, shipping and storage terminal facilities, and catalyst production plants in California. Plaintiffs allege Berlanga works at the Carson Terminal, Ehresman works at the Criterion Catalyst Plant, and Gaeth, Gonzalez, Langlitz and Palacio work at the Martinez Refinery. Plaintiffs allege they are scheduled for and work 12-hour shifts, during which Shell uniformly requires them to remain on duty the entire shift. Plaintiffs' claims, all of which arise under state law, are based on the allegation that Shell has a policy or practice of failing to authorize and permit plaintiffs to take the rest periods to which they are entitled under California law. Shell argues that, under the doctrine of complete preemption, plaintiffs' state law claims must be treated as federal claims. "Where the pre-emptive force of a federal statute is so strong that it completely pre-empts an area of state law, a claim purportedly based on a pre-empted state law is considered, from its inception, a federal claim," the Court stated. The Labor Management Relations Act (LMRA) includes 29 U.S.C. Section 185(a), a federal statute that completely pre-empts state laws claims, specifically, claims founded directly on rights created by collective-bargaining agreements, and also claims substantially dependent on analysis of a CBA. Here, Shell argues, resolution of plaintiffs' claims is substantially dependent on an analysis of the terms of the applicable CBAs. Plaintiffs, in response, argue that their claims are dependent solely on an analysis of state law, in particular, the California Labor Code. As plaintiffs note, Shell's argument appears to pertain to the Second Claim for Relief, wherein plaintiffs allege Shell failed to provide plaintiffs with an accurate itemized statement of gross wages earned (a), which claim requires plaintiffs, in order to obtain monetary relief, to show such alleged failure was knowing and intentional as used in the Labor Code. Consequently, resolution of plaintiffs' claim that they did not receive rest periods is not substantially dependent on the meaning of the term uninterrupted as used in the CBA. In particular, even assuming the contractual term "uninterrupted" has a meaning different from the statutory definition, such difference would have no bearing on the question of Shell's state of mind under the Labor Code, as California's rest period provision is a state-mandated minimum labor standard that parties to a CBA cannot waive. Each CBA includes, in a section titled Rest Period, the following three provisions on which Shell relies, inter alia: "Covered Employees will record that they were authorized and permitted to take Rest Periods as provided by California law, unless otherwise indicated, on their shift turnover report (or other document as determined by the Company)." Although Shell argues the above-referenced provisions must be examined and interpreted to determine what type of notice and reporting are required. Shell fails to identify how any such provision could have any bearing on plaintiffs' state law claims, none of which challenges any of the above-required procedures or otherwise is dependent on an analysis of those contractual provisions. Shell contends resolution of the rest break claim in this case would require an analysis of the grievance process provided in the [CBAs] and interpretation of the CBAs to determine whether those procedures were exhausted. Shell fails, however, to show the above-referenced provisions have any bearing on plaintiffs' state law claims, none of which requires exhaustion of contractual remedies as a prerequisite to filing suit or otherwise appears to be in any manner dependent on an analysis of the grievance procedure. Arguments Specific to Individual Claims Second Claim for Relief: Failure to Furnish Accurate Wage Statements The Court, having reviewed the cases cited by the parties, agrees with those district courts that have found payments due employees for missed rest periods are properly characterized as wages, and, thus, that a claim under Section 226 can be based on an alleged failure to include on a wage statement payments due for missed rest periods. In particular, as those district courts have observed has held, in the context of determining the applicable statute of limitations for claims alleging meal and rest period violations, section 226.7 payments are a form of wages The Court finds the California Supreme Court, having characterized payments for missed rest periods to be wages for one purpose under the Labor Code, would not define those payments to be something other than wages for other purposes under the Labor Code. Accordingly, Shell has not shown the Second Claim for Relief is subject to dismissal. Third Claim for Relief: Private Attorneys General Act In the Third Claim for Relief, plaintiffs seek to recover civil penalties for which plaintiffs allege Shell is liable as a result of failing to provide rest periods. Here, in their initial complaint, plaintiffs alleged they were "in the process of exhausting their administrative remedies and would amend the complaint when plaintiffs' administrative remedies had been exhausted. In the FAC, plaintiffs allege they have exhausted their administrative remedies, specifically, that they provided the requisite notice to the LWDA and Shell that they paid the filing fee to the LWDA, and that the LWDA did not provide notice to plaintiffs that it intend[ed] to investigate the alleged violations within 65 calendar days. Consistent therewith, district courts that have considered the issue have found a plaintiff may amend a PAGA claim to allege subsequent compliance with the exhaustion requirements. Accordingly, Shell has not shown the Third Claim for Relief is subject to dismissal. Fourth Claim for Relief: Unfair Business Practice and Unfair Competition Shell argues that the payments due employees for missed rest periods cannot be recovered in a Section 17200 claim, and, consequently, that the claim should be dismissed to the extent plaintiffs seek restitution. The Court agrees with the reasoning in Azpeitia, (Azpeitia, 2017 WL 3115168), which, as have numerous district courts in which the California Supreme Court determined unlawfully withheld wages are property of the employee within the contemplation of Section 17203, and, consequently, an order that earned wages be paid is therefore a restitutionary remedy authorized by section 17203. Accordingly, Shell has not shown the Fourth Claim for Relief is subject to dismissal. Prayer for Attorney Fees In support of its argument that plaintiff's claim for attorney's fee should be dismissed, Shell again relies on Kirby, in which, as discussed above, the California Supreme Court held that a party prevailing under Section 226.7 is not entitled to an award of attorney's fees under Section 218.5 holding claim brought under Section 226.7 is action brought for non-provision of meal or rest breaks, and not, as is required to seek fees under section 218.5, an action brought for non-payment of wages. As plaintiffs point out, however, they do not seek an award of fees under Section 218.5, and Shell has not shown the statutes on which plaintiffs do rely are inapplicable. Accordingly, Shell has not shown plaintiffs' prayer for attorneys' fees is subject to dismissal. Shell Defendants' motion to dismiss is denied. A full-text copy of the District of Court's August 31, 2017 Order is available at http://tinyurl.com/yb7uf87yfrom Leagle.com. David Berlanga, Plaintiff, represented by Cornelia Dai -- cdai@hadsellstormer.com -- Hadsell Stormer & Renick, LLP. David Berlanga, Plaintiff, represented by Jay Edward Smith -- jsmith@steptoe.com -- Gilbert & Sackman, A Law Corporation, Randy R. Renick, Hadsell Stormer & Renick, LLP & Joshua Finley Young -- jyoung@gslaw.org -- Gilbert & Sackman, A Law Corporation. Brandon Ehresman, Plaintiff, represented by Cornelia Dai, Hadsell Stormer & Renick, LLP, Jay Edward Smith, Gilbert & Sackman, A Law Corporation, Randy R. Renick, Hadsell Stormer & Renick, LLP & Joshua Finley Young, Gilbert & Sackman, A Law Corporation. Charles Gaeth, Plaintiff, represented by Cornelia Dai, Hadsell Stormer & Renick, LLP, Jay Edward Smith, Gilbert & Sackman, A Law Corporation, Randy R. Renick, Hadsell Stormer & Renick, LLP & Joshua Finley Young, Gilbert & Sackman, A Law Corporation. Michael Gonzalez, Plaintiff, represented by Cornelia Dai, Hadsell Stormer & Renick, LLP, Jay Edward Smith, Gilbert & Sackman, A Law Corporation, Randy R. Renick, Hadsell Stormer & Renick, LLP & Joshua Finley Young, Gilbert & Sackman, A Law Corporation. John Langlitz, Plaintiff, represented by Cornelia Dai, Hadsell Stormer & Renick, LLP, Jay Edward Smith, Gilbert & Sackman, A Law Corporation, Randy R. Renick, Hadsell Stormer & Renick, LLP & Joshua Finley Young, Gilbert & Sackman, A Law Corporation. Christopher Palacio, Plaintiff, represented by Cornelia Dai, Hadsell Stormer & Renick, LLP, Jay Edward Smith, Gilbert & Sackman, A Law Corporation, Randy R. Renick, Hadsell Stormer & Renick, LLP & Joshua Finley Young, Gilbert & Sackman, A Law Corporation. Equilon Enterprises LLC, Defendant, represented by Rebecca Kim Kimura -- lkimura@lkclaw.com -- Lafayette & Kumagai LLP & Gary T. Lafayette -- glafayette@lkclaw.com -- Lafayette & Kumagai LLP. CRI U.S. LP, Defendant, represented by Rebecca Kim Kimura, Lafayette & Kumagai LLP & Gary T. Lafayette, Lafayette & Kumagai LLP. Shell Pipeline Company LP, Defendant, represented by Rebecca Kim Kimura, Lafayette & Kumagai LLP & Gary T. Lafayette, Lafayette & Kumagai LLP. CRI Catalyst Company LP, Defendant, represented by Rebecca Kim Kimura, Lafayette & Kumagai LLP & Gary T. Lafayette, Lafayette & Kumagai LLP. EUROPEAN AMERICAN WASTE: Failed to Pay Wages, Guerrero Says ----------------------------------------------------------- HECTOR GUERRERO, individually and on behalf of all other persons similarly situated who were employed by EUROPEAN AMERICAN WASTE SERVICES, INC. and/or other entities affiliated or controlled by EUROPEAN AMERICAN WASTE SERVICES, INC., the Plaintiffs, v. EUROPEAN AMERICAN WASTE SERVICES, INC., the Defendant, Case No. 609318/2017 (N.Y. Sup. Ct., Sep. 11, 2017), seeks to recover wages and benefits which Plaintiffs and members of the putative class were statutorily and contractually entitled to receive for work they performed in connection with various public works contracts for the performance of refuse removal and related work with various municipalities and/or municipal subdivisions within the State of New York, including but not limited to the Town of Riverhead; and for unpaid overtime compensation for work performed while not employed in connection with the Government. This action is brought on behalf of Plaintiff and a putative class of individuals who furnished labor to Defendants. According to the Complaint, the Defendants paid Plaintiffs less than the prevailing rates of wages and supplements to which Plaintiffs were entitled for all hours they worked upon the Public Works Contracts. While working for Defendants, Plaintiffs and the members of the putative class did not receive all earned overtime wages, at the rate of one and one half times the regular rate of pay, for the time in which they worked after the first forty hours in any given week, including time worked reporting to the company yard at the beginning and end of each workday. The Defendants constituted the "employers" of the Named Plaintiffs and others similarly situated. European-American Waste Disposal Corp. is located in Wantagh, New York. This organization primarily operates in the garbage collection and transport business.[BN] The Plaintiff is represented by: Lloyd Ambinder, Esq. VIRGINIA & AMBINDER, LLP 40 Broad Street, 7th Floor New York, N.Y. 10004 Telephone: (212) 943 9080 EVANSTON, IL: Two Due Process Classes Certified in "Wilson" Suit ---------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on August 30, 2017, in the case captioned Jermaine Wilson, et al. v. City of Evanston, Illinois, Case No. 1:14-cv-08347 (N.D. Ill.), relating to a hearing held before the Honorable John Z. Lee. The minute entry states that for the reasons stated in the memorandum opinion and order, the Plaintiffs' motion for class certification is granted. The Plaintiffs may proceed with their claims on behalf of these classes: (1) Class I, Substantive Due Process: All persons whose property, following an arrest on and after October 23, 2012, was held at EPD and destroyed or otherwise disposed of, before court proceedings in connection with which such property was seized or otherwise taken possession of reached a final, appealable judgment, or were terminated without reaching such a judgment; and (2) Class II, Procedural Due Process: All persons whose property, following an arrest on and after October 23, 2012, was held at EPD and destroyed or otherwise disposed of, while that person remained in the custody of a jail or penitentiary for over thirty days. A copy of the Notification of Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=rHpzHk46 FOSSIL GROUP: Faces "Safransky" Suit in S.D. of California ---------------------------------------------------------- A class action lawsuit has been filed against Fossil Group, Inc. The case is styled as Timur Safransky, on behalf of himself and all others similarly situated, Plaintiff v. Fossil Group, Inc., Fossil Stores I, Inc., Does 1 through 100 inclusive, Defendants, Case No. 3:17-cv-01865-MMA-NLS (S.D. Cal., September 13, 2017). Fossil Group, Inc. is a global design, marketing and distribution company that specializes in consumer lifestyle and fashion accessories.[BN] The Plaintiff is represented by: Zev Benjamin Zysman, Esq. Law Offices of Zev B. Zysman, APC 15760 Ventura Boulevard 16th Floor Encino, CA 91436 Tel: (818) 783-8836 Fax: (818) 783-9985 Email: zev@zysmanlawca.com GATESTONE & CO: Ballaj Seeks Prelim. Approval of Class Settlement ----------------------------------------------------------------- The Plaintiff in the lawsuit entitled VALBONA BALLAJ, on behalf of herself and those similarly situated v. GATESTONE & CO. INTERNATIONAL INC.; and JOHN DOES 1 to 10, Case No. 2:16-cv-01311- CLW (D.N.J.), on consent of the Defendant, asks the Court for an order certifying the case to proceed as a class action and granting preliminary approval of the parties' class settlement agreement. The class is defined as: All Consumers residing in the State of New Jersey to whom Gatestone & Co. International, Inc. mailed a written communication in a windowed envelope between March 7, 2015, and March 7, 2016, to collect a debt on behalf of Bank of America, N.A., where the bar code containing the reference number associated with the consumer's debt was visible from the outside of the envelope. Ms. Ballaj filed the class action lawsuit pursuant to the Fair Debt Collection Practices Act, which alleges Gatestone violated the FDCPA by mailing collection letters to consumers, which contained a standardized barcode visible from the face of the envelope in which it was mailed, and each barcode when scanned reveals the Gatestone internal reference number associated with each person's debt. She alleged that Gatestone's foregoing standardized letters violated the plain language of 15 U.S.C. Section 1692f(8). A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=qIG3pr26 The Plaintiff is represented by: Philip D. Stern, Esq. Andrew T. Thomasson, Esq. STERN THOMASSON LLP 150 Morris Avenue, 2nd Floor Springfield, NJ 07081-1315 Telephone: (973) 379-7500 E-mail: philip@sternthomasson.com andrew@sternthomasson.com - and - Yongmoon Kim, Esq. KIM LAW FIRM LLC 411 Hackensack Avenue, Suite 200 Hackensack, NJ 07601 Telephone: (201) 273-7117 E-mail: ykim@kimlf.com HOSPITAL SERVICE: "Leet" Suit Remanded to Louisiana State Court --------------------------------------------------------------- The United States District Court for the Middle District of Louisiana issued an Order and Reasons holding that the District Court lacks subject matter jurisdiction over the case captioned VICTORIA LEET, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, v. HOSPITAL SERVICE DISTRICT NO. 1 OF EAST BATON ROUGE PARISH, d/b/a LANE REGIONAL MEDICAL CENTER; ALEGIS REVENUE SOLUTIONS, LLC; AND LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY, d/b/a BLUE CROSS AND BLUE SHIELD OF LOUISIANA, Civil Action No. 15-811-JWD-EWD (M.D. La.), and remands it to the 19th Judicial District Court for the Parish of East Baton Rouge of the State of Louisiana for further proceedings. This matter comes before the Court on an issue raised sua sponte relating to the Court's subject matter jurisdiction over Plaintiff Victoria Leet's ("Plaintiff") claims. Plaintiff filed a class action petition for payment of a thing not due, for damages, for declaratory relief, and for injunctive relief in the 20th Judicial District Court for the Parish of West Feliciana (20th JDC). The original petition named Lane and Alegis as defendants. The petition alleged, inter alia, that at some point after receiving treatment at Lane for injuries Plaintiff sustained during a motor vehicle accident, Lane "filed a claim with BCBSLA, which claim was paid by BCBSLA in the amount of $1477.74 with no deductible, no co-pay, and no co-insurance required for said treatment. Pursuant to 28 U.S.C. Section 1331, this court has original jurisdiction "of all civil actions arising under the Constitution, laws, or treaties of the United States. It is axiomatic that the federal courts have limited subject matter jurisdiction and cannot entertain cases unless authorized by the Constitution and legislation. Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996) ted). The removing party bears the burden of showing that federal jurisdiction exists and that removal was proper. De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). A defendant may remove "any civil action brought in a State court of which the district courts of the United States have original jurisdiction. 28 U.S.C. Section 1441(a). Subject matter jurisdiction must exist at the time of removal to federal court, based on the facts and allegations contained in the complaint. Federal Question Jurisdiction Under ERISA According to the well-pleaded complaint rule, a suit arises under the Constitution and laws of the United States only when the plaintiff's statement of his own cause of action shows that it is based upon those laws or that Constitution. It is not enough that the plaintiff alleges some anticipated defense to his cause of action, and asserts that the defense is invalidated by some provision of the Constitution of the United States. Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908). The plaintiff must directly establish the grounds for federal jurisdiction by expressing the complaint's basis in federal law. In short, if a claim is subject to conflict pre-emption, the issue remains a state issue, and the apparent issue of conflict pre- emption may preclude the validity of the law but must be enforced within the jurisdiction of the state courts. On the other hand, complete pre-emption automatically renders the claim within the purview of federal question jurisdiction. The parties unanimously agree that the Court has subject matter jurisdiction, albeit for different reasons. The Court will briefly summarize the parties' respective positions relative to this Court's jurisdiction. Plaintiff immediately notes that a number of similar cases have been removed to federal courts across the state, and then remanded for lack of subject matter jurisdiction. She briefly outlines the similar cases that were removed and subsequently remanded, and then attempts to distinguish each of these cases from the instant case. Plaintiff avers that the legal analysis of the cited cases was correct under the facts presented in those cases. The instant case is distinguishable because unlike the cases cited above, there is evidence that BCBSLA denied claims for the purpose of delaying adjudication and payment, thus giving the provider time to collect from the third party claim of plaintiffs. Lane submits that the Court has subject matter jurisdiction over Plaintiff's claims because they are at least, in part, completely preempted under ERISA, and therefore BCBSLA's removal of the case to this Court was proper under 28 U.S.C. Section 1441. Citing Supreme Court jurisprudence, Lane insists that ERISA's "expansive preemption provisions" were intended to ensure that ERISA- regulated plans would be exclusively a federal concern. It insists that while Plaintiff's state law claims, such as her claim for breach of a promesse de porte-forte pursuant to La. Civ. Code art. 1977, attempt to provide remedies beyond those that ERISA authorizes[, they do] not place those claims outside the scope of ERISA's civil enforcement mechanism. BCBSLA argues that because Plaintiff seeks benefits promised under an ERISA-regulated plan, her claims are completely preempted and this Court therefore has subject matter jurisdiction over this case. BCBSLA asserts that while jurisdiction is usually assessed on the basis of the complaint (i.e. the well-pleaded complaint rule), when a statute completely preempts a state law cause of action, the state claim may be removed, and such is the case here. Plaintiff reiterates her position that Emigh and Williams were properly decided because in those cases, there was no evidence that an ERISA plan third party administrator improperly denied or administered a claim. In contrast, in this case, there is evidence that BCBSLA improperly denied the claim for treatment of Ms. Leet. She once again insists that the Court has ERISA jurisdiction over some of her claims, and that it should exercise supplemental jurisdiction pursuant to 28 U.S.C. Section 1367(a). Accordingly, in light of these and following an independent review of the record, the Court holds that ERISA does not pre-empt Plaintiff's claims. Consistent with the holding and rationale in Emigh and Williams, the Court finds that it lacks subject-matter jurisdiction over Plaintiff's claims and this case must be remanded. These claims rely solely on Louisiana law, not ERISA, and will not require an interpretation of the plan. Rather the hospital's billing practices are the relevant facts, and the insurers' liability is alleged to arise by operation of Louisiana law, not the ERISA plan. Because Plaintiff has failed to allege facts that distinguish the instant case from Williams and Emigh, the Court is persuaded that it must follow suit and remand the action, and that Plaintiff must endure the same fate as those in the Eastern and Western Districts and pursue the action in state court. A full-text copy of the District of Court's August 31, 2017 Order and Reasons is available at http://tinyurl.com/y6u4mjegfrom Leagle.com. Victoria Leet, Plaintiff, represented by Andrew Joseph D'Aquilla, Andrew Joseph D'Aquilla. 11745 Ferdinand St., Saint Francisville, LA, 70775 Victoria Leet, Plaintiff, represented by Claude Devall, Hoffoss Devall, LLC, 517 West College Street, Lake Charles, La 70506, Derrick G. Earles, Laborde Earles Law Firm, LLC, 203 Energy Pkwy, Bldg B, Lafayette, LA 70508-3815, Donald Wayne McKnight, Hoffoss Devall, LLC, John Lee Hoffoss, Jr., Hoffoss Devall, LLC, 517 West College Street, Lake Charles, La 70506, Lawrence J. Centola, III, , Martzell & Bickford & Scott R. Bickford, Martzell & Bickford, 338 Lafayette St., New Orleans, LA 70130-3244 Hospital Service District No. 1 of East Baton Rouge Parish, Louisiana, Defendant, represented by David Robert Kelly, Breazeale -- david.kelly@bswllp.com -- Sachse & Wilson, Chris D. Billings -- chris.billings@bswllp.com -- Breazeale, Sachse & Wilson, Joseph John Cefalu, III -- joseph.cefalu@bswllp.com -- Breazeale Sachse Wilson, LLP & Thomas Richard Temple, Jr.- thomas.temple@bswllp.com -- Breazeale, Sachse & Wilson. Louisiana Health Service & Indemnity Company, Defendant, represented by Charles A. O'Brien, III, Jonathan M. Herman, Herman Law Firm & Allison Nunley Pham. IPAWN RODNEY: Court Refuses to Dismiss Complaints in "Jones" Suit ----------------------------------------------------------------- The Hon. Kristine G. Baker entered an order in the lawsuit captioned VINCIENT JONES, individually and on behalf of a class of similarly situated persons v. IPAWN RODNEY PARHAM, LLC; IPAWN BASELINE, LLC; IPAWN ARKANSAS, INC.; STEVEN LANDERS JR., Case No. 4:16-cv-00644-KGB (E.D. Ark.): * denying as moot the Defendants' motion to dismiss the original complaint; * taking under advisement the motion for class certification filed by Mr. Jones, as that motion is not yet ripe; * denying as moot the Defendants' motion to dismiss the amended complaint; * denying in part and granting in part the motion to stay responses to motion for class certification and to respond to written discovery requests until ruling on motion to dismiss or in the alternative an extension of time to respond filed by the Defendants; * granting Mr. Jones's motion for leave to file a second amended complaint; and * granting Mr. Jones's motion for initial scheduling order. Mr. Jones is directed to file his amended complaint within seven days from the entry of this Order. The Defendants are directed to respond to the pending motion for class certification within 15 days from the entry of this Order. Mr. Jones filed a class action complaint in Pulaski County Circuit Court. The case was then removed to the District Court by the Defendants based on federal question jurisdiction. Since that time, the Defendants filed a motion to dismiss the original complaint for failure to state a claim. Soon after, Mr. Jones filed an amended class action complaint, rendering the original motion to dismiss moot. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=2kc93oHw J RECKNER ASSOCIATES: Lyngaas Seeks TCPA Class Certification ------------------------------------------------------------ The Plaintiff in the lawsuit styled BRIAN LYNGAAS, D.D.S., individually and as the representative of a class of similarly- situated persons v. J. RECKNER ASSOCIATES, INC. d/b/a RECKNER HEALTHCARE, Case No. 2:17-cv-12867-TGB-EAS (E.D. Mich.), moves for entry of an order certifying this class: Each or entity person sent one or more telephone facsimile messages from "Reckner Healthcare" that invited them to participate for payment or compensation in a survey or telephone interview but did not state on its first page that failure to comply with such a request to removed from future faxes within 30 days would be unlawful. Mr. Lyngaas states that he files the Motion soon after the filing of the Class Action Complaint in order to avoid an attempt by the Defendant to moot his individual claims. However, he notes, in this case, additional discovery is necessary for the court to determine whether to certify the class he seeks to represent. As a result, he will seek leave to pursue class discovery as soon as practicable. The case involves common fact questions about the Defendant's alleged fax campaign and common legal questions under the Telephone Consumer Protection Act. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=iE31buh6 The Plaintiff is represented by: Phillip A. Bock, Esq. Robert M. Hatch, Esq. BOCK, HATCH, LEWIS & OPPENHEIM, LLC 134 N. La Salle Street, Suite 100 Chicago, IL 60602 Telephone: (312) 658-5500 Facsimile: (312) 658-5555 E-mail: phil@bockhatchllc.com robert@classlawyers.com - and - Richard Shenkan, Esq. SHENKAN INJURY LAWYERS, LLC 6550 Lakeshore St. West Bloomfield, MI 48323 Telephone: (248) 562-1320 E-mail: rshenkan@shenkanlaw.com KSJC ENTERPRISES: "Edmontson" Suit Seeks Unpaid Overtime Premium ---------------------------------------------------------------- Jimmie Edmontson, Justin Alexander and Otis Smith, on behalf of themselves and all others similarly situated, Plaintiffs, v. KSJC Enterprises, Inc., Sweet Water Tavern and Jeffrey Cain, Defendants, Case No. 5:17-cv-12789 (E.D. Mich., August 24, 2017), seeks to recover unpaid wages and overtime compensation owed under the Fair Labor Standards Act of 1938. Defendants operate a restaurant, Sweet Water Tavern, where Plaintiffs worked as restaurant employees, regularly working in excess of 40 hours per week, but denied overtime premium. [BN] Plaintiff is represented by: Maia E. Johnson, Esq. David A. Hardesty, Esq. 2701 Troy Center Dr., Ste. 400 Troy, MI 48084 Tel: (248) 275-5200 LACY ONE: Court Certifies Class of Deliverymen in "Lamar" Suit -------------------------------------------------------------- The Hon. Kristine G. Baker granted the Plaintiff's motion for conditional certification, for approval and distribution of notice, and for disclosure of contact information in the lawsuit titled SETH LAMAR, individually and on behalf of all others similarly situated v. LACY ONE, LLC and TAMMARA LACY, Individually and as an owner of Lacy One, LLC, Case No. 4:16-cv-00135-KGB (E.D. Ark.). The Court conditionally certifies the case as a collective action and authorizes notice to all deliverymen (or similar positions, which may also be referred to as "drivers" or "delivery workers") who worked for Lacy One, LLC and/or Tammara Lacy at any time after March 9, 2013. In his complaint, Mr. Lamar contends that, from approximately July through November, 2015, he delivered goods and equipment for Lacy One, LLC, a private company that contracts with retailers to deliver appliances to and from customer locations in Arkansas. He alleges that Lacy One paid him and other deliverymen a day-rate without overtime premiums in violation of the Fair Labor Standards Act. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=oqZ84vqB LBC IRWINDALE: Haskell Seeks Regular Wages under Labor Code ----------------------------------------------------------- KIMBERLY HASKELL, an individual, on behalf of herself and all other similarly situated individuals, the Plaintiff, v. LBC IRWINDALE, LLC, a California corporation; LB CRUSHING, LLC, a California corporation; and DOES 1-50, inclusive, the Defendant, Case No. BC672177 (Cal. Super. Ct., Aug. 14, 2017), seeks to recover regular wages and underpaid overtime wages under the California Labor Code. The Plaintiff alleges the Defendants failed to pay overtime premiums; failed to provide rest and meal periods and/or pay premium pay for missed meal and/or rest periods; failed to properly maintain records; failed to provide accurate itemized wage statements for each pay period; failed to properly compensate Plaintiff and similarly related employees for necessary expenditures; and requiring, permitting or suffering the employees to work off the clock. LBC Irwindale is in the recycling machinery and equipment industry.[BN] The Plaintiff is represented by: Scott Ernest Wheeler, Esq. LAW OFFICES OF SCOTT ERNEST WHEELER 250 West First Street, Suite 216 Claremont, CA 91711-4790 Telephone: (909) 621 4988 Facsimile: (909) 621 4622 LEE LAW OFFICES: Accused by "Matthies" Suit of Violating FDCPA -------------------------------------------------------------- Ronda Matthies, on behalf of herself and all others similarly situated v. Lee Law Offices, P.C., Case No. 1:17-cv-00771 (W.D. Mich., August 23, 2017), accuses the Defendant of violating the Fair Debt Collection Practices Act in connection with the collection of a consumer debt asserted to be owed or due a creditor other than the Defendant. Lee Law Offices, P.C., is an entity, who engaged, by use of the mails and telephone, in the business of attempting to collect a "debt" from the Plaintiff. The Defendant regularly collects or attempts to collect, directly or indirectly, debts owed or due, or asserted to be owed or due, another.[BN] The Plaintiff is represented by: Joseph Panvini, Esq. THOMPSON CONSUMER LAW GROUP, PLLC 5235 E. Southern Ave., D106-618 Mesa, AZ 85206 Telephone: (602) 388-8875 Facsimile: (866) 317-2674 E-mail: jpanvini@consumerlawinfo.com LEMONADE RESTAURANT: "Velasco" Suit Seeks OT Pay under Labor Code ----------------------------------------------------------------- REYES VELASCO, an individual, on behalf of himself, and on behalf of all persons similarly situated, the Plaintiff, v. LEMONADE RESTAURANT GROUP, LLC, a Limited Liability Company; and DOES 1 through 50, inclusive, the Defendants, Case No. BC672835 (Cal. Super. Ct., Aug. 14, 2017), seeks to recover overtime compensation and liquidated damages under the California Labor Code. According to the complaint, the Plaintiff is not compensated by Defendant for his overtime worked at the applicable overtime rate. Defendant also fails to provide the legally required off-duty meal breaks to Plaintiff as required by the applicable Wage Order and Labor Code. The Defendant does not have a policy or practice which provides meal and rest breaks to Plaintiff and also fails to compensate Plaintiff for his missed meal and rest breaks. The Defendant owns and operates a chain of restaurants in California. The company's cafeterias offer comfort foods, salads, sandwiches, soups, meats, beverages, tuna dishes, desserts, and other seasonal food products. The Defendant also provides catering services. The Defendant was founded in 2008 and is based in Culver City, California.[BN] The Plaintiff is represented by: Norman B. Blumenthal, Esq. Kyle R. Nordrehaug, Esq. Aparajit Bhowmik, Esq. BLUMENTHAL, NORDREHAUG & BHOWMIK LLP Website: www.bamlawca.com 2255 Calle Clara La Jolla, CA 92037 Telephone: (858) 551 1223 Facsimile: (858) 551 1232 LIFEWAY FOOD: Court Narrows Claims in "Block" Suit -------------------------------------------------- Judge Matthew F. Kennelly of the U.S. District Court for the Northern District of Illinois, Eastern Division, dismissed counts 4 and 5 and otherwise denied the Defendant's motion to dismiss each of the counts in the case captioned ANDREW BLOCK, individually and on behalf of all others similarly situated, Plaintiff, v. LIFEWAY FOODS, INC., Defendant, Case No. 17 C 1717 (N.D. Ill.). Andrew Block has filed a class action complaint against Lifeway Foods, Inc., alleging that the company made fraudulent misrepresentations while marketing its kefir products. He alleges that he and others were misled by Lifeway's misrepresentations regarding its plain kefir and that they would have purchased other "99% lactose-free" products had they known Lifeway's kefir contained 4% lactose. Block proposes certification of three classes: a. National Class: All persons within the United States who purchased and consumed the Plain Kefir from the beginning of any applicable limitations period through the date of class certification. b. Consumer Fraud Multi-State Class: All persons in the States of California, Florida, Illinois, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, Rhode Island, Washington and Wisconsin who purchased and consumed the Plain Kefir from the beginning of any applicable limitations period through the date of class certification. c. Illinois Sub-Class: All persons in Illinois who purchased and consumed the Plain Kefir from the beginning of any applicable limitations period through the date of class certification. Block brings seven claims against Lifeway. In count 1, he alleges on behalf of the proposed national class that Lifeway's false statements regarding its plain kefir violate the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"). In count 2, which Block brings in the alternative to count 1, he alleges on behalf of the proposed consumer fraud multi-state class that Lifeway's false statements regarding its plain kefir violate the various consumer fraud laws of the 13 states named in that class. In count 3, which Block brings in the alternative to counts 1 and 2, he alleges on behalf of the Illinois sub-class that Lifeway's false statements regarding its plain kefir violate the ICFA. In count 4, Block alleges on behalf of the national class and the Illinois sub-class that Lifeway breached its express warranty to consumers that its plain kefir is 99% lactose-free. In count 5, Block alleges on behalf of the national class and the Illinois sub-class that Lifeway likewise breached its implied warranties that its plain kefir was fit for its ordinary use and for its particular purpose. In count 6, Block alleges on behalf of the national class and the Illinois sub-class that Lifeway's misrepresentations constitute common-law fraud. In count 7, Block alleges on behalf of the national class and the Illinois sub-class that Lifeway has been unjustly enriched as the result of its fraudulent statements. Block requests injunctive relief, actual damages, punitive damages, attorneys' fees and litigation costs, and pre- and post- judgment interest. Lifeway has moved to dismiss all seven counts in Block's complaint. At this stage, it challenges Block's ability to pursue class-wide claims on behalf of both the national class and the consumer fraud multi-state class. Lifeway argues that Block cannot pursue an ICFA claim on behalf of a national class of consumers because the members of this class who are not residents of Illinois cannot bring a claim under the ICFA. Judge Kennelly finds that the allegations in the complaint do not clearly demonstrate that the circumstances relating to these purchases did not occur primarily and substantially in Illinois. Block is an Illinois resident who purchased his kefir from a grocery store in Illinois. He has therefore alleged that the circumstances relating to his transaction occurred substantially in Illinois. Lifeway does not argue otherwise. Therefore, the Judge denied Lifeway's motion to dismiss the national class claim in count 1. Lifeway next challenges Block's proposed consumer fraud multi- state class. It contends that Block, a resident of Illinois, lacks standing to pursue claims of non-Illinois residents under the consumer fraud laws of other states. Judge Kennelly agrees with the judges in this district who have likened Lifeway's challenge to an attack on Block's "ability under Rule 23 to represent the multi-state class" - a question best left for class certification - rather than a question of standing. Once the parties have briefed the requirements of class certification, the Judge will be in a better position to determine whether Block can adequately represent those non-Illinois residents pursuing claims under the laws of other states and whether the claims of all potential plaintiffs are suitable for class-wide resolution. Therefore, he denied Lifeway's motion to dismiss count 2. As for Block's allegation that Lifeway's plain, low-fat kefir contains 4% -- instead of less than 1% -- lactose may seem on its face to constitute a similarly immaterial discrepancy. But Block alleges that he purchased Lifeway's kefir because it is nearly lactose-free and he wanted the health benefits that come from not consuming lactose. Products with 4% lactose -- such as regular milk -- are anything but lactose-free. Thus, Judge concludes this alleged difference in percentage of lactose is not marginal or immaterial. Further, Lifeway does not seek dismissal on this basis. He therefore denied Lifeway's motion to dismiss counts 1 and 3 on the ground that these claims merely restate a breach of contract claim. Lifeway also argues that Block has failed to allege actual damage because he has not expressly alleged that Lifeway charges more for its kefir because of the representation that it is 99% lactose- free. But Block alleges that consumers pay a high premium for kefir products that they otherwise would not pay if they purchased a gallon of regular milk with the same amount of lactose. He also alleges that Lifeway advertises that its kefir is 99% lactose-free in order "to pump sales of its 'kefir' products." Block has therefore adequately alleged that Lifeway is able to charge the same price for 32 ounces of kefir that consumers pay for 128 ounces of milk only because the company represents that its kefir is 99% lactose-free. Judge Kennelly therefore denied Lifeway's motion to dismiss counts 1, 3, and 6 on this ground. Block alleges that, when he purchased the Plain Kefir, he relied upon Lifeway's aforementioned representations that the Plain Kefir is 99% lactose free. He also alleges that he and other potential class members "would have purchased other 99% lactose free products, if any at all, if they had not been deceived by Lifeway's statements. The Judge finds this sufficient to satisfy the "minimal" required allegation of proximate cause. He therefore denied Lifeway's motion to dismiss counts 1, 3, and 6 on this ground. Because Block does not allege that he suffered a personal injury from purchasing and consuming Lifeway's kefir, his failure to notify Lifeway of his concern with his particular purchase defeats his claims for breach of warranties. The Judge granted Lifeway's motion to dismiss counts 4 and 5. Because, Judge Kennelly granted Lifeway's motion to dismiss count 5 based on lack of notice, it is unnecessary to consider Lifeway's argument that Block's claim for breach of implied warranty also fails due to lack of privity. Lifeway also argues that, because Block's unjust enrichment claim is premised on the same allegations of deception underlying his fraud claims, Block's failure to state a claim for fraud also defeats his claim for unjust enrichment. But as discussed, Block has sufficiently alleged his claims of fraud. The Judge denied Lifeway's motion to dismiss count 7. The Judge declined to address Lifeway's request at this stage of the proceedings. Block's request for injunctive relief is not a "claim" -- it is a request for relief that is one part of many claims. Block requests both an injunction and damages for six of his seven claims and requests only restitution for his unjust enrichment claim. Thus a determination in Lifeway's favor would not result in dismissal of Block's suit or even of any particular claim. For these reasons, Judge Kennelly granted Lifeway's motion to dismiss counts 4 and 5 but otherwise denied the motion. A full-text copy of the Court's Sept. 6, 2017 Order is available at https://is.gd/fPb8u7 from Leagle.com. Andrew Block, Plaintiff, represented by Daniel R. Johnson -- djohnson@wjylegal.com -- Waskowski Johnson Yohalem LLP. Andrew Block, Plaintiff, represented by Gary Michael Klinger -- gklinger@kozonislaw.com -- Kozonis Law & Ryan F. Sullivan -- sullivan@kozonislaw.com -- Kozonis & Associates Ltd. Lifeway Foods, Inc., Defendant, represented by Douglas Arthur Hass, Lifeway Foods, Inc., Francis A. Citera -- citeraf@gtlaw.com -- Greenberg Traurig, LLP., Brian D. Straw -- strawb@gtlaw.com -- Greenberg Traurig, Llp & Todd Edward Pentecost -- pentecostt@gtlaw.com -- Greenberg Traurig LLP. LIQUIDITY SERVICES: Court Certifies Class of Investors ------------------------------------------------------ Judge Beryl Alaine Howell of the U.S. District Court for the District of Columbia granted the Plaintiffs' motion to certify a class; and denied the Defendants' motion for partial summary judgment in the case captioned LEONARD HOWARD, individually and on behalf of all others situated, Plaintiff, v. LIQUIDITY SERVICES INC., WILLIAM P. ANGRICK III, and JAMES M. RALLO, Defendants, Civil Action No. 14-1183 (BAH)(D. D.C.). In this putative shareholder class action, the Plaintiffs allege that Liquidity Services, Inc. ("LSI") publicly touted its retail division as a driver of the company's overall growth despite internal knowledge that the retail division was troubled and suffering from deteriorating margins due to heightened competition. They assert claims under section 10(b) and of the Securities Exchange Act of 1934 ("Exchange Act"), and the Security Exchange Commission's Rule 10b-5, promulgated thereunder, as well as section 20(a) of the Exchange Act, alleging that the Defendants disseminated "materially false and misleading information" and omitted "other material information that artificially inflated Liquidity's stock price." When the truth emerged, LSI's stock price plummeted, resulting in financial losses to investors who purchased the stock at inflated prices. The original Lead Plaintiff, Howard, an individual investor, filed this putative class action against LSI and Messrs. Angrick and Rallo on July 14, 2014. Several other shareholders entered appearances to move for appointment as the Lead Plaintiff. On Oct. 14, 2014, institutional investors Caisse de dÇpìt et placement du QuÇbec ("Caisse") and Newport News Employees' Retirement Fund ("NNERF") were appointed as the Co-Lead Plaintiffs pursuant to the Private Securities Litigation Reform Act of 1995 ("PSLRA"). The Co-Lead Plaintiffs filed an amended complaint on Dec. 15, 2014. Thereafter, the Defendants filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6) and 9(b), and the PSLRA. The Court dismissed part of the Plaintiffs' Count I, which alleged violations of Section 10(b) of the Securities Exchange Act of 1934 based on misrepresentations regarding the acquisitions of Network International and GoIndustry in the commercial capital assets division. Further, the Court denied the Defendants' motion to dismiss the Plaintiffs' Count II, which alleges that Messrs. William Angrick and James Rallo are jointly and severally liable for LSI's alleged 10(b) violation. During a subsequent hearing addressing a discovery dispute, the Court clarified that the allegations of material misrepresentations about "organic growth" through sustained margins concern only the retail division, based on the evidence proffered by the Plaintiffs thus far. Following the discovery hearing, the Defendants moved for reconsideration of the Court's previous opinion denying their motion to dismiss, which was denied. The Plaintiffs have now moved to certify a class consisting of all persons and entities who purchased or otherwise acquired the publicly traded common stock of LSI during the period of Feb. 1, 2012 through May 7, 2014, inclusive, and who were damaged thereby. Shortly after filing their opposition to class certification, the Defendants moved for partial summary judgment on the issue of reliance by the Co-Lead Plaintiffs. Their opposition to the Plaintiffs' motion for class certification and appointment of class representatives and class counsel, and their motion for summary judgment advance similar arguments. Judge Howell notes that the Defendants do not dispute that the Plaintiffs satisfy Rule 23(a)'s requirements of numerosity and commonality, and the 23(b)(3) requirement of superiority of the class action mechanism. However, she finds that each of the Defendants' arguments concerning the Co-Lead Plaintiffs' typicality fails, and certification is not precluded under Rule 23(a)(3). The Plaintiffs have shown that common issues predominate over individual issues, and the Defendants' effort to undermine that showing based on omcast Corp. v. Behrend fails. The Defendants do not contest that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. As the Plaintiffs argue, the class members' interest in asserting individual claims is limited, there is no other pending litigation that is substantially similar to this suit, a class action would eliminate the risk of inconsistent adjudication, and there are no foreseeable management difficulties. Thus, Judge Howell concludes that, like many similar securities fraud cases, this controversy is well-suited for class treatment. With respect to their motion for summary judgment on the element of reliance, the Defendants contend that there are no genuine issues of material fact as to whether the Basic presumption is rebutted with respect to the Co-Lead Plaintiffs in light of the practice of their three investment advisories. Judge Howell concludes that given the significant overlap with the arguments addressed, these arguments can be disposed of in fairly short order. She finds that the Defendants have not established that the Department of Defense contracts were the sole consideration for Van Berkom and that the alleged fraud was irrelevant to Van Berkom's investment decisions. The Defendants have not demonstrated that there is no genuine issue of material fact as to whether Van Berkom was not misled by LSI's alleged misrepresentations. They also have not established the absence of a genuine issue of material fact as to whether Pier Capital was misled by the alleged misrepresentations and, accordingly, are not entitled to summary judgment on that basis. As for their argument that New South's private contact with LSI influenced its investment decisions, the Judge held that given the lack of any evidence that New South was granted access to insider information, such meetings do not warrant summary judgment on the issue of reliance. For these reasons, Howell granted the Plaintiffs' motion to certify a class of investors in LSI common stock, during the class period of Feb. 1, 2012 through May 7, 2014, inclusive; and denied the Defendants' partial motion for summary judgment on the issue of reliance. A full-text copy of the Court's Sept. 6, 2017 Memorandum Opinion is available at https://is.gd/qFy3wg from Leagle.com. LEONARD HOWARD, Plaintiff, represented by Anita B. Kartalopoulos - - abk@whafh.com -- WOLF, HALDENSTEIN, ADLER, FREEMAN & HERZ LLP, pro hac vice. LEONARD HOWARD, Plaintiff, represented by Elizabeth K. Tripodi -- etripodi@zlk.com -- LEVI & KORSINSKY LLP, Benjamin Y. Kaufman -- kaufman@whafh.com -- WOLF, HALDENSTEIN, ADLER, FREEMAN & HERZ LLP, Daniel Tepper -- tepper@whafh.com -- WOLF, HALDENSTEIN, ADLER, FREEMAN & HERZ LLP, pro hac vice, Jeffrey G. Smith -- smith@whafh.com -- WOLF, HALDENSTEIN, ADLER, FREEMAN & HERZ, pro hac vice & Nicholas Ian Porritt -- nporritt@zlk.com -- Levi & Korsinsky LLP. CAISSE DE DEPOT ET PLACEMENT DU QUEBEC, Plaintiff, represented by Andrew D. Abramowitz -- aabramowitz@srkw-law.com -- SPECTOR, ROSEMAN & KODROFF, P.C., pro hac vice, Andrew N. Dodemaide -- adodemaide@srkw-law.com -- SPECTOR, ROSEMAN & KODROFF, P.C., pro hac vice, Carol C. Villegas -- cvillegas@labaton.com -- LABATON SUCHAROW LLP, pro hac vice, Jonathan Gardner -- jgardner@labaton.com -- LABATON SUCHAROW LLP, pro hac vice, Joshua Kaplan -- kaplanjoshua@msn.com -- SPECTOR, ROSEMAN & KODROFF, P.C., pro hac vice, Mark S. Willis -- mwillis@srkw-law.com -- LABATON SUCHAROW LLP, Samuel B.C. de Villiers, LABATON SUCHAROW LLP, pro hac vice & Tom W. Watson -- twatson@labaton.com -- LABATON SUCHAROW LLP, pro hac vice. NEWPORT NEWS EMPLOYEES' RETIREMENT FUND, Plaintiff, represented by Andrew D. Abramowitz, SPECTOR, ROSEMAN & KODROFF, P.C., pro hac vice, Andrew N. Dodemaide, SPECTOR, ROSEMAN & KODROFF, P.C., pro hac vice, Carol C. Villegas, LABATON SUCHAROW LLP, pro hac vice, Jonathan Gardner, LABATON SUCHAROW LLP, pro hac vice, Joshua Kaplan, SPECTOR, ROSEMAN & KODROFF, P.C., pro hac vice, Mark S. Willis, LABATON SUCHAROW LLP, Samuel B.C. de Villiers, LABATON SUCHAROW LLP, pro hac vice & Tom W. Watson, LABATON SUCHAROW LLP, pro hac vice. LIQUIDITY SERVICES, INC., Defendant, represented by Peter Dean Isakoff -- peter.isakoff@weil.com -- WEIL, GOTSHAL & MANGES LLP, David P. Byeff -- david.byeff@weil.com -- WEIL, GOTSHAL & MANGES, LLP, pro hac vice, Irwin H. Warren -- irwin.warren@weil.com -- WEIL, GOTSHAL & MANGES & Miranda S. Schiller -- miranda.schiller@weil.com -- WEIL, GOTSHAL & MANGES, LLP, pro hac vice. WILLIAM P. ANGRICK, III, Defendant, represented by Peter Dean Isakoff, WEIL, GOTSHAL & MANGES LLP, David P. Byeff, WEIL, GOTSHAL & MANGES, LLP, pro hac vice, Irwin H. Warren, WEIL, GOTSHAL & MANGES & Miranda S. Schiller, WEIL, GOTSHAL & MANGES, LLP, pro hac vice. JAMES M. RALLO, Defendant, represented by Peter Dean Isakoff, WEIL, GOTSHAL & MANGES LLP, David P. Byeff, WEIL, GOTSHAL & MANGES, LLP, pro hac vice, Irwin H. Warren, WEIL, GOTSHAL & MANGES & Miranda S. Schiller, WEIL, GOTSHAL & MANGES, LLP, pro hac vice. KATHRYN A. DOMINO, Defendant, represented by Peter Dean Isakoff, WEIL, GOTSHAL & MANGES LLP, David P. Byeff, WEIL, GOTSHAL & MANGES, LLP, pro hac vice, Irwin H. Warren, WEIL, GOTSHAL & MANGES & Miranda S. Schiller, WEIL, GOTSHAL & MANGES, LLP, pro hac vice. CHRIS DEVLIN, Movant, represented by Matthew Evan Miller -- mmiller@cuneolaw.com -- CUNEO GILBERT & LADUCA, LLP. JONATHAN P. RODE, Movant, represented by Mark Hanna -- mhanna@murphypllc.com -- MURPHY ANDERSON PLLC. TWIN CITY PIPES TRADE PENSION TRUST, Movant, represented by Brian O. O'Mara -- bomara@rgrdlaw.com -- ROBBINS GELLER RUDMAN & DOWD LLP. LILIAN JAMROZINSKI, Movant, represented by Matthew Evan Miller, CUNEO GILBERT & LADUCA, LLP. HENRY JAMROZINSKI, Movant, represented by Matthew Evan Miller, CUNEO GILBERT & LADUCA, LLP. LONE STAR: "Anderson" Labor Suit Seeks Unpaid Overtime Wages ------------------------------------------------------------ Melissa Anderson, individually and on behalf of all others similarly situated, Plaintiffs, v. Lone Star Tank Rental, Inc. Defendants, Case No. 7:17-cv-00166 (W.D. Tex., August 24, 2017), seeks unpaid overtime compensation with corresponding liquidated damages, pre-judgment interest computed at the underpayment rate, attorneys' fees and such other and further relief under the Fair Labor and Standards Act of 1938. Lone Star provides liquid storage frac tanks for the oil and gas industry where Plaintiff worked as an office worker. [BN] Plaintiff is represented by: Drew N. Herrmann, Esq. Carley Amyx, Esq. HERRMANN LAW, PLLC 777 Main St., Suite 600 Fort Worth, TX 76102 Tel: (817) 479-9229 Fax: (817) 260-0801 E-mail: drew@herrmannlaw.com carley@herrmannlaw.com LOVED ONES: Mayhew Moves for Class Certification Under FLSA ----------------------------------------------------------- Pamela Mayhew moves for conditional certification of the matter titled PAMELA MAYHEW on behalf of herself and others similarly situated v. LOVED ONES IN HOME CARE, LLC and DONNA SKEEN, Case No. 2:17-cv-03844 (S.D.W. Va.), as a collective action under the Fair Labor Standards Act and for notice of the action and its underlying claims to employees of the Defendants, who are similarly situated to her. In her complaint, Ms. Mayhew alleges that the Defendants had used various tactics and subterfuges over the course of several years to deprive her of enhanced overtime pay for hours over 40 worked in a workweek but has now corrected those practices. She moves for conditional certification of the matter as a collective action on behalf of all similarly situated, FLSA non-exempt employees of the Defendants, who have been negatively impacted by the same or similar pay practices to those that have deprived her of enhanced hourly rates for hours worked in excess of 40 each week. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=FRGQsCbT The Plaintiff is represented by: Mark A. Toor, Esq. 10 Hale Street, 2nd Floor Charleston, WV 25301 Telephone: (304) 380-2111 E-mail: mark@marktoor.com MCNEIL INDUSTRIAL: "Fontenot" Suit Seeks Unpaid Overtime Wages -------------------------------------------------------------- Matthew Fontenot, individually and on behalf of all others similarly situated, v. McNeil Industrial, Inc., Defendants, Case No. 4:17-cv-03113, (D. Neb., August 23, 2017), seeks to recover unpaid overtime wages and other damages under the Fair Labor Standards Act. Fontenot worked exclusively for McNeil as a welder from approximately May 2016 until March 2017. McNeil allegedly improperly classified him as an independent contractor and paid the same hourly rate for all hours worked, including those hours in excess of 40 hours in a workweek. [BN] Plaintiff is represented by: Michael A. Josephson, Esq. Lindsay R. Itkin, 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 litkin@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 - and - Brian E. Jorde, Esq. Christian T. Williams, Esq. DOMINALAW GROUP PC LLO 2425 South 144th Street Omaha, NE 68144 Tel: (402) 493-4100 Fax: (402) 493-9782 Email: bjorde@dominalaw.com cwilliams@dominalaw.com MDL 2284: Court Affirms Arborist Panel's Denial of Huls' Appeal --------------------------------------------------------------- Judge Gene E.K. Pratter of the U.S. District Court for the Eastern District of Pennsylvania issued a Memorandum affirming the Imprelis Arborist Panel's decision and denying Sean Huls' appeal in the case captioned IN RE: IMPRELIS HERBICIDE MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION. THIS DOCUMENT APPLIES TO: ALL ACTIONS, MDL No. 2284, No. 11-md-02284 (E.D. Pa.). Huls appeals the decision of the Panel, claiming that DuPont should have rated a red pine for removal and replacement after he made a warranty claim. In the fall of 2010, 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. In September 2011, 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 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 from Aug. 31, 2010 through Aug. 21, 2011, 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, or Feb. 11, 2013. Under the Settlement, property owner class members who filed claims by the claims deadline would receive tree removal (or compensation for tree removal), payments for replacement trees, tree care and maintenance payments, and a 15% payment for incidental damages. The Settlement included a warranty that provided for all benefits but the 15% incidental damages award for Imprelis damage that manifested after the claims period closed but before May 31, 2015. On Feb. 12, 2013, the Court preliminarily approved the Settlement, and on Sept. 27, 2013, the Court held a Final Fairness Hearing. On Oct. 17, 2013, it granted the Class Plaintiffs' Motion for Final Approval of the Settlement. Mr. Huls settled his original Imprelis claim with DuPont in 2015. In May, 2015, he submitted a warranty claim seeking removal and replacement of a red pine tree and claiming that after the removal of a nearby willow tree the red pine had worsened and posed a hazard. The tree had originally been rated as a 1. A DuPont arborist inspected his property, concluded that the tree suffered from Dothistroma needle blight infection, and again designated the tree for care, raising the rating to 2. Mr. Huls then appealed to the Arborist Panel and submitted a report from his own arborist, who opined that the red pine was stressed by Imprelis exposure. The Arborist Panel denied the appeal. Huls appeals the decision. Mr. Huls argues that his tree has drastically declined, and that because of its proximity to power lines, it poses a safety hazard and should be removed at DuPont's expense. After reviewing the record, including the Panel's decision, photographs, and Arborist Louise Levy's report, Judge Pratter does not find the Panel's decision arbitrary or capricious. Like DuPont's arborists, Ms. Levy concluded that the main issue with the red pine is Dothistroma needle blight. Although she recommends removal of the tree as the best course of action, nothing in her report or the record demonstrates that the Panel's decision that the tree fails to meet the requirements to be rated for removal or replacement was in error. Therefore, Judge Pratter affirmed the Arborist Panel decision and denied the Mr. Huls' appeal. A full-text copy of the Court's Sept. 6, 2017 Memorandum is available at https://is.gd/5X8Olh from Leagle.com. MDL 2284: Ct. Affirms Arborist Panel's Denial of Mattie's Appeal ---------------------------------------------------------------- Judge Gene E.K. Pratter of the U.S. District Court for the Eastern District of Pennsylvania issued a Memorandum affirming the Imprelis Arborist Panel's decision and denying Jeffrey Mattie'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. 2284, No. 11-md-02284 (E.D. Pa.). Mattie appeals the decision of the Arborist Panel, claiming that DuPont wrongly denied his warranty claim for Imprelis damage to seven trees. In the fall of 2010, 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. In September 2011, 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 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 from Aug. 31, 2010 through Aug. 21, 2011, 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, or Feb. 11, 2013. Under the Settlement, property owner class members who filed claims by the claims deadline would receive tree removal (or compensation for tree removal), payments for replacement trees, tree care and maintenance payments, and a 15% payment for incidental damages. The Settlement included a warranty that provided for all benefits but the 15% incidental damages award for Imprelis damage that manifested after the claims period closed but before May 31, 2015. On Feb. 12, 2013, the Court preliminarily approved the Settlement, and on Sept. 27, 2013, the Court held a Final Fairness Hearing. On Oct. 17, 2013, it granted the Class Plaintiffs' Motion for Final Approval of the Settlement. After the resolution of his original Imprelis claim, Mr. Mattie filed a warranty claim seeking compensation for seven trees that he contends gradually worsened after the application of Imprelis. A DuPont arborist inspected the property and concluded that some of the trees were actually plants and therefore not species covered by the Settlement and that the others did not exhibit symptoms of Imprelis damage. Mr. Mattie then objected to the warranty claim denial, submitting additional photographs of tree damage. DuPont denied his objections, and Mr. Mattie appealed to the Arborist Panel. The Panel reviewed the photographs and information submitted and denied the claim, noting that the trees did not exhibit typical Imprelis symptomology. Mattie appeals the decision of the Arborist Panel. Mr. Mattie argues that seven trees on his property have gradually worsened due to Imprelis exposure and should now be rated for removal and replacement. Both DuPont's arborist and the Appeals Panel concluded that Mr. Mattie's trees did not show symptoms of Imprelis damage. After reviewing the record, including the Panel's decision and photographs, Judge Pratter does not find the Panel's decision arbitrary or capricious. While it is clear that Mr. Mattie's seven trees are not healthy, it is not sufficiently clear that Imprelis caused the damage to the trees, such that the Panel's decision should be overturned. Therefore, Judge Pratter affirmed the Arborist Panel decision, and denied Mr. Mattie's appeal. A full-text copy of the Court's Sept. 6, 2017 Memorandum is available at https://is.gd/RIzb6B from Leagle.com. MDL 2284: Court Affirms Denial of Kochmanski's Appeal ----------------------------------------------------- Judge Gene E.K. Pratter of the U.S. District Court for the Eastern District of Pennsylvania issued a Memorandum affirming the Imprelis Arborist Panel's decision and denying Christopher Kochmanski'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. 2284, No. 11-md-02284 (E.D. Pa.). Mr. Kochmanski appeals the decision of the Imprelis Arborist Panel, claiming that DuPont wrongly denied his warranty claim for Imprelis damage to four trees. In the fall of 2010, 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. In September 2011, 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 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 from Aug. 31, 2010 through Aug. 21, 2011, 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, or Feb. 11, 2013. Under the Settlement, property owner class members who filed claims by the claims deadline would receive tree removal (or compensation for tree removal), payments for replacement trees, tree care and maintenance payments, and a 15% payment for incidental damages. The Settlement included a warranty that provided for all benefits but the 15% incidental damages award for Imprelis damage that manifested after the claims period closed but before May 31, 2015. On Feb. 12, 2013, the Court preliminarily approved the Settlement, and on Sept. 27, 2013, the Court held a Final Fairness Hearing. On Oct. 17, 2013, it granted the Class Plaintiffs' Motion for Final Approval of the Settlement. After the resolution of his original Imprelis claim, Mr. Kochmanski filed three warranty claim seeking compensation for additional Imprelis damage, and it is the third warranty claim that is the subject of this appeal. More specifically, he claimed that six evergreen trees, four of which were previously rated for tree care, had become so damaged by Imprelis that they should be removed. A DuPont arborist inspected the property and concluded that there was no evidence of Imprelis damage for two trees and that the other four had not worsened enough to justify a change in ratings. Mr. Kochmanski appealed to the Arborist Panel, this time focusing on four of the six trees. The Panel reviewed the photographs and information submitted and denied the claim, noting that Mr. Kochmanski's photographs were unusable. Mr. Kochmanski appeals the decision of the Panel. Mr. Kochmanski argues that despite the Panel's conclusion that his photographs were unusable and not labeled properly, the labels for the photographs, which were submitted digitally, were contained in their file names. He contends that the trees have continued to decline, look "unacceptably bad," and should be removed. Judge Pratter finds that while there may have been a misunderstanding with respect to Mr. Kochmanski's photographs and their labeling, the Arborist Panel still had the benefit of photographs and inspection reports from two site inspections in reaching their conclusion that the trees in question showed little injury or failed to show typical Imprelis symptomology. After reviewing the Mr. Kochmanski's submissions, he does not conclude that the Arborist Panel's decision was arbitrary or capricious. Therefore, Judge Pratter affirmed the Arborist Panel decision and denied Mr. Kochmanski's appeal. A full-text copy of the Court's Sept. 6, 2017 Memorandum is available at https://is.gd/RoiKOe from Leagle.com. MDL 3354: Court Dismisses State of Wyoming's Suit ------------------------------------------------- The United States District Court for the Northern District of California issued an Order granting the Defendant Volkswagen's Motion to Dismiss Wyoming's complaint in the case captioned IN RE: VOLKSWAGEN "CLEAN DIESEL" MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION. This Order Relates To: MDL Dkt. No. 3354 Wyoming v. Volkswagen Group of America, Inc., No. 16-cv-6646 (N.D. Cal.). MDL No. 2672 CRB (JSC). (N.D. Cal.) Volkswagen AG conspired to and did defraud the U.S. Environmental Protection Agency (EPA) by surreptitiously installing software in its clean diesel vehicles that masked true nitrogen oxide (NOx) emission levels. In response, the U.S. Department of Justice (on behalf of EPA) filed civil and criminal actions against Volkswagen to enforce the Clean Air Act (CAA), and Volkswagen ultimately pled guilty to three criminal felony counts and settled the civil charges in three partial consent decrees. The State of Wyoming brought claims against Volkswagen based on the operation of the clean diesel vehicles within the State. At least eight other States have filed similar actions in state courts. The question before the Court is whether Wyoming's action is permitted by the Clean Air Act. The Clean Air Act, as amended, vests EPA with significant authority to set and enforce motor-vehicle emission standards. Pursuant to that authority, EPA has set emission limits for, among other pollutants, NOx and diesel particulate matter. The Clean Air Act also requires EPA to administer a certification program to ensure that all vehicles introduced into United States commerce satisfy these and other emission standards. Volkswagen installed its defeat device in nearly 600,000 "clean diesel" vehicles, model years 2009 through 2016. But the company did not disclose the defeat device in its applications for new- vehicle certification, or in meetings with EPA and CARB staff during the certification process. Only by installing the defeat device in its vehicles was Volkswagen able to obtain EPA and CARB certificates of conformity. In fact, these vehicles release NOx at factors up to 40 times higher than EPA limits. The public learned about Volkswagen's emissions scheme in the fall of 2015, when EPA issued two Notices of Violation of the Clear Air Act and announced that the company had admitted to deliberately cheating on emissions tests. Hundreds of lawsuits were subsequently filed against Volkswagen and consolidated before this Court as part of this multidistrict litigation. The Department of Justice also filed a criminal indictment against Volkswagen AG before the Honorable Sean F. Cox in the Eastern District of Michigan. Wyoming filed a complaint against Volkswagen AG; Volkswagen Group of America, Inc.; Audi AG; Audi of America, LLC; Porsche AG; and Porsche Cars North America, Inc. (Volkswagen) in the United States District Court for the District of Wyoming. The Judicial Panel on Multidistrict Litigation later transferred the case to this Court. Of the nearly 600,000 "clean diesel" vehicles Volkswagen sold in the United States, approximately 1,196 were registered in Wyoming. Wyoming contends that each day one of those vehicles is operated in the State (and each day a non-resident drives an affected vehicle in the State), Volkswagen violates two provisions in Wyoming's State Implementation Plan. Currently before the Court is a motion by Volkswagen to dismiss Wyoming's complaint, in which Volkswagen argues that Wyoming's claims are expressly and impliedly preempted by the Clean Air Act. Volkswagen also contends that the Court lacks personal jurisdiction over the German Defendants (Volkswagen AG, Audi AG, and Porsche AG), because these entities have not purposefully taken actions in or directed towards Wyoming. Volkswagen has moved to dismiss Wyoming's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The dispute between Wyoming and Volkswagen centers on whether Wyoming's claims are prohibited attempts to enforce new-vehicle emission standards, Section 209(a); or permitted attempts to regulate the operation of registered vehicles within the State, Section 209(d). Wyoming's tampering and concealment claims place the burden of compliance on Volkswagen as the manufacturer. To ensure accurate emissions' reporting and the full use of vehicle emission controls, Volkswagen must uninstall the defeat-device software. And even then, modifications to the vehicles are needed for them to perform as represented Wyoming's regulations therefore amount to impermissible State "standard[s] relating back to the original design of the engine by the original engine manufacturer. Further, Wyoming's claims (and those of other States) threaten to interfere with interstate commerce, because they are predicated on conduct that occurred during the manufacture of hundreds of thousands of vehicles intended for distribution throughout the United States. This, of course, does not mean that Volkswagen cannot be held responsible for the consequences of its actions. As is readily apparent from this MDL, Volkswagen has indeed been held responsible. But because Volkswagen's conduct took place during manufacturing, Congress determined that EPA, not the 50 States, was best situated to regulate it. Wyoming, by attempting to apply its SIP's tampering and concealment rules to Volkswagen's use of a defeat device, seeks to enforce a standard relating to the control of emissions from new motor vehicles. Because the Clean Air Act prohibits States from enforcing such standards, Wyoming's claims cannot go forward and the Court accordingly GRANTS Volkswagen's motion to dismiss Wyoming's complaint. Finding that amendment of the complaint would be futile, the Court dismisses the complaint with prejudice. A full-text copy of the District of Court's August 31, 2017 Order is available at http://tinyurl.com/y8nhgud4from Leagle.com. Nicholas Benipayo, Plaintiff, represented by Robert B. Carey -- rob@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice. Nicholas Benipayo, Plaintiff, represented by Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice & Thomas Eric Loeser, Hagens Berman Sobol Shapiro LLP, pro hac vice. David Fiol, Plaintiff, represented by William M. Audet - waudet@audetlaw.com -- Audet & Partners, LLP, Jeff D. Friedman - - jefff@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Peter B. Fredman -- peter@peterfredmanlaw.com -- Law Office of Peter Fredman, Robert B. Carey, Hagens Berman Sobol Shapiro LLP, pro hac vice, Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice & Thomas Eric Loeser -- toml@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice. Nadine Bonda, Plaintiff, represented by Adam M. Stewart -- astewart@shulaw.com -Shapiro Haber & Urmy LLP & Thomas G. Shapiro -- tshapiro@shulaw.com -- Shapiro Haber and Urmy, LLP. Brian Connelly, Plaintiff, represented by Thomas G. Shapiro, Shapiro Haber and Urmy, LLP. Nicholas Allen, Plaintiff, represented by Caleb Marker -- caleb.marker@zimmreed.com -- Zimmerman Reed LLP, pro hac vice & Charles S. Zimmerman -- charles.zimmerman@zimmreed.com -- Zimmerman Reed, PLLP, pro hac vice. Brett Alters, Plaintiff, represented by Elizabeth Joan Cabraser, Lieff Cabraser Heimann & Bernstein, LLP, David S. Stellings, Lieff Cabraser Heimann and Bernstein, Kevin R. Budner, Lieff, Cabraser, Heimann and Bernstein, LLP, Nicholas Diamand, Lieff Cabraser Heimann and Bernstein LLP, Phong-Chau Gia Nguyen, Lieff Cabraser Heimann & Bernstein, LLP, 275 Battery St #3000 San Francisco, CA 94111 & Tana Lin -- tlin@kellerrohrback.com -- Keller Rohrback LLP. Donald Ardine, Plaintiff, represented by Amy Williams-Derry -- awilliams-derry@kellerrohrbacki.com -- Keller Rohrback L.L.P., Dean Noburu Kawamoto -- dkawamoto@kellerrohrback.com -- Keller Rohrback LLP, Derek William Loeser -- dloeser@kellerrohrback.com - - Keller Rohrback, LLP, Gretchen Freeman Cappio -- gcappio@kellerrohrback.com -- Keller Rohrback, LLP, pro hac vice, Lynn Lincoln Sarko -- lsarko@kellerrohrback.com -- Keller Rohrback L.L.P., pro hac vice & Tana Lin, Keller Rohrback LLP. Annie Argento, Plaintiff, represented by Amy Williams-Derry, Keller Rohrback L.L.P., Dean Noburu Kawamoto, Keller Rohrback LLP, Derek William Loeser, Keller Rohrback, LLP, Gretchen Freeman Cappio, Keller Rohrback, LLP, pro hac vice, Lynn Lincoln Sarko, Keller Rohrback L.L.P., pro hac vice & Tana Lin, Keller Rohrback LLP. Arkansas State Highway Employees Retirement System, Plaintiff, represented by Jai K. Chandrasekhar -- jai@blbglaw.com -- Bernstein Litowitz Berger Grossmann LLP, pro hac vice, James A. Harrod -- jim.harrod@blbglaw.com -- Bernstein Litowitz Berger Grossmann LLP, Matthew I. Henzi -- mhenzi@swappc.com -- Sullivan, War, Niki L. Mendoza, Bernstein Litowitz Berger & Grossmann LLP, Ross M. Shikowitz ross@blbglaw.com -- Bernstein Litowitz Berger Grossmann LLP, pro hac vice & Susan Rebbeca Podolsky, The Law Offices of Susan R. Podolsky, 1800 Diagonal Road, Suite 600, Alexander, VA 22314. Volkswagen Group of America, Inc., Defendant, represented by Amie Adelia Vague -- avague@lightfootlaw.com -- Lightfoot Franklin & White, Casey Erin Lucier -- clucier@mcguirewoods.com -- McGuireWoods LLP, Charles J. Baker, III -- cbaker@wcsr.com -- Womble Carlyle Sandridge and Rice, Colin Hampton Tucker -- chtucker@rhodesokla.com -- Rhodes Hieronymus Jones Tucker & Gable, Dana Woodrum Lan -- dlang@wcsr.com -, Womble Carlyle Sandridge and Rice, David M. Eisenberg -- eisenberg@bscr-law.com -- Baker, Sterchi, Cowden & Rice, LLC, Elizabeth L. Deeley -- elizabeth.deeley@kirkland.com -- Kirkland & Ellis LLP, Henry Buist Smythe, Jr. -- Hsmythe@wcsr.com -- Womble Carlyle Sandridge and Rice, Howard Feller -- hfeller@mcguirewoods.com -- McGuireWoods LLP, Hugh J. Bod -- hbode@reminger.com -- Reminger & Reminger Co LPA, J. Randolph Bibb, Jr.- rbibb@lewisthomason.com Lewis -- Thomason, King, Krieg & Waldrop, P.C., James K. Toohey -- tooheyj@jbltd.com -- Johns & Bell LTD, Jeffrey Lance Chase, Chase Kurshan Herzfeld & Rufin LLC, Jeffrey S. Rugg -- jrugg@bhfs.com - - Brownstein Hyatt Farber Schreck, LLP, Jennifer Marino Thibodaux, Gibbons PC, One Gateway Center, Newark, NJ 07102-5310, John W. Cowden -- cowden@bscr-law.com -- Baker, Sterchi, Cowden & Ric, LLC, John W. Cowden, Baker Sterchi Cowden and Rice LLC. MIDLAND CREDIT: Collection Letter Violates FDCPA, Laurenzo Claims ----------------------------------------------------------------- Dawn Laurenzo, individually and on behalf of all others similarly situated v. Midland Credit Management, Inc., a Kansas corporation, and Midland Funding, LLC, a Delaware limited liability company, Case No. 1:17-cv-02904-WTL-MPB (S.D. Ind., August 23, 2017), is brought under the Fair Debt Collection Practices Act for a finding that the Defendants' form debt collection letter violated the Fair Debt Collection Practices Act. Midland Credit Management, Inc., is a Kansas corporation that acts as a debt collector. Midland Funding, LLC, is a Delaware limited liability company that acts as a debt collector.[BN] The Plaintiff is represented by: David J. Philipps, Esq. Mary E. Philipps, Esq. Angie K. Robertson, Esq. PHILIPPS & PHILIPPS, LTD. 9760 S. Roberts Road, Suite One Palos Hills, IL 60465 Telephone: (708) 974-2900 Facsimile: (708) 974-2907 E-mail: davephilipps@aol.com mephilipps@aol.com angiekrobertson@aol.com - and - John T. Steinkamp, Esq. 5214 S. East Street, Suite D1 Indianapolis, IN 46227 Telephone: (317) 780-8300 Facsimile: (317) 217-1320 E-mail: steinkamplaw@yahoo.com MONSANTO CO: "Martin" Suit Transferred to E.D. Mo. -------------------------------------------------- The case captioned Elisabeth Martin on behalf of herself and all others similarly situated v. Monsanto Company, Defendants, Case No. 5:16-cv-2168 (C.D. Cal., October 13, 2016), was transferred to the U.S. District Court for the Eastern District of Missouri on August 24, 2017 under Case No. 4:17-cv-02300. Plaintiff seeks redress for breach of express and implied warranties as well as violations of the Unfair Competition Law of the California Business and Professions Code. Monsanto is into manufacturing and selling herbicides, including "Roundup" Concentrates. Plaintiffs allege that said concentrates only provide half the useable mix despite claims and/or instruction on its labels. [BN] Plaintiff is represented by: Martin E. Jerisat, Esq Jerisate Law Firm 2372 Morse Avenue Suite 322 Irvine, CA 92614 Tel: (714) 571-5700 Fax: (714) 547-4710 Email: mjerisat@jk-lawfirm.com - and - Trevor M. Flynn, Esq. Melanie Persinger, Esq. Jack Fitzgerald, Esq. THE LAW OFFICE OF JACK FITZGERALD, PC Hillcrest Professional Building 3636 Fourth Avenue, Suite 202 San Diego, CA 92103 Phone: (619) 692-3840 Fax: (619) 362-9555 Email: trevor@jackfitzgeraldlaw.com jack@jackfitzgeraldlaw.com melanie@jackfitzgeraldlaw.com - and - Sidney W. Jackson, III, Esq. JACKSON & FOSTER, LC 75 St. Michael Street Mobile, AL 36602 Phone: (251) 433-6699 Fax: (251) 433-6127 Email: sid@jacksonfosterlaw.com The Monsanto Company is represented by: Stephen R. Smerek, Esq. WINSTON AND STRAWN, LLP 333 S. Grand Avenue Los Angeles, CA 90071 Tel: (213) 615-1700 Fax: (213) 615-1750 Email: ssmerek@winston.com - and - Adam S. Nadelhaft, Esq. John J. Rosenthal, Esq. WINSTON AND STRAWN, LLP 1700 K Street, NW Washington, DC 20006 Tel: (202) 282-5883 Fax: (202) 282-5100 Email: anadelhaft@winston.com jrosenthal@winston.com - and - George C. Lombardi, Esq. WINSTON AND STRAWN LLP 35 W. Wacker Drive Chicago, IL 60601 Tel: (312) 558-5600 Fax: (312) 558-5700 Email: glombardi@winston.com NATIONAL GAS: Shelton Sues over Automated Telemarketing Calls ------------------------------------------------------------- JAMES EVERETT SHELTON, individually and on behalf of a class of all persons and entities similarly situated, the Plaintiff, v. NATIONAL GAS & ELECTRIC, LLC, the Defendant, Case No. 2:17-cv- 04063-RBS (E.D. Pa., Sep. 11, 2017), seeks injunctive relief prohibiting National Gas and/or its affiliates, agents, and/or other persons or entities acting on National Gas's behalf from violating the Telephone Consumer Protection Act, by making calls, except for emergency purposes, to any cellular telephone numbers using an automatic telephone dialing system and/or artificial or prerecorded voice in the future. The Plaintiff brings this action under the Telephone Consumer Protection Act, a federal statute enacted in response to widespread public outrage about the proliferation of intrusive, nuisance telemarketing practices. The Plaintiff alleges that Defendant made automated telemarketing calls using equipment prohibited by the TCPA, despite the fact that they had no business relationship with him. Because the call to the Plaintiff was transmitted using technology capable of generating thousands of similar calls per day, Plaintiff brings this action on behalf of a proposed nationwide class of other persons who were sent the same illegal telemarketing call. National Gas & Electric supplies electricity and natural gas for homes and businesses in Illinois, Ohio, Maryland, and New York.[BN] The Plaintiff is represented by: Clayton S. Morrow MORROW & ARTIM, PC 304 Ross Street, 7th Floor Pittsburgh, PA 15219 Telephone: (412) 281 1250 E-mail: csm@consurnerlaw365.com - and - Anthony Paronich, Esq. BRODERICK & PARO NICH, P.C. 99 High St., Suite 304 Boston, MA 02110 Telephone: (508) 221 1510 E-mail: anthony@broderick-law.com NAVIENT CORP: Court Dismisses Securities Suit with Leave to Amend ----------------------------------------------------------------- Judge Gregory M. Sleet of the U.S. District Court for the District of Delaware dismissed with leave to amend the case captioned LORD ABBETT AFFILIATED FUND, INC., et al., Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. NA VIENT CORPORATION, et al., Defendants, Civ. No. 16-112-GMS (D. Del.). Navient is one of the country's largest servicers of student loans. The company was formed in April 2014 through a spin-off from Sallie Mae. The Lead Plaintiffs ("Lord Abbett Funds") filed a consolidated amended class action complaint alleging violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 ("Exchange Act") and Sections 11, 12(a)(2), and 15 of the Securities Act of 1933 ("Securities Act"). The complaint is based on various disclosures Navient made between April 17, 2014 and Dec. 28, 2015, which the Defendants have helpfully grouped into three categories: (i) Navient's allowance for loan losses and related financial metrics, (ii) Navient's compliance culture, and (iii) Navient's credit facilities. Defendant Navient and the Individual Defendants have moved to dismiss the complaint pursuant to Fed. R. Civ. P. 9(b) and 12(b)(6), and the Private Securities Litigation Reform Act of 1995 ("PSLRA"). The Underwriter Defendants have joined in the motion to dismiss. The Court has subject matter jurisdiction over the action pursuant to 28 U.S.C. Section 1331 (federal question jurisdiction), 15 U.S.C. Section 78aa (jurisdiction for violations of the Exchange Act), and 15 U.S.C. Section 77v (jurisdiction for violations of the Securities Act). The Defendants argue that the complaint should be dismissed, because it relies on puzzle pleading that does not satisfy either the notice pleading standard of Rule 8(a) or the heightened pleading standards of Rule 9(b) and the PSLRA. Judge Sleet agrees. He concludes that the Plaintiffs have failed to set forth a "short and plain" statement of their claims and make each allegation "simple, concise and direct" in violation of Fed. R. Civ. P. 8. At the same time, in contravention of the PSLRA, the Plaintiffs have failed to craft a complaint in such a way that a reader can determine precisely which statements (or portions of statements) are alleged to be false or misleading, and the reason why each statement is false or misleading. Until the Plaintiffs specifically identify the statements on which they would like to proceed and the reasons why these statements are false or misleading, neither the Defendants nor the Court can address these allegations with the degree of particularity required by the PSLRA. Accordingly, Judge Sleet granted the Defendants' motion to dismiss is granted with leave for the Plaintiffs to amend the complaint. A full-text copy of the Court's Sept. 6, 2017 Memorandum is available at https://is.gd/h9Zoud from Leagle.com. Lord Abbett Affiliated Fund, Inc., Plaintiff, represented by Karen L. Morris -- kmorris@morrisandmorrislaw.com -- Morris & Morris LLC. Lord Abbett Affiliated Fund, Inc., Plaintiff, represented by Bruce W. Leppla, pro hac vice, Daniel P. Chiplock, pro hac vice, Joy A. Kruse, pro hac vice, Patrick Francis Morris -- pmorris@morrisandmorrislaw.com -- Morris & Morris LLC & R. Michael Lindsey -- rmlindsey@morrisandmorrislaw.com -- Morris & Morris LLC. Lord Abbett Equity Trust - Lord Abbett Calibrated Mid Cap Value Fund, Plaintiff, represented by Karen L. Morris, Morris & Morris LLC, Bruce W. Leppla, pro hac vice, Daniel P. Chiplock, pro hac vice, Joy A. Kruse, pro hac vice, Patrick Francis Morris, Morris & Morris LLC & R. Michael Lindsey, Morris & Morris LLC. Lord Abbett Bond Debenture Fund, Inc., Plaintiff, represented by Karen L. Morris, Morris & Morris LLC, Bruce W. Leppla, pro hac vice, Daniel P. Chiplock, pro hac vice, Joy A. Kruse, pro hac vice, Patrick Francis Morris, Morris & Morris LLC & R. Michael Lindsey, Morris & Morris LLC. Lord Abbett Investment Trust - Lord Abbett High Yield Fund, Plaintiff, represented by Karen L. Morris, Morris & Morris LLC, Bruce W. Leppla, pro hac vice, Daniel P. Chiplock, pro hac vice, Joy A. Kruse, pro hac vice, Patrick Francis Morris, Morris & Morris LLC & R. Michael Lindsey, Morris & Morris LLC. Tore Heniz Markus Jagrelius, Plaintiff, represented by Norman M. Monhait -- nmonhait@rmgglaw.com -- Rosenthal, Monhait & Goddess, P.A., Mary K. Blasy -- mblasy@rgrdlaw.com -- pro hac vice & Samuel H. Rudman -- SRudman@rgrdlaw.com -- pro hac vice. George A. Menold, Plaintiff, represented by Peter B. Andrews, Andrews & Springer LLC, Craig J. Springer, Andrews & Springer LLC & David M. Sborz, Andrews & Springer LLC. Policemen's Annuity & Benefit Fund of Chicago, Plaintiff, represented by Joel E. Friedlander, Friedlander & Gorris, P.A., Christopher P. Quinn, Friedlander & Gorris, P.A. & Jeffrey M. Gorris, Friedlander & Gorris, P.A.. Navient Corporation, Defendant, represented by Kelly E. Farnan -- arnan@rlf.com -- Richards, Layton & Finger, PA, Abid R. Qureshi -- abid.qureshi@lw.com -- pro hac vice, Blake Rohrbacher -- rohrbacher@rlf.com -- Richards, Layton & Finger, PA, Christopher Harris -- christopher.harris@lw.com -- pro hac vice, Christopher S. Turner -- christopher.turner@lw.com -- pro hac vice & Peter A. Wald -- peter.wald@lw.com. John F. Remondi, Defendant, represented by Kelly E. Farnan, Richards, Layton & Finger, PA. Somsak Chivavibul, Defendant, represented by Kelly E. Farnan, Richards, Layton & Finger, PA. Credit Suisse Securities USA LLC, Defendant, represented by John M. Seaman -- Seaman@AbramsBayliss.com -- Abrams & Bayliss LLP, Adam S. Hakki -- ahakki@shearman.com -- pro hac vice, Anthony D. Marinello -- anthony.marinello@shearman.com -- pro hac vice, Daniel R. Ciarrocki, Abrams & Bayliss LLP, Daniel C. Lewis, pro hac vice & Kevin G. Abrams -- abrams@abramsbayliss.com -- Abrams & Bayliss LLP. Deutsche Bank Securities Inc., Defendant, represented by John M. Seaman, Abrams & Bayliss LLP, Daniel R. Ciarrocki, Abrams & Bayliss LLP & Kevin G. Abrams, Abrams & Bayliss LLP. J.P. Morgan Securities, LLC, Defendant, represented by John M. Seaman, Abrams & Bayliss LLP, Daniel R. Ciarrocki, Abrams & Bayliss LLP & Kevin G. Abrams, Abrams & Bayliss LLP. RBC Capital Markets LLC, Defendant, represented by John M. Seaman, Abrams & Bayliss LLP, Daniel R. Ciarrocki, Abrams & Bayliss LLP & Kevin G. Abrams, Abrams & Bayliss LLP. Barclays Capital Inc., Defendant, represented by John M. Seaman, Abrams & Bayliss LLP, Daniel R. Ciarrocki, Abrams & Bayliss LLP & Kevin G. Abrams, Abrams & Bayliss LLP. Goldman, Sachs & Co., Defendant, represented by John M. Seaman, Abrams & Bayliss LLP, Daniel R. Ciarrocki, Abrams & Bayliss LLP & Kevin G. Abrams, Abrams & Bayliss LLP. Merrill Lynch, Pierce, Fenner & Smith Incorporated, Defendant, represented by John M. Seaman, Abrams & Bayliss LLP, Daniel R. Ciarrocki, Abrams & Bayliss LLP & Kevin G. Abrams, Abrams & Bayliss LLP. RBS Securities Inc., Defendant, represented by John M. Seaman, Abrams & Bayliss LLP, Daniel R. Ciarrocki, Abrams & Bayliss LLP & Kevin G. Abrams, Abrams & Bayliss LLP. NELSON & KENNARD: Pratt Sues over Debt Collection Practices ----------------------------------------------------------- Donna Pratt, on behalf of herself and all others similarly situated, the Plaintiff, v. Nelson & Kennard, Cavalry Portfolio Services, LLC and Cavalry SPV I, LLC, the Defendants, Case No. 1:17-cv-02188 (D. Colo., Sep. 11, 2017), seeks to recover award and actual damages pursuant to the Fair Debt Collection Practices Act. The Plaintiff also seeks additional damages as the Court may allow in the amount of $1,000 and minimum individual recovery, in the amount of $500,000 or 1% of the net worth of the debt collector. The Plaintiff's alleged obligation arises from a transaction in which the money, property, insurance, or services that are the subject of the transaction were incurred primarily for personal, family, or household purposes -- namely, a personal vehicle loan. Nelson & Kennard is a debt collector.[BN] The Plaintiff is represented by: Russell S. Thompson IV, Esq. Joseph Panvini, Esq. THOMPSON CONSUMER LAW GROUP, PLLC 5235 E. Southern Ave., D106-618 Mesa, AZ 85206 Telephone: (602) 388 8898 Facsimile: (866) 317 2674 E-mail: rthompson@consumerlawinfo.com jpanvini@consumerlawinfo.com OAK HARBOR: "Alvarado" Suit Seeks Unpaid Wages under Labor Code --------------------------------------------------------------- HECTOR ALVARADO, and MICKEY AMAYA on behalf of themselves and others similarly situated, the Plaintiff, v. OAK HARBOR FREIGHT LINES, INC., DOES 1 TO 100. INCLUSIVE, the Defendants, Case No. RG17874785 (Cal. Super. Ct., Sep. 11, 2017), seeks to recover unpaid wages under California Labor Code. According to the complaint, Oak Harbor violated the meal and rest break requirements of the Labor Code.[BN] The Plaintiff is represented by: Joseph Lavi, Esq. LAVI & EBRAHIMIAN, LLP Joshua M. Webster, Esq. 8889 W Olympic Blvd No. 200 Beverly Hills, CA 90211 Telephone: (310) 432 0000 OCEANPRO INDUSTRIES: Leon Seeks Unpaid OT Wages ----------------------------------------------- JESUS VILLA LEON, On behalf of himself, and all other similarly situated employees, the Plaintiff, v. OCEANPRO INDUSTRIES, LTD. d/b/a PROFISH, TIMOTHY JOHN LYDON, and GREGORY J. CASTEN, the Defendants, Case No. 2017CA0055978 (Colo. Super. Ct., Aug. 14, 2017), seeks to recover unpaid overtime wages and liquidated damages under District of Columbia Code. According to the complaint, Mr. Leon and other employees worked over-time on a regular basis but were not paid one-and-a-half times their regular rate for all of their overtime hours. Employees prepared and delivered seafood to clients in the District -- including the White House, the World Bank, restaurants, and notable hotels -- and sometimes outside the District, but the District of Columbia was the focal point for their work, Defendants' operations, and the issuance of payroll checks to Plaintiff and Class members. Notably, Profish's warehouse is located in the District of Columbia. ProFish distributes and supplies seafood products.[BN] The Plaintiff is represented by: Stefan Shaibani, Esq. LAW FIRM OF STEFAN SHAIBANI, PLLC 1776 K Street NW, Suite 818 Washington, DC 20006 Telephone: (202) 733 1750 Facsimile: (202) 833 1000 E-mail: stefan@stefan.shaibani.com - and - Robert J. Gaudet, Jr., Esq. RJ GAUDET & ASSOCIATES LLC 800 Fifth Avenue, Suite 4100 Seattle, WA 98104 Telephone: (206) 855 6679 Facsimile: (866) 333 1484 E-mail: robert@rigaudet.com OZZ LAND: "Lattig" Suit Seeks to Recover Unpaid Minimum Wages ------------------------------------------------------------- KRYSTAL LATTIG, on behalf of herself and those similarly situated v. OZZ LAND, LLC, a Domestic Limited Liability Company d/b/a DEEPWATER DINER and ALAYIDDIN OZDEMIR, Individually, Case No. 1:17-cv-06351 (D.N.J., August 23, 2017), alleges that pursuant to the Fair Labor Standards Act, the Plaintiff and the class are entitled to: (i) unpaid minimum wages from the Defendants for work for which they did not receive proper minimum wages, (ii) liquidated damages pursuant to the FLSA, and (iii) declaratory relief. OZZ LAND, L.L.C., is a New Jersey Domestic Limited Liability Company, located in Carneys Point, New Jersey. OLL operated a restaurant called Deep Water Diner, located in Carneys Point. Alayiddin Ozdemir is the President and Owner of OLL.[BN] The Plaintiff is represented by: Andrew R. Frisch, Esq. MORGAN & MORGAN 600 N. Pine Island Road, Suite 400 Plantation, FL 33324 Telephone: (954) WORKERS Facsimile: (954) 327-3013 E-mail: AFrisch@forthepeople.com PARK STERLING: Faces "Roskopf" Securities Class Suit ---------------------------------------------------- MICHAEL ROSKOPF, on behalf of himself and all others similarly situated, the Plaintiff, v. PARK STERLING CORPORATION, JAMES CHERRY, LESLIE M. BAKER, KIM S. PRICE, LARRY CARROLL, BEN R. RUDISIL, THOMAS HENSON, JEAN E. DAVIS, PATRICIA C. HEARTUNG, WALTER C. AYERS, JEFFREY KANE, GRANT S. GRAYSON, and ROBERT C. WHITTEN, the Defendants, Case No. 3:17-cv-00483 (W.D.N.C., Aug. 14, 2017), seeks to enjoin Defendants, their agents, counsel, employees, and all others persons acting in concert with them from consummating a proposed transaction, unless and until the Company adopts and implements a procedure to obtain the best available terms for shareholders. The Plaintiff brings this action on behalf of himself and the public stockholders of Park Sterling Corporation against Park Sterling's Board of Directors for violations of Securities Exchange Act. On April 27, 2017, South State Corporation, and the Company announced that they had entered into a definitive merger agreement under which South State will acquire all of the outstanding shares of Park Sterling in an all-stock proposed transaction. If consummated, Park Sterling stockholders will receive 0.14 shares of South State stock for each share of Park Sterling stock that they own. The proposed transaction was valued at approximately $691 million, based on the number shares of Park Sterling common stock outstanding on March 31, 2017 and on South State's April 26, 2017 closing stock price. On July 14, 2017, Defendants issued materially incomplete and misleading disclosures in the Form S-4 Registration Statement filed with the United States Securities and Exchange Commission in connection with the proposed transaction. The Registration Statement is deficient and misleading in that it fails to provide adequate disclosure of all materials information related to the proposed transaction. Specifically, the Registration Statement fails to provide Company stockholders with material information or provides then with materially misleading information concerning (i) Park Sterling's insiders' potential conflicts of interest; and (ii) the valuation analyses prepared by Stephens in connection with the rendering of its fairness opinion. The failure to adequately disclose such material information constitutes a violation of the Exchange Act, as stockholders need such information in order to make a fully-informed vote on the Proposed Transaction. Park Sterling Bank, whose parent company is Park Sterling Corp., is a bank based in Charlotte, North Carolina. It has $3.3 billion in assets and branches in North and South Carolina, Virginia and Georgia.[BN] The Plaintiff is represented by: Janet Ward Black, Esq. Nancy E. Meyers, Esq. WARD BLACK LAW 208 W. Wendover Ave. Greensboro, NC 27401 Telephone: (336) 333 2244 Facsimile: (336) 379 9415 E-mail: jwblack@wardblacklaw.com - and - Donald J. Enright, Esq. Elizabeth K. Tripodi, Esq. LEVI & KORINSKY LLP 1101 30th Street NW, Suite 115 Washington, DC 20007 Telephone: (202) 524 4290 Facsimile: (202) 337 1567 E-mail: denright@zlk.com PEPSI BEVERAGES: "Grice" Suit Moved to S.D. California ------------------------------------------------------ The class action lawsuit titled Altareek Grice, on behalf of himself and all others similarly situated, the Plaintiff, v. Pepsi Beverages Company and Does 1 Through 10, the Defendant, Case No. 37-02017-00022150-CU-MC, was removed on Sep. 11, 2017 from the Superior Court of California, San Diego County, to the U.S. District Court for the Southern District of California (San Diego). The District Court Clerk assigned Case No. 3:17-cv-01842- AJB-WVG to the proceeding. The case is assigned to the Hon. Judge Anthony J. Battaglia. PepsiCo is an American multinational food, snack, and beverage corporation headquartered in Purchase, New York. PepsiCo has interests in the manufacturing, marketing, and distribution of grain-based snack foods, beverages, and other products.[BN] The Plaintiff is represented by: Peter R. Dion-Kindem, Esq. THE DION-KINDEM LAW FIRM 21550 Oxnard Street, Suite 900 Woodland Hills, CA 91367 Telephone: (818) 883 4900 Facsimile: (818) 883 4902 E-mail: peter@dion-kindemlaw.com The Defendant is represented by: Jonathan Hisataka Liu OGLETREE DEAKINS NASH SMOAK & STEWART, P.C. 4370 La Jolla Village Drive, Suite 990 San Diego, CA 92122 Telephone: (858) 652 3100 Facsimile: (858) 652 3101 E-mail: jonathan.liu@ogletreedeakins.com PLATINUM GROUP: Colindres et al. Seek Overtime Pay -------------------------------------------------- YANSI COLINDRES, RYANNA GRIMALDO, VERNETTA QUICK, and KRYSTAL SANDOVAL, the Plaintiff, v. PLATINUM GROUP OF COMPANIES, INC., a California corporation; ALLIANCE UNITED INSURANCE COMPANY, a California corporation, KEMPER CORPORATION, a Delaware corporation, MERASTAR INSURANCE CORPORATION, an Indiana corporation, and DOES 1 through 20, inclusive, the Defendants, Case No. BC672431 (Cal. Super. Ct., Aug. 14, 2017), seeks to recover overtime compensation under California Labor Code. According to the complaint, this action concerns Defendants' wrongful and unlawful labor and employment practices, which include failure to pay employees all wages earned, including overtime pay, for work performed "off the clock"; failure to pay employees all earned wages due upon separation from employment; failure to provide meal and rest periods or to compensate employees for working through meal and rest periods; and failure to provide employees accurate wage statements that comply with California law. Platinum Group, a business consulting company, provides consulting and advisory services, turnaround management services, and capital and financing services in the Upper Midwest.[BN] The Plaintiffs are represented by: William M. Turner, Esq. Asha Dhillon, Esq. JONES, BELL, ABBOTT, FLEMING & FITZGERALD L.L.P. 601 South Figueroa Street, Suite 3460 Los Angeles, CA 90017-5759 Telephone: (213) 485 1555 - and - Francisco Cabada, Esq. Sayema J. Hameed, Esq. CABADA & HAMEED LLP 70 South Lake Avenue, Suite 1000 Pasadena, CA 91101 Telephone: (626) 463 7090 PRIMELENDING: "Shockley" Suit Seeks Unpaid Wages under FLSA ----------------------------------------------------------- JENNIFER SHOCKLEY, individually, and on behalf of all other similarly situated persons, the Plaintiffs, v. PRIMELENDING, A PLAINSCAPITAL COMPANY, the Defendant, Case No. 4:17-cv-00763-DW (W.D. Mo., Sep. 11, 2017), seeks to recover unpaid wages and related penalties and damages owed to Plaintiff, and all other similarly situated employees overtime wages, double damages and reasonable attorney fees from Defendants, jointly and severally, pursuant to the Fair Labor Standards Act. According to the compliant, Defendant's policy and practice is to deny overtime pay to its Mortgage Loan Processors. Defendant's deliberate failure to pay its employees all of their earned wages and overtime compensation violates the Fair Labor Standards Act, as well as Missouri state laws. Jennifer Shockley, and all other similarly situated employees, worked for Defendant as Mortgage Loan Processors. PrimeLending -- https://www.primelending.com -- is a residential mortgage lender that provides services nationwide.[BN] The Plaintiff is represented by: Laura C. Fellows, Esq. Virginia Stevens 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 - and - Kelly McCambridge, Esq. Heather Hardinger, Esq. MCCAMBRIDGE LAW, LLC 1308 NE Windsor Drive Lee's Summit, MO 64086 Telephone: (816) 389 8345 Facsimile: (816) 875 2388 E-mail: Kelly@McCambridgeLaw.com Heather@McCambridgeLaw.com R.J. REYNOLDS: "Tarrow" Suit Moved to Central Dist. of California ----------------------------------------------------------------- ANDREW TARROW, individually and on behalf of all current and former similarly situated employees in the State of California, the Plaintiff, v. R.J. REYNOLDS TOBACCO COMPANY; REYNOLDS AMERICAN, INC.; STACI MEYER, an individual; WILLIAM ROTH, an individual, DANIEL HARRINGTON, an individual, and DOES 1 to 50, inclusive, the Defendants, the Defendants, Case No. 30-2017- 00936345-CU-OE-CXC, was removed on Sep. 11, 2017 from the Superior Court of California for the County of Orange, to United States District Court for Central District of California. The Court Clerk assigned Case No. 8:17-cv-01568 to the proceeding. The R. J. Reynolds Tobacco Company, based in Winston-Salem, North Carolina and founded by R. J. Reynolds in 1875, is the second- largest tobacco company in the U.S.[BN] Attorneys for Defendants: Aaron L. Agenbroad, Esq. Liat L. Yamini, Esq. JONES DAY 555 California Street, 26th Floor San Francisco, CA 94104 Telephone: (415) 626 3939 Facsimile: (415) 875 5700 E-mail: alagenbroad@JonesDay.com lyamini@JonesDay.com RASH CURTIS: Court Certifies 4 Classes in "McMillion" Suit ---------------------------------------------------------- In the case captioned S ANDRA McMILLION, ET AL., Plaintiffs, v. RASH CURTIS & ASSOCIATES, Defendant, Case No. 16-cv-03396-YGR (N.D. Cal.), Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California granted in part and denied in part the Plaintiffs' motion for class certification. The Plaintiffs bring the instant action against the Defendant in connection with the Defendant's allegedly unlawful debt collection practices. The Plaintiffs allege that the Defendant uses repeated robocalls, pre-recorded voice messages, and auto-dialed calls to threaten and harass consumers in an attempt to collect debts, in violation of the Telephone Consumer Protection Act ("TCPA"), the Fair Debt Collection Practices Act ("FDCPA") and the California Rosenthal Fair Debt Collection Practices Act ("Rosenthal Act"). The Plaintiffs allege that the Defendant repeatedly called them on their cellular telephones using an autodialer and/or an artificial or prerecorded voice. They further allege that they did not provide defendant with prior express written consent, and they specifically asked defendant to stop calling. The complaint further alleges that several consumer complaints have been filed against the Defendant regarding similarly unsolicited robocalls and autodialed calls. The Plaintiffs seek to certify these four classes, challenging the Defendant's use of autodialers, robocallers, and pre-recorded voice messages to contact individuals in an attempt to collect on their debt: a. With Adekoya and Perez as Class Representatives: i. Skip-Trace Class 1: All persons who received a call on their cellular telephones within four years of the filing of the complaint until the date that class notice is disseminated from Rash Curtis' DAKCS/VIC Software System dialer and/or Global Connect dialer whose cellular telephone was obtained by Rash Curtis through skip tracing. ii. Skip-Trace Class 2: All persons who received a prerecorded message or robocall on their cellular telephones or landline phones within four years of the filing of the complaint until the date that class notice is disseminated from Rash Curtis whose telephone number was obtained by Rash Curtis through skip tracing. b. With Perez Only as Class Representative: i. Non-Debtor Class 1: All persons who received a call on their cellular telephones within four years of the filing of the complaint until the date that class notice is disseminated from Rash Curtis' DAKCS VIC dialer and/or Global Connect dialer whose telephone number was obtained by Rash Curtis through skip tracing and for whom Rash Curtis never had a debt-collection account in their name. ii. Non-Debtor Class 2: All persons who received a prerecorded message or robocall on their cellular telephones or landline phones within four years of the filing of the complaint until the date that class notice is disseminated from Rash Curtis whose telephone number was obtained by Rash Curtis through skip tracing and for whom Rash Curtis has never had a debt-collection account in their name. Judge Rogers finds that the Plaintiffs have satisfied (i) all the requirements for certification of Rule 23(b)(3) classes as to all four of their proposed classes in this action; and (ii) the requirements for certification under Rule 23(b)(2). Accordingly, Judge Rogers granted in part and denied in part the Plaintiffs' motion for class certification under both Rule 23(b)(2) and Rule 23(b)(3). He certifies these classes with Perez as the class representative, both for injunctive relief only pursuant to Rule 23(b)(2) and damages pursuant to Rule 23(b)(3): a. Skip-Trace Class 1: All persons who received a call on their cellular telephones within four years of the filing of the complaint until the date that class notice is disseminated from Rash Curtis' DAKCS VIC dialer and/or Global Connect dialer whose cellular telephone was obtained by Rash Curtis through skip tracing. b. Skip-Trace Class 2: All persons who received a prerecorded message or robocall on their cellular telephones or landline phones within four years of the filing of the complaint until the date that class notice is disseminated from Rash Curtis whose telephone number was obtained by Rash Curtis through skip tracing. c. Non-Debtor Class 1: All persons who received a call on their cellular telephones within four years of the filing of the complaint until the date that class notice is disseminated from Rash Curtis' DAKCS VIC dialer and/or Global Connect dialer whose telephone number was obtained by Rash Curtis through skip tracing and for whom Rash Curtis never had a debt-collection account in their name. d. Non-Debtor Class 2: All persons who received a prerecorded message or robocall on their cellular telephones or landline phones within four years of the filing of the complaint until the date that class notice is disseminated from Rash Curtis whose telephone number was obtained by Rash Curtis through skip tracing and for whom Rash Curtis has never had a debt-collection account in their name. The Judge further appointed the Plaintiffs' counsel, Bursor & Fisher, P.A., as the class counsel. He set a case management conference for Oct. 2, 2017. No later than Sept. 25, 2017, the parties must file updated joint case management statements, in accordance with the Civil Local Rules and the Court's Standing Order, including any remaining requests for extensions to the discovery and dispositive motion schedule. The Order terminates Docket Numbers 47 and 70. A full-text copy of the Court's Sept. 6, 2017 Order is available at https://is.gd/LxzAmQ from Leagle.com. Sandra McMillion, Plaintiff, represented by Yeremey O. Krivoshey - - ykrivoshey@bursor.com -- Bursor Fisher, P.A.. Sandra McMillion, Plaintiff, represented by Lawrence Timothy Fisher -- ltfisher@bursor.com -- Bursor & Fisher P.A. & Lawrence Timothy Fisher, Bursor & Fisher, P.A.. Jessica Adekoya, Plaintiff, represented by Yeremey O. Krivoshey, Bursor Fisher, P.A., Lawrence Timothy Fisher, Bursor & Fisher P.A. & Lawrence Timothy Fisher, Bursor & Fisher, P.A.. Ignacio Perez, Plaintiff, represented by Yeremey O. Krivoshey, Bursor Fisher, P.A., Lawrence Timothy Fisher, Bursor & Fisher P.A. & Lawrence Timothy Fisher, Bursor & Fisher, P.A.. Rash Curtis & Associates, Defendant, represented by Andrew M. Steinheimer, Ellis Law Group, LLP, Anthony Paul John Valenti -- AValenti@EllisLawGrp.com -- Ellis Law Group, LLP & Mark Ewell Ellis -- mellis@ellislawgrp.com -- Ellis Law Group, LLP. RDR CORPORATION: "Maurer" Suit Asserts ADA Violation ---------------------------------------------------- DENNIS MAURER, Individually v. RDR CORPORATION, a New Jersey Corporation; and MCDONALD'S USA LLC, a Delaware Limited Liability Company, Case No. 1:17-cv-06362-JHR-AMD (D.N.J., August 23, 2017), alleges that the Defendants have discriminated, and continue to discriminate, against the Plaintiff and other mobility impaired individuals in violation of the Americans with Disabilities Act by failing to, inter alia, have accessible facilities, including proper parking spaces. Mr. Maurer has multiple sclerosis and is mobility impaired, and uses a wheelchair for mobility. RDR operates the subject property, McDonald's Store #573, alleged by the Plaintiff to be operating in violation of the ADA. McDonald's is a Delaware Limited Liability Company, which holds title to the subject property alleged by the Plaintiff to be operating in violation of the ADA. The McDonald's Store is located in Edgewater Park, New Jersey.[BN] The Plaintiff is represented by: Keith Harris, Esq. BRAFF, HARRIS, SUKONECK & MALOOF 570 West Mount Pleasant Avenue Livingston, NJ 07039 Telephone: (973) 994-6677 Facsimile: (973) 994-1296 E-mail: kharris@bhsm-law.com - and - John P. Fuller, Esq. FULLER, FULLER & ASSOCIATES, P.A. 12000 Biscayne Blvd., Suite 502 North Miami, FL 33181 Telephone: (305) 891-5199 Facsimile: (305) 893-9505 E-mail: jpf@fullerfuller.com RENT-A-CENTER: Sept 28 Hearing on "Blair" Arbitration Bid --------------------------------------------------------- In the case captioned PAULA L. BLAIR, ANDREA ROBINSON, and FALECHIA A. HARRIS, individually and on behalf of all others similarly situated, Plaintiffs, v. RENT-A-CENTER, INC., a Delaware corporation; RENT-A-CENTER WEST, INC., a Delaware corporation; and DOES 1-50, inclusive, Defendants, Case No. 3:17-cv-02335-WHA(N.D. Cal.), Judge William Alsup of the U.S. District Court for the Northern District of California continued the hearing on the Defendants' Motion to Partially Compel Arbitration, Strike Class Action Claims, and Stay Proceedings to Sept. 28, 2017 at 8:00 a.m., and the Case Management Conference to Sept. 28, 2017 at 11:00 a.m. The hearing on the Defendants' Motion to Partially Compel Arbitration, Strike Class Action Claims, and Stay Proceedings and a Case Management Conference is presently on calendar for Sep. 7, 2017, at 8:00 a.m. and 11:00 a.m., respectively. The wife of Robert Friedman -- a member of the Texas bar and the attorney who will argue the Motion to Compel Arbitration on behalf of the Defendants -- is hospitalized and had unexpected surgery on September 5. For that reason, the Defendants' counsel has requested that the Plaintiffs' counsel agree to continue the Motion hearing and Case Management Conference to Sept. 28. In consideration of Mr. Friedman's personal situation, the counsel for the parties' respective calendars, and in view of the Court's calendar, the parties have agreed to continue the Motion hearing as well as the Case Management Conference. Through their respective counsel, the Plaintiffs and the Defendants stipulate and agree that, while the Court typically hears such matters on Thursdays, the Motion Hearing and Case Management Conference should be continued to Sept. 19, 20, or 22, 2017, at 8:00 a.m. and 11:00 a.m., respectively. Alternatively, the parties stipulate and agree that the Motion hearing and Case Management Conference should be continued to Sept. 28, 2017, at 8:00 a.m. and 11:00 a.m., respectively. Judge Alsup approved the parties' stipulation and continued the hearing on the Motion and the Case Management Conference as stipulated. A full-text copy of the Court's Sept. 6, 2017 Order is available at https://is.gd/M33PxE from Leagle.com. Paula L. Blair, Plaintiff, represented by James T. Hannink -- Jim.Hannink@sdlaw.com -- Dostart Hannink and Coveney. Paula L. Blair, Plaintiff, represented by Zachariah Paul Dostart - - Paul.Dostart@sdlaw.com -- Dostart Hannink & Coveney LLP, Eric Prince Brown -- ebrown@altshulerberzon.com -- Altshuler Berzon LLP & Michael Rubin -- mrubin@altshulerberzon.com -- Altshuler Berzon LLP. Andrea Robinson, Plaintiff, represented by Eric Prince Brown, Altshuler Berzon LLP, James T. Hannink, Dostart Hannink and Coveney, Michael Rubin, Altshuler Berzon LLP & Zachariah Paul Dostart, Dostart Hannink & Coveney LLP. Harris A. Falechia, Plaintiff, represented by Eric Prince Brown, Altshuler Berzon LLP, James T. Hannink, Dostart Hannink and Coveney, Michael Rubin, Altshuler Berzon LLP & Zachariah Paul Dostart, Dostart Hannink & Coveney LLP. Rent-A-Center, Inc., Defendant, represented by Kirsten F. Gallacher -- KGallacher@wilsonturnerkosmo.com -- Wilson Turner Kosmo LLP, Robert Kenneth Dixon -- rdixon@wilsonturnerkosmo.com -- Wilson Turner Kosmo, Robert Francois Friedman -- rfriedman@littler.com -- Littler Mendelson, P.C., pro hac vice, Vickie E. Turner -- vturner@wilsonturnerkosmo.com -- Wilson Turner Kosmo LLP & Gregory G. Iskander -- giskander@littler.com -- Littler Mendelson, P.C.. Rent-A-Center West, Inc., Defendant, represented by Kirsten F. Gallacher, Wilson Turner Kosmo LLP & Robert Kenneth Dixon, Wilson Turner Kosmo. Rent-A-Center West, Inc., a Delaware corporation, Defendant, represented by Robert Francois Friedman, Littler Mendelson, P.C., pro hac vice. Rent-A-Center West, Inc., Defendant, represented by Vickie E. Turner, Wilson Turner Kosmo LLP & Gregory G. Iskander, Littler Mendelson, P.C. ROSANN LANDSCAPE: "Contreras" Labor Suit Seeks Unpaid Overtime -------------------------------------------------------------- Jose Barragan Contreras, Juan Alonzo Orellana and Jorge Yepez, individually, and on behalf of all others similarly situated, Plaintiffs, v. Rosann Landscape Corp., Rosann Land Improvement Ltd., and Ana Maria Birlescu Defendants, Case No. 7:17-cv-06453, (S.D. N.Y., August 24, 2017), alleges violations of the overtime provisions of the federal Fair Labor Standards Act, and minimum wage and overtime provisions of New York Labor Law. The lawsuit seeks redress for unjust enrichment, liquidated damages, reasonable attorneys' fees, costs and interest as well as declaratory relief. Defendants provided landscaping and maintenance services to large residential facilities in New York and New Jersey where Plaintiffs worked as general laborers assigned to at multiple locations, routinely working in excess of 40 hours per week. [BN] Plaintiff is represented by: David Tykulsker, Esq. DAVID TYKULSKER & ASSOCIATES 161 Walnut St. Montclair, NJ 07042 Tel: (973) 509-9292 Fax: (973) 509-1181 Email: david@dtesq.com - and - Robert McCreanor, Esq. HUDSON VALLEY JUSTICE CENTER 30 South Broadway Yonkers, NY 10701 Tel: (914) 308-3490 Email: rmccreanor@hvjc.org SANOFI PASTEUR: Ct. Grants Bid for Summary Judgment in "Weitzner" ----------------------------------------------------------------- In the case captioned ARI WEITZNER and ARI WEITZNER, M.D., P.C., Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. SANOFI PASTEUR, INC., formerly known as AVENTIS PASTEUR INC., and VAXSERVE, INC., formerly known as VACCESS AMERICA, INC., Defendants, Civil Action No. 3:11-CV-02198(M.D. Pa.), Judge A. Richard Caputo of the U.S. District Court for the Middle District of Pennsylvania (i) denied the Defendants' Motion to Strike the November 29, 2016 Declaration of Ari Weitzner, M.D.; (ii) granted in part and denied in part the Defendants' Motion to Strike Plaintiffs' Answer to Defendants' Statement of Facts; (iii) granted the Defendants' Motion for Summary Judgment; and (iv) denied as moot the Plaintiffs' Motion for Class Certification. Litigation remains pending in the Lackawanna County Court of Common Pleas involving Dr. Weitzner and the same Defendants for an alleged TCPA violation stemming from the same April 21, 2004 fax. Dr. Weitzner commenced the state-court action with the filing of a class action complaint on Feb. 14, 2005, seeking to represent a class of persons who received unsolicited fax advertisements from Defendants. The class identified in the state-court action was defined as Dr. Weitzner and all other individuals who received an unsolicited fax advertisement from Defendants between Jan. 2, 2001 and the date of the resolution of the lawsuit. Notably, the P.C. was neither a Named-Plaintiff nor identified as a putative class member in the state-court action. On June 27, 2008, Judge Minora issued an opinion and order ruling on the Defendants' motion for summary judgment and Dr. Weitzner's motion to amend the complaint's class definition. The opinion concluded that a class could include only Pennsylvania-resident fax recipients, rather than the proposed nationwide class, and held that Dr. Weitzner was not a proper representative plaintiff for class action purposes. The Judge permitted Dr. Weitzner to proceed on his individual TCPA claim, but found that a two-year statute of limitations applied to the TCPA claims under Pennsylvania law, and thus limited Dr. Weitzner's claims to faxes he received within two years of the date on which the complaint was filed. On July 25, 2008, Dr. Weitzner filed a notice of appeal from the state court's June 27, 2008 order. On June 3, 2009, the Superior Court concluded that the appeal was interlocutory and premature, and therefore quashed the appeal. The Superior Court noted that no motion for class certification was ever filed or decided by the Court of Common Pleas. The Plaintiffs commenced this action on Nov. 26, 2011. On Feb. 6, 2012, the Defendants filed their Motion for Abstention, or in the alternative, to Dismiss Plaintiffs' Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, to Stay Proceedings. On May 14, 2012, the Court denied the Defendants' Motion. The Court also declined to address the applicability, if any, of American Pipe tolling at that time. On Nov. 12, 2013, the Defendants filed their Answers and Affirmative Defenses to Plaintiffs' Complaint. Just three days later, on Nov. 15, 2013, the Defendants served Offers of Judgment pursuant to Federal Rule of Civil Procedure 68 upon the Plaintiffs; offering for judgment to be entered against the Defendants for the maximum statutory relief available to the Plaintiffs. The Defendants filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) on Dec. 4, 2013. The Motion was denied by the Court by Order and Opinion dated March 12, 2014. The Third Circuit affirmed on April 6, 2016. The Plaintiffs' filed the instant Motion for Class Certification on June 28, 2016. The Defendants filed the instant Motion for Summary Judgment on Oct. 17, 2016. Pursuant to the Local Rule of the Middle District of Pennsylvania, the Defendants filed a Statement of Facts detailing the material facts at issue in the litigation. The Plaintiffs filed their Answer to the Defendants' Statement of Facts on Nov. 29, 2016. The Defendants have also filed two Motions to Strike: Motion to Strike November 29, 2016 Declaration of Ari Weitzner, M.D., and Motion to Strike Plaintiffs' Answer to Defendants' Statement of Facts. These Motions were filed on Jan. 27, 2017. Judge Caputo finds that the Defendants correctly note that the modification of the class currently at issue occurred in the Third Weitzner Declaration. This Declaration was filed on Nov. 29, 2016, after the Defendants had already filed their Brief in Opposition to Plaintiffs' Motion for Class Certification. However, the Defendants fail to meaningfully articulate the defenses foreclosed by the timing of the modification. Rather, the Defendants throughout their brief call the claims included in this modification "untimely," or "time-barred. As the Plaintiffs note, the Defendants already raise arguments related to the timeliness of claims in their papers. Moreover, the Defendants had the opportunity to respond to the proposed class expansion in their brief in response to the Plaintiffs' Brief in Opposition to Summary Judgment. Since the Defendants have failed to offer any concrete prejudice caused by the timing of the modification, Judge Caputo will not grant the Defendants' Motion to Strike the Nov. 29, 2016 Declaration of Dr. Weitzner. The Defendants contend that many of the Plaintiffs' responses contain impermissible argument and fail to provide "concise" statements in violation of Local Rule 56.1. In large part, the Judge agrees. The Plaintiffs' have provided a lengthy response that runs afoul of the purpose for Local Rule 56.1. Facially, this is impermissible under the Local Rule. Because he finds that many of the statements within the Plaintiffs' response contravene the purpose of Local Rule 56.1, he will allow those statements to be stricken. Therefore, only six statements made in the Defendants' Statement of Facts will be considered contested for purposes of summary judgment. Judge Caputo also finds that in every meaningful way, Dr. Weitzner would be the beneficiary of the P.C.'s individual claim, and thus tolling would serve protect a Plaintiff "who initiated the prior action." Allowing the P.C., on these facts, to seek shelter from the statute of limitations through the use of the American Pipe tolling rule would condone the abuse of American Pipe. For this reason, American Pipe tolling will not apply to the P.C.'s individual claim, and the Judge will grant summary judgment in favor of the Defendants. For these stated reasons, Judge Caputo (i) denied the Defendants' Motion to Strike; (ii) granted in part and denied in part the Defendants' Motion to Strike Plaintiffs' Answer to Defendants' Statement of Facts; (iii) granted the Defendants' Motion for Summary Judgment; and (iv) denied as moot the Plaintiffs' Motion for Class Certification. A full-text copy of the Court's Sept. 6, 2017 Memorandum is available at https://is.gd/y4mFEV from Leagle.com. Ari Weitzner, Plaintiff, represented by Daniel A. Osborn -- dosborn@osbornlawpc.com -- Osborn Law PC, pro hac vice. Ari Weitzner, Plaintiff, represented by P. Timothy Kelly, Mattise & Kelly PC & Todd C. Bank -- tbank@toddbanklaw.com -- Law Office of Todd C. Bank, pro hac vice. Ari Weitzner, M.D., P.C., Plaintiff, represented by Daniel A. Osborn, Osborn Law PC, pro hac vice, P. Timothy Kelly, Mattise & Kelly PC & Todd C. Bank, Law Office of Todd C. Bankm pro hac vice. Sanofi Pasteur, Inc., Defendant, represented by Carl J. Greco, Greco Law Associates, P.C. & Jennifer Menichini, Greco Law Associates, P.C. Vaxserve, Inc., Defendant, represented by Carl J. Greco, Greco Law Associates, P.C. & Jennifer Menichini, Greco Law Associates, P.C. SID'S SEALANTS: Court Denies Bid to Dismiss "Holmes" ---------------------------------------------------- The United States District Court for the Western District of Wisconsin, in the case captioned ERIC HOLMES, on behalf of himself and all others similarly situated, Plaintiff, v. SID'S SEALANTS, LLC, NORTH SHORE RESTORATION, LLC, and SID ARTHUR, Defendants, No. 16-cv-821-wmc (W.D. Wis.), denied Defendants' motion to dismiss for improper venue. Plaintiff Eric Holmes alleges that he and a group of similarly situated workers were deprived of wages and overtime pay by defendants Sid Arthur and his two companies, Sid's Sealants, LLC, and North Shore Restoration, LLC. Plaintiff brings a collective action under 29 U.S.C. Section 216(b) of the Fair Labor Standards Act (FLSA), as well as claims under Wisconsin law. Before the court is a renewed motion to dismiss or transfer the action in which defendants assert if the action is allowed to proceed at all, then it should be venued in the Eastern District of Wisconsin where all of the parties and counsel reside. Plaintiff Holmes resides in Milwaukee, Wisconsin, where the principal courthouse for the Eastern District is located. Nevertheless, Holmes elected to bring his claim for wage theft and prevailing wage violations in the Western District of Wisconsin, whose principal courthouse is in Madison, roughly 80 miles away. In support of his choice of venue, Holmes asserts that he and other employees performed a substantial amount of work in the Western District on behalf of the defendants, at least some of which contributed to their claims in this case. Motion to Dismiss The Court finds little merit in defendant's motion to dismiss this action for improper venue under Fed. R. Civ. P. 12(b)(3). When all defendants are residents of one state, venue is proper in any district where a defendant resides. 28 U.S.C. Sec tion 1391(b)(1). A corporation "resides" in a district when its contacts in that district would suffice to establish personal jurisdiction if that district were a separate state. 28 U.S.C. Section 1391(d). Thus, in a state with multiple judicial districts, such as Wisconsin, venue is proper in any district where a corporation would be subject to personal jurisdiction if that district were a separate state. KM Ents., Inc. v. Global Traffic Techs., Inc., 725 F.3d 718, 724 (7th Cir. 2013). Defendants should have reasonably foreseen the possibility of litigating a wage claim in the Western District. After all, they accepted contracts for work in, sent workers to, and completed projects in the Western District. Companies that engage in such activities should not be caught entirely unawares by the prospect of litigation from allegedly insufficient compensation emerging in that same district. Furthermore, the additional factors articulated in Fabio do not defeat jurisdiction. If anything, plaintiff's interest in obtaining convenient reliefas expressed in his decision to file in the Western District points towards a finding of jurisdiction given the deference due that decision and the defendants' failure to identify any particular inconvenience or community interest that would defeat jurisdiction. Because due process requirements have been met and defendants are amenable to process in the Western District, therefore, personal jurisdiction over the corporate defendants exists and venue is proper in this court under 28 U.S.C. Section 1391(b)(1). Accordingly, defendants' motion to dismiss for improper venue will be denied. Motion to Transfer Venue A district court may transfer any civil action to another district where the action might have been brought when doing so would serve the "convenience of parties and witnesses [or] the interests of justice. 28 U.S.C. Section 1404(a). Transfer is proper when "(1) venue is proper in the transferor district; (2) venue and jurisdiction are proper in the transferee district; and (3) the transfer will serve the convenience of the parties, the convenience of the witnesses, and the interests of justice. Plaintiff's Choice of Forum Although not addressed by either party, several courts have also held that cases under section 216 of the FLSA warrant greater deference to the plaintiff's choice of forum. This additional deference flows from the opt-in nature of collective actions under the FLSA, which suggests that any plaintiff who opts-in deems the forum convenient. And although courts have frequently held that class action plaintiffs receive less deference with respect to their choice of forum, the increased deference due because of the FLSA's opt-in provision tends to outweigh any consideration that some members of a related class may feel compelled to agree rather than opt out. Notwithstanding Holmes's choice to litigate outside his home forum, therefore, the plaintiff's inherent right to choose the forum, combined with the deference due under the FLSA, imposes a heavier burden on the defendants to show that transfer would be "clearly more convenient. Convenience Factors Convenience of the Parties Defendants have not identified how litigating this case in the Western District will clearly inconvenience them in accessing witnesses, documents, or sources of proof. Instead, they focus purely on the inconvenience of the commute. Although the court sympathizes with defendants' plight (and commends the desire to reduce their carbon footprint), the fact remains that an extra hour of commute time does not warrant the transfer of this entire action away from the plaintiff's chosen forum, especially considering that this case does not project to involve more than one or two actual, in-person appearances. Regardless, the relatively short drive along I-94 is hardly an onerous affront to the interests of justice. Inconvenience to Witnesses and Access to Sources of Proof The location and convenience of witnesses diminishes in importance when the witnesses also are likely to be employees of a party. Illumina, 2009 WL 3062786. The location of defendant's employee witnesses is not a heavily weighted factor because of the assumption that witnesses within the control of the party calling them, such as employees, will appear voluntarily, that is, at least without subpoena. Interest of Justice Factors Although the court may consider the litigation's relationship to the community in the transfer analysis, Research Automation, 626 F.3d at 978, defendants provide little reason to do so here. In support of their position, defendants simply restate that most of the events and personages involved in this case reside in the Eastern District. Without more, defendants cannot meet their burden to overcome the deference given to plaintiff's choice of forum. For the reasons stated, the balance of factors in the transfer analysis does not strongly point towards transfer, and so defendants' motion to transfer venue is denied. A full-text copy of the District of Court's August 31, 2017 Opinion and Order is available at http://tinyurl.com/ya42n3u7from Leagle.com. Eric Holmes, Plaintiff, represented by Yingtao Ho, Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C.. 310 West Wisconsin Avenue, Suite 100 MW, Milwaukee, WI 53203 Sid's Sealants, LLC, Defendant, represented by Justin Taylor Padway, Padway & Padway Ltd. & M. Nicol Padway, Padway & Padway Ltd., 633 W Wisconsin Ave Ste 1900, Milwaukee, WI 53203, US Sid Arthur, Defendant, represented by Justin Taylor Padway, Padway & Padway Ltd. & M. Nicol Padway, Padway & Padway Ltd.. North Shore Restoration, LLC, Defendant, represented by Justin Taylor Padway, Padway & Padway Ltd.. SIRIUS XM: "Andrews" Sues Over Unauthorized Use of Personal Info ---------------------------------------------------------------- James E. Andrews on behalf of himself and all persons similarly situated, Plaintiff, v. Sirius XM Radio, Inc., and Does 1 through 100 inclusive, Defendants., Case No. 5:17-cv-01724, (C.D. Cal., August 24, 2017), seeks preliminary and permanent injunctive relief restraining and enjoining Defendant from further violations of the Driver Privacy Protection Act, including destroying the personal information obtained from motor vehicle records, compensatory and punitive damages, reasonable attorney's fees, costs of suit incurred and such other and further relief. Plaintiff purchased a used 2012 Chevy Equinox in which the prior owner had a lapsed Sirius XM radio account. Defendant mailed eight notices to Andrews referencing the previous owner's Sirius XM account number and listed the radio ID number but were addressed to him and no longer the previous owner and mailed advertisements to the Plaintiff's own address. [BN] Plaintiff is represented by: Jeffrey Wilens, Esq. LAKESHORE LAW CENTER 18340 Yorba Linda Blvd., Suite 107-610 Yorba Linda, CA 92886 Tel: (714) 854-7205 Fax: (714) 854-7206 Email: jeff@lakeshorelaw.org - and - Jeffrey P. Spencer, Esq. THE SPENCER LAW FIRM 903 Calle Amanecer, Suite 220 San Clemente, CA 92673 Tel: (949) 240-8595 Fax: (949) 240-8515 Email: jps@spencerlaw.net SKYE RENTALS: Faces "Hernandez" Suit over Wage & Hour Violations ---------------------------------------------------------------- RALPH HERNANDEZ, an individual, the Plaintiff, v. KENDALL R. HENRY, an individual; SKYE RENTALS, INC., a California Corporation; and DOES 1 through 25, inclusive, the Defendant, Case No. BC675200 (Cal. Super. Ct., Sep. 11, 2017), seeks to recover unpaid compensation under the California Labor Code. According to the complaint, the Plaintiff was never allowed to take his meal breaks within the first five hours of his shifts. Even when they take their meals, their meal was always on-call or in the middle of performing his duties. Plaintiff was never allowed to take his second meal break prior to his tenth hour of his shift. Plaintiff's job duties did not permit him to take regular rest breaks as mandated by law. He was never provided the opportunity to take rest periods, nor was he informed of his right to take rest periods. Defendants did not pay a premium of one hour's pay for any missed first and second hour meal or rest periods. Defendants have willfully prevented and discouraged, and continue to prevent and discourage Plaintiffs from taking meal and rest breaks and failed to compensate Plaintiffs for missed breaks in violation of Labor Code. Defendants have engaged in, and continue to engage in, unfair business practices in California by practicing, employing and utilizing the employment practices and policies. Defendants' utilization of such unfair business practices constitutes unfair competition and provides an unfair advantage over Defendants' competitors. Defendants' utilization of such unfair business practices deprives Plaintiffs of the general minimum working standards and entitlements due them under California law and the Industrial Welfare Commission. As a direct result of the wage and hour violations herein alleged, Plaintiffs have suffered, and continue to suffer, substantial losses related to the use and enjoyment of wages, lost interest on such wages, and expenses and attorney's fees in seeking to compel Defendants to fully perform their obligations under state law, all to their respective damage in amounts according to proof at the time of trial.[BN] The Plaintiff is represented by: Young W. Ryu, Esq. Kelly Kim, Esq. LOYR, APC 9595 Wilshire Blvd. Suite 900 Beverly Hills, CA 90212 Telephone: (888) 365 8686 Facsimile: (800) 576 1170 E-mail: young.ryu@loywr.com kelly.kim@loywr.com SMITH & ROUCHON: Wallis Sues over Unsolicited Telephone Calls ------------------------------------------------------------- Rebecca Wallis, on behalf of herself and others similarly situated, the Plaintiff, v. Smith, Rouchon & Associates, Inc., the Defendant, Case No. 3:17-cv-01366-UJH-RDP (N.D. Ala., Aug. 14, 2017), seeks to recover actual damages, or statutory damages under the Telephone Consumer Protection Act. According to the complaint, sometime earlier this year, Plaintiff began to receive telephone calls from Defendant on her cellular telephone. Defendant placed at least one call to Plaintiff's cellular telephone number on April 27, May 2, May 5 and May 9. Defendant's records will show additional calls that it made to Plaintiff's cellular telephone number with an automatic telephone dialing system and/or an artificial or prerecorded voice. Defendant placed its calls to Plaintiff's cellular telephone number from (256) 740-4280 -- a telephone number assigned to Defendant. The Defendant placed all of those calls in an effort to contact and collect a debt allegedly owed by a third party named "Marty," who is unknown to Plaintiff. On several occasions, Plaintiff answered calls from Defendant and heard a prerecorded message asking her to please hold for the next available representative. On several occasions, including on May 5 and May 9, Plaintiff held the line to speak with a representative, at which time she informed Defendant's representative that she was not the individual Defendant was looking for, and that Defendant should stop calling her cellular telephone number. Notwithstanding, Defendant continued to place calls to Plaintiff's cellular telephone number. Smith & Rouchon is a contingency debt collection services firm.[BN] The Plaintiff is represented by: Gina DeRosier Greenwald, Esq. Jesse S. Johnson, Esq. GREENWALD DAVIDSON RADBIL PLLC 5550 Glades Rd, Ste. 500 Boca Raton, FL 33431 Telephone: (561) 826 5477 Facsimile: (561) 961 5684 E-mail: ggreenwald@gdrlawfirm.com jjohnson@gdrlawfirm.com SO CAL PETROLEUM: Faces "Rosales" Suit in C.D. of California ------------------------------------------------------------ A class action lawsuit has been filed against SO Cal Petroleum Transport, Inc. The case is styled as David Rosales, on behalf of himself, and all other similarly situated, Plaintiff v. SO Cal Petroleum Transport, Inc., doing business as: superior tank lines and Does 1-50, inclusive, Defendants, Case No. 5:17-cv-01858 (C.D. Cal., September 12, 2017). So. Cal Petroleum Transport, Inc., doing business as Superior Tank Lines, supplies refined petroleum products, gasoline, diesel, and ethanol.[BN] The Plaintiff appears PRO SE. SP BEACH: Avila Moves to Certify Banquet Servers Class Under FLSA ----------------------------------------------------------------- The Plaintiff in the lawsuit styled PATRICIA AVILA, individually and on behalf of all others similarly situated v. SP BEACH HOTEL CORP., Case No. 8:17-cv-01430-JSM-AAS (M.D. Fla.), files with the Court an agreed motion for order conditionally certifying class, approving class notice and requiring the Defendant's disclosure of contact information for class members pursuant to the Fair Labor Standards Act. Specifically, the proposed Collective Class consists of: All individuals who were employed by or who worked for the Defendant at The Don Cesar Hotel, as banquet servers and who performed banquet server services, including setting up and breaking down the banquet halls, assisting in preparation of banquet dishes for service, serving food and drink to banquet guests, attending to banquet guests requests and performing other related duties from June 16, 2014 to February 28, 2017. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=6gHfTYzi The Plaintiff is represented by: Jeremiah J. Talbott, Esq. LAW OFFICE OF JEREMIAH J. TALBOTT, P.A. 900 E. Moreno Street Pensacola, FL 32503 Telephone: (850) 437-9600 Facsimile: (850) 437-0906 E-mail: jj@talbottlawfirm.com STATE NATIONAL: Violates Securities Laws, Sciabacucchi Says ----------------------------------------------------------- MATTHEW SCIABACUCCHI, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, v. STATE NATIONAL COMPANIES, INC., TERRY LEDBETTER, GENE BECKER, MARSHA CAMERON, DAVID KING, FRED REICHELT, MARKEL CORPORATION, and MARKELVERICK CORPORATION, the Defendants, Case No. 3:17-cv-02412-G (N.D. Tex., Sep. 11, 2017), seeks to preliminarily and permanently enjoins Defendants and all persons acting in concert with them from proceeding with, consummating, or closing a proposed transaction. According to the complaint, on July 26, 2017, State National's Board of Directors caused the Company to enter into an agreement and plan of merger with Markel. Pursuant to the terms of the Merger Agreement, if State National's stockholders approve the Proposed Transaction, they will receive $21.00 per share in cash. On August 29, 2017, defendants filed a Preliminary Proxy Statement with the United States Securities and Exchange Commission in connection with the Proposed Transaction. The Proxy Statement omits material information with respect to the Proposed Transaction, which renders the Proxy Statement false and misleading. Accordingly, plaintiff alleges that Defendants violated Sections 14(a) and 20(a) of the Securities Exchange Act of 1934. State National Companies, Inc., is a specialty provider of property and casualty insurance operating in two niche markets, Program Services and Lender Services. The company is licensed to do business in all 50 states and D.C.[BN] The Plaintiff is represented by: RIGRODSKY & LONG, P.A. 2 Righter Parkway, Suite 120 Wilmington, DE 19803 Telephone: (302) 295 5310 Facsimile: (302) 654 7530 - and - RM LAW, P.C. 1055 Westlakes Drive, Suite 300 Berwyn, PA 19312 Telephone: (484) 324 6800 Facsimile: (484) 631 1305 - and - Joe Kendall, Esq. Jamie J. McKey, Esq. KENDALL LAW GROUP, PLLC 3232 McKinney Avenue, Suite 700 Dallas, TX 75204 Telephone: (214) 744 3000 Facsimile: (214) 744 3015 E-mail: jkendall@kendalllawgroup.com jmckey@kendalllawgroup.com TAMPA BAY SURGERY: Court Tosses Complaints in "Stapleton" Suit -------------------------------------------------------------- The Hon. James S. Moody, Jr., entered an order in the lawsuit titled JANIE STAPLETON, on her own behalf and on behalf of her minor child, C.P., DAVID PACKEN, on his own behalf and on behalf of his minor child, D.J., and CARMELO ALVAREZ, JR. on his own behalf and on behalf of his minor child, K.R.A. v. TAMPA BAY SURGERY CENTER, INC., Case No. 8:17-cv-01540-JSM-AEP (M.D. Fla.): 1. granting the Defendant's Motion to Dismiss Plaintiffs' First Amended Class Action Complaint; 2. dismissing without prejudice the Amended Complaint. Plaintiffs have thirty (30) days to file an amended complaint that alleges an injury in fact if Plaintiffs are able to do so. Failure to file an amended complaint within 30 days will result in this case being closed without further notice; and 3. denying without prejudice as moot the Plaintiffs' Motion for Class Certification. Plaintiffs C.P., D.J., and K.R.A. are patients of Tampa Bay Surgery Center, Inc., whose parents provided sensitive information about them to TBSCI. TBSCI's patient database was hacked, and C.P., D.J., and K.R.A.'s information was briefly posted online, along with the information of more than 142,000 other patients. Although no patient has had their information misused as a result of the data breach, the Plaintiffs are suing TBSCI. The Court concludes the action should be dismissed because the Plaintiffs have not suffered an injury in fact and, thus, lack standing to sue. "[T]he Court concludes Plaintiffs' allegations of harm are too speculative to constitute an imminent injury. While Plaintiffs argue that the mere fact that there was data breach is sufficient to constitute an imminent injury, the Court cannot agree with that sort of ipse dixit reasoning. Something more than the mere data breach must be alleged before Plaintiffs can show they have a substantial risk of injury. Lacking any allegations that would show any harm is certainly impending, Plaintiffs failed to demonstrate standing, and this Court lacks jurisdiction over their claims," Judge Moody opines. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=5gxtU8kB STEPHEN A BROWN: Faces "Marchese" Suit in E.D. of New York ---------------------------------------------------------- A class action lawsuit has been filed against Law Offices of Stephen A. Brown. The case is styled as Yvonne Marchese, individually and on behalf of all others similarly situated, Plaintiff v. Law Offices of Stephen A. Brown, Defendant, Case No. 2:17-cv-05380 (E.D.N.Y., September 13, 2017). Law Offices of Stephen A. Brown is a law firm.[BN] The Plaintiff is represented by: Craig B. Sanders, Esq. Sanders Law, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Tel: (516) 203-7600 Fax: (516) 281-7601 Email: csanders@sanderslawpllc.com TENNESSEE: Robinson Files Suit v. TDOS -------------------------------------- A class action lawsuit has been filed against David W. Purkey. The case is styled as Fred Robinson, Ashley Sprague and Johnny Gibbs, on behalf of themselves and all others similarly situated, Plaintiff v. David W. Purkey, Commisssioner of the Tennessee Department of Safety and Homeland Security, in his official capacity, Debby Moss, Circuit Court Clerk of Wilson County, Tennessee, in her official capacity, Melissa Harrell, Circuit Court Clerk of Rutherford County, Tennessee, in her official capacity, Corey Linville, Court Clerk of the Municipal Court of Lebanon, Tennessee, in his official capacity, Susan Gaskill, Court Clerk of the City Court of Mt. Juliet, Tennessee, in her official capacity, Wilson County, Tennessee, Rutherford County, Tennessee, Lebanon, Tennessee and Mt. Juliet, Tennessee, Defendants, Case No. 3:17-cv-01263 (M.D. Tenn., September 13, 2017). The Defendants are government agencies and representative of government.[BN] The Plaintiffs are represented by: Claudia Wilner, Esq. National Center for Law and Econimic Justice 275 Seventh Avenue, Suite 1506 New York, NY 10001 Tel: (212) 633-6967 Fax: (212) 633-6371 Email: wilner@nclej.org - and - Edward P. Krugman, Esq. Civil Rights Corps 910 17th Street NW, Suite 500 Washington, DC 20006 Tel: (202) 780-7594 Email: krugman@nclej.org - and - Jonas Wang, Esq. Email: jonas@civilrightscorp.org - and - Josh Spickler, Esq. Just City 902 South Cooper Street Memphis, TN 38104 Tel: (901) 206-2226 Email: josh@justcity.org - and - Matthew G. White, Esq. Baker, Donelson, Bearman, Caldwell & Berkowitz, PC (Memphis) 165 Madison Avenue, Suite 2000 Memphis, TN 38103 Tel: (901) 577-8182 Fax: (901) 577-0724 Email: mwhite@bakerdonelson.com - and - Premal Dharia, Esq. Civil Rights Corps 910 17th Street NW, Suite 500 Washington, DC 20006 Tel: (202) 780-7594 Email: premal@civilrightscorps.org TIME WARNER: Court Denies Class Certification in "Johnson" ---------------------------------------------------------- The United States District Court for District of South Carolina, Columbia Division, Stanley, issued an Opinion and Order denying Plaintiff's Motion for Class Certification and Motion to Strike in the case captioned Johnson, individually and on behalf of all others similarly situated, Plaintiff, v. Time Warner Entertainment-Advance/Newhouse Partnership d/b/a/Time Warner Cable, and Time Warner Cable Southeast LLC d/b/a Time Warner Cable, Defendants, No. 3:15-cv-01727-CMC (D.S.C.). The Court granted Defendant TWC's Daubert Motion. This matter is before the court on three related motions: (1) Plaintiff's motion for class certification (Class Certification Motion); (2) Defendants' motion to exclude certain testimony of Plaintiff's expert John A. Kilpatrick, Ph.D. (Dr. Kilpatrick) and Plaintiff's motion to strike certain evidence on which Defendants rely in opposing the Class Certification Motion and pursuing their Daubert Motion. Plaintiff Stanley Johnson filed the action seeking recovery on behalf of himself and others similarly situated for alleged unauthorized placement of cable transmission lines and related equipment (Cable Facilities) on land he purchased. Johnson alleges the Cable Facilities were placed on his property by Defendants Time Warner Entertainment-Advance/Newhouse Partnership d/b/a/Time Warner Cable, and Time Warner Cable Southeast LLC d/b/a Time Warner Cable (TWC) or their predecessors. Ascertainability Requirement The Court has repeatedly recognized that Rule 23 contains an implicit threshold requirement that the members of a proposed class be 'readily identifiable. The plaintiffs need not be able to identify every class member at the time of certification. But if class members are impossible to identify without extensive and individualized fact-finding or 'mini-trials,' then a class action is inappropriate. Arguments Johnson argues the class may be readily identified using objective criteria by (1) comparing data on different GIS maps to identify parcels above which TWC has Cable Facilities and then (2) eliminating parcels that fall within the exclusions from the class definition (railroad rights-of-way, platted utility easements, and public rights-of-way, streets and highways), again using GIS databases. He relies on the report and testimony of Dr. Kilpatrick to support the feasibility and manageability of both steps in the process. TWC responds that neither step has been or can be done using Dr. Kilpatrick's proposed methodology. It argues Dr. Kilpatrick's work to date is deficient for reasons addressed below as to TWC's Daubert Motion. It maintains the class cannot, in any event, be identified without physical examination of each parcel and a search of its title history, precluding a finding the class is readily ascertainable using the methods applied or proposed by Dr. Kilpatrick. The court finds Johnson has failed to meet his burden of demonstrating a class is ascertainable because he relies solely on an expert whose opinion as to class identification is excluded. Even if the opinion is not excluded, Johnson has failed to persuade the court that a class has been or may be identified by the means proposed by Dr. Kilpatrick or any means that would not require a title search and physical examination of each parcel whose owner may be a class member. This is true using either Johnson's proposed Opening Class Definition or Reply Class Definition. While the purposes for which physical examination is necessary are more limited under the Reply Class Definition, such examination is still required to determine whether the property is, in fact, burdened by TWC Cable Facilities. Rule 23(b) Johnson seeks certification of a class for money damages under Rule 23(b)(3) or, alternatively, for injunctive relief under Rule 23(b)(2). As explained below, the court finds Johnson has failed to establish certification is proper under either subpart. Rule 23(b)(3) In determining predominance and superiority, the court may consider multiple factors including but not limited to the interest of members of the class in individually controlling the prosecution or defense of separate actions and the difficulties likely to be encountered in the management of a class action. Johnson must also establish the Cable Facilities burdening each class member's property fall outside Excluded Areas of Permissive Use, either to establish class membership. This question also requires individualized determination involving physical examination of the property. These issues, alone, raise serious manageability concerns and weigh heavily against finding common issues predominate or class treatment is superior. Similar issues are raised as to private easements. Johnson, to this point, has made only a limited attempt to identify private easements that allow placement of TWC's Cable Facilities on private property. That attempt is limited to consideration of easements produced by TWC that reflect both execution and recording and even this work is incomplete. While neither of Johnson's proposed definitions exclude owners of properties with such easements from the class, he concedes in his reply memorandum that it is undisputed current owners of these parcels do not have a claim. Rule 23(b)(2) Johnson argues certification is proper, in the alternative, under Rule 23(b)(2) because injunctive relief for ejectment of TWC's corridor from class member land is the sort of uniform, indivisible remedy contemplated by Rule 23(b)(2). Johnson describes the relief sought as a simple remedy that can be uniformly applied regardless of parcel size or location. Dr. Kilpatrick's Second Supplemental Declaration, similarly, points to a host of quality control measures that will either eliminate or add class members as the case proceeds (or result in loss of claims of those already determined to be class members). This, as well as the fact injunctive relief would only benefit current property owners, would require constant modification of the class list. Certification under Rule 23(b)(2) is inappropriate where ensuring pursuit of injunctive relief continued to predominate, requires the District Court to re-evaluate the roster of class members continually. In sum, the shifting nature either of class membership or those class members whose claims survive the various reviews proposed by Johnson and Dr. Kilpatrick demonstrates the class lacks adequate cohesion to support certification under Rule 23(b)(2). The court finds the class (1) is not readily identifiable under either the proposed Opening Class Definition or Reply Class Definition and (2) does not meet the requirements for certification under either Rule 23(b)(2) or (b)(3). Accordingly, the court denies Johnson's Class Certification Motion. Johnson's Motion to Strike While Dr. Kilpatrick's Second Supplemental Declaration characterizes unspecified arguments of "the Defense [as] misleading or altogether false[,]" it does not directly contradict the challenged exhibits or declarations. While Johnson may challenge admissibility of the referenced testimony and exhibits, Dr. Kilpatrick's deposition testimony and Second Supplemental Declaration concede the critical points: Dr. Kilpatrick has not yet identified a class and substantial additional work using new data and methods is needed to accomplish that purpose. Any delay in disclosure is harmless under these circumstances. Accordingly, the court denies Johnson's motion to strike. The court, nonetheless, confirms it relies on the proffered exhibits only for purposes of impeachment. TWC's Daubert Motion TWC's opening argument. TWC's Daubert Motion challenges Dr. Kilpatrick's testimony as it relates to (1) processing right-of- access documents to identify parcels subject to recorded easements, and [2] using GIS tools to identify parcels not subject to a recorded easement on which TWC has aerial Cable Facilities. TWC argues Dr. Kilpatrick both lacks sufficient expertise in the relevant areas and failed to apply reliable methods to sufficient data in forming his opinions. TWC argues identification of class members requires four pieces of information reflecting the precise location of each of the following: (1) cable strands; (2) property boundaries; (3) granted easements, licenses, or other permission, and (4) public utility easements or rights-of-way. TWC asserts Dr. Kilpatrick's GIS review was not based on precise location of any of the four items, considered only some forms of permission under the third item, and failed, altogether, to consider the fourth item. The party offering an expert bears the burden of establishing the admissibility of the expert's opinions by a preponderance of the proof the admission of expert testimony is governed by Federal Rule of Evidence 702: "A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or determine a fact in issue;(b) the testimony is based on sufficient facts or data;(c) the testimony is the product of reliable principles and methods; and(d) the expert has reliably applied the principles and methods to the facts of the case." The record is unclear as to whether Dr. Kilpatrick has training or experience specific to the tasks on which he offers an expert opinion: identification of burdened parcels using GIS data and tools where locational accuracy is critical to determining (1) whether parcels are in fact burdened and (2) (under Opening Class Definition) whether the burden falls outside Excluded Areas of Permissive Use. It is also significant that Dr. Kilpatrick relied on a third-party vendor and his staff to perform substantial portions of the work. Despite asserting this work was done under his supervision, he was unable to provide details as to the data or methods used in performing that work. This lack of knowledge suggests either a lack of expertise or a failure to utilize that expertise in the process. In sum, Dr. Kilpatrick's deposition testimony and Second Supplemental Declaration effectively concede his work to date fails to satisfy the requirements for admission of expert testimony to the extent he offers an opinion on identification of the class. His testimony as to future steps he intends to take to cure the deficiencies (using different data and methodologies) are too vague to persuade the court they would serve the intended purpose. Accordingly, the court finds Johnson has failed to meet his burden of demonstrating Dr. Kilpatrick's testimony on class identification is admissible. This is due to insufficiencies in the data used and failure to establish the methodologies used are reliable or that they were reliably applied. For these reasons, Johnson's Class Certification Motion and his Motion to Strike are denied. TWC's Daubert Motion is granted. A full-text copy of the District of Court's August 31, 2017 Opinion and Order is available at http://tinyurl.com/ybl3e2sx from Leagle.com. Stanley Johnson, Plaintiff, represented by Christopher P. Kenney - - cpk@harpootlianlaw.com -- Richard A. Harpootlian Law Office. Stanley Johnson, Plaintiff, represented by Richard A. Harpootlian -- rah@harpootlianlaw.com -- Richard A. Harpootlian Law Office & Tobias Gavin Ward, Jr., Tobias G Ward Jr Law Firm, PO Box 50124 Columbia, SC 29250 Time Warner Entertainment-Advance/Newhouse Partnership, Defendant, represented by Frank Rogers Ellerbe, III -- fellerbe@sowellgray.com -- Sowell Gray Robinson Stepp and Laffitte LLC & Kevin Kendrick Bell -- kbell@sowellgray.com -Sowell Gray Robinson Stepp and Laffitte LLC. Time Warner Cable Southeast LLC, Defendant, represented by Frank Rogers Ellerbe, III, Sowell Gray Robinson Stepp and Laffitte LLC & Kevin Kendrick Bell, Sowell Gray Robinson Stepp and Laffitte LLC. UBER TECHNOLOGIES: Corrective Notice in "O'Connor" Suit Entered --------------------------------------------------------------- In the case captioned DOUGLAS O'CONNOR, et al., Plaintiffs, v. UBER TECHNOLOGIES, INC., et al., Defendants, Case No. 13-cv-03826- EMC (N.D. Cal.), Judge Edward M. Chen of the U.S. District Court for the Northern District of California entered an order regarding corrective notice, and granting in part and denying in part the Plaintiffs' administrative motion to file under seal. On Aug. 31, 2017, the Court concluded that the Class Counsel's e- mail communication to Class Members was misleading and that a corrective notice was required to protect the rights of absent class members. It ordered the parties to meet-and-confer and to propose the contents of the corrective notice, as well as a means to distribute it. A full-text copy of the District Court's August 31, 2017, Order is available at http://tinyurl.com/y6u4mjegfrom Leagle.com Judge Chen finds that neither party's proposed notice is adequate. The Plaintiffs' proposed notice does not communicate to Class Members that the Court determined its prior e-mail communication was misleading and does not clearly explain their rights. Uber's proposed notice contains detailed and confusing information about issues that are not essential to correcting any wrongful reliance that may have resulted from the misleading e-mail. In lieu of the parties' proposed notices, Judge Chen adopted the notice attached to the Order. Furthermore, rather than attaching the Court's Aug. 31, 2017 order on the settlement website. The notice should be delivered by a neutral party rather than the Class Counsel. Accordingly, the Settlement Administrator will be ordered to deliver the notice within 7 days of the Order. The costs of notice will be borne by the Class Counsel because the Class Counsel's misleading e-mail necessitated the corrective notice. As explained in the Court's Aug. 31, 2017 order, assessing costs is authorized based on the Class Counsel's violation of the protective order and the California Rules of Professional Conduct. The Class Counsel requests that portions of her declaration stating the number of individual arbitrations filed pursuant to the misleading e-mail communication be sealed. The Class Counsel argues the information should be sealed on the basis that it contains information related to attorney-client communications, as well as information in which the class member has an interest in privacy. Judge Chen finds that the Plaintiffs have not demonstrated good cause to seal all of the redacted information. Their claim that the information is privileged is unfounded. The mere fact that information is "related" to attorney-client communication, does not establish that it is an attorney-client communication protected by privilege. Further, the paragraphs in question do not disclose the contents of any such communications. The privilege does not apply. However, the Court agrees that there is good cause to redact the name of the class member discussed in the declaration to protect that individual's privacy interests. Thus, the Judge granted the Plaintiffs' motion to seal only with respect to the name of the class member and the caption and case-number of the individual arbitration matter filed on behalf of that class member. The remaining information may not be sealed. The Plaintiffs will file a redacted version of the declaration consistent with the Order. A full-text copy of the Court's Sept. 6, 2017 Order is available at https://is.gd/A1J5rP from Leagle.com. Douglas O'Connor, Plaintiff, represented by Adelaide Pagano -- apagano@llrlaw.com -- Lichten and Liss-Riordan, P.C., pro hac vice. Douglas O'Connor, Plaintiff, represented by Andrew A. August, Browne George Ross LLP, Ben Weber -- bweber@llrlaw.com -- Lichten and Liss-Riordan, P.C., Benjamin J. Meiselas, Geragos and Geragos, APC, Brian Stephen Kabateck, Kabateck Brown Kellner LLP, Brian C. Tackenberg -- btackenberg@crabtreelaw.com -- pro hac vice, Charles Morris Auslander, Crabtree and Auslander, pro hac vice, George R. Baise, Jr. -- gbaise@crabtreelaw.com -- pro hac vice, Jennifer R. Liakos, Napoli Shkolnik PLLC, John Granville Crabtree, pro hac vice, Mark J. Geragos, Geragos & Geragos, APC, Matthew David Carlson -- mcarlson@llrlaw.com -- Lichten & Liss-Riordan, P.C., Sara Smolik, Lichten and Liss-Riordan, P.C., Shannon Liss-Riordan, Lichten & Liss-Riordan, P.C. & Shant Arthur Karnikian -- sk@kbklawyers.com -- Kabateck Brown Kellner LLP. Thomas Colopy, Plaintiff, represented by Adelaide Pagano, Lichten and Liss-Riordan, P.C., pro hac vice, Andrew A. August, Browne George Ross LLP, Brian C. Tackenberg, pro hac vice, Charles Morris Auslander, Crabtree and Auslander, pro hac vice, George R. Baise, Jr., pro hac vice, John Granville Crabtree, pro hac vice, Matthew David Carlson, Lichten & Liss-Riordan, P.C., Sara Smolik, Lichten and Liss-Riordan, P.C. & Shannon Liss-Riordan, Lichten & Liss- Riordan, P.C.. Matthew Manahan, Plaintiff, represented by Adelaide Pagano, Lichten and Liss-Riordan, P.C., pro hac vice, Andrew A. August, Browne George Ross LLP, Brian C. Tackenberg, pro hac vice, Charles Morris Auslander, Crabtree and Auslander, pro hac vice, George R. Baise, Jr., pro hac vice, John Granville Crabtree, pro hac vice, Matthew David Carlson, Lichten & Liss-Riordan, P.C. & Shannon Liss-Riordan, Lichten & Liss-Riordan, P.C.. Elie Gurfinkel, Plaintiff, represented by Adelaide Pagano, Lichten and Liss-Riordan, P.C., pro hac vice, Andrew A. August, Browne George Ross LLP, Ben Weber, Lichten and Liss-Riordan, P.C., Brian C. Tackenberg, pro hac vice, Charles Morris Auslander, Crabtree and Auslander, pro hac vice, George R. Baise, Jr., pro hac vice, John Granville Crabtree, pro hac vice, Matthew David Carlson, Lichten & Liss-Riordan, P.C. & Shannon Liss-Riordan, Lichten & Liss-Riordan, P.C.. Ronald Gillette, Plaintiff, represented by Shannon Liss-Riordan, Lichten & Liss-Riordan, P.C., Adelaide Pagano, Lichten and Liss- Riordan, P.C., pro hac vice, Andrew A. August, Browne George Ross LLP, Andrew Paul Lee, Goldstein, Borgen, Dardarian & Ho, Brian C. Tackenberg, pro hac vice, Charles Morris Auslander, Crabtree and Auslander, pro hac vice, George R. Baise, Jr., pro hac vice, John Granville Crabtree, pro hac vice, Theodore Walter Maya, Ahdoot & Wolfson, P.C. & William Copley Jhaveri-Weeks, Goldstein, Borgen, Dardarian & Ho. Uber Technologies, Inc., Defendant, represented by Andrew Michael Spurchise -- aspurchise@littler.com -- Littler Mendelson, P.C., Marcellus Antonio McRae -- mmcrae@gibsondunn.com -- Gibson Dunn & Crutcher LLP, Theane D. Evangelis -- tevangelis@gibsondunn.com -- Gibson Dunn & Crutcher LLP, Theodore J. Boutrous, Jr. -- tboutrous@gibsondunn.com -- Attorney at Law, Brandon J. Stoker -- bstoker@gibsondunn.com -- Gibson Dunn and Crutcher LLP, Debra Wong Yang -- dwongyang@gibsondunn.com -- Gibson, Dunn Crutcher LLP, Dhananjay Saikrishna Manthripragada -- dmanthripragada@gibsondunn.com -- Gibson Dunn and Crutcher, John C. Fish, Jr. -- jfish@littler.com -- Littler Mendelson, PC, Joshua Seth Lipshutz -- jlipshutz@gibsondunn.com -- Gibson, Dunn and Crutcher LLP, Kevin Joseph Ring-Dowell -- kringdowell@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, Stephen A. Swedlow -- stephenswedlow@quinnemanuel.com -- Quinn Emanuel Urquhart & Sullivan, LLP, pro hac vice & Theane Evangelis Kapur, Gibson, Dunn & Crutcher LLP. 7x7 Executive Transportation LLC, Defendant, represented by James Parton, III, Parton & Sell PC. Rasier-CA, LLC, Defendant, represented by Andrew Michael Spurchise, Littler Mendelson, P.C.. Caren Ehret, Movant, represented by Myron Milton Cherry -- mcherry@cherry-law.com -- Myron M. Cherry & Associates LLC. Ricardo Del Rio, Movant, represented by Christopher James Hamner - - chamner@hamnerlaw.com -- Hamner Law Offices, APC, Amy Tai Wootton, Hamner Law Offices, APC, Benjamin J. Meiselas, Geragos and Geragos, APC, Brian Stephen Kabateck, Kabateck Brown Kellner LLP, Joshua H. Haffner, Kabateck Kellner LLP, Mark J. Geragos, Geragos & Geragos, APC & Shant Arthur Karnikian, Kabateck Brown Kellner LLP. Greg Fisher, Movant, represented by Christopher James Hamner, Hamner Law Offices, APC. John Doe, Movant, Pro Se. Todd Johnston, Movant, represented by Brian J. Malloy, The Brandi Law Firm. Steven Price, Interested Party, represented by Christopher John Morosoff, Law Office of Christopher J. Morosoff & Douglas Caiafa, Attorney at Law. City of Cleveland, Ohio, Interested Party, represented by Carl E. Meyer, City of Cleveland. Rosario Richardson, Interested Party, represented by Carey A. James -- caj@asmlawyers.com -- Aiman-Smith and Marcy & Shant Arthur Karnikian, Kabateck Brown Kellner LLP. Kathy Robinson, Interested Party, Pro Se. Leticia Alcala, Objector, represented by Hunter J. Shkolnik, Napoli Shkolnik PLLC, Paul Napoli, Napoli Shkolnik PLLC, pro hac vice, Jennifer R. Liakos, Napoli Shkolnik PLLC & Shant Arthur Karnikian, Kabateck Brown Kellner LLP. Marc Borgen, Objector, represented by Hunter J. Shkolnik, Napoli Shkolnik PLLC, Paul Napoli, Napoli Shkolnik PLLC, Jennifer R. Liakos, Napoli Shkolnik PLLC & Shant Arthur Karnikian, Kabateck Brown Kellner LLP. Knapp, Petersen & Clarke, Objector, represented by Andre Emilio Jardini -- aej@kpclegal.com -- Knapp Petersen & Clarke. Uladzimir Tabola, Objector, represented by Alexei Kuchinsky -- alexei@sfbizlaw.com -- Klein Law Group & Shant Arthur Karnikian - sk@kbklawyers.com -- Kabateck Brown Kellner LLP. Alexander Kazakov, Objector, represented by Alexei Kuchinsky, Klein Law Group & Shant Arthur Karnikian, Kabateck Brown Kellner LLP. Yahor Zgurski, Objector, represented by Alexei Kuchinsky, Klein Law Group & Shant Arthur Karnikian, Kabateck Brown Kellner LLP. Maksim Hancharuk, Objector, represented by Alexei Kuchinsky, Klein Law Group. Omar Zine, Objector, represented by Christopher John Gansen, Gansen Law Group & Shant Arthur Karnikian, Kabateck Brown Kellner LLP. Nahabet Narsis, Objector, represented by Kevin Todd Barnes, Law Offices of Kevin T. Barnes. Jorge Zunigas, Objector, represented by Mark Alan Morrison -- markmorrison@paulhastings.com -- Morrison and Associates. Jason Rosenberg, Objector, represented by Mark Alan Morrison, Morrison and Associates. David Lanier, Amicus, represented by Christopher G. Jagard, McCurdy Ku & John Cumming, Department of Industrial Relations. Abdo Ghazi, Intervenor, represented by Alec Llewellyn Segarich, Lohr Ripamonti & Segarich LLP, Conor Daniel Granahan, Law Offices of Conor Granahan, Jason Shelton Lohr, Lohr Ripamonti & Segarich LLP & Shant Arthur Karnikian, Kabateck Brown Kellner LLP. UMAMI RESTAURANT: Facilities Not Accessible for PWDs, Dixson Says ----------------------------------------------------------------- RONALD DIXSON, JR, on behalf of himself and all others similarly situated, the Plaintiff, v. UMAMI RESTAURANT GROUP, LLC d/b/a UMAMI BURGER, the Defendant, Case No. BC675469 (Cal Super. Ct., Sep. 11, 2017), seeks statutory damages and reasonable attorney's fees and costs on behalf of himself, and injunctive relief. Plaintiff, on behalf of himself and on behalf of a Class of mobility impaired/wheelchair bound persons, alleges that Defendant is in violation of the anti-discrimination statutes, Unruh Civil Rights Act, and California Code. Plaintiff is a citizen of California and is domiciled in Los Angeles, and qualifies as an individual with disabilities. Plaintiff is a paraplegic and requires a wheelchair to move about. Plaintiff has visited and patronized Umami Burger stores within the State of California, and has experienced discrimination at those stores. Plaintiff is being deterred from patronizing Umami Burger but intends to return to these stores for the dual purpose of availing himself of the goods and services offered to the public at such stores and to ensure that those stores cease evading their responsibilities under state law. Umami Restaurant Group, LLC provides burgers, sides, and accompaniments in Los Angeles and San Francisco.[BN] The Plaintiff is represented by: Evan J. Smith, Esq. BRODSKY & SMITH, LLC 9595 Wilshire Blvd., Ste. 900 Beverly Hills, CA 90212 Telephone: (877)534 2590 Facsimile: (310)247 0160 UNITED AIRLINES: Status Hearing in "Pumputyte" Suit on Oct. 11 -------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on August 30, 2017, in the case entitled Neringa Pumputyte, et al. v. United Airlines, Inc., et al., Case No. 1:16-cv-04868 (N.D. Ill.), relating to a hearing held before the Honorable Gary Feinerman. The minute entry states that: -- Defendant's summary judgment motion is entered and continued; -- Plaintiff's response due by September 27, 2017; -- reply due by October 11, 2017; -- For the reasons stated on the record, Plaintiff's motion for class certification is denied without prejudice to renewal by September 13, 2017; and -- Status hearing set for October 17, 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=ZbF2Vrwr UNITED PARCEL: Court Denies Bid to Stay/Dismiss "Solo" Suit ----------------------------------------------------------- In the case captioned JOE SOLO and BLEACHTECH, L.L.C., Plaintiffs, v. UNITED PARCEL SERVICE CO., Defendant, Case No. 14-12719(E.D. Mich.), Judge Denise Page Hood of the U.S. District Court for the Eastern District of Michigan, Southern Division, denied the Defendant's Motion to Stay or Dismiss Proceedings. This case was randomly reassigned from Judge Gerald E. Rosen to the Court upon Judge Rosen's retirement. The case was filed on July 11, 2014. On Aug. 29, 2014, the Defendant filed a Motion to Dismiss, and Judge Rosen issued an Order granting the Defendant's Motion to Dismiss on March 27, 2015. On March 18, 2016, the Sixth Circuit issued an Opinion reversing Judge Rosen's Order as to three of the four counts. The parties filed a joint discovery plan and a scheduling conference was held on May 17, 2016. Six months later, on Nov. 18, 2016, Defendant filed the instant Motion to Stay or Dismiss Proceedings. The Motion to Stay is premised on the belief that the Plaintiffs' claims are covered by an arbitration provision, such that they are obligated to arbitrate those claims. There are three remaining claims for relief on behalf of each the Plaintiff and a putative nationwide class of purchasers for declared value coverage in excess of $300: (i) breach of contract; (ii) unjust enrichment; and (iii) declaratory relief. All three claims are based on the theory that the Defendant charges more for declared value of packages than permitted by contract. The Complaint pleads the breach of contract and unjust enrichment claims in the alternative. The Plaintiffs seek to recover for 21 UPS shipments by BleachTech between Jan. 18, 2010 and Dec. 29, 2013, each with a declared value over $300, and 1 UPS shipment by Solo at The UPS Store in Marina Del Ray, California on Dec. 26, 2013, a shipment with a declared value over $300. BleachTech proposes to represent a class of similarly situated "direct" shippers; Solo proposes to represent a class of similarly situated "indirect" shippers. The basic shipping contract between UPS and shippers is comprised of: (i) the UPS Tariff/Terms and Conditions of Service ("UPS Terms"); (ii) the UPS Rate and Service Guide ("UPS Guide"); and (iii) the Source Document used to tender the shipment to UPS. The UPS Terms provide that in tendering a shipment for service, the shipper agrees that the version of the UPS Terms and the applicable UPS Guide in effect at the time of shipping will apply to the shipment and its transportation. The UPS Terms further state that all shipments are subject to the terms and conditions contained in the UPS Terms. As of Dec. 30, 2013, the UPS Terms have contained an agreement to individually arbitrate all claims arising from or related to UPS services. The obligation is mutual. The UPS Terms state that all issues are for the arbitrator to decide, except that issues relating to the scope, application, and enforceability of the arbitration provision are for a court to decide. The Plaintiffs' breach of contract claim assumes a contract directly with the Defendant. The unjust enrichment claim assumes shipment through a third-party retailer like The UPS Store, and alleges that the Defendant charges the retailer the allegedly- excessive price for declared value service set forth in the Guide and causes the retailer to charge its customers the rates from the Guide, thereby passing on the alleged overcharges. The Plaintiffs' unjust enrichment theory seeks to enforce the Defendant's obligations under the UPS Terms and the UPS Guide. Judge Hood concludes that the Defendant has waived its right to arbitrate by taking actions inconsistent with reliance on the arbitration provision and delaying its assertion of the need to arbitrate, to the actual prejudice of the Plaintiffs. Specifically, the Defendant did not seek to compel arbitration until more than two years after the Complaint was filed, as it opted to move for dismissal of the Complaint on the merits. The Defendant took actions inconsistent with reliance on the arbitration provision when it sought to dismiss the Complaint on the merits, rather than because of the arbitration provision. And, not only did the Defendant wait more than two years to seek to resolve the litigation pursuant to the arbitration provision, it did not file the instant motion regarding the arbitration provision until eight months after the Sixth Circuit remanded the case to the Court. Judge Hood finds that such inconsistent actions and inordinate delay resulted in actual prejudice to the Plaintiffs, including costs that they would not have been incurred had the Defendant sought to arbitrate previously. She held that the Defendant's motion to stay or dismiss the proceedings is unwarranted. Accordingly, Judge Hood denied Defendant's Motion to Stay or Dismiss Proceedings. A full-text copy of the Court's Sept. 6, 2017 Order is available at https://is.gd/OaECdx from Leagle.com. Joe Solo, Plaintiff, represented by Charles Slidders -- cslidders@milberg.com -- One Pennsylvania Plaza. Joe Solo, Plaintiff, represented by Elizabeth Anne McKenna -- emckenna@milberg.com -- Milberg LLP, Sanford P. Dumain, Milberg LLP, Daniel R. Karon -- dkaron@karonllc.com -- Karon LLC & Andrew J. McGuinness -- drewmcg@topclasslaw.com. BleachTech L.L.C., Plaintiff, represented by Charles Slidders, One Pennsylvania Plaza, Elizabeth Anne McKenna, Milberg LLP, Sanford P. Dumain -- sdumain@milberg.com -- Milberg LLP, Daniel R. Karon, Karon LLC & Andrew J. McGuinness. United Parcel Service Co., Defendant, represented by Bonnie L. Mayfield -- bmayfield@dykema.com -- Dykema Gossett, Caitlin S. Blythe -- cblythe@mofo.com -- Morrison & Foerster LLP, Gregory B. Koltun -- gkoltun@mofo.com -- Morrison & Foerster LLP & Paul T. Friedman -- pfriedman@mofo.com -- Morrison and Foerster. UNITED STATES: Rejection of Holiday Premium Pay Affirmed -------------------------------------------------------- In the case captioned MICHAEL YANKO, AS AN INDIVIDUAL, AND ON BEHALF OF ALL OTHER PART-TIME GS AND WG FEDERAL EMPLOYEES WHO ARE OR WERE EMPLOYED BY ALL FEDERAL AGENCIES AND WHO ARE SIMILARLY SITUATED, Plaintiff-Appellant, v. UNITED STATES, Defendant- Appellee, No. 2017-1177 (Fed. Cir.), Judge William Curtis Bryson of the U.S. Court of Appeals for the Federal Circuit affirmed the Court of Federal Claim's rejecting the Plaintiff Yanko's claim the class members are entitled to premium pay for work performed on each day designated by statute or Executive Order as an "in-lieu- of" holiday. Mr. Yanko filed this class action complaint for himself and on behalf of all other part-time GS and WG federal employees who are or were employed by all federal agencies and who are similarly situated. Mr. Yanko has been employed by the Department of Veterans Affairs on a part-time basis for some time, including the entire six-year period prior to the filing of his complaint. His regular workweek consists of five days, from Sunday through Thursday. Thus, his weekly non-workdays regularly fall on Fridays and Saturdays. Between Dec. 15, 2009, and May 16, 2016, there were eight official public holidays that fell on either a Friday or a Saturday (New Year's Day of 2010, 2011, and 2016; Independence Day of 2014 and 2015; and Christmas Day of 2009, 2010, and 2015). Because Mr. Yanko is a part-time employee, he was not credited with an in- lieu-of holiday during the preceding or succeeding workweek for any of those eight days. It is the longstanding policy of the Office of Personnel Management ("OPM") that part-time employees are not entitled to an in-lieu-of holiday corresponding to a particular holiday when that holiday falls on a non-workday for the part-time employee. That policy is reflected in regulations issued by OPM pursuant to notice-and-comment rulemaking. Contending that OPM's policy and regulations are contrary to section 6103(b) and Executive Order 11,582, Mr. Yanko seeks to recover an amount equal to the premium pay to which he would have been entitled if he had been credited with inlieu-of holidays for the eight holidays that fell outside his normal workweek during the past six years. The Court of Federal Claims disagreed with Mr. Yanko's statutory argument. Instead, the court held that the governing statute and Executive Order do not provide part-time employees such as Mr. Yanko with a right to inlieu-of holidays when federal holidays fall on days outside the employees' normal workweek. In particular, the court concluded that the term "basic workweek," which appears in the statute governing in-lieu-of holidays and in Executive Order No. 11,582, refers only to full-time employees, and not to part-time employees. On appeal, Mr. Yanko challenges that construction of the statute and the Executive Order. Judge Bryson holds that it was reasonable for OPM, in its formal regulations, to interpret the reference to "basic workweek" as applying only to full-time employees. That position is consistent with the position taken by the Comptroller General in interpreting the statute, and it is consistent with the position taken by OPM since OPM first issued regulations on the issue. Because the language and context of the statute do not clearly indicate that Congress or the President intended a contrary interpretation of the term "basic workweek," the Judge sustains OPM's interpretation of that term as applicable only to full-time employees. Accordingly, Judge Bryson affirmed the Court of Federal Claims' rejection of Mr. Yanko's claim. Each party will bear its own costs for the appeal. A full-text copy of the Court's Sept. 6, 2017 Order is available at https://is.gd/ggytFe from Leagle.com. IRA M. LECHNER -- iralechner@yahoo.com -- Washington, DC, argued for plaintiff-appellant. MARK E. PORADA, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., REGINALD T. BLADES, JR. USA: Faces "Milton" Suit in Court of Federal Claims --------------------------------------------------- A class action lawsuit has been filed against USA. The case is styled as Virginia Milton and Arnold Milton, on behalf of themselves and all other similarly situated persons, Plaintiffs v. USA, Defendant, Case No. 1:17-cv-01235-VJW (COFC, September 12, 2017).[BN] The Plaintiffs are represented by: Rand P. Nolen, Esq. Fleming, Nolen & Jez, L.L.P. 2800 Post Oak Boulevard, Suite 4000 Houston, TX 77056 Tel: (713) 621-7944 Fax: (713) 621-9638 Email: rand_nolen@fleming-law.com WACKO'S TOO: "Cervello" Suit Seeks to Recover Unpaid Wages ---------------------------------------------------------- Rebekka Cervello, on behalf of herself and those similarly situated, Plaintiffs, v. Wacko's Too, Inc. and Milton Howard, Individually, Defendants, Case No. 3:17-cv-01000, (M.D. Fla., August 24, 2017), seeks to recover compensation at the federally- mandated minimum wage rate, unpaid overtime compensation, recovery of misappropriated funds that were charged as fees and penalties, all withheld tips, liquidated damages and attorney's fees and costs under the federal Fair Labor Standards Act. Defendants operate an adult entertainment establishment under the name "Wacko's Bar and Grill" where Cervello worked as a dancer, earning solely from tips from patrons. She alleges to be misclassified as an independent contractor. [BN] Plaintiff is represented by: Andrew. R. Frisch, Esq. MORGAN & MORGAN, P.A. 600 N. Pine Island Road, Suite 400 Plantation, FL 33324 Telephone: (954) WORKERS Facsimile: (954) 327-3013 E-mail: afrisch@forthepeople.com WELLS FARGO: Court Denies Bid to Strike Class Claims in "Merino" --------------------------------------------------------------- Judge Esther Salas of the U.S. District Court for the District of New Jersey denied the Defendants' motion to strike class allegations in the case captioned JUAN CARLOS MERINO and AGUSTIN MOREL, JR., individually and on behalf of all others similarly situated, Plaintiffs, v. WELLS FARGO & COMPANY and WELLS FARGO BANK, N.A., Defendants, Civil Action No. 16-7840 (ES)(MAH)(D. N.J.). The Plaintiffs are former hourly employees of the Defendants. They allege that Wells Fargo required them -- and all hourly employees -- to meet quarterly quotas for new accounts. Continued failure to meet these quotas would result in demotion or termination. The Plaintiffs allege that -- to meet the quarterly new account quotas -- it was necessary for hourly employees to solicit accounts outside of normal business hours. The Plaintiffs allege that Wells Fargo managers knew -- or reasonably should have known -- that meeting the new-account quotas required hourly employees to solicit new accounts outside of regular business hours. In particular, they allege that "Off Site Sheets" show that Wells Fargo management knew that hourly employees were working several hours each day off site and off the clock outside of the standard 40-hour work week at the banking branch. Significantly, they allege that Wells Fargo never paid them for the time they spent soliciting and obtaining new accounts outside of normal business hours. The Plaintiffs assert the following two counts individually on behalf of themselves and: (i) as a collective action for violation of the Fair Labor Standards Act ("FLSA") and (ii) as a class action for violation of the New Jersey Wage and Hour Law ("NJWHL"). The Plaintiffs' Complaint proposes the class of the Plaintiffs and other members of the Class are persons who: (i) work or have worked for Wells Fargo as hourly employees; (ii) have been required to meet quarterly quotas for new accounts; (iii) have worked more than 40 hours per week; and (iv) have not been paid overtime wages. Further, it states that Plaintiff Merino brings this action individually and in a representative capacity on behalf of a class of persons who have worked for Wells Fargo in New Jersey and who meet the definition of the putative class members set forth above during any time in the two years prior to the date of filing the Plaintiffs' complaint. There are allegedly at least 100 persons, if not more, in the Class (the exact number will be in the Defendants' records), and the Defendants have engaged in the same conduct towards Plaintiff Merino and the other members of the Class. Wells Fargo moves to strike Plaintiff Merino's class allegations from Count II of the Plaintiffs' Complaint under Federal Rules of Civil Procedure 12(f) and 23(d)(1)(D). Wells Fargo argues that the Court must strike Count II's Rule 23 class allegations for two reasons: (i) there is no reliable and administratively feasible mechanism to identify the members of the Rule 23 class; and (ii) the class membership is defined as having a meritorious claim. Judge Salas disagrees with Wells Fargo that -- based on the face of the Complaint and the incontrovertible facts at this early stage -- Merino has identified no objective mechanism for identifying members of his proposed Rule 23 Class and determining membership in the putative Rule 23 Class will require the Court to make an individualized inquiry to determine whether each putative class member actually worked "off the clock. As noted, the proposed class consists of those who (i) work or have worked for Wells Fargo as hourly employees; (ii) have been required to meet quarterly quotas for new accounts; (iii) have worked more than 40 hours per week; and (iv) have not been paid overtime wages." As Plaintiffs aptly note, Wells Fargo must keep payroll records by law, and Plaintiffs have identified other records for hourly-paid employees in the Complaint that can identify class members. She is not persuaded otherwise by Wells Fargo's contention that, regardless of whether such records might have probative value in deciding the merits of an individual's overtime claim, they certainly would not allow an employee's membership in the proposed class to be readily ascertained. Judge Salas finds that the proposed class appears fail-safe. An individual seemingly falls in the class if he or she worked for Wells Fargo as an hourly employee, was required to meet quarterly quotas for new accounts, worked more than 40 hours per week, was not paid overtime wages, and meets the time-period qualification in the Complaint. The Plaintiffs argue that the remedy for a fail safe class is simply for the Court to refine the class definition at the class certification stage. Tellingly for the Judge, she says Wells Fargo offers no specific response to this point in its reply brief. And declining to strike the class allegations in the instant context aligns with what appears to be this District's preference for addressing the issues discussed herein at the class certification stage. For these reasons, Judge Salas denied without prejudice Wells Fargo's motion to strike the class allegations to raising the arguments in opposition to a future motion for class certification. A full-text copy of the Court's Sept. 6, 2017 Memorandum Opinion is available at https://is.gd/Th4q3c from Leagle.com. JUAN CARLOS MERINO, Plaintiff, represented by ALEXANDRA KOROPEY PIAZZA -- apiazza@bm.net -- BERGER & MONTAGUE PC. JUAN CARLOS MERINO, Plaintiff, represented by CATHERINE E. ANDERSON -- canderson@gslawny.com -- GISKAN SOLOTAROFF & ANDERSON LLP, ERIC LECHTZIN -- elechtzin@bm.net -- BERGER & MONTAGUE, P.C., ROOSEVELT N. NESMITH -- roosevelt@nesmithlaw.com -- LAW OFFICE OF ROOSEVELT N. NESMITH, LLC & RUSSELL S. WARREN, JR. AGUSTIN MOREL, JR., Plaintiff, represented by ALEXANDRA KOROPEY PIAZZA, BERGER & MONTAGUE PC, CATHERINE E. ANDERSON, GISKAN SOLOTAROFF & ANDERSON LLP, ERIC LECHTZIN, BERGER & MONTAGUE, P.C., ROOSEVELT N. NESMITH, LAW OFFICE OF ROOSEVELT N. NESMITH, LLC & RUSSELL S. WARREN, JR. WELLS FARGO & COMPANY, Defendant, represented by ROBERT T. SZYBA - - rszyba@seyfarth.com -- SEYFARTH SHAW LLP. WELLS FARGO BANK, NATIONAL ASSOCIATION, Defendant, represented by ROBERT T. SZYBA, SEYFARTH SHAW LLP. YOUNIQUE LLC: Faces "Schmitt" Suit over Mascara Product ------------------------------------------------------- MEGAN SCHMITT, individually on behalf of herself and all others similarly situated, the Plaintiff, v. YOUNIQUE, LLC, and COTY, INC., the Defendants, Case No. 8:17-cv-01397 (C.D. Cal., Aug. 14, 2017), seeks to recover monetary damages as a result of Defendants' deceptive and misleading business practices with respect to the marketing and sales of Younique Moodstruck 3D Fiber Lashes throughout the State of California and the rest of the country. The Product is a mascara that is designed to enhance the appearance of eyelashes. The mascara consists of two components, a "Transplanting Gel" and "Natural Fibers." Until 2015, Defendants manufactured, sold, and distributed the Product using a multilevel marketing campaign centered on claims that appeal to health- conscious consumers, i.e., that the Natural Fibers were "natural" and consisted of "100% Natural Green Tea Fibers." However, Defendants' advertising and marketing campaign was false, deceptive, and misleading because the Product did not contain any green tea leaves and was composed of ground-up nylon, which is not a "natural" substance. The Plaintiff and those similarly situated relied on Defendants' misrepresentations that the Natural Fibers were "Natural" and consisted of "100% Natural Green Tea Fibers" when purchasing the Product. Plaintiff and Class Members paid a premium for the Product over and above comparable products that did not purport to be "natural." Plaintiff and Class Members suffered an injury in the amount of the premium paid. The Defendants' conduct violated the federal Magnuson-Moss Warranty Act, California's Consumer Legal Remedy Act and California's Unfair Competition Law. In addition, Defendants' conduct violated the consumer protection statutes and warranty laws of other states. Younique, LLC provides skin and body care products under the Younique brand. It offers Moodstruck 3D Fiber Lashes+, eyelash enhancers, and Moodstruck addiction shadow palettes. The company operates in the United States, Canada, Australia, New Zealand, Mexico, France, Spain, Germany, Hong Kong, and Italy. Younique, LLC is based in Lehi, Utah.[BN] The Plaintiff is represented by: Todd D. Carpenter, Esq. Edwin J. Kilpela, Esq. CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP San Diego, CA 92101 1350 Columbia Street, Ste. 603 Telephone: (619) 762 1900 Facsimile: (619) 756 6991 E-mail: tcarpenter@carlsonlynch.com - and - Jason P. Sultzer, Esq. Joseph Lipari, Esq. Adam Gonnelli, Esq. Jeremy Francis, Esq. THE SULTZER LAW GROUP, P.C. 85 Civic Center Plaza, Suite 104 Poughkeepsie, New York 12601 Telephone: (854) 705 9460 Facsimile: (888) 749 7747 E-mail: Sultzerj@thesultzerlawgroup.com - and - Bonner C. Walsh, Esq. WALSH PLLC 21810 Pine Crest Dr. Bly, OR 97622 Telephone: (541) 359-2827 Facsimile: (866) 503-8206 Email: bonner@walshpllc.com ZTO EXPRESS: Faces "Nurlybayev" Securities Class Suit ----------------------------------------------------- RUSTEM NURLYBAYEV, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. ZTO EXPRESS (CAYMAN) INC., MEISONG LAI, JIANFA LAI, JILEI WANG, XIANGLIANG HU, BAIXI LAN, Z[NG LIU, FRANK ZHEN WEI, and JIANMIN (JAMES) GUO, J.P. MORGAN SECURITIES LLC, CREDIT SUISSE SECURITIES (USA) LLC, CITIGROUP GLOBAL MARKETS INC., CHINA RENAISSANCE SECURITIES (HONG KONG) LIMITED, GOLDMAN SACHS (ASIA) L.L.C., AND MORGAN STANLEY & CO. INTERNATIONAL PLC, the Defendant, Case No. 1:17-cv-06130 (S.D.N.Y., Aug. 14, 2017), seeks to recover compensable damages caused by Defendants' violations of the federal securities laws. According to the complaint, ZTO on September 30, 2016, filed a registration statement on Form F-1 with the SEC. On October 24, 2016, ZTO filed its final amendment to the Registration Statement, which registered over 82 million ZTO shares for public sale. The Registration Statement contained a preliminary prospectus. The final prospectus was filed on October 28, 2016 (Prospectus). The Securities and Exchange Commission declared the Registration Statement effective on October 26. ZTO priced the IPO at $19.50 per share and filed the final Prospectus for the IPO, which forms part of the Registration Statement. Through the IPO, defendants issued and sold over 72 million ADSs, generating over $1.36 billion for defendants. The statements were materially false and/or misleading because they misrepresented and failed to disclose the following adverse facts pertaining to the Company's business, operations and prospects, which were known to Defendants or recklessly disregarded by them. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that ZTO was improperly inflating its stated profit margins by keeping certain low-margin segments of its business out of its financial statements. ZTO used a system of "network partners" to handle lower-margin pickup and delivery services, while maintaining ownership of core hub operations. By keeping the "network partners" businesses off its own books, the Company was able to exaggerate its profit margins to investors. ZTO, through its subsidiaries, provides express delivery and other value-added logistics services in China. It offers delivery services for e-commerce merchants, traditional merchants, and other express service users, as well as through business partners.[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: fisquith@whafh.com - and - Francis A. Bottini, Jr. BOTTINI & BOTTINI, INC. 7817 Ivanhoe Avenue, Suite 102 La Jolla, CA 92037 Telephone: (858) 914 2001 Facsimile: (858) 914 2002 E-mail: Thottini@bothnilaw.com ZURICH AMERICAN: Not Obligated to Pay W.G. for Class Settlement --------------------------------------------------------------- The United States District Court for the Northern District of California issued an order granting in part and denying in part Defendant's Motion for Summary Judgment in the case captioned W.G. HALL, LLC, Plaintiff, v. ZURICH AMERICAN INSURANCE COMPANY, Defendant, Case No. 17-cv-00646 NC (N.D. Cal.), and granting in part and denying in part Plaintiff's Motion for Summary Judgment. Plaintiff W.G. Hall, LLC (WGH), a staffing services company, settled a wage and hour class action lawsuit. Before and after settling the class action, WGH sought coverage from its professional liability insurer, Zurich American Insurance Company for the amount it would pay out in the settlement agreement. Zurich refused to reimburse WGH for the settlement amount on several grounds, and WGH sued Zurich for breach of contract and derivative claims. In its motion, WGH seeks summary judgment on its claims for breach of contract and declaratory relief, as well as a judgment from the Court that none of five affirmative defenses raised by Zurich are applicable in this case. Zurich opposes WGH's motion and seeks summary judgment on its behalf as to the entire case. WGH filed the case on February 6, 2017, alleging claims for (1) breach of contract, (2) breach of contract/duty to defend, (3) breach of the implied covenant of good faith and fair dealing, and (4) declaratory relief. WGH moved for summary judgment. Zurich filed a cross motion for summary judgment. Both parties consented to the jurisdiction of a magistrate judge under 28 U.S.C. Section 636(c). The terms in the coverage provision are defined as follows: "C. Claim means a: 1. Written demand for money resulting from a wrongful act; or 2. Suit resulting from a wrongful act. F. Damages means the monetary portion of any judgment, award or settlement, provided such settlement is negotiated with our assistance and approval. Damages do not include: 2. Personal profit or advantage to which the insured is not legally entitled; 3. Criminal or civil fines, penalties fees or sanctions. I. Employee includes but is not limited to a leased worker and a staffing services worker. Q. Staffing services means services provided by a staffing company to their clients including but not limited to: 7. Services performed for a client company to supply that client with a staffing services worker. R. Staffing services worker means a person who is furnished by you to your client to perform the duties to which you have agreed. V. Wrongful act means any actual or alleged act, error, or omission, misstatement, or misleading statement in the course of providing staffing services to your clients by you or by any person for whose acts you are legally responsible." In relevant part, the policy provides the following exclusions: "This insurance shall not apply to any claim, based upon or arising out of, in whole or in part: A. Any action made by or on behalf of another insured, in any capacity. I. Any liability assumed by an insured under any contract or agreement, unless such liability would have attached to the insured by law in the absence of such contract or agreement." Construction of "Wrongful Act" In both motions, the parties dispute whether the allegations in the underlying class action litigation fall under the policy's coverage of "wrongful acts." The meaning of "wrongful act" is key in this case because if there is no "wrongful act" within the meaning of the policy, Zurich is not required to provide coverage No "Wrongful Act" As Defined in the Policy Was Committed. WGH was required to pay employees' wages. WGH has never claimed that no employment contract existed between itself and the plaintiffs in the underlying litigation, and indeed concedes that at least oral contracts existed with the plaintiffs. There are no allegations that WGH assumed liability for these specific obligations in its general oral employment contracts with class members. The claims under the Labor Code and Industrial Welfare Commission Orders would not exist but for an employment contract. The plaintiffs in the underlying litigation alleged that WGH failed to pay wages. This alleged failure is not insurable through the Zurich policy. WGH has not met its burden to show it was entitled to coverage. Thus, the Court GRANTS Zurich's motion for summary judgment on the first (breach of contract, second (breach of contract/duty to defend), and fourth (declaratory relief) claims for relief. In addition, in its motion for summary judgment, Zurich argues that WGH's third claim for bad faith/breach of the implied covenant of good faith and fair dealing claim fails because no coverage is due under the policy. The Court agrees. Zurich cannot, as a matter of law, be held liable for bad faith if it was not obligated to cover the underlying litigation in the first place. The Court also grants Zurich's motion for summary judgment as to the third claim. Though the Court grants Zurich's motion for summary judgment on all of the claims, the Court also address the parties' other arguments in their cross motions. The Insured v. Insured Exclusion Does Not Preclude Coverage. The Court considers the policy language ambiguous because the policy is occurrence-based, but the text of the policy suggests the exclusion only applies to claims made by employees, not former "employees. WGH's argument as to the text of the policy makes sense, but so does Zurich's argument regarding the context of the policy. This ambiguity must by law be resolved in the insured's favor where the insurer did not make exclusions clear. This exclusion is inapplicable here, the Court concludes. Accordingly, the Court grants summary judgment to Zurich as to each claim in WGH's complaint. WGH's motion for partial summary judgment is denied except as to the insured v. insured exclusion. The insured v. insured exclusion to coverage is inapplicable in the case. Yet because this issue has no bearing on the question of coverage, the Court says its finding has no effect on the overall outcome of the case. Zurich is not obligated to cover WGH's settlement in the wage and hour class litigation because the claims against WGH and the settlement do not fall within the basic coverage provision of the policy. A full-text copy of the District of Court's August 31, 2017 Order is available at http://tinyurl.com/ycza9lhofrom Leagle.com. W.G. Hall, LLC, Plaintiff, represented by Mariah Lorraine Brandt - - mariah.brandt@pillsburylaw.com -- Pillsbury Winthrop Shaw Pittman LLP. W.G. Hall, LLC, Plaintiff, represented by Robert Leslie Wallan -- robert.wallan@pillsburylaw.com -- Pillsbury Winthrop Shaw Pittman LLP. Zurich American Insurance Company, Defendant, represented by William John Hapiuk -- Bill.Hapiuk@clydeco.us -- Clyde & Co US LLP, Jane Warring -- jane.warring@clydeco.us -- Clyde Co US LLP, pro hac vice & Scott Bertschi -- scott.bertschi@clydeco.us -- Clyde Co US LLP, pro hac vice. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravantefor, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2017. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. 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