/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/171012.mbx C L A S S A C T I O N R E P O R T E R Thursday, October 12, 2017, Vol. 19, No. 202 Headlines 23ANDME: Settles Class Action Lawsuit Over Health Reports ABSOLUTE RESOLUTIONS: Loses Bid to Dismiss FDCPA Class Action ALLTRAN FINANCIAL: Faces "Sharon" Suit in E. Dist. New York ANES LEVENTHAL: Faces "Schock" Suit in E. Dist. New York ARC LOGISTICS: Faces "Jacobs" Suit in Southern District of NY AT&T CORP: Can Compel Arbitration in Farrow Road's Suit ATLANTIS EVENTS: Faces "Bauer" Suit in S. Dist. New York BIG JOHN'S PIZZA: Faces "Rubal" Suit in S.D. of Florida BOWLMOR LANES: Faces "Baldelli" Suit in S. Dist. New York BURGER KING: Court Denies Bid to Stay "Gesten" FACTA Suit CABLEVISION SYSTEMS: Faces "Villegas" Suit in E.D. of New York CAIN INDUSTRIES: Dixie Plumbing Suit Alleges JFPA Violation CAPITAL MANAGEMENT: Faces "Gendelberg" Suit in E.D. of New York CHELSEA PIERS: Faces "Baldelli" Suit in S. Dist. New York CLIFF SANDERS: Faces "Duncan" Suit in E.D. of Arkansas CMB SERVICES: Faces "Jones" Suit in E. Dist. Mich. CONGREGATION OF HOLY CROSS: Appeals Ct. Green Lights Class Action CREDICO (USA): "Scott" Suit Remanded to Superior Court CYTEC RETIREMENT: "Claudet" Suit Alleges ERISA Violation D&J REAL ESTATE: Faces "Taveras" Suit in S.D. of New York DAIRYAMERICA INC: Can't Compel Production of Docs in "Carlin" DICK SMITH: Hit With Class Action Over Misleading Conduct DON HUMMER TRUCKING: Faces "Ratliff" Suit in N.D. Illinois DR PEPPER: Bids to Dismiss Ginger Ale Mislabeling Suit Denied DUNKIN DONUTS: Faces Class Suit Over Systematic Discrimination EPIC SYSTEMS: Case Threatens to Set Back Workers' Rights by Yrs EQUIFAX INC: Faces "Feehrer" Suit over FCRA Violation EQUIFAX INC: "Gulf Winds" Suit Alleges FTCA Violations EQUIFAX INC: "Halpin" Suit Seeks Damages over FCRA Violations EQUIFAX INC: "Lewis" Suit Alleges FCRA Violations EQUIFAX INC: Burt Langley Files Class Action Over Data Breach EQUIFAX INC: Sen. Leahy Wants Class Action Suits to Proceed FIDELITY MGMT: Bid to Dismiss "Fleming" Under Rule 12(b)(6) OK'd FRONTIER COMMUNICATIONS: Faces "Rozenberg" Suit in Connecticut FRONTIER COMMUNICATIONS: Gainey McKenna Files Securities Suit GEICO GENERAL: Faces Coastal Wellness Suit in S.D. Florida GOV'T EMPLOYEES: Faces Town Health Center Suit in S.D. of Fla. HONEY BUCKET: Judge Certifies Lawsuit as Class Action IDAHO: Court Denies IDHW's Bid to Dismiss Olmstead Claims INTERCEPT PHARMACEUTICALS: Nov. 27 Lead Plaintiff Bid Deadline Set ISRAMCO: Court Allows $12.7-Bil. Class Action to Proceed JOHNSON & JOHNSON: Thousands of Women Sue Over Baby Powder KIA MOTORS: Faces "Kondash" Suit in Middle District of Georgia LENDINGCLUB CORP: Oct. 12 Class Cert. Hearing in Securities Suit MDL 2744: Objections to Denial of Protective Order Bid Overruled MISSOURI: Ct. Denies AT's Bid for Attys' Fees in "Van Orden" MODESTO IRRIGATION: Faces Suit for Electricity Bills Overcharge NATIONAL GRID: GBL Claims in "Jenkins" Dismissed w/o Prejudice NEW YORK LIFE: Class Settlement in TCPA Suit Has Final Approval NUTRACEUTICAL CORP: Carlton Fields Discusses 9th Circuit Ruling OMEL FLOWERS: Faces "Diaz" Suit in Southern District of Florida PUEBLO CITY: Low-Income Renters File Class Action in Newark REAL VALUE: "Camp Drug" Suit Alleges TCPA Violation ROCHE HOLDING: Gardeck Named Lead Plaintiff in Securities Suit SAN DIEGO, CA: City Trash Worker Wins Labor Rights Lawsuit SCANA CORPORATION: Motley Rice Files Class Action Lawsuit SCENIC EMISSIONS: "Judkins" Suit Seeks to Recover Unpaid OT SCHLUMBERGER TECHNOLOGY: Judge Decertifies FLSA Lawsuit SHAY NO. 1: Hit With Class Action Over BIPA Violations SI WIRELESS: Must Face Class Action Over Automated Text Messages SONIC CORPORATION: Hit With Class Suit Over POS Data Breach STARKIST: Faces New Class Action Over Under-filled Tuna Cans SUNRISE CREDIT: Faces "Morris" Suit in S. Dist. Calif. SYNGENTA SEEDS: Settles Class Action Over Viptera Corn Seed SYSCO CORP: Ct. Refuses to Extend Discovery Deadline in "Freiri" T&A OF CITRUS: Faces "Vaughan" Suit in Middle District of Fla. THEATRE DEVELOPMENT: Faces "West" Suit in S.D. of New York TIER ONE: "Ceuric" Suit Alleges FLSA Violation TINTRI INC: Faces "Tuller" Suit in Northern District of Cal. TOKIO MARINE: Court Dismisses "Azad" Suit Without Prejudice TWIN DONUT: Faces "Alvarado" Suit in S. Dist. of New York ULTRAMAR LTD: Price-Fixing Suit Denied Access to Fed Evidence UNDER ARMOUR: "Brianas" Suit Seeks to Recover Unpaid Wages UNIVERSITY OF PENNSYLVANIA: Suit Over Retirement Plan Dismissed VAN RU CREDIT: Faces "Dykes" Suit in Eastern District of Va. VITAL RECOVERY: Faces "Kambanis" Suit in E.D. of New York WOW BAO: Facial Recognition System Leads to Class Action XENITH BANKSHARES: Rigrodsky & Long Files Securities Class Action ZELTIQ AESTHETICS: Seeks Dismissal of CoolSculpting System Suit * Mandatory Class Action Waivers in Employment Agreements * More Than Half of American Workers Can't Sue Their Employer * US Chamber of Commerce Warns of Risks of Dutch CA System ********* 23ANDME: Settles Class Action Lawsuit Over Health Reports --------------------------------------------------------- Weartv.com reported that genetics testing company 23andMe is agreeing to settle a class action lawsuit over health reports. For several years, 23andMe promised to provide extensive screenings for medical conditions. In 2013, the FDA ordered the company to stop providing their health service. The lawsuit was filed by customers who claimed the company misrepresented their service. If you bought a test kit from 23andMe for personal use between October 16, 2007 and November 22, 2013, you are a member of the class. Class members can choose a $12.50 cash payment or a $40 discount for a new test kit. Additional details are available at the 23andMe Settlement website. [GN] ABSOLUTE RESOLUTIONS: Loses Bid to Dismiss FDCPA Class Action ------------------------------------------------------------- Hannah Meisel, writing for Law360, reports that an Illinois federal judge declined to dismiss a putative class action brought against a debt collection agency, ruling that under the Supreme Court's Spokeo decision the named plaintiff may have suffered an injury when she received a letter that threatened to add interest and other fees to the delinquent credit card debt. U.S. District Judge Rebecca Pallmeyer denied Absolute Resolutions Corp.'s motion to dismiss the case that named plaintiff Carmen Aguirre had originally brought against the debt collection agency, along with the law firm that sent the letter, Blatt Hasenmiller Leibsker & Moore LLC, in 2015. Though the defendants had alleged Aguirre had not sufficiently alleged a true injury caused by their letter to her attempting to collect on delinquent credit card debt, Judge Pallmeyer used the U.S. Supreme Court's landmark ruling in Spokeo Inc. v. Robins to back up her order, writing that Aguirre's claim under the Fair Debt Collection Practices Act was still valid. "Looking to either historical or congressional precedent, plaintiff Aguirre has alleged a concrete injury here," Judge Pallmeyer wrote. "Plaintiff claims that the letter contained threatening language which defendants could not, and did not, act upon in the attempt to collect on a debt. This allegation is well within the heartland of common law fraud." Aguirre's case stems from her receipt of a letter from Absolute Resolutions and Blatt Hasenmiller that was seeking repayment of credit card debt that Aguirre had originally owed to Capital One. Aguirre alleged that the collection agency and the firm had falsely misrepresented the nature of the debt and employed unfair and "unconscionable" means to collect on the debt by inserting a sentence into the collection letter that "threatened" to add interest and other fees to the sum owed. Though the debt collectors had attempted to argue that the decision in Spokeo raised the bar higher for plaintiffs to allege a concrete injury, Judge Pallmeyer wrote that Aguirre's FDCPA injury claim was concrete enough to clear any hurdle set by Spokeo. "Spokeo does not indiscriminately sweep aside all the legal rights created by Congress that confer standing where no injury would otherwise exist," Judge Pallmeyer wrote. "Furthermore, such a view would make little sense in the context of the FDCPA, given that Congress made statutory damages available -- a clear indication that it did not view the lack of direct pecuniary harm as a disqualifier." Representatives for Aguirre, Absolute Resolutions and Blatt Hasenmiller could not be reached for comment on Wednesday. Ms. Aguirre is represented by Michael Wood and Celetha Chatman of Community Lawyers Group Ltd. Absolute Resolutions Corp. is represented by Dara Tarkowski -- dara.tarkowski@akerman.com -- Alyx Pattison and Julian Dayal -- julian.dayal@akerman.com -- of Akerman LLP. Blatt Hasenmiller Leibsker & Moore LLC is represented by David Schultz -- dschultz@hinshawlaw.com -- and John Ryan -- jryan@hinshawlaw.com -- of Hinshaw & Culbertson LLP. The case is Aguirre v. Absolute Resolutions Corp. et al., case number 1:15-cv-11111 (N.D. Ill.). The case is assigned to Judge Honorable Rebecca R. Pallmeyer. The case was filed December 10, 2015. [GN] ALLTRAN FINANCIAL: Faces "Sharon" Suit in E. Dist. New York ------------------------------------------------------------ A class action lawsuit has been filed against Alltran Financial, LP. The case is styled as Ella Sharon, on behalf of herself and all other similarly situated consumers, Plaintiff v. Alltran Financial, LP, Defendant, Case No. 1:17-cv-05820 (E.D. N.Y., October 4, 2017). Alltran Financial is a debt collector.[BN] The Plaintiff is represented by: Adam Jon Fishbein, Esq. Adam J. Fishbein, P.C. 735 Central Avenue Woodmere, NY 11598 Tel: (516) 668-6945 Email: fishbeinadamj@gmail.com ANES LEVENTHAL: Faces "Schock" Suit in E. Dist. New York -------------------------------------------------------- A class action lawsuit has been filed against Anes, Leventhal & Snyder, PLLC. The case is styled as Diane Schock, on behalf of himself and all others similarly situated, Plaintiff v. Anes, Leventhal & Snyder, PLLC, Defendant, Case No. 2:17-cv-05812-JFB- AKT (E.D. N.Y., October 4, 2017). Anes, Leventhal & Snyder, PLLC is a debt collection law firm.[BN] The Plaintiff is represented by: Joseph Mauro, Esq. The Law Office of Joseph Mauro, LLC 306 McCall Avenue West Islip, NY 11795 Tel: (631) 669-0921 Fax: (631) 669-5071 Email: JoeMauroesq@hotmail.com ARC LOGISTICS: Faces "Jacobs" Suit in Southern District of NY ------------------------------------------------------------- A class action lawsuit has been filed against Arc Logistics Partners LP. The case is styled as Hakeem Jacobs, individually and on behalf of all others similarly situated, Plaintiff v. Arc Logistics Partners LP, Vincent T. Cubbage, Barry L Zubrow, Sidney L. Tassin, Gary G. White, Eric J. Scheyer, Edward P. Russell and John Pugh, Defendants, Case No. 1:17-cv-07579-RWS (S.D.N.Y., October 4, 2017). New York-based ARC Logistics Partners LP owns, operates, develops and acquires a diversified portfolio of complementary energy logistics assets. The Company is specifically engaged in the terminalling storage, thoroughput and transloading of crude oil and petroleum products. The Plaintiff is represented by: Juan Eneas Monteverde, Esq. Faruqi & Faruqi, LLP 685 Third Avenue 26th Floor New York, NY 10017 Tel: (212) 983-9330 Fax: (212) 983-9331 Email: jmonteverde@monteverdelaw.com AT&T CORP: Can Compel Arbitration in Farrow Road's Suit ------------------------------------------------------- In the case captioned Farrow Road Dental Group, P.A., and all others similarly situated, Plaintiff, v. AT&T Corp., and Bellsouth Telecommunications, LLC d/b/a AT&T Southeast or d/b/a AT&T South Carolina, Defendants, Civil Action No. 3:17-cv-01615-CMC (D. S.C.), Senior District Judge Cameron McGowan Currie Judge of the U.S. District Court for the Southern District of South Carolina, Columbia Division, granted AT&T's motion to compel arbitration as to all claims and to stay the action pending arbitration. Farrow Road is a dental practice that utilized AT&T for its phone service from 2006 to 2015. In 2011, Farrow Road ordered one line of service from AT&T. As is its practice, AT&T mailed an order confirmation letter and BSA to Farrow Road. In 2014, Farrow Road renewed its current phone line and added four more lines of service. Again, AT&T mailed the order confirmation letter and BSA to Farrow Road. In September of 2015, Farrow Road requested all five telephone numbers then in service with AT&T be transferred to another service provider, Time Warner Cable. AT&T disconnected the phone numbers or otherwise failed to properly port the numbers. Therefore, Farrow Road's existing patients and potential patients contacting Farrow Road through its phone numbers received an automatic message the numbers were no longer in service, and advised callers to "press 1 now" to be connected to a "new" dentist. This directed existing and new patients to dentists other than Farrow Road. This message was received by callers from September 2015 to Jan. 28, 2016. Based on AT&T's alleged failure to properly disconnect, transfer, and/or port the telephone lines, the Plaintiffs assert four causes of action: negligence, fraud, fraudulent concealment, and negligence per se in violation of the Telecommunications Act of 1996. Through this putative nationwide class action, the Plaintiff seeks recovery from Defendants AT&T and Bellsouth Telecommunications for damages arising out of the parties' former business relationship. That relationship was governed, at least in part, by a Business Service Agreement ("BSA"). The matter is before the Court on AT&T's motion to compel arbitration as to all claims and to stay the action pending arbitration. The motion relies on an arbitration clause found in the BSA. Farrow Road argues it did not consent to the arbitration clause and there was no evidence AT&T had even provided the BSA to Farrow Road. However, in response, AT&T produced evidence, both in the form of its policy and procedure and in a declaration and supporting documentation from AT&T's system, that its Confirmation Letters were sent to Farrow Road in 2011 and 2014. Therefore, Farrow Road consented to the terms of the BSA, which governed the parties' contractual relationship and included an arbitration clause. In addition, Farrow Road argues the contract was not supported by consideration. However, unlike the case cited by Farrow Road, Noohi v. Toll Bros., which required only one party to bring its claims in arbitration, in this case the BSA requires both parties to submit any disputes to arbitration. Therefore, valid consideration was provided to both sides, and the arbitration clause is not unenforceable for lack of consideration. Next, Farrow Road argues the arbitration clause in the BSA is unenforceable because it is an unconscionable term in a contract of adhesion. In South Carolina, unconscionability is defined as the absence of meaningful choice on the part of one party due to one-sided contract provisions, together with terms that are so oppressive that no reasonable person would make them and no fair and honest person would accept them. In determining whether the parties had meaningful choice, six factors are considered: the nature of the injuries suffered by the plaintiff; whether the plaintiff is a substantial business concern; the relative disparity in the parties' bargaining power; the parties' relative sophistication; whether there is an element of surprise in the inclusion of the challenged clause; and the conspicuousness of the clause. Judge Currie, in considering these factors, finds the balance favors arbitration. One factor, the nature of injuries suffered by the Plaintiff, may favor Farrow Road, as it allegedly suffered injury to its business when its phone lines were not ported properly and callers received a message directing their call to a different dentist. In addition, the second factor likely favors Farrow Road, which does not appear to be a "substantial business concern" compared to AT&T. As the weight of the factors favor AT&T, the court finds the arbitration clause is not unconscionable. Farrow Road argues the events in dispute in this case took place after it terminated service with AT&T, and therefore the BSA and arbitration clause no longer governed the parties' relationship. However, Judge Currie finds explains that even if service was terminated, that does not mean the obligation to arbitrate disputes ended. Under South Carolina law, arbitration clauses are separable from the contracts in which they are imbedded the general rule is that the duty to arbitrate under an arbitration clause in a contract survives termination of the contract. Therefore, the arbitration clause is not rendered void by the cancellation of service provided by AT&T. Accordingly, Farrow Road's claims are subject to arbitration. For these reasons, Judge Currie granted AT&T's motion to compel arbitration, and stayed the matter pending arbitration. The parties are directed to initiate arbitration within 14 days and file a status report no later than 180 days from the date of entry of the Order. A full-text copy of the Court's Sept. 22, 2017 Opinion and Order is available at https://is.gd/kYoRuu from Leagle.com. Farrow Road Dental Group, P.A., Plaintiff, represented by Bradley D. Hewett -- bhewett@mklawgroup.com -- Mike Kelly Law Group. AT&T, Corp., Defendant, represented by Benjamin Rush Smith, III -- rush.smith@nelsonmullins.com -- Nelson Mullins Riley and Scarborough, Carmen Harper Thomas -- carmen.thomas@nelsonmullins.com -- Nelson Mullins Riley and Scarborough, Phillips Lancaster McWilliams -- phillips.mcwilliams@nelsonmullins.com -- Nelson Mullins Riley and Scarborough & Kevin S. Ranlett -- kranlett@mayerbrown.com -- Mayer Brown, pro hac vice. Bellsouth Telecommunications, LLC, Defendant, represented by Benjamin Rush Smith, III, Nelson Mullins Riley and Scarborough, Carmen Harper Thomas, Nelson Mullins Riley and Scarborough, Phillips Lancaster McWilliams, Nelson Mullins Riley and Scarborough & Kevin S. Ranlett, Mayer Brown, pro hac vice. ATLANTIS EVENTS: Faces "Bauer" Suit in S. Dist. New York -------------------------------------------------------- A class action lawsuit has been filed against Atlantis Events, Inc. The case is styled as Ph.D William Bauer and Carlos Sanchez, individually and on behalf of all others similarly situated, Plaintiffs v. Atlantis Events, Inc. and Richard Campbell, Defendants, Case No. 1:17-mc-00381 (S.D. N.Y., October 4, 2017). Atlantis Events, Inc. operates as a vacation company. It provides gay and lesbian cruises and resort vacations.[BN] The Plaintiffs appears PRO SE. BIG JOHN'S PIZZA: Faces "Rubal" Suit in S.D. of Florida -------------------------------------------------------- A class action lawsuit has been filed against Big John's Pizza, Pasta & Subs Co. The case is styled as Maivi Rubal and other similarly situated individuals, Plaintiff v. Big John's Pizza, Pasta & Subs Co., Frank Sipos also known as: Frantisek Sipos and Claudia Jonisova, Defendants, Case No. 4:17-cv-10081-JLK (S.D. Fla., October 9, 2017). Big John's Pizza, Pasta & Subs Co. is an Italian restaurant.[BN] The Plaintiff is represented by: Ruben Martin Saenz, Esq. Saenz & Anderson, PLLC 20900 N.E. 30th Avenue, Suite 800 Aventura, FL 33180 Tel: (305) 503-5131 Fax: (888) 270-5549 Email: msaenz@saenzanderson.com BOWLMOR LANES: Faces "Baldelli" Suit in S. Dist. New York --------------------------------------------------------- A class action lawsuit has been filed against Bowlmor Lanes LLC. The case is styled as Richard Baldelli and on behalf of all other persons similarly situated, Plaintiff v. Bowlmor Lanes LLC, Defendant, Case No. 1:17-cv-07717 (S.D.N.Y., October 9, 2017). Bowlmor Lanes is the upscale brand of ten-pin bowling and entertainment centers operated by Bowlmor AMF. There are currently 18 Bowlmor Lanes centers, nine of which are former AMF 300 centers and three are former AMF Bowling Centers.[BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. The Law Offices of Bradly G. Marks 280 Park Avenue South New York, NY 10010 Tel: (646) 770-3775 Fax: (212) 254-4202 Email: bmarkslaw@gmail.com BURGER KING: Court Denies Bid to Stay "Gesten" FACTA Suit --------------------------------------------------------- Judge Robert N. Scola, Jr. of the U.S. District Court for the Southern District of Florida denied the Defendant's Motion to Stay Proceedings in the case captioned Ryan D. Gesten, Plaintiff, v. Burger King Corporation d/b/a Burger King, Defendant, Civil Action No. 17-22541-Civ-Scola (S.D. Fla.), Pending Resolution of Motion to Dismiss. The Plaintiff brings this purported class action under the Fair and Accurate Credit Transactions Act ("FACTA") to recover for the Defendant's alleged violation of FACTA's prohibition on printing transaction receipts that reveal more than the last five digits of a consumer's debit or credit card number. The Defendant has moved to dismiss the Complaint for lack of subject matter jurisdiction, arguing that the Plaintiff does not have standing to pursue his claims. The Defendant has moved to stay the proceedings pending resolution of the motion to dismiss. In support of its motion to stay, the Defendant argues that resolution of the motion to dismiss could dispose of this entire matter, and the Plaintiff has served overly broad, burdensome, and unnecessary discovery requests that will force defendant to expend considerable time and resources. The Plaintiff opposes the motion to stay. Having preliminarily examined the Defendant's motion to dismiss, the Plaintiff's response thereto, and the Defendant's reply, Judge Scola cannot say that there is such a strong likelihood that the motion will be granted that it outweighs the Plaintiff's need to conduct discovery and the potential case management and scheduling problems that may result from a stay. He notes that at the same time that the Defendant requested the stay, the Defendant also requested a 30-day extension of time to respond to the Plaintiff's discovery requests. The Defendant then filed an Unopposed Motion to Extend Scheduling Order Deadlines by Thirty Days, indicating that the Plaintiff had agreed to the Defendant's requested 30-day extension of time to respond to discovery, provided that the Defendant file a motion to enlarge all deadlines in the Scheduling Order by 30 days. He granted the motion to extend all deadlines in the Scheduling Order by 30 days, which should relieve some of the burden on the Defendant while he considers the motion to dismiss. If the Defendant has legitimate concerns that the Plaintiff's discovery requests are overly broad, burdensome, or unnecessary, the Defendant can raise the issue in the appropriate manner before Magistrate Judge Edwin G. Torres, as set forth in his Order Setting Discovery Procedures. Therefore, Judge Scola denied the Defendant's Motion to Stay Proceedings Pending Resolution of Motion to Dismiss. A full-text copy of the Court's Sept. 22, 2017 Order is available at https://is.gd/k99pi3 from Leagle.com. Ryan D. Gesten, Plaintiff, represented by Bret Leon Lusskin, Jr. - - blusskin@lusskinlaw.com -- Bret Lusskin, P.A.. Ryan D. Gesten, Plaintiff, represented by Keith James Keogh -- Keith@Keoghlaw.com -- Keogh Law, Ltd., Sean Martin Holas, Scott D. Owens -- scott@scottdowens.com -- P.A. & Scott David Owens -- scott@ScottDOwens.com -- SCOTT D. OWENS, P.A.. Burger King Corporation, Defendant, represented by Anthony Nolan Upshaw, McDermott Will & Emery, Jeremy Marc White, McDermott Will & Emery, LLP & Kerry Alan Scanlon, McDermott Will & Emery, LLP, pro hac vice. CABLEVISION SYSTEMS: Faces "Villegas" Suit in E.D. of New York -------------------------------------------------------------- A class action lawsuit has been filed against Cablevision Systems New York City Corporation. The case is styled as Jurtreau Villegas, Patrick Schiano and William Gilbert Garvin, individually and on behalf of all others similarly situated, Plaintiffs v. Cablevision Systems New York City Corporation, Cablevision Systems Corporation, CSC Holdings, LLC, Altice USA, Inc. and Altice Technical Services US Corp, Defendants, Case No. 1:17-cv-05824- DLI-VMS (E.D. N.Y., October 4, 2017). Cablevision Systems was an American cable television company with systems serving areas surrounding New York City.[BN] The Plaintiffs are represented by: Christopher Quincy Davis, Esq. The Law Office of Christopher Q. Davis 225 Broadway, Suite 1803 New York, NY 10007 Tel: (646) 430-7930 Fax: (646) 349-2504 Email: cdavis@workingsolutionsnyc.com - and - Rita Marie Lenane, Esq. Law Office of Christopher Davis PLLC 225 Broadwa, Suite 1802 New York, NY 10007 Tel: (646) 430-7930 Email: rlenane@workingsolutionsnyc.com - and - Rachel Meredith Haskell, Esq. The Law Office of Christopher Davis 225 Broadway, Suite 1803 New York, NY 10007 Tel: (646) 430-7930 Fax: (646) 349-2504 Email: rhaskell@workingsolutionsnyc.com CAIN INDUSTRIES: Dixie Plumbing Suit Alleges JFPA Violation ----------------------------------------------------------- Dixie Plumbing Specialties Inc., and all others similarly-situated v. Cain Industries, Inc. and John Does 1-5, Case No. 1:17-cv-03866 (N.D. Ga., October 3, 2017), seeks damages for Defendants' violation of the Junk Fax Prevention Act of 2005. Plaintiff Dixie Plumbing Specialties, Inc.'s line of business includes the wholesale distribution of hydronic plumbing and heating equipment and supplies. Plaintiff's principal place of business is in Marietta, Georgia. Defendant Cain Industries, Inc. manufactures waste heat recovery systems for gas and diesel cogeneration systems, boiler exhaust stack economizer systems, fume incineration systems, and industrial spiral finned tubing markets. Defendant's principal place of business is in Germantown, Wisconsin. [BN] The Plaintiff is represented by: Anthony C. Lake, Esq. GILLEN WITHERS & LAKE LLC One Securities Centre, Suite 1050 3490 Piedmont Road, N.E. Atlanta, GA 30305 Tel: (404) 842-9700 Fax: (404) 842-9750 E-mail: aclake@gwllawfirm.com - and - Ryan M. Kelly, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Tel: (847) 368-1500 Fax: (847) 368-1501 E-mail: rkelly@andersonwanca.com CAPITAL MANAGEMENT: Faces "Gendelberg" Suit in E.D. of New York --------------------------------------------------------------- A class action lawsuit has been filed against Capital Management Services, LP. The case is styled as Leonard R. Gendelberg, on behalf of himself and all other similarly situated consumers, Plaintiff v. Capital Management Services, LP, Defendant, Case No. 1:17-cv-05809 (E.D. N.Y., October 4, 2017). Capital Management is a nationally licensed and recognized collections agency, providing the highest level of delinquent receivables resolution.[BN] The Plaintiff appears PRO SE. CHELSEA PIERS: Faces "Baldelli" Suit in S. Dist. New York --------------------------------------------------------- A class action lawsuit has been filed against Chelsea Piers L.P. The case is styled as Richard Baldelli and on behalf of all other persons similarly situated, Plaintiff v. Chelsea Piers L.P., Defendant, Case No. 1:17-cv-07723 (S.D. N.Y., October 9, 2017). Chelsea Piers L.P. provides entertainment facilities. The Company offers sports, amusement, and recreation services.[BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. The Law Offices of Bradly G. Marks 280 Park Avenue South New York, NY 10010 Tel: (646) 770-3775 Fax: (212) 254-4202 Email: bmarkslaw@gmail.com CLIFF SANDERS: Faces "Duncan" Suit in E.D. of Arkansas ------------------------------------------------------ A class action lawsuit has been filed against Cliff Sanders, a Florida corporation. The case is styled as Jeremy Duncan, on behalf of himself and all others similarly situated, Plaintiff v. Cliff Sanders, individually and in his official capacity as a police officer for the City of Elaine, Arkansas, and in his official capacity as a police officer for the City of Helena-West Helena, Arkansas, Defendants, Case No. 2:17-cv-00179-KGB (E.D. Ark., October 4, 2017). The Defendant is a police officer at Helena-West Helena, Arkansas.[BN] The Plaintiff is represented by: Luther Oneal Sutter, Esq. Sutter & Gillham, PLLC Post Office Box 2012 Benton, AR 72018 Tel: (501) 315-1910 Fax: (501) 315-1916 Email: luthersutter.law@gmail.com CMB SERVICES: Faces "Jones" Suit in E. Dist. Mich. -------------------------------------------------- A class action lawsuit has been filed against CMB Services, Inc. The case is styled as Akira Jones, individually and on behalf of all others similarly situated, Plaintiff v. CMB Services, Inc., Defendant, Case No. 1:17-cv-13304-TLL-PTM (E.D. Mich., October 9, 2017). CMB Services, Inc. is a collection agency.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. Marcus & Zelman LLC 1500 Allaire Avenue, Suite 101 Ocean, NJ Tel: (845) 367-7146 Fax: (732) 298-6256 Email: yzelman@marcuszelman.com CONGREGATION OF HOLY CROSS: Appeals Ct. Green Lights Class Action ----------------------------------------------------------------- CBC reports that the Quebec Court of Appeal has authorized a new class-action lawsuit against a major Roman Catholic organization for alleged sexual abuse committed by some of its members. The decision overturns a 2015 Superior Court of Quebec ruling rejecting the class action request. The Congregation of Holy Cross apologized and paid up to $18 million in 2013 to compensate victims for abuse that occurred at three Quebec institutions over a five-decade span. $18M settlement approved for Quebec sex abuse victims That agreement stemmed from an out-of-court mediated settlement, spurred by the threat of a class-action lawsuit. A spokesperson for a victims' rights group says the landmark settlement prompted about 40 new alleged victims to come forward. Sebastien Richard says the current class-action names more institutions, including Montreal's iconic Saint Joseph's Oratory. In a phone interview, Richard pointed out that the oratory is Canada's largest church and reports directly to the Vatican, which could lead to embarrassment on the church's part if the class- action is successful. He also accused the religious order of doing what it could to "drag out" the process, noting that time is running out for many of the alleged victims, many of whom are elderly. "They're also people who have kept silent for a long time -- too long," he said on September 27. The Congregation of Holy Cross did not respond to a request for comment. [GN] CREDICO (USA): "Scott" Suit Remanded to Superior Court ------------------------------------------------------ Judge Edward M. Chen of the U.S. District Court for the Northern District of California remanded the case captioned TASHIAN SCOTT, Plaintiff, v. CREDICO (USA) LLC, et al., Defendants, Case No. 17- cv-02846-EMC (N.D. Cal.) to Alameda County Superior Court. Scott brought this action against the Defendants and Alon Brener on behalf of himself and a putative class of similarly situated employees, alleging several violations under the California Labor Code and California Business and Professions Code, in Alameda County Superior Court. The Defendants removed the case was removed from the Alameda County Superior Court on May 18, 2017, and came before this Court for hearing on the Defendants' motion to dismiss, and motion to compel arbitration on Aug. 17, 2017. At the hearing, the Court, sua sponte, expressed its concern that it may lack subject matter jurisdiction under the Class Action Fairness Act ("CAFA"), and ordered supplemental briefing. The Defendants contend that the CAFA requirements are likely met, but may be lacking depending on how the Court calculates the amount in controversy and estimates attorneys' fees. The Plaintiff agrees that the CAFA requirements are met. However, because subject matter jurisdiction cannot be a product of consent, the Court is obligated to review the matter independently. The revised calculation for damages, excluding Section 558 penalties and accounting only for unpaid wages, reflects a total amount of $3,801,594.90. The Defendants seek to add attorneys' fees of 25% of recovery to boost the amount in controversy. But the argument lacks merit because contingency fees based on a common fund recovery are not damages, hence, they should not be counted as part of the amount in controversy. Even assuming that the largest estimate applies, i.e., fees likely to be recovered upon resolution, the Defendants have failed to present any evidence to support an estimate of attorneys' fees that the Plaintiff might recover based on a projected lodestar. Nor have the Defendants presented a basis for the Court to conclude that a 25% benchmark provides a reasonable proxy for the lodestar estimate. In any event, even if 25% were deemed a reasonable proxy for statutory fees, the total recovery including fees would be $4,751,993.70 -- still short of the $5 million threshold. Accordingly, the Defendants have not demonstrated, by a preponderance of the evidence, that the amount in controversy exceeds $5 million. For the reasons stated, Judge Chen concludes that it lacks jurisdiction under CAFA because the amount in controversy does not exceed $5 million. Lacking subject matter jurisdiction, the Court is also without power to resolve the Defendants' pending motions to dismiss and to compel arbitration. Judge Chen instead remanded the matter to the Alameda County Superior Court. A full-text copy of the Court's Sept. 22, 2017 Order is available at https://is.gd/4tfF2b from Leagle.com. Tashian Scott, Plaintiff, represented by David Albert Rosenfeld -- drosenfeld@unioncounsel.net -- Weinberg Roger & Rosenfeld. Tashian Scott, Plaintiff, represented by Caren P. Sencer -- csencer@unioncounsel.net -- Weinberg, Roger & Rosenfeld & David W.M. Fujimoto -- dfujimoto@unioncounsel.net -- Weinberg, Roger & Rosenfeld. Credico (USA) LLC, Defendant, represented by William Martin Woolman, Sagaser, Watkins & Wieland, PC, Howard Alan Sagaser, Sagaser, Watkins & Wieland PC & Ian B. Wieland, Sagaser, Watkins & Wieland, PC. Sprint Corporation, Defendant, represented by Pietro A. Deserio -- pdeserio@proskauer.com -- Proskauer Rose LLP & Nicole Ann Eichberger -- neichberger@proskauer.com -- Proskauer Rose LLP, pro hac vice. Sprint/United Management Corporation, Defendant, represented by Harold M. Brody -- hbrody@proskauer.com -- Proskauer Rose LLP, Pietro A. Deserio, Proskauer Rose LLP & Nicole Ann Eichberger, Proskauer Rose LLP, pro hac vice. Legion, Defendant, represented by Elise Charlotte O'Brien -- elise@rjlaw.com -- Rynn Janowsky LLP. Latitude Group, Defendant, represented by Elise Charlotte O'Brien, Rynn Janowsky LLP & June T. Monroe -- june@rjlaw.com -- Rynn and Janowsky, LLP. Alon Brener, Defendant, represented by Elise Charlotte O'Brien, Rynn Janowsky LLP & June T. Monroe, Rynn and Janowsky, LLP. CYTEC RETIREMENT: "Claudet" Suit Alleges ERISA Violation -------------------------------------------------------- Aman Joseph Claudet Jr., and all others similarly-situated v. Cytec Retirement Plan, Cytec Industries Inc., and Solvay USA, Inc., Case No. 2:17-cv-10027 (E.D. La., October 3, 2017), is brought against the Defendants for alleged unlawful reduction of vested retirement benefits in violation of the Employee Retirement Security Act. Plaintiff Aman Joseph Claudet Jr. is a resident of St. Charles Parish, Louisiana and worked for Cytec for over 30 years and retired on December 31, 2001. Defendant Cytec Retirement Plan is an ERISA governed plan. The Plan currently provides pension benefits to individuals, including Plaintiff, residing within this District. Defendant Cytec Industries Inc., is a specialty materials and chemicals company, focusing on developing, manufacturing, and selling value-added products for aerospace and industrial materials, mining, and plastics industries. Its principal business establishment in Louisiana is located at 10800 River Road, Weswego, Louisiana. Defendant Solvay USA, Inc. is a Delaware corporation licensed to do business in Louisiana and doing business in Louisiana. Its principal business establishment in Louisiana is located at 1275 Airline Highway in Baton Rouge, Louisiana. Solvay is the U.S. subsidiary of Solvay SA, a Belgium-based international conglomerate. [BN] The Plaintiff is represented by: Charles J. Stiegler, Esq. STIEGLER LAW FIRM LLC 318 Harrison Ave., Suite 104 New Orleans, LA 70124 Tel: (504) 267-0777 Fax: (504) 513-3084 E-mail: Charles@StieglerLawFirm.com - and - Christopher L. Williams, Esq. WILLIAMS LITIGATION LLC 639 Loyola Ave., Suite 1850 New Orleans, LA 70113 Tel: (504) 308-1438 Fax: (504) 308-1446 E-mail: Chris@williamslitigation.com D&J REAL ESTATE: Faces "Taveras" Suit in S.D. of New York --------------------------------------------------------- A class action lawsuit has been filed against D&J Real Estate Management II, L.L.C. The case is styled as Antonio Taveras, Pascual Rosa and Victor Catedral, on behalf of himself and all others similarly situated, Plaintiffs v. D&J Real Estate Management II, L.L.C., 3171 Rochambeau Ave. LLC, Bronx Boynton Ave. LLC, XYZ Corporations #1 through #10 and David Sedgh, Defendants, Case No. 1:17-cv-07567 (S.D. N.Y., October 4, 2017). The Defendants are engaged in the real estate industry.[BN] The Plaintiffs appear PRO SE. DAIRYAMERICA INC: Can't Compel Production of Docs in "Carlin" ------------------------------------------------------------- Judge Erica P. Grosjean of the U.S. District Court for the Eastern District of California denied the Defendant's motion to compel the Plaintiffs to produce retainer agreements between the class counsel and the class representatives 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, COMPEL PLAINTIFFS' RETAINER v. DAIRYAMERICA, INC., and CALIFORNIA DAIRIES, INC., Defendants, Case No. 1:09-cv-00430-AWI- EPG (E.D. Cal.). DairyAmerica's third request for production ("RFP") of documents contain the following requests: a. RFP 8: All Documents relating to the manner in which You became a party to this Action, including, but not limited to advertisements or news articles, solicitations, emails, notices, or correspondence. b. RFP 9: All Documents that refer or relate to the payment of attorneys' fees, expenses, and costs with respect to this Action. c. RFP 10: All Documents that refer or relate to who will advance and/or who is responsible for payment of the costs and expenses incurred in connection with this Action. d. RFP 11: All Documents that refer or relate to the Plaintiffs' responsibilities as a proposed class representative. e. RFP 12: All Documents that refer or relate to whether a fee in this Action will be shared with any person or entity not a member of the attorneys' law firms. f. RFP 13: All Documents that refer or relate to the fee sharing arrangement(s) between or among any law firm with respect to this Action including but not limited to: (i) Cohen Milstein Sellers & Toll, PLLC; (ii) Berman DeValerio; (iii) Keller Rohrback L.L.P.; (iv) Hudson, Mallaney, Shindler and Anderson, PC (a/k/a Hudson Law Firm); (v) Tostrud Law Group, P.C; (vi) Hagens Berman Sobol Shapiro LLP; and (vii) Freedman Boyd Hollander Goldberg Urias & Ward PA. g. RFP 14: All Documents relating to any representations, agreements, promises or assurances the Plaintiffs received about any monetary recovery they might receive as a result of their participation as plaintiffs in this Action. h. RFP 15: All documents relating to the terms by which they retained attorneys for the preparation and filing of the complaints in this Action and the maintenance of this Action. On Oct. 14, 2016, the Plaintiffs served objections and responses to DairyAmerica's third request for production of documents. Subject to the objections, they agreed to produce responsive, non- privileged documents in their possession, custody, or control. The Counsel for DairyAmerica and the Plaintiffs engaged in subsequent meet and confer negotiations regarding the Plaintiffs' objections to DairyAmerica's RFPs. On May 11, 2017, the Plaintiffs' counsel sent an email communication to counsel for DairyAmerica saying that as they conveyed during a meet and confer several months ago, the Plaintiffs have no documents that are responsive to Requests 7, 12-14, and with respect to Requests 8- 11, 15, the only responsive documents are retainer agreements with the Named Plaintiffs and emails transmitting them, which are privileged communications. On June 29, 2017, the Plaintiffs served amended objections and responses to DairyAmerica's third request for production. Specifically, they amended their objections to RFPs 8-12 and 15. On June 13, 2017, the parties initiated discovery dispute proceedings before the Magistrate Judge. After a hearing on June 23, 2017, the parties were granted leave to file motions to compel. On July 5, 2017, the parties filed motions for discovery. In compliance with this District's local rules, the parties filed a joint statement regarding discovery disputes on July 19, 2017. A discovery dispute conference was held on July 26, 2017. The Court took under advisement the issue of whether the Plaintiffs are required to produce the retainer agreements under the circumstances presented in this case. The remaining dispute is whether the responsive documents fall within the scope of discovery. DairyAmerica argues that production of the Plaintiffs' retainer agreements should be compelled because the documents are relevant to class certification issues. Judge Grosjean does not disagree with DairyAmerica that the existence of an incentive agreement is relevant and should be disclosed at the class certification stage. However, the counsel for the Plaintiffs has repeatedly represented to DairyAmerica and to the Court that no incentive agreement, as discussed in Rodriquez, exists here. Furthermore, DairyAmerica has come forward no evidence that would cause the Court to have concerns about the terms of the retainer agreements. Under these circumstances, the Judge does not have cause to test the veracity of the representations made by officers of the court. Without a specific argument for the relevance of the agreements, the Judge will not grant a motion to compel. Nor does Judge Grosjean agrees with DairyAmerica's much broader proposition -- that retainer agreements between class representatives and class counsel must always be produced in class action litigation because they are relevant to adequacy issues. The Ninth Circuit cases cited by DairyAmerica do no support such a broad disclosure requirement. While she agrees that the terms of the retainer agreement could eventually become relevant, there is no settlement or award requiring court approval at this time. DairyAmerica may raise the issue again at the appropriate time. Under the circumstances presented here and considering the factors in Rule 26(b)(1), Judge Grosjean does not find the retainer agreements relevant to DairyAmerica's defenses and proportional to the needs of the case. Accordingly, she denied DairyAmerica's motion to compel. A full-text copy of the Court's Sept. 22, 2017 Order is available at https://is.gd/14hSQf from Leagle.com. Gerald Carlin, Plaintiff, represented by A. Chowning Poppler -- cpoppler@bermandevalerio.com -- Berman Tabacco. Gerald Carlin, Plaintiff, represented by Anthony David Phillips -- aphillips@archernorris.com -- Berman DeValerio, Benjamin Doyle Brown -- bbrown@cohenmilstein.com -- Cohen Milstein Sellers & Toll PLLC, Brent W. Johnson -- bjohnson@cohenmilstein.com -- 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 -- gfarah@cohenmilstein.com -- pro hac vice, Leslie M. Kroeger -- lkroeger@cohenmilstein.com -- 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, Davis Wright Tremaine LLP, pro hac vice, E. John Steren -- esteren@ebglaw.com -- Ober Kaler, pro hac vice, Joseph Michael Marchini -- jmm@bmj-law.com -- Baker, Manock & Jensen, Wendy M. Yoviene -- wyoviene@bakerdonelson -- 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, Hanson Bridgett LLP & Megan Oliver Thompson, Hanson Bridgett LLP. Bimemiller Candice, Unknown, represented by Edward Zusman, Markun Zusman Freniere & Compton LLP. James Rehberg, ThirdParty Plaintiff, represented by J. Barton Goplerud, Hudson Law Firm, pro hac vice & Jon A. Tostrud, 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, Keller Rohrback LLP, pro hac vice & Raymond J. Farrow, 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. 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. DICK SMITH: Hit With Class Action Over Misleading Conduct --------------------------------------------------------- Samantha Woodhill, writing for The Australian, reports that disgruntled shareholders have launched a class action against the collapsed retailer formerly known as Dick Smith Holdings, alleging misleading conduct. The action against DSHE Holdings, filed by Bannister Law, also targets former Dick Smith chief executive Nick Abboud and former CFO Michael Potts. Dick Smith went into receivership in January 2016. It came as litigation firm Investor Claim Partner told The Australian it would soon be filing a second, separate class action against Dick Smith on behalf of shareholders. The class action formally filed by Bannister Law on September 27 in the NSW Supreme Court, on behalf of shareholders, alleges that the company and directors published misleading and deceptive financial information to the stock market in 2015. Financial information released "did not give a true and fair view of the financial performance of DSHE and were not prepared in accordance with the Australian Accounting Standards," a statement released by Bannister Law said. The class action claims that financial statements released by the company artificially inflated its reported profit. "The inflated reported profit and overstatement of EBITDA meant that shareholders did not have an accurate picture of the financial health of the company when they purchased DSHE shares throughout 2015," Bannister Law principal Charles Bannister said. "They have collectively lost several million dollars," Mr Bannister said. "We are eager to pursue this class action so that affected shareholders can be compensated for the misleading and deceptive conduct of DSHE and its two former directors." Bannister Law senior solicitor Milan Cakic said the claim is against a $150m insurance policy covering Dick Smith's liquidation. "We understand that there might be other parties such as a syndicate of banks, they may be looking to claim against that same policy so it's a matter of who gets to it first," he said. "The case is likely to run for two years. "This will not be a walk in the park." The class action has been launched on behalf of shareholders who purchased shares between February 16, 2015 and January 3, 2016, in which period $803 million worth of shares traded. It's being funded by dispute resolution funders Vannin Capital. The expected Investor Claim Partner action will take in claims going back to original float prospectus back in 2013. Shareholder Rodney Van Royden said he relied on the Dick Smith annual report and trusted that it gave an accurate picture of the company. "It is apparent that there was a lack of transparency around the company's true state of affairs," Mr Van Royden said. "Wrongdoers should be held accountable. The victims deserve compensation." Dick Smith was offloaded by Woolworths to a private equity firm in 2012 for $94 million and subsequently floated on the share market a year later with a value of $520 million. But its value plummeted and it was wiped from the share market's top 200 companies in December, 2015, before going into voluntary administration the following month after failing to secure funds from its lenders. Lenders National Australia Bank and HSBC filed a claim against the company earlier this year after Dick Smith's collapse. [GN] DON HUMMER TRUCKING: Faces "Ratliff" Suit in N.D. Illinois ---------------------------------------------------------- A class action lawsuit has been filed against Don Hummer Trucking Corporation, an Iowa corporation. The case is styled as Jerome Ratliff, Jr., individually and on behalf of all others similarly situated, Plaintiff v. Don Hummer Trucking Corporation, an Iowa corporation, Defendant, Case No. 1:17-cv-07173 (N.D. Ill., October 4, 2017). Don Hummer Trucking provides dependable transportation services across America.[BN] The Plaintiff is represented by: Adam C York, Esq. Kamber Law LLC 220 N Green St. Chicago, IL 60607 Tel: (312) 620-0232 Email: ayork@kamberlaw.com DR PEPPER: Bids to Dismiss Ginger Ale Mislabeling Suit Denied ------------------------------------------------------------- Magistrate Judge Nathanael M. Cousins of the U.S. District Court for the Northern District of California denied the Defendant's motions to dismiss the case captioned JACKIE FITZHENRY-RUSSELL, et al., Plaintiffs, v. DR. PEPPER SNAPPLE GROUP, INC., et al., Defendants, Case No. 17-cv-00564 NC (N.D. Cal.) for lack of personal jurisdiction and under Rule 12(b)(6). Plaintiffs Fitzhenry-Russell and Robi Dale both purchased Canada Dry Ginger Ale within the last five years. Both allege to have seen and relied upon the wording on the cans of Canada Dry that stated it was "Made From Real Ginger." Fitzhenry-Russell alleges that this commercial reinforced her belief that Canada Dry contained real ginger. Dale does not allege he ever watched one of the commercials. Neither Fitzhenry-Russell nor Dale allege that they ever visited Canada Dry's website, which at some point had emblazoned across its front page the phrase "Made From Real Ginger." This putative class action was filed in Santa Cruz County Superior Court on Dec. 28, 2016, and was removed to this Court on Feb. 3, 2017. Dr. Pepper previously moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). The Court ruled from the bench on April 19, 2017, granting in part the motion to dismiss, and giving the Plaintiffs leave to amend. Dr. Pepper then moved to dismiss the amended complaint, but that motion was mooted by the Court's June 28, 2017 order that the Plaintiffs file a consolidated complaint. The consolidated amended complaint ("complaint") now before the Court contains only California state law claims, which are for (i) the Consumers Legal Remedies Act; (ii) false advertising; (iii) common law fraud, deceit, and/or misrepresentation; and (iv) unlawful, unfair, and fraudulent trade practices. The Court also consolidated the follow-on Hashemi action with this case. Dr. Pepper subsequently moved to dismiss the complaint under Rule 12(b)(2) and 12(b)(6). All parties consented to the jurisdiction of a magistrate judge under 28 U.S.C. Section 636(c). For all of its arguments, Magistrate Judge Cousins concludes that Dr. Pepper has not presented the Court with persuasive argument -- much less binding law -- compelling the extension of Bristol- Myers Squibb Co. v. Superior Court of California to class actions. Based on the parties' arguments, he is not persuaded to extend Bristol-Myers to the class action context on these facts. The Court has personal jurisdiction over Dr. Pepper as to the putative nationwide class claims. Because, the Magistrate Judge finds personal jurisdiction lies over Dr. Pepper as to the nationwide class, the motion to strike is denied as moot. In carefully reading the complaint, the Magistrate Judge further concludes that the allegations regarding the website were inserted to show that Dr. Pepper intended to deceive the public into believing Canada Dry contained ginger root. Thus, the Plaintiffs' fraud, and fraud-related claims based on the Dr. Pepper's Canada Dry commercials survive the motion, and the allegations regarding the Canada Dry website may remain in the complaint because they go to Dr. Pepper's alleged intent to deceive the public. The most recent of the Canada Dry commercials, when combined with (i) the "Jack's Ginger Farm" sign, (ii) the field that appears to be growing ginger, and (iii) the words that appear on the screen at the end of the commercial, also lead the Magistrate Judge to conclude that the commercial cannot simply be considered puffery. These factors could lead a reasonable consumer to believe that Canada Dry Ginger Ale contains ginger root. The question is whether the commercials lead reasonable consumers to believe Canada Dry contains ginger root. Whether a drink does or does not contain ginger root is not a vague or subjective question, it is a clear fact-based question. As to Fitzhenry-Russell's allegation that Dr. Pepper's advertisements made her want to purchase Canada Dry ginger ale, and, in fact, she did purchase Canada Dry Ginger Ale after viewing the advertisements and in reliance upon the truthfulness of the claims in the advertisement, Magistrate Judge concludes these allegations are sufficient to plead reliance by Fitzhenry-Russell. Thus, the Plaintiffs need not further allege reliance on the commercials as to fraud. Lastly, for purposes of the motion, the Magistrate Judge is not persuaded that the Plaintiffs' claims are preempted. The Plaintiffs do not seek to change the labeling on Canada Dry from describing its flavors as "natural" to being described as "artificial," as Dr. Pepper suggests. For the reasons stated, Magistrate Judge Counsins denied Dr. Pepper's motion to dismiss for lack of personal jurisdiction, and its motion to dismiss under Rule 12(b)(6). Dr. Pepper must file an answer to the complaint by Oct. 6, 2017. A full-text copy of the Court's Sept. 22, 2017 Order is available at https://is.gd/3zua03 from Leagle.com. Jackie Fitzhenry-Russell, Plaintiff, represented by Adam Gutride - - adam@gutridesafier.com -- Gutride Safier LLP. Jackie Fitzhenry-Russell, Plaintiff, represented by Kristen Gelinas Simplicio -- Kristen@gutridesafier.com -- Gutride Safier LLP, Marie Ann McCrary, Gutride Safier LLP, Seth A. Safier -- seth@gutridesafier.com -- Gutride Safier LLP, Matthew Thomas McCrary -- matt@gutridesafier.com -- Gutride Safier LLP & Seth Adam Safier, Gutride Safier LLP. Robin Dale, Plaintiff, represented by Adam Gutride, Gutride Safier LLP, Kristen Gelinas Simplicio, Gutride Safier LLP, Marie Ann McCrary, Gutride Safier LLP, Seth A. Safier, Gutride Safier LLP, Matthew Thomas McCrary, Gutride Safier LLP & Seth Adam Safier, Gutride Safier LLP. Arash Hashemi, Plaintiff, represented by Barbara Ann Rohr -- brohr@faruqilaw.com -- Faruqi and Faruqi, LLP, Benjamin Heikali -- bheikali@faruqilaw.com -- Faruqi and Faruqi LLP & Stuart J. Guber -- sguber@faruqilaw.com -- pro hac vice. Natasha Safaradi, Plaintiff, represented by Barbara Ann Rohr, Faruqi and Faruqi, LLP, Benjamin Heikali, Faruqi and Faruqi LLP & Stuart J. Guber, pro hac vice. Gegham Margaryan, Plaintiff, represented by Hovanes Margarian -- info@margarianlaw.com -- Law Offices of Hovanes Margarian. Dr. Pepper Snapple Group, Inc., Defendant, represented by Jessica Elaine Underwood -- jessica.underwood@bakerbotts.com -- Baker Botts L.L.P., pro hac vice, Van H. Beckwith -- van.beckwith@bakerbotts.com -- Baker Botts L.L.P., pro hac vice & Jonathan Acker Shapiro -- jonathan.shapiro@bakerbotts.com -- Baker Botts L.L.P.. DUNKIN DONUTS: Faces Class Suit Over Systematic Discrimination -------------------------------------------------------------- According to court papers filed, the only African American female franchisee in the country for Dunkin Donuts is suing the brand for systematic discrimination and unfair business practices -- that has allegedly negatively impacted many women and Black franchisees for the brand. The Maryland small business owner alleges that Dunkin Donuts does not give its female and Black franchisees the same support, opportunities, access, consideration, resources, information and respect that the brand offers its male and non-Black franchisees. According to court papers, to date, all of Dunkin's Black franchisees in Maryland constituted the majority of African American franchisees for the brand at one point have allegedly reported similar complaints against Dunkin. The complaint filed contends that Dunkin Donuts partnered with NAACP in 2013 to increase African American franchisees, however, the number of Black franchisees has substantially decreased which resulted in the intervention of the NAACP in this specific matter. The lawsuit was filed in the United States District Court for the District of Maryland on Monday, September 25 (case 8:17-cv-02846- TDC). According to Jerry Marks, co-counsel in this case, this lawsuit seeks to end the occurrence of similar stories by other female and/or Black franchisees and employees of corporate giants like Dunkin Donuts. [GN] EPIC SYSTEMS: Case Threatens to Set Back Workers' Rights by Yrs --------------------------------------------------------------- Roger Parloff, writing for Yahoo Finance, reports that kicking off its new term with a splash, the U.S. Supreme Court will hear a trio of cases on October 2 that threaten to set back workers' rights by more than 80 years, labor-side employment lawyers claim. The suits, known as Epic Systems Corp. v. Lewis, pose the question of whether employers can force employees, as a condition of employment, to agree to submit almost any federal legal claim they have against the company to individual arbitration, effectively waiving their right to bring class actions or other joint legal proceedings. The specific employers involved in the cases before the court are Epic Systems, which makes healthcare-related software; Murphy Oil (MUR), which runs more than a thousand gas stations in 21 states; and accounting giant Ernst & Young. Like a rapidly growing number of U.S. employers, they require nearly all their workers, as a condition of employment (or of even filing a job application), to sign arbitration clauses that include class-action waivers. As unions have lost strength in the country, class actions have gained importance as a key means of vindicating employee rights, whether with respect to wage and hours claims or race, age, and sex discrimination. So if employers win a simple way to knock that weapon out of workers' hands, that will be a big deal. "This is probably the most important employment, civil rights, or labor case I can remember," says Cliff Palefsky, who is co-counsel on an amicus brief for 10 major labor unions, including the Service Employees International Union and International Brotherhood of Teamsters. In a series of opinions in recent years -- including three authored between 2011 and 2013 by the late conservative Justice Antonin Scalia -- the court has repeatedly ruled that consumers were barred from bringing class actions by arbitration clauses they had signed as a condition of receiving a product or service. The employers in the three cases being heard -- supported by amicus groups from 17 outside groups, including the U.S. Chamber of Commerce and Business Roundtable -- maintain that those precedents dictate the outcome of these employment cases, too. Also supporting the employers will be the U.S. Department of Justice, which switched sides in these disputes after the Trump administration took office in January. Though it filed a petition last September advancing the pro-employee stance that the National Labor Relations Board has taken on these questions since 2012, the department filed a new brief in June supporting the employers. September 25th's argument will feature the rare spectacle of one federal attorney, Acting Solicitor General Jeffrey Wall, arguing against another, NLRB general counsel Richard Griffin, Jr. (In August CBS News reported that employees at The Trump Organization had been ordered to sign arbitration clauses, including class waivers, as a condition of retaining their jobs. This past September 25, when the U.S. Senate confirmed William Emanuel, President Donald Trump's second appointee to the NLRB, control of the five-member board passed to Republicans. But it's unlikely that the board would vote to change its position in this case before the argument.) Are Class Actions "Concerted Activities"? In the first three years after the court's pro-arbitration ruling in AT&T Mobility (T) v. Concepcion in 2011, the number of companies using arbitration clauses to preclude employee class actions jumped from 16.1% to 42.7%, according to a survey by Carlton Fields Jorden Burt, a consulting firm that advises employers. A more recent survey, whose results were published by the Economic Policy Institute, reports that 24.7 million private- sector, nonunion employees in the U.S. are now subject to class waivers contained in arbitration clauses. The employees in these suits are individuals who, notwithstanding having signed arbitration contracts, later filed lawsuits seeking class-action status, claiming that they had been wrongfully denied overtime pay under the Fair Labor Standards Act. The employees argued that the class waivers they had signed were unenforceable under two federal labor law statutes which protect the rights of employees to engage in "concerted activities." The Norris LaGuardia Act of 1932 bars employers from requiring employees to sign agreements, known as yellow-dog contracts, that bar them from collective bargaining or "other concerted activities for the purpose of . . . . mutual aid and protection." Similarly, the National Labor Relations Act of 1935 makes it an "unfair labor practice" for companies to "interfere with, restrain, or coerce employees" in the exercise of comparably defined "concerted activities." In response, the employers maintain that those labor laws, notwithstanding their broad language, were targeting union-related activities, like picketing, and don't confer a right to bring class-action suits, a phenomenon that did not become common until the 1960s. Rather, they insist, courts are obligated to enforce the class waivers within arbitration clauses under the command of the Federal Arbitration Act of 1925, which declares arbitration contracts to be "valid, irrevocable, and enforceable" unless they suffer from a failing (like duress or mutual mistake) that would invalidate them under traditional contract law principles. In its pro-arbitration precedents, the court has said that unless a federal statute incorporates a specific "congressional command" against arbitration -- which, the employers contend, neither the Norris LaGuardia Act, the NLRA, nor the Fair Labor Standards Act contains -- legal claims brought under it are subject to arbitration. "The Court has assessed six federal statutes [in previous rulings]," writes attorney Andrew Pincus in a brief for the Chamber of Commerce, "and found that not one contained the 'contrary congressional command' needed to displace the Federal Arbitration Act." The federal courts of appeals have split over whether the labor laws forbid class waivers in arbitration contracts, with courts based in New Orleans and St. Louis ruling for employers, while panels in Chicago, San Francisco, and Cincinnati sided with employees. Though the three specific cases before the court all involve overtime claims under the Fair Labor Standards Act, the precedent that will be created appears likely also to impact class claims brought under the Equal Pay Act, the Family Medical Leave Act, the Age Discrimination in Employment Act, and Title VII of the Civil Rights Act. Thirty civil-rights advocacy groups, led by the NAACP Legal Defense and Educational Fund, have filed one of the 10 amicus briefs supporting the employees in the case. They warn that if employers win this case, workers may be precluded in the future from seeking court orders against systemic discrimination -- a type of relief that has been obtained in the past against such defendants as Coca-Cola (KO), Comcast (CMSA) FedEx (FDX), Morgan Stanley (MS), and Wal-Mart (WMT). Concerted activity in the gig economy Another argument employees advance for treating class actions as a modern form of concerted activity relates to the rise of the so- called Gig Economy. Older forms of collective action, like picketing, are poorly suited to this new world, argues a brief submitted on behalf of Susan Fowler, a former engineer at ride- hailing giant Uber Technologies, while class actions are. "22% of all workers, and 43% of workers with advanced degrees, work remotely (at least on occasion)," argues Fowler, whose blog account alleging sexual harassment at Uber led to multiple firings and an internal investigation led by former Attorney General Eric Holder. "They are connected to their co-workers, managers, and customers by email, phone, computer networks, and video conferencing," continues her brief, authored by San Francisco attorney Chris Baker. (Four class-actions against Uber were stayed by the federal appeals court in San Francisco pending the Supreme Court's decision in the Epic Systems cases.) The only personnel change on the court since its three pro- arbitration rulings earlier this decade -- two of which were decided 5-4, on ideological lines -- has been the replacement of the late Justice Scalia with Justice Neil Gorsuch, who has said he shares Scalia's jurisprudential outlook. Accordingly, matters look bleak for the employees unless they can convince one of the other conservative justices -- perhaps Justice Anthony Kennedy or Chief Justice John Roberts, Jr. -- that, as employment attorney Palefsky puts it in an interview, "employment is different." "If you sue over a problem with a cellphone, you don't need to worry about retaliation," he says. "But it's not practical for employees to negotiate for themselves or sue for themselves. You put a target on your chest." Still, the safe money has to be on the conservative faction prevailing, and the Court extending its string of pro-arbitration rulings. [GN] EQUIFAX INC: Faces "Feehrer" Suit over FCRA Violation ----------------------------------------------------- Wesley Feehrer and Peter Malvasi, and all others similarly- situated v. Equifax, Inc., Case No. 1:17-cv-07803 (D.N.J., October 3, 2017), seeks damages and injunctive relief under the Fair Credit Reporting Act and the New Jersey Consumer Fraud Act. Plaintiffs Feehrer and Malvasi reside in New Jersey and were affected by the Defendant's security breach. Defendant Equifax is a nationwide consumer reporting agency and purveyor of credit monitoring and identity theft protection services. Equifax is a Georgia corporation headquartered in Atlanta, Georgia. [BN] The Plaintiffs are represented by: Lee Squitieri, Esq. SQUITIERI & FEARON, LLP 32 East 57th St. 12th Floor New York, NY 10022 Tel: (212) 421-6492 Fax: (212) 421-6553 E-mail: lee@sfclasslaw.com - and - Joseph R. Santoli, Esq. 340 Devon Court Ridgewood, NJ 07450 Tel: (201) 926-9200 Fax: (201) 644-0981 E-mail: josephsantoli@aol.com EQUIFAX INC: "Gulf Winds" Suit Alleges FTCA Violations ------------------------------------------------------ Gulf Winds Federal Credit Union, and all others similarly-situated v. Equifax, Inc., and Equifax Information Services LLC, Case No. 1:17-cv-03873 (N.D. Ga., October 3, 2017), is brought against the Defendants for violations of the Federal Trade Commission Act. Plaintiff brings this class action on its own behalf and on behalf of other financial institutions that have suffered, and continue to suffer, financial losses as a direct result of Equifax's failure to take adequate and reasonable measures to protect the personal identifying information of some 145.5 million U.S. consumers, credit card numbers of some 209,000 consumers, and dispute information from some 182,000 consumers, that was stored in its data systems (the "Confidential Consumer Data"). Plaintiff Gulf Winds Federal Credit Union is a federally-chartered credit union with its principal place of business in Pensacola, Florida. Gulf Winds operates 12 branches in the Florida panhandle and in South Alabama. As a credit union, Plaintiff is a cooperative whose more than 60,000 primary members are consumers. Defendant Equifax is a nationwide consumer reporting agency and purveyor of credit monitoring and identity theft protection services. Equifax is a Georgia corporation headquartered in Atlanta, Georgia. [BN] The Plaintiff is represented by: Michael L. McGlamry, Esq. N. Kirkland Pope, Esq. POPE McGLAMRY, P.C. 3391 Peachtree Road, NE, Suite 300 Atlanta, GA 30326 Tel: (404) 523-7706 Fax: (404) 524-1648 E-mail: efile@pmkm.com - and - Chris T. Hellums, Esq. Jonathan S. Mann, Esq. PITTMAN DUTTON & HELLUMS, P.C. 2001 Park Place North 1100 Park Place Tower Birmingham, AL 35203 Tel: (205) 322-8880 Fax: (205) 328-2711 E-mail: PDH-efiling@pittmandutton.com EQUIFAX INC: "Halpin" Suit Seeks Damages over FCRA Violations ------------------------------------------------------------- Patrick Halpin and Brian Els, and all others similarly-situated v. Equifax, Inc., Case No. 1:17-cv-03872 (N.D. Ga., October 3, 2017), seek statutory damages under the Fair Credit Reporting Act and state consumer protection statutes, reimbursement of out-of-pocket losses, other compensatory damages, further and more robust credit monitoring services with accompanying identity theft insurance, and injunctive relief including an order requiring Defendant to implement improved data security measures. Plaintiff Patrick Halpin is a resident of the state of California. Plaintiff is a victim of the Data Breach. Plaintiff Brian Els is a resident of the state of Oregon. Plaintiff is a victim of the Data Breach. Defendant Equifax is a nationwide consumer reporting agency and purveyor of credit monitoring and identity theft protection services. Equifax is a Georgia corporation headquartered in Atlanta, Georgia. [BN] The Plaintiffs are represented by: James M. Evangelista, Esq. David J. Worley, Esq. Kristi Stahnke McGregor, Esq. EVANGELISTA WORLEY, LLC 8100A Roswell Road Suite 100 Atlanta, GA 30350 Tel: (404) 205-8400 Fax: (404) 205-8395 E-mail: david@ewlawllc.com jim@ewlawllc.com kristi@ewlawllc.com - and - William B. Federman, Esq. Carin L. Marcussen, Esq. Joshua D. Wells, Esq. FEDERMAN & SHERWOOD 10205 N. Pennsylvania Avenue Oklahoma City, OK 73120 Tel: (405) 235-1560 Fax: (405) 239-2112 E-mails: wbf@federmanlaw.com clm@federmanlaw.com jdw@federmanlaw.com - and - Robert S. Green, Esq. James Robert Noblin, Esq. GREEN & NOBLIN, P.C. 2200 Larkspur Landing Circle Suite 101 Larkspur, CA 94939 Tel: (415) 477-6700 Fax: (415) 477-6710 E-mail: gnecf@classcousel.com EQUIFAX INC: "Lewis" Suit Alleges FCRA Violations ------------------------------------------------- John Lewis, and all others similarly-situated v. Equifax, Inc., Case No. 1:17-cv-03863 (N.D. Ga., October 3, 2017), seeks statutory damages under the Fair Credit Reporting Act and state consumer protection statutes, reimbursement of out-of-pocket losses, other compensatory damages, further and more robust credit monitoring services with accompanying identity theft insurance, and injunctive relief including an order requiring Defendant to implement improved data security measures. Plaintiff John Lewis is a resident of the state of California. Plaintiff is a victim of the Data Breach. Defendant Equifax is a nationwide consumer reporting agency and purveyor of credit monitoring and identity theft protection services. Equifax is a Georgia corporation headquartered in Atlanta, Georgia. [BN] The Plaintiff is represented by: W. Mark Lanier, Esq. Lee A. Cirsch, Esq. Reagan E. Bradford THE LANIER LAW FIRM 6810 FM 1960 West Houston, TX 77069 Tel: (713) 659-5200 Fax: (713) 659-2204 E-mail: WML@LanierLawFirm.com Lee.Cirsch@LanierLawFirm.com Reagan.Bradford@LanierLawFirm.com - and - Ranse M. Partin, Esq. CONLEY GRIGGS PARTIN LLP 4200 Northside Parkway, NW Building One, Suite 300 Atlanta, GA 30327 Tel: (404) 467-1155 E-mail: ranse@conleygriggs.com EQUIFAX INC: Burt Langley Files Class Action Over Data Breach ------------------------------------------------------------- Dillon Davis of Citizen Times reports that an Asheville law firm is the latest to file a class-action lawsuit against credit reporting agency Equifax over a data breach that exposed sensitive information of potentially 143 million Americans. The suit was filed on September 27 in U.S. District Court for the Western District of North Carolina in Asheville. Plaintiffs Terra Weaver and David Le allege Equifax -- one of three major U.S. credit reporting agencies -- was negligent in safeguarding consumers' personal information, allowing it to be exposed to a cyber attack. They also argue the Atlanta-based company failed to disclose details of the hack to consumers in a timely manner. Katherine Langley, co-founder of Burt Langley PC, which filed the suit along with Branstetter, Stranch & Jennings PLLC of Nashville, said on September 28 that Equifax's conduct appears "particularly egregious." She argues the company failed to have "even the most basic data security measures in place" to guard against theft of sensitive information. "This conduct has caused -- and will continue to cause -- great harm to millions of people," Langley was quoted as saying in a news release, "and we look forward to having our opportunity to use the court system to right this wrong perpetrated by Equifax allowing cyber criminals to gain access to its data systems." USA Today reported more than 70 class-action lawsuits have been filed against Equifax since the company disclosed the leak on Sept. 7, though legal experts told the publication it can be difficult to prove actual harm done. Equifax said the hack began in mid-May and was discovered July 29. Bloomberg also reported the company suffered another unrelated breach of its systems in March. The security breach is considered one of the largest of consumers' private financial data in history. As a result, company CEO Richard Smith said he is "retiring immediately." He was replaced on an interim basis by Paulino do Rego Barros Jr., who penned a column in the Wall Street Journal apologizing for the data breach. "On behalf of Equifax, I want to express my sincere and total apology to every consumer affected by our recent data breach," he wrote. "People across the country and around the world, including our friends and family members, put their trust in our company. "We didn't live up to those expectations." Both Weaver and Le are residents of Buncombe County, court filings show. Their lawsuit argues they and others now face years of "constant surveillance of their financial and personal records, monitoring and loss of rights" due to the breach. They are requesting damages suffered by plaintiffs and class-action members, equitable relief as well as attorney fees and costs paid. [GN] EQUIFAX INC: Sen. Leahy Wants Class Action Suits to Proceed ----------------------------------------------------------- Burlington Free Press reported that Sen. Patrick Leahy, D-Vt., is pushing to preserve a new federal rule that would make it easier for American consumers to file class-action lawsuits against financial companies. Republicans and business groups have opposed the rule, but Leahy and other Democrats are hoping the outrage over the recent security breach at credit bureau Equifax could sway some opinions. Americans currently sign away their ability to sue, sometimes without realizing it, when they open credit or bank accounts. Contracts often require that complaints be resolved through individual mandatory arbitration, rather than in court. The federal government's Consumer Financial Protection Bureau is poised to implement a new rule that would allow consumers to band together in class-action lawsuits. Supporters argue that the current system of mandatory arbitration disadvantages consumers. "I've talked with a number of people who are potential arbitrators," Leahy said at a September 27 news conference with Senate Democrats. "They know if they ever rule against one of the big companies, these arbitrators, they'll never get picked again. These are inherently unequal relationships." Opponents of the rule, including the U.S. Chamber of Commerce, say the change would enrich trial lawyers at consumers' expense. Equifax says arbitration is "quick and cost effective." Equifax recently came under fire for limiting consumers' right to sue in the wake of the massive security breach that affected an estimated 143 million people, though the company now says those restrictions do not apply to claims that may be filed because of the breach. Democrats are using the uproar over Equifax to argue against mandatory arbitration. "We're urging our Republican colleagues to say no to immunity for Equifax, Wells Fargo, or anyone else who does such horrible financial misdeeds," said Sen. Chuck Schumer, D-N.Y. The new rule was finalized in July. The U.S. House of Representatives passed a resolution to overturn the rule. Rep. Peter Welch, D-Vt., voted against the resolution. The Senate is now preparing for a vote. If the rule survives congressional review, it would apply only to future agreements made after the rule's effective date. Separately, the Senate Judiciary Committee is scheduled to hold a subcommittee hearing on the Equifax breach next October 4. [GN] FIDELITY MGMT: Bid to Dismiss "Fleming" Under Rule 12(b)(6) OK'd ---------------------------------------------------------------- In the case captioned KATHERINE FLEMING, EDWARD R. HADUCK, and VICTORIA WENDEL, Plaintiffs, v. FIDELITY MANAGEMENT TRUST COMPANY and FIDELITY INVESTMENTS INSTITUTIONAL OPERATIONS COMPANY, INC., Defendants, Civil Action No. 16-cv-10918-ADB (D. Mass.), Judge Allison D. Burroughs of the U.S. District Court for the District of Massachusetts denied the Defendants' motion to dismiss for lack of subject matter jurisdiction, granted the Defendants' motion to dismiss for failure to state a claim, and denied as moot the Plaintiffs' motion to strike. The Plaintiffs in this putative class action filed their Complaint on May 20, 2016, alleging various violations of the Employee Retirement Income Security Act of 1974 ("ERISA"). They claim that Defendants have breached their fiduciary duties under ERISA and engaged in transactions that ERISA prohibits. The Plaintiffs are individual participants within the meaning of ERISA, in the Delta Family-Care Savings Plan. The Defendants FMTC and FIIOC were hired to provide certain services to the Plan. As trustee of the Plan, FMTC holds the Plan's investment assets and executes investment transactions as instructed by the Plan and individual Plan participants. FIIOC, a wholly owned subsidiary of FMTC, provides trust services, record-keeping, and information management services to the Plan. The assets of the Plan are held in and invested through a Master Trust. The trust is controlled in all material respects by a Master Trust Agreement involving the Plan sponsor (Delta Air Lines, Inc.), the named fiduciary (the Delta Air Lines, Inc., Benefit Funds Investment Committee), the Plan administrator (the Administrative Committee of Delta Air Lines, Inc.), and the trustee (FMTC). The Complaint alleges wrongdoing in two particular aspects of the Plan, although the Plan sponsor, named fiduciary, and administrator are not parties to the case. First, it challenges the relationship between the Defendants and a third party, Financial Engines Advisors, LLC ("FE"). Second, the Complaint attacks "BrokerageLink," the portal through which individual Plan participants are permitted to invest their savings on a self- directed basis. The gravamen of the Plaintiff's allegations regarding FE is that Defendants and FE have agreed to an improper "pay to play" arrangement. Basically, they allege that FE, in exchange for being included as the Plan's investment advisor, agreed to pay the Defendants a significant percentage of the fees that FE collects from individual Plan investors. The Complaint alleges that when individual Plan participants use BrokerageLink to invest in mutual funds with different share classes, the Defendants acquire shares with higher fees, which typically include revenue-sharing payments made to parties who distribute the shares or provide other services. The Defendants, in turn, get a cut of these higher fees in the form of revenue- sharing payments. On July 22, 2016, the Defendants filed a motion under Fed. R. Civ. P. 12(b)(6) seeking dismissal of the Complaint for failure to state a claim upon which relief can be granted. Accompanying the motion was a declaration by the Defendants' counsel, along with three exhibits, two of which were filed under seal. The Plaintiffs opposed this motion on Sept. 12, 2016, and filed a motion to strike one of the exhibits attached to the declaration, and related factual assertions contained in the memorandum in support of the motion. The Defendants opposed the motion to strike on Oct. 17, 2016. Shortly thereafter, on Nov. 3, 2016, the Defendants filed a motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). The Plaintiffs responded to this motion on Dec. 12, 2016, and the Defendants filed a reply on Jan. 12, 2017. Judge Burroughs finds that the Plaintiffs have failed to plausibly allege that the Defendants were exercising a fiduciary function under 29 U.S.C. Section 1002(21)(A) when they decided which securities to make available through BrokerageLink because Delta retained ultimate authority to include or reject the BrokerageLink product from the list of investment options made available to Plan participants. Thus, Count III must be dismissed. Insofar as the Complaint challenges the amount of the fees that the Defendants collect from FE, the Courts have held that plan service providers (such as the Defendants) are not acting in a fiduciary capacity when they negotiate with plan sponsors for their own compensation, so long as the final agreement with the plan does not give the service provider the ability to determine or control the actual amount of its compensation. Accordingly, Count I must be dismissed. Judge Burroughs explains that the Department of Labor has advised that the "assets of a plan" are defined by applying ordinary notions of property rights. This typically requires consideration of any contract or other legal instrument involving the plan, as well as the actions and representations of the parties involved. Here, that principle requires consideration of the Master Trust Agreement, which incorporates by reference the pre-existing fee- sharing agreements between Defendants and the mutual funds, and the Defendants and FE. Those agreements, alongside the facts pleaded in the Complaint, support the view that the challenged fees are directed to the mutual funds and to FE rather than to the Plan. Accordingly, Count IV must be dismissed. Finally, Judge Burroughs concludes that the Plaintiffs' claim for equitable relief fails. The equitable relief permitted under ERISA does not authorize appropriate equitable relief "at large," but rather only such relief as will enforce the terms of a plan or ERISA itself. Here, the Plaintiffs' claim for equitable relief rises or falls with the viability of their claims alleging violations of Sections 1106(a) and 1106(b). The Complaint seeks to hold Defendants liable because they "knew or should have known" that their arrangement with FE violated Sections 1106(a) and 1106(b). For the reasons already discussed, those underlying violations are dismissed. Therefore, the Plaintiffs' claim for equitable relief also fails. For these reasons, Judge Burroughs denied the Defendants' motion to dismiss under Rule 12(b)(1); allowed the Defendants' motion to dismiss under Rule 12(b)(6); and denied as moot the Plaintiffs' motion to strike. A full-text copy of the Court's Sept. 22, 2017 Memorandum and Order is available at https://is.gd/3mWSAw from Leagle.com. Katherine Fleming, Plaintiff, represented by Christopher T. Micheletti -- cmicheletti@zelle.com -- Zelle LLP, pro hac vice. Katherine Fleming, Plaintiff, represented by Ellen T. Noteware -- enoteware@bm.net -- Berger & Montague PC, pro hac vice, Garrett W. Wotkyns -- gwotkyns@schneiderwallace.com -- Schneider Wallace Cottrell Konecky LLP, pro hac vice, Heather T. Rankie -- hrankie@zelle.com -- Zelle LLP, pro hac vice, John J. Nestico -- jnestico@schneiderwallace.com -- Schneider Wallace Cottrell Konecky Wotkyns LLP, pro hac vice, Mark T. Johnson -- mjohnson@schneiderwallace.com -- Schneider Wallace Cottrell Brayton Konecky LLP, pro hac vice, Shanon J. Carson -- scarson@bm.net -- Berger & Montague, P.C., pro hac vice, Todd S. Collins -- tcollins@bm.net -- Berger & Montague, pro hac vice, Todd Schneider -- tschneider@schneiderwallace.com -- Schneider Wallace Cottrell Konecky Wotkyns LLP, pro hac vice, Todd M. Schneider, Schneider Wallace Cottrell Brayton Konecky LLP, pro hac vice, Jeffrey A. Gordon -- jgordon@zelle.com -- Zelle LLP & Paul T. Sullivan -- psullivan@zelle.com -- Zelle LLP. Edward R Haduck, Plaintiff, represented by Christopher T. Micheletti, Zelle LLP, pro hac vice, Ellen T. Noteware, Berger & Montague PC, pro hac vice, Garrett W. Wotkyns, Schneider Wallace Cottrell Konecky LLP, pro hac vice, Heather T. Rankie, Zelle LLP, pro hac vice, John J. Nestico, Schneider Wallace Cottrell Konecky Wotkyns LLP, pro hac vice, Mark T. Johnson, Schneider Wallace Cottrell Brayton Konecky LLP, pro hac vice, Todd S. Collins, Berger & Montague, pro hac vice, Todd Schneider, Schneider Wallace Cottrell Konecky Wotkyns LLP, pro hac vice, Todd M. Schneider, Schneider Wallace Cottrell Brayton Konecky LLP, pro hac vice, Jeffrey A. Gordon, Zelle LLP & Paul T. Sullivan, Zelle LLP. Victoria Wendel, Plaintiff, represented by Christopher T. Micheletti, Zelle LLP, pro hac vice, Ellen T. Noteware, Berger & Montague PC, pro hac vice, Garrett W. Wotkyns, Schneider Wallace Cottrell Konecky LLP, pro hac vice, Heather T. Rankie, Zelle LLP, pro hac vice, John J. Nestico, Schneider Wallace Cottrell Konecky Wotkyns LLP, pro hac vice, Mark T. Johnson, Schneider Wallace Cottrell Brayton Konecky LLP, pro hac vice, Shanon J. Carson, Berger & Montague, P.C., pro hac vice, Todd S. Collins, Berger & Montague, pro hac vice, Todd Schneider, Schneider Wallace Cottrell Konecky Wotkyns LLP, pro hac vice, Todd M. Schneider, Schneider Wallace Cottrell Brayton Konecky LLP, pro hac vice, Jeffrey A. Gordon, Zelle LLP & Paul T. Sullivan, Zelle LLP. Fidelity Management Trust Company, Defendant, represented by James R. Carroll -- james.carroll@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP, Michael S. Hines -- michael.hines@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP, Alison V. Douglass -- adouglass@goodwinlaw.com -- Goodwin Procter, LLP & Jaime A. Santos -- jsantos@goodwinlaw.com -- Goodwin Procter LLP. Fidelity Investments Institutional Operations Company, Inc., Defendant, represented by James R. Carroll, Skadden, Arps, Slate, Meagher & Flom LLP, Michael S. Hines, Skadden, Arps, Slate, Meagher & Flom LLP, Alison V. Douglass, Goodwin Procter, LLP & Jaime A. Santos, Goodwin Procter LLP. FRONTIER COMMUNICATIONS: Faces "Rozenberg" Suit in Connecticut -------------------------------------------------------------- A class action lawsuit has been filed against Frontier Communications Corporation. The case is styled as Larisa Rozenberg, Individually and On Behalf of All Others Similarly Situated, Plaintiff v. Frontier Communications Corporation, Daniel J. McCarthy, Ralph Perley McBride, John M. Jureller and Donald W. Daniels, Defendants, Case No. 3:17-cv-01672-MPS (D. Conn., October 4, 2017). Frontier Communications Corporation is a corporation with principal place of business in Connecticut, and state of incorporation in Delaware. It is engaged in the sale and distribution of internet and telephone services.[BN] The Plaintiff is represented by: Shannon L. Hopkins, Esq. Levi & Korsinksy, LLP-Stamford 733 Summer St, Suite 304 Stamford, CT 06901 Tel: (212) 363-7500 Fax: (866) 367-6510 Email: shopkins@zlk.com FRONTIER COMMUNICATIONS: Gainey McKenna Files Securities Suit ------------------------------------------------------------- Gainey McKenna & Egleston announces that a class action lawsuit has been filed against Gainey McKenna & Egleston announces that a class action lawsuit has been filed against Frontier Communications Corporation ("Frontier" or the "Company") (NASDAQ:FTR) in the United States District Court for the District of Connecticut on behalf of a class consisting of investors who purchased or otherwise acquired Frontier securities on the open market from April 1, 2016 through May 2, 2017, inclusive (the "Class Period"), seeking to recover compensable damages caused by Defendants' violations of the Securities Exchange Act of 1934. The Complaint alleges Defendants made materially false and/or misleading statements and/or failed to disclose that: (1) Frontier acquired a substantial number of non-paying accounts as part of its acquisition of the wireline operations of Verizon Communications, Inc.; (2) consequently, Frontier would be required to increase its reserves and write off amounts from accounts receivable associated with the non-paying accounts; and (3) as a result of the foregoing, Defendants' statements about Frontier's business, operations and prospects were false and misleading and/or lacked a reasonable basis. When the true details entered the market, the lawsuit claims that investors suffered damages. If you wish to serve as lead plaintiff, you must move the Court no later than November 27, 2017. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, or to discuss your rights or interests regarding this class action, please contact Thomas J. McKenna, Esq. or Gregory M. Egleston, Esq. of Gainey McKenna & Egleston at (212) 983-1300, or via e-mail at -- tjmckenna@gme-law.com -- or -- gegleston@gme-law.com Please visit our website at http://www.gme-law.comfor more information about the firm. Corporation ("Frontier" or the "Company") (NASDAQ:FTR) in the United States District Court for the District of Connecticut on behalf of a class consisting of investors who purchased or otherwise acquired Frontier securities on the open market from April 1, 2016 through May 2, 2017, inclusive (the "Class Period"), seeking to recover compensable damages caused by Defendants' violations of the Securities Exchange Act of 1934. The Complaint alleges Defendants made materially false and/or misleading statements and/or failed to disclose that: (1) Frontier acquired a substantial number of non-paying accounts as part of its acquisition of the wireline operations of Verizon Communications, Inc.; (2) consequently, Frontier would be required to increase its reserves and write off amounts from accounts receivable associated with the non-paying accounts; and (3) as a result of the foregoing, Defendants' statements about Frontier's business, operations and prospects were false and misleading and/or lacked a reasonable basis. When the true details entered the market, the lawsuit claims that investors suffered damages. If you wish to serve as lead plaintiff, you must move the Court no later than November 27, 2017. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, or to discuss your rights or interests regarding this class action, please contact Thomas J. McKenna, Esq. or Gregory M. Egleston, Esq. of Gainey McKenna & Egleston at (212) 983-1300, or via e-mail at -- tjmckenna@gme-law.com -- or -- gegleston@gme-law.com. -- Please visit our website at http://www.gme-law.comfor more information about the firm. [GN] GEICO GENERAL: Faces Coastal Wellness Suit in S.D. Florida ---------------------------------------------------------- A class action lawsuit has been filed against GEICO General Insurance Company. The case is styled as Coastal Wellness Centers, Inc., a Florida corporation, other Marlene Williams, Plantation Spinal Care Center, Inc. a Florida corporation, other Mary Ann Balbo, and Tower Health Center, Inc., a Florida corporation, on behalf of itself and all others similarly situated other Julie David, Plaintiffs v. GEICO General Insurance Company, Defendant, Case No. 0:17-cv-61963-BB (S.D. Fla., October 4, 2017). GEICO provides personal automobile insurance products. The company operates as a private passenger auto insurer.[BN] The Plaintiffs are represented by: Barbara Perez, Esq. Aronovitz Law 2 South Biscayne Blvd., Suite 3700 Miami, FL 33131 Tel: (305) 372-2772 Fax: (305) 397-1886 Email: bp@aronovitzlaw.com - and - Theophilos George Poulopoulos, Esq. Corredor, Husseini and Snedaker, P.A. 9130 South Dadeland Blvd Datran II Center, Suite 1902 Miami, FL 33156 Tel: (978) 621-4636 - and - Tod N. Aronovitz, Esq. Aronovitz Law One Biscayne Tower 2 South Biscayne Boulevard, Suite 3700 Miami, FL 33131 Tel: (305) 372-2772 Fax: (305) 397-1886 Email: ta@aronovitzlaw.com GOV'T EMPLOYEES: Faces Town Health Center Suit in S.D. of Fla. -------------------------------------------------------------- A class action lawsuit has been filed against Government Employees Insurance Company. The case is styled as Town Health Center, Inc., a Florida corporation on behalf of itself and all others similarly situated, other Valerie Maddox, Plaintiff v. Government Employees Insurance Company, Defendant, Case No. 0:17-cv-61962-WPD (S.D. Fla., October 4, 2017). Government Employees Insurance Company is an American auto insurance company headquartered in Chevy Chase, Maryland. It is the second largest auto insurer in the United States, after State Farm.[BN] The Plaintiff is represented by: Barbara Perez, Esq. Aronovitz Law 2 South Biscayne Blvd., Suite 3700 Miami, FL 33131 Tel: (305) 372-2772 Fax: (305) 397-1886 Email: bp@aronovitzlaw.com - and - Theophilos George Poulopoulos, Esq. Corredor, Husseini and Snedaker, P.A. 9130 South Dadeland Blvd Datran II Center, Suite 1902 Miami, FL 33156 Tel: (978) 621-4636 - and - Tod N. Aronovitz, Esq. Aronovitz Law One Biscayne Tower 2 South Biscayne Boulevard, Suite 3700 Miami, FL 33131 Tel: (305) 372-2772 Fax: (305) 397-1886 Email: ta@aronovitzlaw.com HONEY BUCKET: Judge Certifies Lawsuit as Class Action ----------------------------------------------------- Christine Willmsen, writing for Seattle Times, reports that a judge certified a lawsuit against Honey Bucket as a class action on September 27, allowing residents in Pacific who have complained of odors to join the case. Initially, four neighbors filed a lawsuit against Northwest Cascade and its Honey Bucket and FloHawks divisions, stating that odors, gases and fumes exacerbated their asthma, caused headaches and devalued their properties. Pierce County Superior Court Judge Helen Whitener's order allows property owners from about 40 lots in the same neighborhood to become plaintiffs. Northwest Cascade operates a small wastewater-treatment facility and cleaning station for Honey Buckets, which are portable bathrooms. Vacuum pumper trucks suck the contents of the Honey Buckets, wherever they are located, and transport the waste to the property in Pacific, south of Auburn. The sewage is pressed into biosolids that are used for agriculture and landscaping. The remaining partially treated wastewater is sent through the King County Wastewater Treatment system. The toilets are hauled to the Pacific facility, power washed and stored there until needed again. Since 2014, when the Honey Bucket operation expanded, neighbors have smelled sewage. [GN] IDAHO: Court Denies IDHW's Bid to Dismiss Olmstead Claims --------------------------------------------------------- Judge B. Lynn Winmill of the U.S. District Court for the District of Idaho denied Idaho Department of Health and Welfare (IDHW)'s motion to dismiss the case captioned K.W., by his next friend D.W., et al., Plaintiffs, v. RICHARD ARMSTRONG, in his official capacity as Director of the Idaho Department of Health and Welfare; PAUL LEARY, in his official capacity as Medicaid Administrator of the Idaho Department of Health and Welfare; and the IDAHO DEPARTMENT OF HEALTH AND WELFARE, a department of the State of Idaho, Defendants. TOBY SCHULTZ, et al. Plaintiffs, v. RICHARD ARMSTRONG, et al., Defendants, Case Nos. 1:12-cv-22-BLW, 3:12-CV-58-BLW (D. Idaho). The Plaintiffs are developmentally disabled adults who qualify for benefits under Medicaid. When their Medicaid payments were reduced, they brought this action against IDHW, alleging, among other things, that the IDHW's budgeting methodology -- referred to as the budget tool -- improperly reduces assistance for some recipients, that the notice that IDHW uses to inform participants of reductions in their assistance was insufficient, and that the process for appealing budget reductions was unfair. The Court certified a class of disabled adults to challenge the budget tool, notice form, and hearing procedures used by the IDHW. In addition to these class claims that challenge the system-wide processes of IDHW, there are individual claims brought by 16 Named Plaintiffs alleging that reductions to their budgets puts them at risk for being institutionalized. These individual claims are referred to as the Olmstead claims, after the Supreme Court decision requiring those in the position of the Plaintiffs to show that the challenged state action creates a serious risk of institutionalization. The parties then reached a settlement of the class claims. The IDHW agreed to develop a new budget tool, and to keep the Plaintiffs' benefits at their prior high level until the new budgets could be approved and implemented. The settlement gave the IDHW two years to develop and test the new budget tool. The Court approved the class action settlement, and set a trial date for the Olmstead claims. The IDHW now seeks to dismiss the Olmstead claims on the ground that they are moot because the Plaintiffs have been awarded the relief they sought in this lawsuit. In the alternative, the IDHW argues, the Court should proceed to trial on the Olmstead claims immediately. The Plaintiffs have not, however, obtained all the relief they sued for. The class settlement relies on funding from the State Legislature and approval by the Centers for Medicare and Medicaid Services for the required programmatic changes. Even if the funding and approvals are forthcoming and the new budget tool is implemented, it may reduce budgets, putting some participants in danger of institutionalization, thereby potentially violating Olmstead. In other words, the Plaintiffs have only a proposal at this point, not a final product. The Winmill cannot find, therefore, that the Plaintiffs' Olmstead claims are moot. While the Olmstead claims remain alive, they are not ready for trial until the new budget tool is approved and used to determine new individual budgets for the Plaintiffs. Only then will the parties know whether the new budgets are reduced to the point where the Plaintiffs are in danger of being institutionalized. That time is more than a year away, and so this case will sit for an extended period before the parties will know whether they must proceed to trial on the Olmstead claims or whether those claims will be truly moot. These circumstances call for the case to be administratively terminated, without prejudice to the right of any party to reopen the case for any reason. Once the budget tool has been implemented, and applied to the Plaintiffs, the parties can reopen the case to determine whether the Olmstead claims need to be dismissed or tried. In accordance with the Memorandum Decision set forth, Judge Winmill denied IDHW's motion to dismiss and administratively closed without prejudice the case to the right of either party to reopen the case for any reason. The parties will notify the Court when the Olmstead issues are either ready for trial or are to be dismissed. The Court will not set any trial date until that point, if necessary. A full-text copy of the Court's Sept. 22, 2017 Memorandum Decision and Order is available at https://is.gd/f7dJ1V from Leagle.com. K W, Plaintiff, represented by James Marshall Piotrowski, HERZFELD & PIOTROWSKI. K W, Plaintiff, represented by Marty Durand, Herzfeld & Piotrowski, LLP & Richard Alan Eppink, American Civil Liberties Union of Idaho Foundation. Christie Mathwig, Plaintiff, represented by James Marshall Piotrowski, HERZFELD & PIOTROWSKI, Marty Durand, Herzfeld & Piotrowski, LLP & Richard Alan Eppink, American Civil Liberties Union of Idaho Foundation. C L, Plaintiff, represented by James Marshall Piotrowski, HERZFELD & PIOTROWSKI, Marty Durand, Herzfeld & Piotrowski, LLP & Richard Alan Eppink, American Civil Liberties Union of Idaho Foundation. A L, through her guardian EB, Plaintiff, represented by James Marshall Piotrowski, HERZFELD & PIOTROWSKI. A L, Plaintiff, represented by Marty Durand, Herzfeld & Piotrowski, LLP & Richard Alan Eppink, American Civil Liberties Union of Idaho Foundation. K S, Plaintiff, represented by James Marshall Piotrowski, HERZFELD & PIOTROWSKI, Marty Durand, Herzfeld & Piotrowski, LLP & Richard Alan Eppink, American Civil Liberties Union of Idaho Foundation. Matthew S, Plaintiff, represented by James Marshall Piotrowski, HERZFELD & PIOTROWSKI, Marty Durand, Herzfeld & Piotrowski, LLP & Richard Alan Eppink, American Civil Liberties Union of Idaho Foundation. N R, Plaintiff, represented by James Marshall Piotrowski, HERZFELD & PIOTROWSKI, Marty Durand, Herzfeld & Piotrowski, LLP & Richard Alan Eppink, American Civil Liberties Union of Idaho Foundation. T F, Plaintiff, represented by James Marshall Piotrowski, HERZFELD & PIOTROWSKI, Marty Durand, Herzfeld & Piotrowski, LLP & Richard Alan Eppink, American Civil Liberties Union of Idaho Foundation. Richard Armstrong, Defendant, represented by Brian V. Church, Office of the Attorney General, Civil Litigation Division, Clay R. Smith, OFFICE OF ATTORNEY GENERAL, Cynthia Lin Yee-Wallace, Office of Attorney General & W. Scott Zanzig, Office of the Idaho Attorney General, Civil Litigation. Idaho Department of Health and Welfare, Defendant, represented by Brian V. Church, Office of the Attorney General, Civil Litigation Division, Clay R. Smith, OFFICE OF ATTORNEY GENERAL, Cynthia Lin Yee-Wallace, Office of Attorney General & W. Scott Zanzig, Office of the Idaho Attorney General, Civil Litigation. Lisa Hettinger, Defendant, represented by Brian V. Church, Office of the Attorney General, Civil Litigation Division, Clay R. Smith, OFFICE OF ATTORNEY GENERAL, Cynthia Lin Yee-Wallace, Office of Attorney General & W. Scott Zanzig, Office of the Idaho Attorney General, Civil Litigation. Idaho Care Providers Network, Amicus, represented by James Marshall Piotrowski, HERZFELD & PIOTROWSKI & Marty Durand, Herzfeld & Piotrowski, LLP. INTERCEPT PHARMACEUTICALS: Nov. 27 Lead Plaintiff Bid Deadline Set ------------------------------------------------------------------ Federman & Sherwood announces that on September 27, 2017, a class action lawsuit was filed in the United States District Court for the Southern District of New York against Intercept Pharmaceuticals, Inc. (NASDAQ:ICPT). The complaint alleges violations of federal securities laws, Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5, including allegations of issuing a series of material or false misrepresentations to the market which had the effect of artificially inflating the market price during the Class Period, which is May 31, 2016 through September 20, 2017. Plaintiff seeks to recover damages on behalf of all Intercept Pharmaceuticals, Inc. shareholders who purchased common stock during the Class Period and are therefore a member of the Class as described above. You may move the Court no later than Monday, November 27, 2017 to serve as a lead plaintiff for the entire Class. However, in order to do so, you must meet certain legal requirements pursuant to the Private Securities Litigation Reform Act of 1995. If you wish to discuss this action, obtain further information and participate in this or any other securities litigation, or should you have any questions or concerns regarding this notice or preservation of your rights, please contact: Robin Hester FEDERMAN & SHERWOOD 10205 North Pennsylvania Avenue Oklahoma City, OK 73120 Email to: -- rkh@federmanlaw.com -- Or, visit the firm's website at www.federmanlaw.com [GN] ISRAMCO: Court Allows $12.7-Bil. Class Action to Proceed -------------------------------------------------------- Sue Surkes, writing for Times of Israel, reports that the Israel Supreme Court on September 28 gave the green light for a NIS 45 billion ($12.7 billion) class action against the private consortium that operates Israel's only functioning natural gas production complex. In ruling against the consortium's appeal to reject the class action bid, the court also ordered it to pay legal costs of NIS 40,000 ($11,300), the Globes financial daily reported. The petitioner, one Moshe Nazri -- who like most Israelis, is a consumer of electricity -- claims the companies are exploiting their monopoly over the Tamar gas field to charge the Israel Electric Corporation unfairly high prices. Among the companies targeted by the suit, the biggest in Israel's history, are Isramco, Dor Energy, Delek Drilling, Avner Oil & Gas Exploration, the Delek Group and US-based Noble Energy. On the day he submitted his petition in June 2014, Nazri said the group was exploiting its position to charge the IEC $5.40 for a unit of gas-generated energy (mmbtu) when the real cost was $2.34. An aerial view of the Tamar gas-processing rig off the southern coastal city of Ashkelon, June 23, 2014. (Moshe Shai/Flash90) Backed up by a professional opinion from an American expert on the gas economy, Prof. James Smith, Nazri claimed that this would reap for the consortium profits of some NIS 2 billion ($567 million) a year. Smith claimed, among other things, that the Tamar consortium was making a profit of around 57% a year on its investment. After failing to convince the Tel Aviv District Court to throw out the request for a class action against it, the consortium appealed to the Supreme Court, which issued its ruling on September 28. Nazri's lawyers Yitzhak Yaari, Esq. and Gilad Barnea, Esq. welcomed the court's decision, saying it "removes one of the most significant legal obstacles on the way to compensating IEC consumers. "In addition to the District Court, the Supreme Court also rejected the Tamar monopoly and the attorney general's attempt to prevent a deep and thorough discussion about the fairness of the natural gas prices charged by the Tamar consortium." The court clarified that approval of the framework did not signify approval of the price. "We are convinced that at the end of the legal process, it will be found that the Tamar monopoly is using its monopolistic power to charge the most excessive price for the natural gas that belongs to every citizen of Israel." A statement from the consortium said that despite the two courts' decisions, they were still confident that Nazri's attempt was "futile" and destined to fail. Nazri's claims were exaggerated, and were cut off from the way the industry set prices and signed contracts for natural gas, the statement said. The consortium charged that Israel was only now rehabilitating "the considerable damage caused to its reputation" by the long- delayed natural gas industry framework signed by the government. Referring to last week's discovery of a fault in an undersea pipeline serving Tamar, which forced temporary closure of the pipe for repairs and forced the IEC to resort to coal, which is costlier than gas, the statement said, "Only in the past week did the citizens of Israel understand how significant the contribution of natural gas is to the reduction of electricity prices and the reduction of air pollution in Israel." The Tamar field, which was discovered in 2009 and began production in 2013, has estimated reserves of up to 238 billion cubic meters (8.4 trillion cubic feet). Leviathan, discovered in 2010 and set to begin production in 2019, is estimated to hold 535 billion cubic meters (18.9 trillion cubic feet) of natural gas, along with 34.1 million barrels of condensate. [GN] JOHNSON & JOHNSON: Thousands of Women Sue Over Baby Powder ---------------------------------------------------------- Tiffany Hsu, writing for New York Times, reports that thousands of women across the country are suing the consumer goods giant Johnson & Johnson over its baby powder, claiming that talcum particles in the popular product caused their ovarian cancer. The plaintiffs, however, are not working as a team. They are taking the company to court one at a time. In many product liability complaints, class action status is difficult to win, given the various ways the product can be sold and used. Such cases often end up being individually litigated with the expectation that there will eventually be a mass payout. This approach can be effective, according to plaintiffs' lawyers. Each successive verdict, they say, sends a signal about how much plaintiffs can expect to be paid if, and when, a company agrees to settle. "You can't get to a global settlement until both sides have a really clear sense of the strengths and weaknesses and value of these claims," said Nora Freeman Engstrom, a professor at Stanford Law School. "And the only way to test that is on the battlefield, which is trial." But going to court is expensive and risky -- for both sides. The tally of damages from verdicts against Johnson & Johnson is already in the hundreds of millions of dollars. And the harm to the company is not just financial: Its reputation could suffer if baby powder, one of its longest-standing products, is seen by the public as unsafe. The cases are emotionally compelling. Many of the plaintiffs -- 4,800 as of July 2 -- are extremely ill. In addition to seeking restitution, they are asking that Johnson & Johnson add a warning to its baby powder label or replace the product entirely with a similar one formulated with cornstarch. Class action status "ends up taking the individuality out of the cases," said Allen Smith, a lawyer who has represented plaintiffs in all of the cases to go to trial. And, he said, each victim "deserves the opportunity to have her day in court as fast as possible." But the safety concerns are based on inconclusive science. Talcum powders contain talc, which includes moisture-absorbing particles of oxygen, magnesium and silicon. Asbestos, a known carcinogen that sometimes appears in natural talc, was stripped from all commercially used talc in the 1970s, according to the American Cancer Society. Plaintiffs in the talc cases, citing studies from 1971 on, said that talc in baby powder can be absorbed by the reproductive system and cause inflammation in the ovaries when applied for feminine hygiene purposes. But the National Cancer Institute said on its website that "the weight of evidence does not support an association between perineal talc exposure and an increased risk of ovarian cancer." As for sending a signal, the cases are mixed at this point. Johnson & Johnson has lost six of the seven cases decided so far. A New Jersey state court judge dismissed two other complaints last year before they reached trial, ruling that the plaintiffs lacked credible scientific evidence. Johnson & Johnson, which is appealing the verdicts that favored plaintiffs, said in a statement that it was "guided by the science." It did not comment on whether it planned to pursue a global settlement. "Ovarian cancer is a devastating diagnosis and we deeply sympathize with the women and families impacted by this disease," said Carol Goodrich, a spokeswoman for the company. "We are preparing for additional trials in the U.S. and will continue to defend the safety of Johnson's Baby Powder." The company is no stranger to enormous legal challenges. As of early July, Johnson & Johnson faced lawsuits stemming from its blood thinner Xarelto, which 20,000 plaintiffs said caused uncontrollable bleeding. Another 55,500 cases concern pelvic mesh for women, which attorneys general in Washington and California said caused urinary dysfunction, loss of sexual function, constipation and other complications. The first talc trial was in 2013 in Federal District Court in South Dakota. A jury found Johnson & Johnson negligent in a complaint filed by a Sioux Falls resident, Deane Berg, 60, but did not award her damages. Ms. Berg, who used the company's baby powder for 40 years and developed ovarian cancer in 2006, said she had turned down a $1.3 million settlement offer from the company. She instead wanted, but failed to force, the company to put warning labels on the product or to remove it from shelves. Ms. Berg said she had endured "brutal" chemotherapy for six months and had also sustained permanent hearing loss, nerve damage, anemia and depression. Her cancer is in remission. "It would be better to put all of these cases together and go after Johnson & Johnson for the whole thing," she said. So far, pretrial procedures in nearly 900 talc cases have been consolidated into what is known as a multidistrict litigation, or MDL. Complaints filed in different federal courts are being transferred to a single bundle in Federal District Court in New Jersey, where Johnson & Johnson is based and where many of its employees would probably serve as witnesses. MDLs tend to reduce costs and time. Only one set of expert witnesses needs to be called. Lead lawyers chosen for each side oversee the process. More consistency from the courts could mean a smaller legal bill for Johnson & Johnson. By 2007, three years after the drugmaker Merck removed its Vioxx pain medication from pharmacy shelves, the company had paid more than $1 billion in legal fees over nearly 20 trials before agreeing to spend $4.85 billion to settle 27,000 lawsuits. Plaintiffs claimed, and evidence showed, that the drug increased the risk of heart attacks and strokes. For Johnson & Johnson, which recorded $806 million in net litigation expenses for the 2016 fiscal year and at least $400 million during the second quarter of fiscal 2017, the most painful blow in the talc litigation came on Aug. 21. That was when a jury in Los Angeles County Superior Court awarded Eva Echeverria, 63, of California, $417 million in her case against the company. The decision included $347 million in punitive damages, which are awarded in only 5 percent of civil trials in which plaintiffs are successful, according to government data. Juries typically tack on punitive damages to a standard compensatory award when they deem a defendant's behavior to be especially harmful. "To me, that's a very prudent, reasonable award, to be honest," said Mr. Smith, one of Ms. Echeverria's lawyers. Clients must wait out the appeals process before receiving a payout, Mr. Smith said. Not that Johnson & Johnson, which recorded $16.5 billion in profits last year, would appear to be too worried about the money. "In the history of major litigation cases against big pharma, there's only been a few that really raise the bar to impacting the stock, but we haven't seen those in a long time," said Damien Conover, an analyst at Morningstar. "There's a lot of room for a company like Johnson & Johnson to digest legal costs." [GN] KIA MOTORS: Faces "Kondash" Suit in Middle District of Georgia -------------------------------------------------------------- A class action lawsuit has been filed against Kia Motors America Inc. The case is styled as Tom Kondash, on behalf of himself and all others similarly situated, Plaintiff v. Kia Motors America Inc, Kia Motors Corporation, Defendants, Hyundai Motor Manufacturing of Alabama LLC, Case No. 4:17-mc-00006-CDL (M.D. Ga., October 4, 2017). The Defendants are manufacturer of motor vehicles. The Movant is represented by: CLINTON T SPEEGLE, Esq. Email: cspeegle@lightfootlaw.com - and - HARLAN I PRATER, IV, Esq. 400 20TH ST N CLARK BLDG BIRMINGHAM, AL 35203 Tel: (205) 581-0700 Email: hprater@lfwlaw.com - and - Jackson Roger Sharman, III, Esq. 400 20 ST N BIRMINGHAM, AL 35203 Tel: (205) 581-0789 Fax: (205) 380-9189 Email: jsharman@lightfootlaw.com - and - RACHEL M LARY, Esq. Email: rlary@lightfootlaw.com LENDINGCLUB CORP: Oct. 12 Class Cert. Hearing in Securities Suit ---------------------------------------------------------------- In the case captioned In re LENDINGCLUB SECURITIES LITIGATION. This Document Relates to: ALL ACTIONS, Case Nos. C 16-02627 WHA, C 16-02670 WHA, C 16-03072 WHA (N.D. Cal.), Judge William Alsup of the U.S. District Court for the Northern District of California will hear all the putative intervenors' motions -- to shorten time, to intervene, and objecting to class certification -- at the same time as the class certification motion on Oct. 12, 2017 at 8:00 a.m. On Sept. 21, 2017, the class representatives in a certified class action pending in California Superior Court, In re Lending Club Corp. S'holder Litig., No. CIV 537000 (Cal. Super. Ct., San Mateo City) moved for an order shortening time so that the Court could consider their motion to intervene for the purpose of objecting to class certification in the captioned action. Along with their motion to shorten time, the putative intervenors filed a motion to intervene and a motion objecting to class certification. All parties in the captioned action may separately respond to each of these motions by noon on Oct. 5, 2017. The Putative intervenors will not be permitted to reply due to the lateness of their filing, but they may appear on the motions to shorten time and to intervene, and if intervention is granted on the motion for class certification. All motions will be heard at the same time as the class certification motion on Oct. 12, 2017 at 8:00 a.m. A full-text copy of the Court's Sept. 22, 2017 Order is available at https://is.gd/tkR4S8 from Leagle.com. Steeve Evellard, Plaintiff, represented by Jeremy A. Lieberman -- jalieberman@pomlaw.com -- Pomerantz Grossman Hufford Dahlstrom & Gross LLP, pro hac vice. Steeve Evellard, Plaintiff, represented by Jennifer Pafiti -- jpafiti@pomlaw.com -- Pomerantz LLP. Nicole Wertz, Plaintiff, represented by Jacob Allen Walker -- jake@blockesq.com -- Block & Leviton LLP & Lesley Elizabeth Weaver -- lweaver@bfalaw.com -- Bleichmar Fonti & Auld LLP. LendingClub Corporation, Defendant, represented by David Michael Grable -- davegrable@quinnemanuel.com -- Quinn Emanuel Urquhart Sullivan LLP, Joseph Caldwell Sarles -- josephsarles@quinnemanuel.com -- Quinn Emanuel Urquhart Oliver and Hedges, Diane M. Doolittle -- dianedoolittle@quinnemanuel.com -- Quinn Emanuel Urquhart & Sullivan, LLP, John Mark Potter -- johnpotter@quinnemanuel.com -- Quinn Emanuel Urquhart & Sullivan, LLP, Kyle Kenneth Batter -- kylebatter@quinnemanuel.com -- Quinn Emanuel Urquhart Sullivan, Robert Patrick Vance, Jr. -- bobbyvance@quinnemanuel.com -- Quinn Emanuel Urquhart and Sullivan, LLP & Victoria Blohm Parker -- vickiparker@quinnemanuel.com -- Quinn Emanuel Urquhart Sullivan, LLP. Renaud LaPlanche, Defendant, represented by Scott Alexander Edelman, Milbank Tweed, pro hac vice, Adam Joshua Fee, Milbank Tweed, pro hac vice, Lisa Marie Damm Northrup, Milbank, Tweed, Hadley and McCloy LLP, Robert John Liubicic, Milbank Tweed & Sarah L. Rothenberg, Milbank, Tweed, Hadley McCloy LLP. Carrie L Dolan, Defendant, represented by Charlene Sachi Shimada - - charlene.shimada@morganlewis.com -- Morgan, Lewis & Bockius LLP, Lucy Han Wang -- lucy.wang@morganlewis.com -- Morgan, Lewis & Bockius LLP & Susan Diane Resley -- susan.resley@morganlewis.com - - Morgan Lewis & Bockius. Daniel T. Ciporin, Defendant, represented by David Michael Grable, Quinn Emanuel Urquhart Sullivan LLP, Diane M. Doolittle, Quinn Emanuel Urquhart & Sullivan, LLP, John Mark Potter, Quinn Emanuel Urquhart & Sullivan, LLP, Joseph Caldwell Sarles, Quinn Emanuel Urquhart Oliver and Hedges, Kyle Kenneth Batter, Quinn Emanuel Urquhart Sullivan, Robert Patrick Vance, Jr., Quinn Emanuel Urquhart and Sullivan, LLP & Victoria Blohm Parker, Quinn Emanuel Urquhart Sullivan, LLP. Jeffrey Crowe, Defendant, represented by David Michael Grable, Quinn Emanuel Urquhart Sullivan LLP, Diane M. Doolittle, Quinn Emanuel Urquhart & Sullivan, LLP, John Mark Potter, Quinn Emanuel Urquhart & Sullivan, LLP, Joseph Caldwell Sarles, Quinn Emanuel Urquhart Oliver and Hedges, Kyle Kenneth Batter, Quinn Emanuel Urquhart Sullivan, Robert Patrick Vance, Jr., Quinn Emanuel Urquhart and Sullivan, LLP & Victoria Blohm Parker, Quinn Emanuel Urquhart Sullivan, LLP. Rebecca Lynn, Defendant, represented by David Michael Grable, Quinn Emanuel Urquhart Sullivan LLP, Diane M. Doolittle, Quinn Emanuel Urquhart & Sullivan, LLP, John Mark Potter, Quinn Emanuel Urquhart & Sullivan, LLP, Joseph Caldwell Sarles, Quinn Emanuel Urquhart Oliver and Hedges, Kyle Kenneth Batter, Quinn Emanuel Urquhart Sullivan, Robert Patrick Vance, Jr., Quinn Emanuel Urquhart and Sullivan, LLP & Victoria Blohm Parker, Quinn Emanuel Urquhart Sullivan, LLP. John J. Mack, Defendant, represented by David Michael Grable, Quinn Emanuel Urquhart Sullivan LLP, Diane M. Doolittle, Quinn Emanuel Urquhart & Sullivan, LLP, John Mark Potter, Quinn Emanuel Urquhart & Sullivan, LLP, Joseph Caldwell Sarles, Quinn Emanuel Urquhart Oliver and Hedges, Kyle Kenneth Batter, Quinn Emanuel Urquhart Sullivan, Robert Patrick Vance, Jr., Quinn Emanuel Urquhart and Sullivan, LLP & Victoria Blohm Parker, Quinn Emanuel Urquhart Sullivan, LLP. Mary Meeker, Defendant, represented by David Michael Grable, Quinn Emanuel Urquhart Sullivan LLP, Diane M. Doolittle, Quinn Emanuel Urquhart & Sullivan, LLP, John Mark Potter, Quinn Emanuel Urquhart & Sullivan, LLP, Joseph Caldwell Sarles, Quinn Emanuel Urquhart Oliver and Hedges, Kyle Kenneth Batter, Quinn Emanuel Urquhart Sullivan, Robert Patrick Vance, Jr., Quinn Emanuel Urquhart and Sullivan, LLP & Victoria Blohm Parker, Quinn Emanuel Urquhart Sullivan, LLP. John C. (Hans) Morris, Defendant, represented by David Michael Grable, Quinn Emanuel Urquhart Sullivan LLP, Diane M. Doolittle, Quinn Emanuel Urquhart & Sullivan, LLP, John Mark Potter, Quinn Emanuel Urquhart & Sullivan, LLP, Joseph Caldwell Sarles, Quinn Emanuel Urquhart Oliver and Hedges, Kyle Kenneth Batter, Quinn Emanuel Urquhart Sullivan, Robert Patrick Vance, Jr., Quinn Emanuel Urquhart and Sullivan, LLP & Victoria Blohm Parker, Quinn Emanuel Urquhart Sullivan, LLP. Lawrence H. Summers, Defendant, represented by David Michael Grable, Quinn Emanuel Urquhart Sullivan LLP, Diane M. Doolittle, Quinn Emanuel Urquhart & Sullivan, LLP, John Mark Potter, Quinn Emanuel Urquhart & Sullivan, LLP, Joseph Caldwell Sarles, Quinn Emanuel Urquhart Oliver and Hedges, Kyle Kenneth Batter, Quinn Emanuel Urquhart Sullivan, Robert Patrick Vance, Jr., Quinn Emanuel Urquhart and Sullivan, LLP & Victoria Blohm Parker, Quinn Emanuel Urquhart Sullivan, LLP. MDL 2744: Objections to Denial of Protective Order Bid Overruled ---------------------------------------------------------------- In the case captioned IN RE: FCA US LLC MONOSTABLE ELECTRONIC GEARSHIFT LITIGATION, MDL No. 2744, Case No. 16-md-02744 (E.D. Mich.), Judge David M. Lawson of the U.S. District Court for the Eastern District of Michigan, Southern Division, overruled the Plaintiffs' objections to the Magistrate Judge David R. Grand's order denying their motion for protective order. The Plaintiffs' motion for protective order specified that their depositions must be taken either (i) in the largest city within 75 miles of an Individual Plaintiff's place of residence; or (i) by use of video conference facilities under Federal Rule of Civil Procedure 30(b)(4). In his order denying the Plaintiffs' motion, the Magistrate Judge reviewed with exemplary detail and clarity the factual background of the dispute and the applicable principles of law, and concluded that the motion should be denied because the Plaintiffs had not articulated any factual basis to show that any of them would suffer a "clearly defined and serious injury" sufficient to warrant the relief sought. After reviewing the record of proceedings and the Plaintiffs' objections, Judge Lawson finds that the Plaintiffs have failed to identify any clear error in the Magistrate Judge's ruling, and agrees with the Magistrate Judge's conclusion that the Plaintiffs have failed to articulate any sufficient basis for a finding that there is "good cause" to impose the geographic limitations on the taking of their depositions that they propose. As an initial matter, the Plaintiffs' reliance on the geographic specifications for the places of taking depositions by subpoena under Federal Rule of Civil Procedure 45 is misplaced. Rule 45 is procedurally inapplicable in the context of a party's deposition, which may be taken upon issuance of a written notice, without need for a subpoena. Judge Lawson further finds that the Magistrate Judge also did not err in finding that the Plaintiffs failed to supply in support of their motion any evidence to show that any of them would suffer a clearly defined and serious injury -- or any discernible hardship at all. The plaintiffs' motion was not supported by affidavits of any of the named plaintiffs, and the plaintiffs did not even proffer any specific information relating to their individual financial or personal circumstances. Their conclusory representations, unsupported by any specific facts or evidence, are insufficient to support a finding that any Individual Plaintiff would suffer a clearly defined and serious injury as a result of being compelled to travel to the forum in which they chose to file their lawsuits to be deposed. In sum, Judge Lawson concludes the plaintiffs have failed to put forth any factual basis to justify the relief sought in their motion for a protective order, and the Magistrate Judge did not err in reciting or applying the pertinent principles of law that preclude the relief that they seek. Accordingly, Judge Lawson overruled the Plaintiffs' objections to the Magistrate Judge's order denying their motion for protective order. A full-text copy of the Court's Sept. 22, 2017 Order is available at https://is.gd/uqSTTz from Leagle.com. In Re FCA US LLC Monostable Electronic Gearshift Litigation, represented by Larry J. Saylor -- saylor@millercanfield.com -- Miller, Canfield. Bruce Vosburgh, Plaintiff, represented by E. Powell Miller -- epm@miller.law.com -- The Miller Law Firm, Sharon S. Almonrode -- ssa@miller.law.com -- The Miller Law Firm, P.C. & Dennis A. Lienhardt -- dal@millerlawpc.com -- The Miller Law Firm, P.C.. Timothy Weber, Plaintiff, represented by E. Powell Miller, The Miller Law Firm, Joseph H. Meltzer -- jmeltzer@ktmc.com -- Kessler Topaz Meltzer & Check, LLP, Peter A. Muhic -- pmuhic@ktmc.com -- Kessler Topaz Meltzer & Check, LLP, Sharon S. Almonrode, The Miller Law Firm, P.C. & Tyler S. Graden, Kessler Topaz Meltzer & Check, LLP. Bernadine Hartt, Plaintiff, represented by David M. Honigman -- dhonigman@manteselaw.com -- Mantese Honigman, PC, Douglas Toering -- dtoering@manteselaw.com -- Mantese Honigman, P.C., Gerard V. Mantese -- gmantese@manteselaw.com -- Mantese Honigman, P.C., E. Powell Miller, The Miller Law Firm, James A. Buster, Mantese Honigman, P.C., Kevin A. Seely, Robbins Arroyo LLP, Krista M. Hosmer, Mantese Honigman, P.C., Leonid Kandinov, Robbins Arroyo LLP, Matthew Thomas Prewitt, Cuneo Gilbert & LaDuca, LLP & Robert K. Shelquist -- rkshelquist@locklaw.com -- Lockridge Grindal Nauen PLLP. Berardino D'Onofrio, Plaintiff, represented by David M. Honigman, Mantese Honigman, PC, Douglas Toering, Mantese Honigman, P.C., Gerard V. Mantese, Mantese Honigman, P.C., E. Powell Miller, The Miller Law Firm, James A. Buster, Mantese Honigman, P.C., Kevin A. Seely, Robbins Arroyo LLP, Krista M. Hosmer, Mantese Honigman, P.C., Leonid Kandinov, Robbins Arroyo LLP, Matthew Thomas Prewitt, Cuneo Gilbert & LaDuca, LLP & Robert K. Shelquist, Lockridge Grindal Nauen PLLP. Marc Hughes, Plaintiff, represented by Daniel E. Gustafson -- dgustafson@gustafsongluek.com -- Gustafson Gluek PLLC & E. Powell Miller, The Miller Law Firm. Andre Barfield, Plaintiff, represented by E. Powell Miller, The Miller Law Firm, Kevin F. O'Shea -- kfo@miller.law -- Miller Law Firm & Sharon S. Almonrode, The Miller Law Firm, P.C.. Nina Walker, Plaintiff, represented by Daniel E. Gustafson, Gustafson Gluek PLLC & E. Powell Miller, The Miller Law Firm. David Goldsmith, Plaintiff, represented by Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Christopher R. Pitoun -- christopherp@hbsslaw.com -- Hagens Berman, E. Powell Miller, The Miller Law Firm, Elizabeth A. Fegan -- beth@hbsslaw.com -- Hagens Berman Sobol Shapiro, LLP & Thomas Eric Loeser, Hagens Berman Sobol Shapiro LLP. Michael Vincent Nathan, Jr, Plaintiff, represented by Steve W. Berman, Hagens Berman Sobol Shapiro LLP, Christopher R. Pitoun, Hagens Berman, E. Powell Miller, The Miller Law Firm, Elizabeth A. Fegan, Hagens Berman Sobol Shapiro, LLP & Thomas Eric Loeser -- toml@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP. Pascual Pietri, Plaintiff, represented by Steve W. Berman, Hagens Berman Sobol Shapiro LLP, Christopher R. Pitoun, Hagens Berman, E. Powell Miller, The Miller Law Firm, Elizabeth A. Fegan, Hagens Berman Sobol Shapiro, LLP & Thomas Eric Loeser, Hagens Berman Sobol Shapiro LLP. FCA US LLC, Defendant, represented by Amanda J. Hettinger -- ahettinger@thompsoncoburn.com -- Thompson Coburn LLP, Kathy A. Wisniewski -- kwisniewski@thompsoncoburn.com -- Thompson Coburn LLP, Larry J. Saylor, Miller, Canfield, Sharon B. Rosenberg -- srosenberg@thompsoncoburn.com -- Thompson Coburn LLP, Stephen A. D'Aunoy, Thompson Coburn LLP, Cheryl A. Bush -- bush@bsplaw.com -- Bush, Seyferth & Paige, PLLC, Michael R. Williams -- williams@bsplaw.com -- Bush Seyferth & Paige PLLC & Thomas L. Azar, Jr. -- tazar@thompsoncoburn.com -- Thompson Coburn LLP. MISSOURI: Ct. Denies AT's Bid for Attys' Fees in "Van Orden" ------------------------------------------------------------ In the case captioned JOHN VAN ORDEN, et al., Plaintiffs, v. JEFF STRINGER, et al., Defendants, Case No. 4:09CV00971 AGF (), Judge Audrey G. Fleissig of the U.S. District Court for the Eastern District of Missouri, Eastern Division, denied both Armstrong Teasdale LLP ("AT")'s motion for attorney's fees and costs, and its motion requesting oral argument on the same. AT moves the Court for $3,504,047.88 in attorney's fees and $423,410.46 in costs. Attorney Richard B. Scherrer from AT was appointed by the Court beginning on Sept. 2, 2009, to represent the Plaintiffs in this class action challenging the care and treatment provided to civilly committed residents of the Missouri Department of Mental Health's Sex Offender Rehabilitation and Treatment Services facilities. Scherrer withdrew as lead counsel in January 2014 for medical reasons, and at his request, the Court at that time appointed Eric M. Selig from Rosenblum Schwartz, P.C. as the new lead counsel for the Plaintiffs, with the understanding that other attorneys from AT would remain as co-counsel, but only in a supporting role. Attorneys from the American Civil Liberties Union of Eastern Missouri also entered and remained the co-counsel of record for the Plaintiffs. However, AT apparently elected to increase its role over the course of litigation, and an attorney from AT, John H. Quinn, III took a co-lead role at the April 2015 bench trial in the liability phase of this case. Although the Court's Memorandum Opinion after that trial ruled in favor of the Plaintiffs on some liability issues, the Court later vacated that ruling based on the U.S. Court of Appeals for the Eighth Circuit's decision in Karsjens v. Piper. The Court entered judgment in favor of the Defendants on July 6, 2017. AT acknowledges that the Plaintiffs were not prevailing parties in this litigation. However, it argues that the Court should nevertheless award the fees and costs requested because (i) under Missouri law, which AT argues should apply because the Plaintiffs pleaded both federal and pendant state law constitutional claims, attorneys' fees are recoverable when a successful litigant benefits a group of similarly situated individuals under an equitable "balancing the benefits" doctrine; and (ii) the Plaintiffs may be considered successful litigants even though they lost their case, under a "catalyst rule," which deems the Plaintiffs successful if they achieved a desired result because their lawsuit brought about a voluntary change in the defendant's conduct. The Defendants oppose AT's motion. After carefully considering the parties' briefs and the authorities cited therein, Judge Fleissig will deny AT's motion. Even if AT were correct that Missouri law governs its request for attorney's fees (which is doubtful), AT has pointed to no Missouri case law or other authorities persuading the Court that Missouri would decline to follow Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Resources and would instead authorize an equitable award of attorney's fees to losing plaintiffs as a result of voluntary changes made by the defendants. Moreover, without discounting the tremendous amount of time and energy that Scherrer, Quinn, and the other attorneys from AT devoted to this case, granting AT's motion for fees and costs would be problematic in light of the unique circumstances of this case. As the parties are aware, at a time when the Memorandum Opinion faced significant risk of reversal, either by an appeal in this case or the then-pending appellate decision in Karsjens, Scherrer and Quinn opposed the proposed class action settlement that other class counsel, including lead counsel, supported. That settlement, as it turned out, would have provided substantially more benefits to the Plaintiff class. Accordingly, Judge Fleissig denied both AT's motions. A full-text copy of the Court's Sept. 22, 2017 Memorandum and Order is available at https://is.gd/HqkBg9 from Leagle.com. John R. Van Orden, Plaintiff, represented by Anthony E. Rothert, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION. John R. Van Orden, Plaintiff, represented by Daniel K. O'Toole -- dotoole@armstrongteasdale.com -- ARMSTRONG TEASDALE, LLP, John H. Quinn, III, JOHN H. QUINN III, Scott K.G. Kozak -- skozak@armstrongteasdale.com -- ARMSTRONG TEASDALE, LLP, Christopher LaRose -- clarose@armstrongteasdale.com -- ARMSTRONG TEASDALE LLP, Gillian R. Wilcox, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI, Jessie M. Steffan, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION, Omri E. Praiss, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION & Thomas E. Wack, BRYAN CAVE LLP. Michael D. McCord, Plaintiff, represented by Anthony E. Rothert, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION, Daniel K. O'Toole, ARMSTRONG TEASDALE, LLP, James G. Martin, DOWD BENNETT, LLP, John H. Quinn, III, JOHN H. QUINN III, Scott K.G. Kozak, ARMSTRONG TEASDALE, LLP, Christopher LaRose, ARMSTRONG TEASDALE LLP, Gillian R. Wilcox, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI, essie M. Steffan, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION, Omri E. Praiss, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION & Thomas E. Wack, BRYAN CAVE LLP. Joseph Miller, Plaintiff, represented by Anthony E. Rothert, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION, Daniel K. O'Toole, ARMSTRONG TEASDALE, LLP, James G. Martin, DOWD BENNETT, LLP, John H. Quinn, III, JOHN H. QUINN III, Scott K.G. Kozak, ARMSTRONG TEASDALE, LLP, Christopher LaRose, ARMSTRONG TEASDALE LLP, Gillian R. Wilcox, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI, Jessie M. Steffan, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION, Omri E. Praiss, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION & Thomas E. Wack, BRYAN CAVE LLP. Macon Baker, Plaintiff, represented by Anthony E. Rothert, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION, Daniel K. O'Toole, ARMSTRONG TEASDALE, LLP, James G. Martin, DOWD BENNETT, LLP, John H. Quinn, III, JOHN H. QUINN III, Scott K.G. Kozak, ARMSTRONG TEASDALE, LLP, Christopher LaRose, ARMSTRONG TEASDALE LLP, Gillian R. Wilcox, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI, Jessie M. Steffan, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION & Thomas E. Wack, BRYAN CAVE LLP. Chance Tyree, Plaintiff, represented by Anthony E. Rothert, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION, Daniel K. O'Toole, ARMSTRONG TEASDALE, LLP, James G. Martin, DOWD BENNETT, LLP, John H. Quinn, III, JOHN H. QUINN III, Scott K.G. Kozak, ARMSTRONG TEASDALE, LLP, Christopher LaRose, ARMSTRONG TEASDALE LLP, Gillian R. Wilcox, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI, Jessie M. Steffan, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION, Omri E. Praiss, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION & Thomas E. Wack, BRYAN CAVE LLP. Walter W. Ritchey, Plaintiff, represented by Anthony E. Rothert, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION, Daniel K. O'Toole, ARMSTRONG TEASDALE, LLP, James G. Martin, DOWD BENNETT, LLP, John H. Quinn, III, JOHN H. QUINN III, Scott K.G. Kozak, ARMSTRONG TEASDALE, LLP, Christopher LaRose, ARMSTRONG TEASDALE LLP, Gillian R. Wilcox, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI, Jessie M. Steffan, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION, Omri E. Praiss, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION & Thomas E. Wack, BRYAN CAVE LLP. David Brown, Plaintiff, represented by Anthony E. Rothert, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION, Daniel K. O'Toole, ARMSTRONG TEASDALE, LLP, James G. Martin, DOWD BENNETT, LLP, John H. Quinn, III, JOHN H. QUINN III, Scott K.G. Kozak, ARMSTRONG TEASDALE, LLP, Christopher LaRose, ARMSTRONG TEASDALE LLP, Gillian R. Wilcox, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI, Jessie M. Steffan, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION, Omri E. Praiss, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION & Thomas E. Wack, BRYAN CAVE LLP. Anthony Amonette, Plaintiff, represented by Anthony E. Rothert, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION, Daniel K. O'Toole, ARMSTRONG TEASDALE, LLP, James G. Martin, DOWD BENNETT, LLP, John H. Quinn, III, JOHN H. QUINN III, Scott K.G. Kozak, ARMSTRONG TEASDALE, LLP, Christopher LaRose, ARMSTRONG TEASDALE LLP, Gillian R. Wilcox, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI, Jessie M. Steffan, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION, Omri E. Praiss, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION & Thomas E. Wack, BRYAN CAVE LLP. Richard Tyson, Plaintiff, represented by Anthony E. Rothert, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION, Daniel K. O'Toole, ARMSTRONG TEASDALE, LLP, James G. Martin, DOWD BENNETT, LLP, John H. Quinn, III, JOHN H. QUINN III, Scott K.G. Kozak, ARMSTRONG TEASDALE, LLP, Christopher LaRose, ARMSTRONG TEASDALE LLP, Gillian R. Wilcox, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI, Jessie M. Steffan, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION, Omri E. Praiss, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION & Thomas E. Wack, BRYAN CAVE LLP. Harold Myers, Defendant, represented by Dean John Sauer, ATTORNEY GENERAL OF MISSOURI & Katherine S. Walsh, ATTORNEY GENERAL OF MISSOURI. Alan Blake, Defendant, represented by Dean John Sauer, ATTORNEY GENERAL OF MISSOURI & Katherine S. Walsh, ATTORNEY GENERAL OF MISSOURI. Julie Inman, Defendant, represented by Dean John Sauer, ATTORNEY GENERAL OF MISSOURI & Katherine S. Walsh, ATTORNEY GENERAL OF MISSOURI. Jay Englehart, Defendant, represented by Dean John Sauer, ATTORNEY GENERAL OF MISSOURI & Katherine S. Walsh, ATTORNEY GENERAL OF MISSOURI. Justin Arnett, Defendant, represented by Dean John Sauer, ATTORNEY GENERAL OF MISSOURI & Katherine S. Walsh, ATTORNEY GENERAL OF MISSOURI. Rick Gowdy, Defendant, represented by Dean John Sauer, ATTORNEY GENERAL OF MISSOURI, Joel A. Poole, ATTORNEY GENERAL OF MISSOURI & Katherine S. Walsh, ATTORNEY GENERAL OF MISSOURI. Robert Reitz, Defendant, represented by Dean John Sauer, ATTORNEY GENERAL OF MISSOURI, Joel A. Poole, ATTORNEY GENERAL OF MISSOURI & Katherine S. Walsh, ATTORNEY GENERAL OF MISSOURI. Linda Moll, Defendant, represented by Dean John Sauer, ATTORNEY GENERAL OF MISSOURI, Joel A. Poole, ATTORNEY GENERAL OF MISSOURI & Katherine S. Walsh, ATTORNEY GENERAL OF MISSOURI. Daman Longworth, Defendant, represented by Dean John Sauer, ATTORNEY GENERAL OF MISSOURI, Joel A. Poole, ATTORNEY GENERAL OF MISSOURI & Katherine S. Walsh, ATTORNEY GENERAL OF MISSOURI. Donna Augustine, Defendant, represented by Dean John Sauer, ATTORNEY GENERAL OF MISSOURI, Joel A. Poole, ATTORNEY GENERAL OF MISSOURI & Katherine S. Walsh, ATTORNEY GENERAL OF MISSOURI. MODESTO IRRIGATION: Faces Suit for Electricity Bills Overcharge --------------------------------------------------------------- Garth Stapley, writing for Modbee, reports that a potential class- action lawsuit accusing the Modesto Irrigation District of overcharging electricity customers to subsidize farmers is on hold. Attorneys on both sides agreed to wait until the California Supreme Court rules on another case from Redding with similar elements. That could happen in coming months. The Modesto lawsuit seeks refunds for perhaps 100,000 power customers -- just about everyone paying for electricity in Modesto, Salida, Empire and Waterford as well as parts of Oakdale, Riverbank, Escalon and Ripon. MID's profit from selling electricity has averaged more than $93 million a year since 2010. The district uses the extra money to repay debt, build reserves and cover the farm water subsidy because growers pay far less than MID's actual cost for delivering that water. Overcharging electricity customers might be legal under state law if voters were asked to approve the arrangement, but MID has not. Neither has the MID board -- a majority of whose members are farmers -- raised power rates in recent years, since an attorney in 2012 warned the board that doing so without letting customers vote might be illegal. The district initially faced two class actions brought separately by Andrew Hobbs and Dave Thomas, both Modesto residents, in mid- 2015. They since have merged. The Modesto and Redding cases both are based on interpretations of Propositions 218 and 26, respectively, approved by California voters in 1996 and 2010, both treating charges for government and utility services. Appellate justices found that Redding collects some $6 million each year in what amounts to a hidden tax on electricity customers because the money is transferred to the city's general fund for other purposes. Attorney Walter McNeill, representing those challenging the transfer, had warned agencies not to depend on such cash cows, in a Modesto Bee article published a year before Hobbs and Thomas sued MID. "These agencies that think they can get away with what they're doing are making a bad bet and jeopardizing their future," McNeill said then. "If they don't wean themselves off this bad money, they're going to be in a world of hurt when it goes away." Opposing McNeill is attorney Michael Colantuono, Esq. of Colantuono, Highsmith & Whatley, PC. who represents the city of Redding as well as MID in the local lawsuit. The Supreme Court generally hears oral arguments about two years after receiving written briefs. That happened in July 2015 for the Redding case, but its oral arguments have yet to be scheduled. Once the Redding decision comes down, things should move quickly for the MID case. The parties have agreed to confer within two weeks of the decision, including talking about how to notify all MID electricity customers since November 2015 that they will join the lawsuit unless they opt out. All farmers who buy MID water also will be excluded, court documents say. [GN] NATIONAL GRID: GBL Claims in "Jenkins" Dismissed w/o Prejudice -------------------------------------------------------------- Judge Joanna Seybert of the U.S. District Court for the Eastern District of New York dismissed without prejudice Plaintiffs' New York General Business Law ("GBL") claims in the case captioned JARRETT JENKINS, EMMOT STEELE, and FRANCES ROYAL, on behalf of themselves and all others similarly situated, Plaintiffs, v. NATIONAL GRID USA SERVICE COMPANY, INC., KEYSPAN GAS EAST CORPORATION, NIAGARA MOHAWK POWER CORPORATION, and THE BROOKLYN UNION GAS COMPANY, Defendants, No. 15-CV-1219 (JS) (GRB) (E.D. N.Y). The National Grid is a utility company that provides gas and electricity to consumers in the northeast United States. Three of the Defendants -- Niagara Mohawk Power, Keyspan East Corporation, and the Brooklyn Union -- are distributors of electricity and/or natural gas and subsidiaries of National Grid. The remaining Defendant, National Grid USA renders services, to companies in the National Grid USA holding company system," including, inter alia, accounting, customer services and property acquisition and management. The Plaintiffs allege that the Defendants and their agents violated the Telephone Consumer Protection Ac ("TCPA") by calling customers' cellular telephone numbers using automated telephone dialing systems and automated or prerecorded voice messages without prior consent. In addition to calls made by the Defendants on their own behalf, the Plaintiffs maintain that the Defendants are vicariously liable for violations of the TCPA by third parties hired by the Defendants, including debt collectors hired to collect outstanding bills. Additionally, the Plaintiffs allege that the Defendants called New York customers' residential and cellular telephone numbers and left prerecorded messages that violated NY GBL Section 399-p. On April 14, 2017, after two motions to dismiss, the Plaintiffs filed the Revised Second Amended Complaint, asserting the following three causes of action: (i) Count I - violations of the TCPA on behalf of Plaintiffs Royal and Steele, and a class of customers directly contacted by National Grid; (ii) Count II - violations of the TCPA on behalf of the Plaintiffs and a class of customers contacted by third parties; and (iii) Count III - violations of NY GBL Section 399-p on behalf of the Plaintiffs Steele and Royal and a class of New York customers directly contacted by National Grid. On Nov. 4, 2016, the Defendants filed a motion to dismiss the GBL Claim for lack of subject matter jurisdiction. On Dec. 2, 2016, the Plaintiffs filed their opposition, and on Dec. 16, 2016, the Defendants filed their reply in further support of the motion. Judge Seybert is not persuaded that the same underlying harms animate the purpose behind both the TCPA and GBL Section 399-p, and that New York lawmakers enacted GBL Section 399-p to redress concerns about consumer privacy and avoiding or preventing harassing robo-calls. She finds that the Plaintiffs' conclusory allegation claiming invasion of privacy, harassment, and nuisance is insufficient to demonstrate a concrete injury. Moreover, the Judge he finds that the messages' omissions did not present a material risk of harm to the purported disclosure interest underlying Section 399-p. The Judge rejects the Plaintiffs' argument that the statutory violations alone are sufficient to establish standing. Based on the Plaintiffs' allegations in the case, Judge Seybert finds that the Plaintiffs have failed to demonstrate a concrete injury resulting from the Defendants' violations of GBL Section 399-p. For these reasons, Judge Seybert granted the Defendants' motion for lack of subject matter jurisdiction and dismissed without prejudice the Plaintiffs' GBL claim on behalf of Royal, Steele, and the putative class (Count III of the Revised Second Amended Complaint). With respect to the Plaintiffs' request leave to amend the Revised Second Amended Complaint, the Judge finds that the Plaintiffs have not filed a proposed amended pleading or described the new allegations. She is hesitant to permit another amendment considering the current disposition of the case and the prior amendments. Moreover, due to seemingly endless motion practice, the Defendants have not yet filed an answer. In light of these concerns, the Judge denied the leave to amend at this time. Should the Plaintiffs wish to amend the Revised Second Amended Complaint, they may file a proper motion to amend along with the proposed Third Amended Complaint. A full-text copy of the Court's Sept. 22, 2017 Memorandum and Order is available at https://is.gd/Uq419D from Leagle.com. Jarrett R. Jenkins, Plaintiff, represented by Daniel M. Hutchinson -- dhutchinson@lchb.com -- Lieff Cabraser Heimann & Bernstein LLP, pro hac vice. Jarrett R. Jenkins, Plaintiff, represented by Douglas Ian Cuthbertson -- dcuthbertson@lchb.com -- Lieff Cabraser Heimann & Bernstein LLP, John T. Nicolaou -- jnicolaou@lchb.com -- Lieff, Cabrager, Heimann & Berstein, Jonathan D. Selbin -- jselbin@lchb.com -- Lieff Cabraser Heimann & Bernstein, LLP & Joseph S. Tusa --info@tpcnylaw.com -- Tusa, P.C.. Emmot Steele, Plaintiff, represented by Daniel M. Hutchinson, Lieff Cabraser Heimann & Bernstein LLP, pro hac vice, Douglas Ian Cuthbertson, Lieff Cabraser Heimann & Bernstein LLP, John T. Nicolaou, Lieff, Cabrager, Heimann & Berstein, Jonathan D. Selbin, Lieff Cabraser Heimann & Bernstein, LLP & Joseph S. Tusa, Tusa, P.C.. Frances Royal, Plaintiff, represented by Daniel M. Hutchinson, Lieff Cabraser Heimann & Bernstein LLP, pro hac vice, Douglas Ian Cuthbertson, Lieff Cabraser Heimann & Bernstein LLP, John T. Nicolaou, Lieff, Cabrager, Heimann & Berstein, Jonathan D. Selbin, Lieff Cabraser Heimann & Bernstein, LLP & Joseph S. Tusa, Tusa, P.C.. Niagara Mohawk Power Corporation, Defendant, represented by Richard H. Brown -- rbrown@daypitney.com -- Day Pitney LLP & Anthony Joseph Marchetta -- amarchetta@daypitney.com -- DAY PITNEY LLP. Keyspan Gas East Corporation, Defendant, represented by Richard H. Brown, Day Pitney LLP & Anthony Joseph Marchetta, DAY PITNEY LLP. The Brooklyn Union Gas Company, Defendant, represented by Richard H. Brown, Day Pitney LLP & Anthony Joseph Marchetta, DAY PITNEY LLP. National Grid USA Service Company, Inc., Defendant, represented by Anthony Joseph Marchetta, DAY PITNEY LLP & Richard H. Brown, Day Pitney LLP. Experian Information Solutions, Inc., Interested Party, represented by Chris J. Lopata -- cjlopata@jonesday.com -- Jones Day. Allied Account Services, Inc., Interested Party, represented by Arthur Sanders -- asanders@bn-lawyers.com -- Barron & Newburger, P.C. NEW YORK LIFE: Class Settlement in TCPA Suit Has Final Approval --------------------------------------------------------------- In the case captioned ERIC B. FROMER CHIROPRACTIC, INC., a California corporation, individually and as the representative of a class of similarly-situated persons, Plaintiff, v. NEW YORK LIFE INSURANCE AND ANUITY CORPORATION, NYLIFE SECURITIES LLC, and JOHN DOES 1-10, Defendants, Case No. CV 15-04767-AB (JCx) (C.D. Cal.), Judge Andre Birotte, Jr., of the U.S. District Court for the Central District of California granted the parties' Motion for Final Approval of the Class Action Settlement. The Settlement Class is defined as all persons who (i) on or about March 25, 2015 or on or about March 31, 2015 (ii) were successfully sent telephone facsimile transmissions titled "Savings and Investing 20/20 for Medical Professionals." The Defendants have created the Settlement Fund to pay valid class member claims, class action settlement notice and administration costs, attorney's fees, costs, and expenses, and an incentive award to the Plaintiff as determined and awarded by the Court. If the value of the claims does not exceed 15% of the Settlement Fund ($165,000), the difference between the value of claims made and 15% of the Settlement Fund will be paid to charity as cy pres. The Court has selected The Lawyers Committee for Civil Rights to receive cy pres in this case. The remaining unclaimed monies in the Settlement Fund will revert back to the Defendants as outlined and agreed upon in the Settlement Agreement. As agreed in and subject to the Settlement Agreement, each member of the Settlement Class who submitted a timely and valid Claim Form will be mailed a check not to exceed $400 from the Settlement Fund. The Claims Administrator received 119 claims corresponding to 314 fax transmissions. The Claims Administrator will cause those checks to be mailed after receiving the Settlement Funds from Defendants. The checks issued to the claiming Settlement Class members will be void 181 days after issuance and any amount from voided checks will be retained by Defendants. The total amount to be paid for claims is $125,600. In accordance with the Settlement Agreement, the amount will be paid from the Settlement Fund as set forth in the Settlement Agreement. The total amount for the cy pres award to The Lawyers Committee for Civil Rights to receive will be $39,400 ($165,000 minus $125,600). In accordance with the Settlement Agreement, that amount will be paid from the Settlement Fund as set forth in the Settlement Agreement. Judge Birotte approved the Class Counsel's attorneys' fees in the total amount of $106,177.50 and out-of-pocket expenses of $12,770, which includes the costs of settlement administration. In accordance with the Settlement Agreement, that amount will be paid from the Settlement Fund as set forth in the Settlement Agreement. He approved a $1,000 incentive award to Eric B. Fromer Chiropractic, Inc., for serving as the Class Representative. In accordance with the Settlement Agreement, that amount will be paid from the Settlement Fund as set forth in the Settlement Agreement. The action, by or on behalf of the Plaintiff and all Settlement Class members against the Defendants by reason of the March 25, 2015 and March 31, 2015 fax transmissions titled "Savings and Investing 20/20 for Medical Professionals" are dismissed with prejudice and without taxable costs to any Party. The Court retains jurisdiction for 180 days over this action. The Plaintiff and all members of the Settlement Class and the Defendants to determine all matters relating in any way to the Final Judgment and Order, the Preliminary Approval Order, or the Settlement Agreement, including but not limited to, their administration, implementation, interpretation or enforcement. The Court further retains jurisdiction to enforce the Order. Judge Birotte finds that there is no just reason to delay the enforcement of the Final Approval Order and Judgement. A full-text copy of the Court's Sept. 22, 2017 Order is available at https://is.gd/lcsTYp from Leagle.com. Eric B. Fromer Chiropractic, Inc., Plaintiff, represented by Benjamin Jared Meiselas, Geragos and Geragos APC. Eric B. Fromer Chiropractic, Inc., Plaintiff, represented by Brian J. Wanca -- bwanca@andersonwanca.com -- Anderson and Wanca, pro hac vice, Ross M. Good -- rgood@andersonwanca.com -- Anderson and Wanca, pro hac vice, Ryan M. Kelly -- rkelly@andersonwanca.com -- Anderson and Wanca, pro hac vice, Wallace C. Solberg -- wsolberg@andersonwanca.com -- Anderson and Wanca, pro hac vice & Mark John Geragos -- mark@geragos.com -- Geragos and Geragos APC. New York Life Insurance and Annuity Corporation, Defendant, represented by Lewis S. Wiener -- lewiswiener@eversheds- sutherland.com -- Eversheds Sutherland US LLP, pro hac vice & Scott J. Hyman -- sjh@severson.com -- Severson and Werson APC. NYLIFE Securities LLC, Defendant, represented by Lewis S. Wiener, Eversheds Sutherland US LLP, pro hac vice & Scott J. Hyman, Severson and Werson APC. NUTRACEUTICAL CORP: Carlton Fields Discusses 9th Circuit Ruling --------------------------------------------------------------- Kristin Ann Shepard, Esq. -- kshepard@carltonfields.com -- and Paul Williams, Esq. -- pwilliams@carltonfields.com -- of Carlton Fields, in an article for JDSupra, wrote that within 10 days after the district court decertified a Rule 23(b)(3) aphrodisiac dietary supplement class for failure to show a class wide method for calculating damages, plaintiff orally advised the court of his intention to seek reconsideration. The district court then set a 10-day deadline for filing a motion for reconsideration -- in other words, 20 days after the decertification order. Plaintiff complied with the court's schedule. The district court denied the motion for reconsideration, and plaintiff filed a Rule 23(f) petition within 14 days of the order denying reconsideration. In a matter of first impression, the Ninth Circuit held that the Rule 23(f) deadline -- which allows a litigant to seek an interlocutory appeal of a district court's order granting or denying class certification within 14 days after the order is entered -- is procedural, not jurisdictional. Thus, the deadline can be tolled as a result of additional equitable circumstances to allow a good faith litigant to have her day in court. In doing so, the Ninth Circuit split from other circuits that strictly construe the language of Rule 23(f). In finding that the motion for reconsideration equitably tolled the 14-day Rule 23(f) deadline, the court reasoned that the plaintiff acted in good faith in following the district court's order regarding timing of the motion for reconsideration, and that motions for reconsideration also cause delay yet are frequently given the benefit of equitable tolling; the court further noted that Rule 23(f) review of certification decisions may in fact increase the level of certainty for litigants by providing appellate guidance on the certification issue prior to trial. Second, the Ninth Circuit panel reversed the decertification order for abuse of discretion, holding that as long as a method for calculating damages has been proposed, uncertainty regarding the amount of damages does not prevent class certification. Because plaintiff proposed that class damages be calculated by multiplying the average retail price by the number of units sold, his failure to provide evidence of the average retail price was not fatal to certification. Troy Lambert v. Nutraceutical Corp., No. 15-56423 (9th Cir. September 15, 2017). [GN] OMEL FLOWERS: Faces "Diaz" Suit in Southern District of Florida --------------------------------------------------------------- A class action lawsuit has been filed against Omel Flowers & Design Corp., a Florida corporation. The case is styled as Harry Diaz, on behalf of himself and others similarly situated, Plaintiff v. Omel Flowers & Design Corp., a Florida corporation and Maria Andrade, individually, Defendants, Case No. 1:17-cv- 23638-FAM (S.D. Fla., October 4, 2017). Omel Flowers & Design Corp. is a flower shop & florist.[BN] The Plaintiff is represented by: Hazel Solis Rojas, Esq. Law Office of Keith M. Stern, P.A. 2300 Glades Road, Suite 360W Boca Raton, FL 33431 Tel: (561) 299-3844 Fax: (561) 288-9031 Email: hsolis@workingforyou.com - and - Keith Michael Stern, Esq. Law Office of Keith M. Stern, P.A. One Flagler 14 NE 1st Avenue, Suite 800 Miami, FL 33132 Tel: (888) 505-9941 Fax: (561) 288-9031 Email: employlaw@keithstern.com PUEBLO CITY: Low-Income Renters File Class Action in Newark ----------------------------------------------------------- Shannon Mullen and Ken Serrano, writing for Asbury Park Press, report that a young mother of four who has battled rats and cockroaches and stood up against the landlord of a Newark housing complex deemed seriously deficient by the federal government has sued the owners of the complex where she lives. A class action suit was filed on behalf of Yanira Cortes and other unnamed renters of the 20-unit property, owned by Pueblo City Housing Co., in Superior Court, Newark, on Sept. 22. Ms. Cortes's story was highlighted in an investigation by the Asbury Park Press called "Renter Hell" examining the plight of low-income renters stuck in a system that favors property owners. The lawsuit alleges many of the problems faced by Cortes and others that the series uncovered. According to the complaint: The property at 86 New Brunswick Ave. is unsecured, allowing for illicit drug use in common areas. Ms. Cortes' two-bedroom apartment where she and her four young children live is infested with rats and cockroaches, as is other sections of the building. The front window of her home does not latch properly, creating a safety hazard, and there are leaks in two rooms. Messages for Pueblo City Housing Co. left with Realty Management Associates, which represents Pueblo City Housing Co., were not returned. A woman who answered the phone at the realty company's Chantilly, Virginia, office said her office would have received a copy of the complaint but it has not been served. She declined to give her name. Ms. Cortes and her attorneys, Christopher Placitella and Dennis Geier, both of Red Bank, have also declined to comment. The complex lies in a blighted neighborhood on Newark's south side. The residents there qualify for housing subsidies under Section 8 of the Housing Act of 1937 managed by the U.S. Department of Housing and Urban Development. They pay about a third of their incomes for housing and the program picks up the difference. Cortes, whose rent fluctuates depending on her employment, paid about $440 month for the two-bedroom apartment during the first quarter of this year. Recently, the state Bureau of Housing Inspection found safety violations that include defective fire escapes, bad lighting, standing water in the basement, dangerous wiring, broken windows and missing smoke detectors. An inspection as recent as June turned up unsafe living conditions, according to the complaint. Recent inspections by HUD have found the property to have "serious deficiencies.", As a result, HUD on Aug. 31, 2017 found Pueblo City to be in default of its housing assistance payments contract. HUD noted severe unsanitary conditions, a damaged roof, mold and mildew among other problems. The owners have 60 days to correct the problems. If they fail to, "the Section 8 assistance may be reduced, suspended, abated or terminated," according to a letter from HUD. HUD's Real Estate Assessment Center, which rates properties on a scale of 1-100, rated the Pueblo City property a 10. A passing score is 60. The government routinely counts and catalogs housing problems, but the billions of dollars in taxpayer-funded rent checks still keep some of the worst landlords in business, the Press found in its series. Under current law, it's difficult for the state to stop subsidies, giving landlords little incentive to improve their units. A bill sponsored by state Sen. Jennifer Beck, R-Monmouth, and Sen. Ronald Rice, D-Essex would give new powers to the state to crack down on unscrupulous landlords sheltered by shell companies who refuse to fix problem-plagued housing. The bill was introduced in May and remains in the Senate Budget and Appropriations Committee. The state and federal governments spent more than $1.3 billion of taxpayer money in 2016 on private subsidized housing in New Jersey, yet more than 1 in 3 families below the poverty line endure rats, mice and vermin in their rental homes, according to the federal 2015 American Housing Survey. Subsidized housing in New Jersey is getting worse, according to HUD inspection data. Average inspection scores in the state are down 10.5 percent from 2013 to 2016. Ms. Cortes is standing up against a system where inertia has maintained the status quo for decades. "I'm a problem. Why? Because I report everything that goes wrong," Ms. Cortes said in the Press' series. "If that makes me a troublemaker, so be it." [GN] REAL VALUE: "Camp Drug" Suit Alleges TCPA Violation --------------------------------------------------- Camp Drug Store, Inc., and all others similarly-situated v. Real Value Products, Corp. dba Hospital Pharmaceutical Consulting, Case No. 3:17-cv-01065 (S.D. Ill., October 3, 2017), seeks damages, injunctive relief, compensation and attorney fees against the Defendant for violation of the Telephone Consumer Protection Act. The Plaintiff alleges that the Defendant sent unsolicited advertisements by facsimile. Plaintiff Camp Drug Store is an Illinois corporation with its principal place of business in Madison County, Illinois. Defendant Real Value is a wholesale pharmacy supplier offering prescription pharmaceuticals, including name brand and generic drugs. The Defendant's principal place of business is in San Antonio, Texas. [BN] The Plaintiff is represented by: Phillip A. Bock, Esq. Tod A. Lewis, Esq. David M. Oppenheim, Esq. BOCK, HATCH, LEWIS & OPPENHEIM, LLC 134 N. La Salle St., Ste. 1000 Chicago, IL 60602 Tel: (312) 658-5500 Fax: (312) 658-5555 ROCHE HOLDING: Gardeck Named Lead Plaintiff in Securities Suit -------------------------------------------------------------- In the case captioned THOMAS BIONDOLILLO, individually and on behalf of all others similarly situated, Plaintiff, v. ROCHE HOLDING AG, SEVERIN SCHWAN, and ALAN HIPPE, Defendants, Civ. No. 17-04056 (D. N.J.), Judge Anne E. Thompson of the U.S. District Court for the District of New Jersey granted Kevin Gardeck's Motion to Appoint Lead Plaintiff and Approve Lead Piaintiff's Selection of Counsel. The case is a securities class action, pending class certification, by the Plaintiff, on behalf of others similarly situated, against the Defendants for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5. The Plaintiff alleges that the Defendants made false and misleading statements regarding the efficacy of two breast cancer treatments, which artificially inflated Roche Holding's stock price. He claims that he, and others who purchased securities pursuant to this misleading information, would not have done so otherwise. The Plaintiff filed his Complaint on June 6, 2017. On Aug. 7, 2017 Movant filed the Motion to Appoint, which has not been opposed by other members of the proposed class or the Defendants. The Rosen Law Firm, P.A. issued a notice the day the Complaint was filed on BusinessWire wire service. The notice included the basis of the Plaintiff's claims, the class period, the nature of the class, and the right to move the Court to be the Lead Plaintiff by Aug. 7, 2017 -- 60 days after the publication of the notice. As a threshold matter, the notice published in the case meets the PSLRA notice standards. The Movant claims that from March 2, 2017 to June 5, 2017, he purchased 10,250 shares of Roche Holding securities, spent a total of $329,955, and ultimately lost $7,490. Because no other individuals have come forward attesting to their losses, Judge Thompson finds that the Movant articulates a sufficiently significant financial interest. She has no information before her to suggest unfair or inadequate representation or unique and contradictory defenses to defeat the presumption of the most adequate Plaintiff. Therefore, she finds that the Movant should be appointed the Lead Plaintiff. Next, the Judge finds the Movant's retention of The Rosen Law Firm, P.A. as proposed Lead Counsel persuasive. The Rosen Law Firm wrote the Complaint and published the notice in this case. With its extensive experience in securities litigation and securities class actions, the Judge approved the Movant's choice of counsel. For the reasons stated, Judge Thompson approved the Movant's motion. A full-text copy of the Court's Sept. 22, 2017 Opinion is available at https://is.gd/KcwW2C from Leagle.com. Kevin Gardeck, Movant, represented by LAURENCE M. ROSEN -- lrosen@rosenlegal.com -- THE ROSEN LAW FIRM, PA. THOMAS BIONDOLILLO, Plaintiff, represented by LAURENCE M. ROSEN, THE ROSEN LAW FIRM, PA. SAN DIEGO, CA: City Trash Worker Wins Labor Rights Lawsuit ---------------------------------------------------------- Wndy Fry, writing for NBC San Diego, reports that the city has agreed to settle a class-action lawsuit brought by a San Diego trash collector. The suit alleged missed meal breaks, unpaid overtime and doctored time cards that he said falsely made it appear like the city was providing adequate breaks. The proposed settlement, announced on September 28, is in the amount of $500,000 and will be divided among the plaintiffs, all city trash workers. It still must be approved by a judge. A May 23, 2014, complaint against the city alleges the city violated the labor rights of trash collector Thomas Perez and his coworkers. The case, which involves about 220 trash truck drivers in the City's Environmental Services Department, claims the city failed to pay overtime wages or meal breaks to employees working more than five hours and additional meal periods for employees working in excess of 10 hours from May 2011 to present. The lawsuit also claimed the city doctored time cards to make it appear like the meal periods were taken. One of the issues, as stated in the lawsuit, is that trash collectors are responsible for their trash trucks and are required to stay on their collection routes during lunch. The city does not admit fault in the settlement agreement. The San Diego City Council is scheduled to approve the tentative agreement on September 28. An attorney for the plaintiffs said he could not comment until the deal was finalized. A spokesman for the City Attorney's office said this about the suit: "The City disputes liability. Nevertheless the parties accepted a mediator's proposal to settle for $500,000, inclusive of attorney fees and payments to drivers, to resolve the matter," said Gerry Braun from the City Attorney's office. "In settling the City admits no wrongdoing; rather, the settlement avoids further risk and exposure to taxpayers." [GN] SCANA CORPORATION: Motley Rice Files Class Action Lawsuit --------------------------------------------------------- Motley Rice LLC ("Motley Rice"), along with co-counsel, announced that it has filed a class action on behalf of purchasers of SCANA Corporation ("SCANA") (NYSE: SCG) common stock between January 19, 2016 and September 22, 2017 (the "Class Period"). This action, Norman vs. SCANA Corp., et al., No. 3:17-cv-02616-MBS, is filed in the U.S. District Court for the District of South Carolina. The complaint alleges SCANA and certain of its officers violated the Securities Exchange Act of 1934. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from today. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, contact plaintiff's counsel, Motley Rice at 1.800.768.4026 or via e-mail. A copy of the complaint may be viewed online. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. SCANA is a $7.3 billion energy-based holding company headquartered in Cayce, S.C. SCANA is principally engaged, through its subsidiaries, in regulated electric and natural gas utility operations in South Carolina, North Carolina and Georgia. Over the past decade, SCANA has spent more than $9 billion on a project to build two nuclear reactors at the V.C. Summer Nuclear Station in South Carolina (the "Nuclear Project"). Despite this massive expenditure -- financed by public investors as well as by raising customers' electrical rates nine times -- SCANA recently announced that it would abandon the Nuclear Project. Evidence then came to light that, for at least the prior 18 months, SCANA appeared to know of severe problems plaguing the Nuclear Project. The complaint alleges that during the Class Period, defendants made false and misleading statements and/or failed to disclose adverse information regarding the construction of the Nuclear Project, assuring investors that costs spending was prudent and substantial progress was being made, even when cost overruns and other delays began to materialize. As a result of defendants' false statements and/or omissions, SCANA's common stock traded at artificially inflated prices during the Class Period. On July 31, 2017, SCANA announced that it would abandon construction of the nuclear project because of cost overruns and delays. On August 4, 2017, the South Carolina Attorney General ("SC AG") announced the opening of an investigation into SCANA's abandonment of the Nuclear Project. On the same day, South Carolina state senators called for a special legislative session to investigate SCANA. On September 22, 2017, the SC AG publicly requested that the South Carolina State Law Enforcement Division launch a criminal investigation into the Nuclear Project. As a result of this news and other disclosures, SCANA's stock price has declined $20.90 per share, or 27.5%, to close at $55.22 per share on September 22, 2017, from its closing price high of $76.12 per share on July 6, 2016. Plaintiff seeks to recover damages on behalf of all purchasers of SCANA common stock during the Class Period (the "Class"). The plaintiff is represented by Motley Rice attorneys Marlon E. Kimpson, William S. Norton, Joshua C. Littlejohn, along with co- counsel David P. Abel of U.S. Market Advisors Law Group PLLC. Shareholders who owned SCANA Corporation, stock between January 19, 2016 and September 22, 2017 may have a claim. Motley Rice securities attorneys have represented investors in numerous securities fraud class actions as well as other complex shareholder matters and may be reached 1.800.768.4026 or by email. About Motley Rice LLC Motley Rice is one of the nation's largest plaintiffs' litigation firms. With a tradition of representing those whose rights have been violated, Motley Rice attorneys gained recognition for their pioneering asbestos lawsuits, their work with the State Attorneys General in the landmark litigation against Big Tobacco, and their representation of 9/11 families in the ongoing lawsuit against terrorist financiers. The firm continues to handle complex litigation in numerous areas, including securities fraud; antitrust; consumer protection; mesothelioma; environmental contamination; prescription and over-the-counter drugs; other medical devices; human rights; aviation disasters; and wrongful death. Motley Rice is headquartered in Mt. Pleasant, S.C., and has additional offices in Connecticut; Louisiana; Washington, D.C.; New York; Missouri; Rhode Island; and West Virginia. For more information, contact Motley Rice attorney Joshua C. Littlejohn (SC) at 1.800.768.4026 or visit www.motleyrice.com. Connect with us on Facebook, LinkedIn, and Twitter [GN] SCENIC EMISSIONS: "Judkins" Suit Seeks to Recover Unpaid OT ----------------------------------------------------------- Ray Judkins, and all others similarly-situated v. Scenic Emissions, LLC and James Williams, Case No. 1:17-cv-03859 (N.D. Ga., October 3, 2017), seek to recover unpaid overtime compensation, declaratory relief, and other relief under the Fair Labor Standards Act. Plaintiff Ray Judkins worked as an hourly paid emission inspector for Defendants from approximately January 2014 to August 2017. Defendant, Scenic Emissions, is a Georgia Limited Liability Company that operates and conducts business in Gwinnett County, Georgia. Defendant James Williams owns and operate Scenic Emissions. The Plaintiff is represented by: C. Ryan Morgan, Esq. MORGAN & MORGAN, P.A. 20 N. Orange Ave., 14th Floor P.O. Box 4979 Orlando, FL 32802-4979 Tel: (407) 420-1414 Fax: (407) 245-3401 E-mail: RMorgan@forthepeople.com SCHLUMBERGER TECHNOLOGY: Judge Decertifies FLSA Lawsuit ------------------------------------------------------- Adam Lidgett, writing for Law360, reports that a group of former Schlumberger equipment operators and trainees who have accused the company of cheating them out of wages were dealt a blow on September 28 when a federal judge decertified their case as a collective action under the Fair Labor Standards Act. U.S. District Judge Ralph R. Erickson granted a bid from Schlumberger Technology Corp. and Schlumberger Ltd. to decertify the previously conditionally certified FLSA collective, finding that the workers who brought the suit had failed to show that they were similarly situated. He also denied the bid of the workers to certify their case as a class action under Rule 23 of the Federal Rules of Civil Procedure. "Contrary to the plaintiffs' argument, the differences among the plaintiffs' claims are more than mere job responsibilities," the judge wrote. "The differences are legally significant, requiring individual assessment of each plaintiff's claims." Judge Erickson pointed out that while some workers claimed damages for unpaid training time, some others haven't and that while some got bonuses, yet others didn't. Additionally, some workers said that they had been paid below the minimum wage based on only salary and some others didn't, according to the judge. The judge said that while the workers' proposed solution to account for the differences in their claims was to create subclasses, that suggestion only divides the workers according to their job duties. "The plaintiffs have not convinced the court that the class members are similarly situated to the representative plaintiffs due to their wide-ranging employment and factual settings that give rise to their individual claims," Judge Erickson wrote. The former employees have accused Schlumberger, an oilfield services company, of violating the FLSA by paying equipment operators and trainees under the "fluctuating workweek method." This method, the judge said, allows employers to pay workers overtime at a rate less than time-and-a-half when an employment agreement meets various conditions. The workers have said that Schlumberger violated the fluctuating workweek method because it didn't pay a fixed salary, properly calculate overtime or pay minimum wage rates, Judge Erickson wrote. The workers filed the case in September 2013 under the FLSA and a North Dakota law seeking to recover allegedly unpaid minimum wages and overtime, according to court documents. In 2015, the court conditionally certified a collective class of equipment operators, trainees and other similar employees who worked at Schlumberger's location in Williston, North Dakota, and who were paid under the fluctuating workweek method for at least a week during a three-year period prior to the filing of the suit. In January, the plaintiffs moved for Rule 23 class action approval. Representatives for the parties did not immediately respond to requests for comment on September 28. The plaintiffs are represented by Galvin B. Kennedy, Esq. and Don J. Foty, Esq. of Kennedy Hodges LLP and Leo F.J. Wilking, Esq. of the Wilking Law Firm. Schlumberger is represented by Robert P. Lombardi, Esq. -- rpl@kullmanlaw.com -- of the Kullman Firm and M. Daniel Vogel, Esq. and Robert B. Stock, Esq. of the Vogel Law Firm. The case is Elliott v. Schlumberger Technology Corporation et al., case number 3:13-cv-00079, in the U.S. District Court for the District of North Dakota. [GN] SHAY NO. 1: Hit With Class Action Over BIPA Violations ------------------------------------------------------ Enquirer Democrat reports three individuals who worked at Shay No. 1 coal mine in Carlinville or Deer Run coal mine in Hillsboro have filed a class action complaint against the mining companies in connection with requirements that they clock in and out of their work shifts by having their hands scanned to verify their identity. The lawsuit was filed Aug. 16 by Robert Yeske, Dan Hopley and Ronald Stout, "individually and on behalf of all others similarly situated," against Macoupin Energy LLC, MaRyan Mining LLC, Hillsboro Energy LLC and Patton Mining LLC, though it was only recently made available as part of the public record. Yeske, a resident of Montgomery County, worked at Shay No. 1 coal mine in rural Carlinville (owned by Macoupin Energy and MaRyan Mining) from approximately 2001 to December 2016; Hopley, a resident of Cass County, worked at Deer Run coal mine near Hillsboro (owned by Hillsboro Energy and Patton Mining) from approximately 2010 to August 2015; and Stout, a resident of Madison County, worked at Deer Run coal mine from approximately May 2012 to late 2014. They are being represented by Brandon Wise and Paul A. Lesko of Peiffer Rosca Wolf Abdullah Carr and Kane, APLC. According to the complaint, the Biometric Information Privacy Act (BIPA) obligates the defendants to obtain a written release from an individual as a condition of employment in order to capture, collect and store that individual's biometric identifiers, including a fingerprint or hand scan, and biometric information derived from it, as well as inform employees in writing that the biometric identifier or information is being collected and stored; how long it will be stored; for what purposes that is being done; and when it will be permanently destroyed. It states that under BIPA, no biometric identifiers or information may be captured, collected, stored or recorded if those requirements are not met. The suit alleges that the defendants did not properly obtain the written release and did not make the required disclosures. The action is brought by Yeske on behalf of a Macoupin County class including "all persons who were enrolled in the biometric timekeeping system and subsequently hand scanned when clocking in or clocking out of work at the Shay No. 1 coal mine." Hopley and Stout brought the action on behalf of a Montgomery County class defined identically for those at Deer Run coal mine. The number of potential class members is unknown but estimated to be in excess of 200. The suit claims that under BIPA, the defendants and the class members are entitled to liquidated damages of $1,000 per violation or actual damages, whichever is greater, which they seek. In addition to that and the certification of the Macoupin and Montgomery county classes, with the plaintiffs as representatives, they also seek a judgment awarding the plaintiffs and class members all damages available to them under applicable law, including statutory or liquidated damages, and providing commensurate injunctive relief; attorney's fees and costs incurred in the litigation; other and further relief as the court deems just and appropriate; and a "trial by jury on all issues so triable." [GN] SI WIRELESS: Must Face Class Action Over Automated Text Messages ---------------------------------------------------------------- Heather Isringhausen Gvillo, writing for Madison - St. Clair Record, reports that District judge Nancy Rosenstengel denied SI Wireless's motion to dismiss a putative class action alleging it wrongfully sends automated text messages, holding that the defendant failed to prove an arbitration agreement binds the parties. "The text sent by Si Wireless was inadequate to communicate its intent to add a mandatory arbitration clause to the original contract or to support a finding that Campbell received reasonable notice of such terms," she wrote in her Sept. 5 order. "Thus, SI Wireless's attempt to modify the first contract by adding the arbitration clause fails. Further, the second contract does not mandate arbitration because the plain language of the clause carves out a specific exception for actions related to the failure to pay bills in a timely manner," she continued. Tennessee resident Andrea Campbell, individually and on behalf of all others similarly situated, filed the complaint on Dec. 8, 2016, in the U.S. District Court for the Southern District of Illinois against SI Wireless LLC for allegedly violating the Telephone Consumer Protection Act. The putative class is represented by Jeremy Glapion of The Glapion Law Firm LLC in Wall, NJ. Ms. Campbell alleges she fell behind on her payments in 2016 and began receiving automated text messages demanding she make a payment or risk having her service suspended. She alleges the messages were disruptive and attempted to revoke her consent for the automated messages but was told there was no way to stop the messages. SI Wireless filed a motion to dismiss the complaint for improper venue or, in the alternative, to compel arbitration on Jan. 5 through attorney Lorna Geiler -- lgeiler@meyercapel.com -- of Meyer Capel in Champaign, Ill. The defendant argues that its cellular telephone service agreement requires arbitration of any dispute "arising from or relating in any way" to the services provided. It also argues that the agreement sets the venue for arbitration in McCracken County, Ky., or Madison County, Tenn. In her order, Judge Rosenstengel wrote that the issue before the court is whether the arbitration clause is enforceable. "If the arbitration clause is enforceable, venue would not lie with this Court because only a district court in one of the forums selected has authority to compel arbitration," she wrote. Judge Rosenstengel concluded that the text message used by the defendant to notify Campbell of the arbitration clause was inadequate to create an arbitration agreement. She explained that the evidence presented "indicates the link in the relevant text connected to a web page that did not contain the arbitration language." "There is no evidence, therefore, that the terms of the arbitration clause were communicated to Campbell or that she was provided with notice that SI Wireless intended to add an arbitration clause. Thus, there is no enforceable arbitration agreement arising out of the first contract," Judge Rosenstengel wrote. Campbell's second contract includes an arbitration clause, but relates to a different phone number than the one at issue in the complaint. "Nothing in the second contract expressly states the intent of the parties to modify or incorporate the arbitration clause into the earlier contract," Judge Rosenstengel wrote. Further, SI Wireless's arbitration clause contains an exception for "actions relating to failure to timely pay billed charges," which are allowed to be brought in "small claims or another court with jurisdiction." "If the texts sent by SI Wireless arise from or relate to Campbell's failure to pay her bill on time, the arbitration clause will be applicable, but so will the exception. "Thus, even if the arbitration clause in the second contract can relate back to the phone line in the first contract, the explicit terms of the arbitration clause exclude Campbell's complaints from the mandatory arbitration provision," Judge Rosenstengel wrote. U.S. District Court for the Southern District of Illinois case number 3:16-cv-1320[GN] SONIC CORPORATION: Hit With Class Suit Over POS Data Breach ----------------------------------------------------------- Doug Olenick, writing for SC Magazine, reports that two Sonic Drive-In customers are taking legal action against Sonic for allowing their payment card data to possibly have been compromised when the fast-food chain's POS system was hacked and are demanding the company pay for credit monitoring services for those affected. Two Oregon residents, Michelle Vanderzanden and James Carlson, are looking to represent all potentially affected Sonic customers with their lawsuit that was filed on September 28 in the U.S. District Court, District Court of Oregon, Portland Division. Court documents state the two are filing this suit on behalf of the possible five million people who may be affected and the plaintiffs believe their information was compromised due to negligence on Sonic's behalf. "In an attempt to increase profits, Sonic Corporation negligently failed to maintain adequate technological safeguards to protect plaintiffs' information from unauthorized access by hackers. Sonic Corporation knew and should have known that failure to maintain adequate technological safeguards could eventually result in a massive data breach," the court document states. On Sept. 27 a Sonic spokesperson told SC Media the company was notified by its credit card processor that there was unusual activity involving cards used at Sonic restaurants. KrebsonSecurity is reporting that a recent dump of credit card info on a dark web credit card market called Joker's Stash contains card numbers recently used at Sonic, which were on sale for $25-$50 and are most likely tied to the breach. Christi Woodworth, Sonic's vice president of public relations told SC Media in an emailed note, "As Sonic's investigation is ongoing into this matter, it is premature to discuss the size and scope of this matter. We have a longstanding practice to not discuss pending or current litigation in the media. In an earlier communication the company told SC that the company had no new information regarding the breach itself. [GN] STARKIST: Faces New Class Action Over Under-filled Tuna Cans ------------------------------------------------------------ Jason Smith, writing for Undercurrent News, reports that a man in Oregon and a woman in California have sued US tuna giant Starkist in a proposed class-action lawsuit arguing that the brand under- filled tuna cans even after a similar claim ended with a 2015 settlement. The new lawsuit, filed on Sept. 13 by Donald Puckett and Melanie Axe in a Portland, Oregon, federal court, alleges that they purchased 12-ounce cans of tuna from Starkist, which is owned by South Korea's Dongwon Enterprise. The cans -- which included four products: solid white albacore tuna in water; solid white albacore tuna in vegetable oil; chunk light tuna in water; chunk light tuna in oil -- reportedly contained less tuna in them than advertised in violation of federal guidelines, the suit states. These purchases were made after the settlement of a similar case brought by lead plaintiff Patrick Hendricks, a California resident, in 2013. Starkist agreed to pay $12 million to settle those claims. That agreement defines the settlement class to include all US residents who bought Starkist products between Feb. 19, 2009 through Oct, 31, 2014. The new lawsuit filed by Puckett and Axe referenced the Hendricks case. "Defendant's failure, after the notice provided by the Hendricks case, to check and monito compliance of its accused products with its PDP (Principal Display Panel) labeling and with the FDA underfilling regulations shows reckless indifference and disregard toward the accuracy of its representations and/or intentional misrepresentation," the suit claims. The plaintiffs' lawyers describe the suit as a "proposed" class- action, though it has yet to be certified as such by the court. According to the complaint, there are "over 150,000 class members in the proposed class", including over 5,000 in Oregon and over 50,000 in California. Starkist, which did not immediately respond to a request for comment, has been under repeated legal fire lately with accusations including criminal price-fixing as well as a slew of related civil suits and claims that the company violated wastewater discharge rules at its American Samoa cannery, among others. [GN] SUNRISE CREDIT: Faces "Morris" Suit in S. Dist. Calif. ------------------------------------------------------ A class action lawsuit has been filed against Sunrise Credit Services, Inc. The case is styled as Florence Morris, individually and on behalf of others similarly situated, Plaintiff v. Sunrise Credit Services, Inc., Defendant, Case No. 3:17-cv- 02075-LAB-JMA (S.D. Cal., October 9, 2017). Defendant is a debt collector.[BN] The Plaintiff is represented by: Joshua B. Swigart, Esq. Hyde &Swigart 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Tel: (619) 233-7770 Fax: (619) 297-1022 Email: josh@westcoastlitigation.com SYNGENTA SEEDS: Settles Class Action Over Viptera Corn Seed ----------------------------------------------------------- Tom Meersman, writing for Star Tribune, reports that tens of thousands of farmers -- including an estimated 22,000 in Minnesota who filed a class-action lawsuit -- have reached a pending settlement with Syngenta Seeds LLC over a dispute about lost sales and lower corn prices. The settlement also would affect an estimated 60,000 to 70,000 Minnesota farmers who filed individual lawsuits and farmers in half a dozen other states including Kansas, Iowa, Nebraska and Illinois. A dollar amount for the settlement was not released. "It's a global settlement," said Lewis Remele, Minneapolis attorney and co-lead counsel for the Minnesota farmers. "It's intended to resolve the litigation in several states for all the farmers and the nonproducers, which are the elevators and ethanol plants." At issue is whether the company, a Minnetonka-based subsidiary of agri-giant Syngenta AG, was negligent in putting a genetically modified corn seed called Agrisure Viptera on the market too soon, before it had been approved by Chinese regulators. Syngenta launched the product in 2010 for planting in 2011 after its approval by U.S. agencies. The seed was genetically modified to kill corn earworm, cutworm and other insects. China rejected U.S. shipments that had any traces of Viptera beginning in late 2013. Minnesota farmers in the lawsuit alleged that they lost $450 million in sales and saw lower corn prices. The settlement also applies to another Syngenta corn seed called Agrisure Duracade, approved by U.S. regulators in 2013 and first planted in 2014. Settlement fund China approved Viptera for import in 2014 and Duracade in 2017 and has recently begun increasing its purchases of U.S. corn. Under the pending settlement, subject to court approval, Syngenta would establish a fund for those who claim they lost money on selling corn or corn byproducts after Sept. 15, 2013. More details about the fund and the claims process will become available after both sides execute the settlement and submit it and other papers to the court later this year. Some of the lawsuits also include Syngenta's parent company and other subsidiaries. The settlement was announced in court in Minneapolis, where a jury in its third week of hearing testimony in the Minnesota class- action case was dismissed. A federal jury in Kansas in June ordered Syngenta to pay nearly $218 million to more than 7,300 Kansas farmers in a similar lawsuit. Also in June, an Ohio judge dismissed a case against Syngenta filed by an ethanol company in state court. The global settlement does not include Canada. It also does not include exporters including Archer Daniels Midland and Cargill that have also filed separate lawsuits that are pending. 'Actions were appropriate' "Syngenta will continue to vigorously defend those cases," said company spokesman Paul Minehart in a statement. "Syngenta firmly maintains that its actions were appropriate and continues to believe that American farmers should have access to the latest U.S.-approved technologies to help them increase their productivity and crop yield." Syngenta's parent company, Syngenta AG, is headquartered in Switzerland and has been acquired in a $43 billion deal by China National Chemical Corp., a state-owned company. The acquisition was announced last year and completed in May 2017. Regulatory approval is still pending in Argentina and Costa Rica, the company said. [GN] SYSCO CORP: Ct. Refuses to Extend Discovery Deadline in "Freiri" ---------------------------------------------------------------- Magistrate Judge Nita L. Stormes of the U.S. District Court for the Southern District of California denied the Plaintiff's ex parte application to extend the deadlines for both discovery and the time to file a motion for class certification in the case captioned RICK FRIERI, on behalf of himself and all others similarly situated, and on behalf of the general public, Plaintiff, v. SYSCO CORPORATION; SYSCO SAN DIEGO, INC.; AND DOES 1-100, Defendants, Case No. 3:16-cv-01432-JLS-NLS (S.D. Cal.). This case presents a putative class action of truck drivers for alleged wage and hour violations while employed as drivers for the Defendants. The Plaintiff alleges violations on behalf of a state-wide putative class. Their motion for class certification is due to be filed by Nov. 10, 2017. The parties have been engaged in discovery, presenting two separate disputes for judicial determination. The Court also previously granted a continuance of 90 days to facilitate discovery of the parties prior to class certification. The Plaintiff requests an extension of time of an additional 90 days to review any email production and complete two depositions. He argues it has been meeting and conferring and working diligently to complete discovery, but cannot do so without documents and depositions. The Defendant opposes any such extension of time on several grounds, including (i) that production will be complete within the discovery period; (ii) it has provided deposition dates within the discovery cut-off; and (iii) the Plaintiff's counsel's alleged failure to timely meet and confer. The Court previously granted an extension of 90 days to permit additional discovery, and set deadlines for compliance consistent therewith. The Defendant represents discovery will be complete prior to the cut off and deposition dates have been provided. Judge Stormes concludes that the Plaintiff has not shown good cause to justify an additional three months, for a combined total of six months of extension for class discovery alone. Therefore, she denied the Plaintiff's request. In the event production of documents is not completed by the discovery cut-off date, the Plaintiff may re-file a request for an extension of time. The Judge issued an order to show cause as to why the Defendants have not produced documents consistent with the time periods set forth and should not be subject to discovery sanctions in an amount to be determined for each day that production is tardy. The Defendants must file explanatory briefing and/or declarations, totaling no more than 10 pages, by Sept. 29, 2017. Failure to do so will result in discovery sanctions. A full-text copy of the Court's Sept. 22, 2017 Order is available at https://is.gd/GpQ400 from Leagle.com. Rick Frieri, Plaintiff, represented by William D. Turley -- bturley@turleylawfirm.com -- The Turley Law Firm, APLC. Rick Frieri, Plaintiff, represented by Matthew Evan Crawford, The Turley & Mara Law Firm, APLC. Sysco Corporation, Defendant, represented by Julie Kwun -- jkwun@bakerlaw.com -- Baker & Hosteler, LLP, Margaret Rosenthal -- mrosenthal@bakerlaw.com -- Baker & Hostetler LLP, Sabrina Layne Shadi -- sshadi@bakerlaw.com -- Baker & Hostetler LLP & Vartan S. Madoyan -- vmadoyan@bakerlaw.com -- Baker and Hostetler LLP. Sysco San Diego, Inc., Defendant, represented by Julie Kwun, Baker & Hosteler, LLP, Margaret Rosenthal, Baker & Hostetler LLP, Sabrina Layne Shadi, Baker & Hostetler LLP & Vartan S. Madoyan, Baker and Hostetler LLP. T&A OF CITRUS: Faces "Vaughan" Suit in Middle District of Fla. -------------------------------------------------------------- A class action lawsuit has been filed against T&A of Citrus County, Inc. doing business as: Olive Tree Restaurant a Florida for profit corporation. The case is styled as Carol Vaughan, on behalf of herself and other similarly situated employees, Plaintiff v. T&A of Citrus County, Inc., doing business as: Olive Tree Restaurant a Florida for profit corporation and Pavlos Parnos, an individual, Defendants, Case No. 5:17-cv-00451-JSM-PRL (M.D. Fla., October 4, 2017). T&A of Citrus County Inc. is a small organization in the business services industry located in Beverly Hills, FL.[BN] The Plaintiff is represented by: Peter Bober, Esq. Bober & Bober, PA 1930 Tyler St Hollywood, FL 33020 Tel: (954) 922-2298 Fax: (954) 922-5455 Email: peter@boberlaw.com THEATRE DEVELOPMENT: Faces "West" Suit in S.D. of New York ----------------------------------------------------------- A class action lawsuit has been filed against Theatre Development Fund, Inc. The case is styled as Mary West, on behalf of herself and all others similarly situated, Plaintiff v. Theatre Development Fund, Inc., Defendant, Case No. 1:17-cv-07718 (S.D. N.Y., October 9, 2017). The Theatre Development Fund is a non-profit corporation dedicated to assisting the theatre industry in New York City.[BN] The Plaintiff is represented by: C.K. Lee, Esq. Lee Litigation Group, PLLC 30 East 39th Street 2nd Floor New York, NY 10016 Tel: (212) 465-1188 Fax: (212) 465-1181 Email: cklee@leelitigation.com TIER ONE: "Ceuric" Suit Alleges FLSA Violation ---------------------------------------------- Michael Ceuric, and all others similarly-situated v. Tier One, LLC dba Tier 1 Rental and Distribution, Case No. 2:17-cv-01240-RCM (W.D. Pa., September 24, 2017), seeks to recover unpaid overtime wages and other damages under Fair Labor Standards Act and the New Mexico Minimum Wage Act. The Defendant is a rental and distribution company operating primarily in Pennsylvania with headquarters in Pittsburgh and a satellite location in Beaver County. Tier 1 specializes in trucking, solids control equipment, consulting and cut-dry solidification services. Tier 1 employs consultants such as Solids Control Operators to carry out its work. The Plaintiff is represented by: Joshua P. Geist, Esq. GOODRICH & GEIST, P.C. 3634 California Ave. Pittsburgh, PA 15212 Tel: (412) 766-1455 Fax: (412) 766-0300 E-mail: josh@goodrichandgeist.com - and - Michael A. Josephson, Esq. Andrew Dunlap, Esq. JOSEPHSON DUNLAP LAW FIRM 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Tel: (713) 352-1100 Fax: (713) 352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH, PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Tel: (713) 877-8788 Fax: (713) 877-8065 E-mail: rburch@brucknerburch.com TINTRI INC: Faces "Tuller" Suit in Northern District of Cal. ------------------------------------------------------------ A class action lawsuit has been filed against Tintri, Inc. The case is styled as Lance Tuller, individually and on behalf of all others similarly situated, Plaintiff v. Tintri, Inc., Ken Klein and Ian Halifax, Defendants, Case No. 3:17-cv-05714-WHO (N.D. Cal., October 4, 2017). Tintri, Inc. develops and markets an enterprise cloud platform combining cloud management software technology and a range of all- flash storage systems for virtualized and cloud environments in the United States and internationally.[BN] The Plaintiff is represented by: Laurence M Rosen, Esq. The Rosen Law Firm. P.A. 355 South Grand Avenue, Suite 2450 Los Angeles, CA 90071 Tel: (213) 785-2610 Fax: (213) 226-4684 Email: lrosen@rosenlegal.com The Defendants are represented by: Caz Hashemi, Esq. Wilson Sonsini Goodrich &Rosati 650 Page Mill Road Palo Alto, CA 94304-1050 Tel: (650) 493-9300 Fax: (650) 565-5100 Email: CHASHEMI@WSGR.COM TOKIO MARINE: Court Dismisses "Azad" Suit Without Prejudice ----------------------------------------------------------- Judge Phyllis J. Hamilton of the U.S. District Court for the Northern District of California dismissed without prejudice the case captioned MOHAMMED AZAD, et al., Plaintiffs, v. TOKIO MARINE HCC - MEDICAL INSURANCE SERVICES GROUP, et al., Defendants, Case No. 17-cv-00618-PJH (N.D. Cal.) and struck Proposed Plaintiff Ladan Abdollahi's notice of voluntary dismissal. On Feb. 7, 2017, Plaintiffs Azad and Danielle Buckley initiated this putative class action. After complete briefing and hearing on the matter, on July 14, 2017, the Court granted the Defendants' motions to dismiss. The Plaintiffs were granted leave to file an amended complaint by Aug. 7, 2017. However, they were prohibited from adding claims or parties without leave of court or stipulation of the Defendants. On Aug. 3, 2017, the Plaintiffs accepted settlement offers from HCC Medical Insurance Services, LLC and HCC Life Insurance Company. On Aug. 4, 2017, the parties stipulated to a two-week extension for the Plaintiffs to file an amended complaint. In its order granting the stipulated extension, the Court reiterated that if they intended to add or substitute new class representatives, they must either obtain the consent of the Defendants, or file a motion for leave of court by the Aug. 21, 2017 deadline. On Aug. 17, 2017, Azad and Buckley executed settlement agreements releasing all claims against HCC. On Aug. 21, 2017, they timely filed a motion for leave to amend the complaint which sought substitution of a new Plaintiff and class representative, Ladan Abdollahi. On Aug. 31, 2017, the parties' stipulation extending the time for the Defendants to respond to the motion to Sept. 12, 2017, was approved by the Court. On Sept. 11, 2017, Azad and Buckley voluntarily dismissed, with prejudice, all claims made against all the Defendants in this action. Notwithstanding that dismissal, the Defendants filed their opposition to the motion to amend on Sept. 12, 2017. On Sept. 19, 2017, Proposed Plaintiff Abdollahi withdrew her motion for leave to amend. The next day, Abdollahi filed a notice of voluntary dismissal of her claims. Judge Hamilton finds that this case must now be dismissed without prejudice. The Named Plaintiffs voluntarily dismissed their claims against all the Defendants with prejudice. At this time, therefore, there is neither a Named Plaintiff nor an operative complaint. Judge Hamilton also struck Abdollahi's notice of voluntary dismissal. Abdollahi withdrew her proposed complaint before it was ever approved by the Court. Abdollahi is therefore not a party to this case and has no claims against any Defendant to voluntarily dismiss. The Judge directed the Clerk to close the case. A full-text copy of the Court's Sept. 22, 2017 Order is available at https://is.gd/lCQsDc from Leagle.com. Ladan Abdollahi, Plaintiff, represented by Rachel Geman, Lieff Cabraser Heimann & Bernstein, LLP. Health Insurance Innovations, Inc., Defendant, represented by Garry W. O'Donnell -- garry.odonnell@gmlaw.com -- Greenspoon Marder, P.A. & Daniel J. Herling -- DJHerling@mintz.com -- Mintz Levin Cohn Ferris Glovsky and Popeo P.C.. HCC Life Insurance Company, Defendant, represented by Gerard G. Pecht -- gerard.pecht@nortonrosefulbright.com -- Norton Rose Fulbright -- US LLP, Joshua David Lichtman, Norton Rose Fulbright US LLP, Michael Scott Incerto -- scott.incerto@nortonrosefulbright.com -- Norton Rose Fulbright US LLP, Michelle Lynnea Mello -- michelle.mello@nortonrosefulbright.com -- Norton Rose Fulbright US LLP & Sumera I. Khan -- sumera.khan@nortonrosefulbright.com -- Norton Rose Fulbright US LLP, pro hac vice. Tokio Marine HCC - Medical Insurance Services Group, Defendant, represented by Gerard G. Pecht, Norton Rose Fulbright US LLP, Joshua David Lichtman, Norton Rose Fulbright US LLP, Michael Scott Incerto, Norton Rose Fulbright US LLP, Michelle Lynnea Mello, Norton Rose Fulbright US LLP & Sumera I. Khan, Norton Rose Fulbright US LLP, pro hac vice. Consumer Benefits of America, Defendant, represented by Howard Michael Garfield -- hgarfield@hbblaw.com -- Haight, Brown, & Bonesteel, David W. Evans -- devans@hbblaw.com -- Haight Brown & Bonesteel LLP & Renata Louise Hoddinott -- rhoddinott@hbblaw.com - - HAIGHT BROWN BONESTEEL LLP. TWIN DONUT: Faces "Alvarado" Suit in S. Dist. of New York --------------------------------------------------------- A class action lawsuit has been filed against Twin Donut, Inc. The case is styled as Felix Cantalicio-Alvarado and Ismael Cantalicio- Alvarado, on behalf of others similarly situated, Plaintiffs v. Twin Donut, Inc., Jerome TD LLC, 218 TD LLC, George P. Psathas and Kathy Cabral, Defendants, Case No. 1:17-cv-07597 (S.D.N.Y., October 4, 2017). The Defendants are engaged in yhr restaurant industry.[BN] The Plaintiffs are represented by: Peter Hans Cooper, Esq. Cilenti & Cooper, P.L.L.C. 708 Third Avenue 6th Flr New York, NY 10017 Tel: (212) 209-3933 Fax: (212) 209-7102 Email: pcooper@jcpclaw.com ULTRAMAR LTD: Price-Fixing Suit Denied Access to Fed Evidence ------------------------------------------------------------- Mia Rabson, writing for Globe and Mail, reports that a class- action suit that alleges oil companies and fuel retailers in Quebec were engaged in fixing the price of gasoline hit a pothole when Canada's highest court blocked it from accessing evidence from a related criminal investigation. The Supreme Court ruling means lawyers for the claimants in the class action cannot interview the chief investigator of the Competition Bureau or get access to evidence, including 220,000 wiretap conversations. "Disappointed," said George Iny, executive director of the Automobile Protection Association, one of the parties behind the class-action suits. "It will make our case a lot harder, but it's still possible to do it." However, Iny said the ruling pertains only to the discovery process -- the preliminary work of gathering evidence for a possible trial. He said he hopes that during the trial itself, the investigator can be compelled to testify or produce documents. In other words, he said, "We're still in the game." A spokeswoman for the Competition Bureau called the decision a welcome one. "It will allow the bureau to focus its efforts and resources on ongoing priority cases," Marie-France Faucher said in an email. "The Competition Bureau has collaborated with the class-action plaintiffs and will continue to do so, within the scope of its mandate." Iny's organization filed two class-action suits after the Competition Bureau found evidence of price fixing among gas retailers in four cities in Quebec and charged 39 individuals and 15 companies. A handful of the criminal cases are still before the courts, but most of the accused pleaded guilty or were convicted at trial, resulting in some jail sentences and fines. Earlier this year, one of the class actions related to the four cities where charges were laid resulted in a $17-million settlement with two-thirds of the companies involved. The second suit, however, involves retailers and companies in 26 other cities, where the Competition Bureau investigated evidence of price fixing but did not lay any charges. That is the suit at the heart of the Supreme Court ruling. When the lawyers for the protection association sought to interview the Competition Bureau's chief investigator and obtain thousands of documents and wiretap evidence uncovered during the investigation, the bureau's lawyers said no. They cited a federal law which they say provides immunity to the Crown -- in this case represented by the Competition Bureau -- in cases where the Crown is neither suing or being sued. Lower courts in Quebec found the law didn't expressly grant such immunity and ruled the bureau had to submit to discovery. The Supreme Court disagreed on September 28 in a 7-0 ruling, saying that, in the absence of specific language in the law lifting the immunity when the Crown isn't directly involved, the assumption is that the immunity still exists.[GN] The case is Attorney General of Canada, Appellant, and Daniel Thouin and Automobile Protection Association, Respondents; And Between Ultramar Ltd., Olco Petroleum Group ULC, Irving Oil Limited, Alimentation Couche-Tard inc., Depan-Escompte Couche-Tard inc., Couche-Tard inc., Global Fuels Inc., Global Fuels (Quebec) Inc., Philippe Gosselin & Associes ltee, Celine Bonin and Claude Bedard, Appellants, and Daniel Thouin and Automobile Protection Association, Respondents, and Attorney General of Quebec, Intervener, 2017 SCC 46. A copy of the Canada Supreme Court's decision is available at https://is.gd/8usKUP UNDER ARMOUR: "Brianas" Suit Seeks to Recover Unpaid Wages ---------------------------------------------------------- Stephen Brianas, and all others similarly-situated v. Under Armour, Inc., Case No. 1:17-cv-02928 (D. Md., October 3, 2017), seeks to recover unpaid wages, liquidated damages, interest, reasonable attorneys' fees and costs under the Federal Fair Labor Standards Act of 1938, Maryland Wage and Hour Law and Maryland Wage Payment and Collection Law. The Plaintiff is a resident of Baltimore City, Maryland and worked as an allocation analyst for the Defendant. Defendant Under Armour, Inc., is in the business of developing, distributing and selling athletic apparel, footwear and accessories. Defendant's principal office is in Baltimore City, Maryland. [BN] The Plaintiff is represented by: Benjamin L. Davis, III, Esq. Joseph E. Spicer, Esq. THE LAW OFFICES OF PETER T. NICHOLL 36 South Charles Street, Suite 1700 Baltimore, MD 21201 Tel: (410) 244-7005 Fax: (410) 244-8454 E-mail: bdavis@nicholllaw.com jspicer@nicholllaw.com UNIVERSITY OF PENNSYLVANIA: Suit Over Retirement Plan Dismissed --------------------------------------------------------------- Megan E. Troy, Esq., Thomas Horan, Esq., and Amanda A. Sonneborn, Esq., of Seyfarth Shaw LLP, in an article for Lexology, wrote Seyfarth Synopsis: Since August 2016, sixteen elite colleges and universities have faced class action lawsuits related to management of their retirement plans. After five cases previously survived motions to dismiss, the University of Pennsylvania became the first college to secure a complete victory when accused of retirement plan mismanagement. On September 21, 2017, the Eastern District of Pennsylvania ruled in favor of the University of Pennsylvania on every count in a proposed class action, which challenged the school's retirement plan fees, investment lineup, and use of multiple plan record keepers. The proposed class action specifically alleged that both Penn and the administrator of its defined contribution retirement plan breached their fiduciary duty by "locking in" participants' options to two investment companies, allowed the plan to pay too much in administrative fees, and charged excessive investment fees for access to an underperforming portfolio. Citing Renfro v. Unisys Corp., 671 F.3d 314 (3d Cir. 2011), the court rejected the claim that by "locking in" arrangements with two investment companies, the plan fiduciaries' imprudently failed to monitor the investment options offered to participants. Specifically, the court found that plaintiffs' claims amounted to impermissible second-guessing of the fiduciaries' investment decisions just because they turned out to lose money. The court noted that, standing alone, the decision to "lock in" arrangements with investment companies is not imprudent. The court likened locking a plan into an arrangement with an investment company for a stated period to cell phone companies offering discounted rates in exchange for two-year contracts, and found that plans are often able to obtain favorable terms in exchange for committing to providing a predictable period of business to investment companies. The court found that plaintiffs' administrative fee claims failed because there are lawful explanations for not offering the absolute lowest-available fees to participants. In dismissing these claims, the court stated: "the plaintiffs need something more than a claim that there may be (or even are) cheaper options available. The plaintiffs must show that there were no reasonable alternatives given to plan participants to choose from, which the plaintiffs have not pled." Similarly, with respect to the unreasonable investment management fees claim, the court stated: "The plaintiffs' argument that fiduciaries must maintain a myopic focus on the singular goal of lower fees was soundly rejected in Renfro." Plaintiffs also argued that, by offering too many investment options, there was participant confusion. Because they failed to point to a single participant that was confused by the investment options, however, the court dismissed the claim. The court also found no cause of action for plaintiffs' claims that certain funds were outperformed in the market. The Court characterized plaintiffs' prohibited transaction claims as an impermissible attempt to shoehorn their fiduciary breach claims into prohibited transaction rules. The court found that accepting plaintiffs' arguments would mean that administrators commit prohibited transactions every time they contract with a party to provide services to a plan for money, and dismissed the claims because there was no evidence of an intent to benefit parties at participants' expense. This decision is a significant victory for the University of Pennsylvania and a change in course for the cases against colleges and universities. The Court's reliance on Renfro requires plaintiffs in these cases to do more than second-guess fiduciary decisions where they lose money, and instead holds them to the burden to plausibly allege systematic mismanagement that left participants with a choice between participating in a poorly- performing retirement plan or no plan at all. It remains to be seen whether the impact of Renfro will be limited to the Third Circuit or whether it will expand to other circuits as well. [GN] VAN RU CREDIT: Faces "Dykes" Suit in Eastern District of Va. ------------------------------------------------------------ A class action lawsuit has been filed against Van Ru Credit Corporation. The case is styled as Carolyn Dykes, Individually and on behalf of all others similarly situated, Plaintiff v. Van Ru Credit Corporation, Defendant, Case No. 1:17-cv-01111-AJT-JFA (E.D. Va., October 4, 2017). Van Ru provides accounts receivables services.[BN] The Plaintiff is represented by: Thomas Ray Breeden, Esq. Thomas R. Breeden PC 10326 Lomond Drive Manassas, VA 20109 Tel: (703) 361-9277 Fax: (703) 257-2259 Email: trb@tbreedenlaw.com VITAL RECOVERY: Faces "Kambanis" Suit in E.D. of New York ---------------------------------------------------------- A class action lawsuit has been filed against Vital Recovery Services, LLC. The case is styled as Andreas Kambanis, individually and on behalf of all others similarly situated, Plaintiff v. Vital Recovery Services, LLC, Defendant, Case No. 1:17-cv-05806 (E.D. N.Y., October 4, 2017). Vital Recovery Services, LLC owns and operates a third-party collection agency in California.[BN] The Plaintiff is represented by: Daniel Harris Kohn, Esq. RC Law Group PLLC 285 Passaic Street Hackensack, NJ 07601 Tel: (201) 282-6500 Fax: (201) 282-6501 Email: dkohn@rclawgroup.com WOW BAO: Facial Recognition System Leads to Class Action -------------------------------------------------------- Jack Greiner, writing for Cincinnati.com, reports that a national restaurant chain is currently a defendant in an Illinois lawsuit that hopes to become a class action resulting from the restaurant's use of facial recognition technology. The defendant Wow Bao, according to the complaint, is a restaurant chain "that serves traditional Asian flavors in a fast-paced casual setting throughout the United States, including locations in Illinois." Wow Bao, according to the complaint, uses a "biometric tracking system through their self-order kiosks that use customers' facial biometrics as a means of authentication for food and beverage purchases." The plaintiff in the suit, Regina Morris, used the system. And that's where the trouble started. In 2007, a company called Pay By Touch, filed for bankruptcy. Pay By Touch had supplied retailers throughout Illinois with fingerprint scanners. The bankruptcy created the risk that sensitive fingerprint data of millions of customers could be sold through the bankruptcy proceedings. In response, the Illinois legislature passed the Biometric Information Privacy Act. Without going into a lot of detail, the act, known as BIPA, requires entities that use the biometric technology to inform users in writing about how the data will be stored, how it will be used, and for how long. As you might have guessed, the complaint alleges Wow Bao did not comply with BIPA because it failed to make the requisite disclosures to Ms. Morris. It of course begs the question how a restaurant is supposed to go about providing this written information to random customers who are likely in a hurry to get their orders filled. But that is, in all likelihood, the restaurant's problem. The complaint makes claims for the violation of BIPA and for negligence. As in many privacy cases, Ms. Morris apparently hasn't sustained any actual dollar losses resulting from Wow Bao's failure to comply with BIPA. She claims mental anguish arising from the anxiety over how her information may get misused, but as yet, there isn't any evidence that it has fallen into the wrong hands. Whether the absence of current, concrete harm will doom the case is still an open question. Traditionally, the absence of harm would mean the plaintiff lacked "standing" to proceed with the lawsuit. There is an argument that the ability to recover statutory damages is enough to confer standing for a class action, regardless of whether the plaintiff suffered any actual damages. In a 2016 decision, however, the United States Supreme Court indicated that statutory damages, standing alone, did not confer standing. But it also indicated that "risk of real harm" may be sufficient. This issue will likely be one of the first issues to be argued as this case proceeds. But the bigger lesson for companies who are considering incorporating new technology in the customer service business is to make sure it complies with federal and state privacy laws BEFORE implementing it. Unless you want a class action with that burger. [GN] XENITH BANKSHARES: Rigrodsky & Long Files Securities Class Action ----------------------------------------------------------------- Rigrodsky & Long, P.A., on Sept. 27 disclosed that it has filed a class action complaint in the United States District Court for the Eastern District of Virginia on behalf of holders of Xenith Bankshares Inc. ("Xenith") (NASDAQ:XBKS) common stock in connection with the proposed acquisition of Xenith by Union Bankshares Corporation ('Union') announced on May 22, 2017 (the 'Complaint'). The Complaint, which alleges violations of the Securities Exchange Act of 1934 against Xenith, its Board of Directors (the 'Board'), and Union, is captioned Parshall v. Xenith Bankshares Inc., Case No. 3:17-cv-00612 (E.D. Va.). If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Seth D. Rigrodsky or Gina M. Serra at Rigrodsky & Long, P.A., 2 Righter Parkway, Suite 120, Wilmington, DE 19803, by telephone at (888) 969-4242, by e-mail at info@rl- legal.com, or at http://rigrodskylong.com/contact-us/. On May 19, 2017, Xenith entered into an agreement and plan of merger (the "Merger Agreement") with Union. Pursuant to the Merger Agreement, shareholders of Xenith will receive 0.9354 shares of Union common stock for each share of Xenith common stock they own (the "Proposed Transaction"). Among other things, the Complaint alleges that, in an attempt to secure shareholder support for the Proposed Transaction, defendants issued materially incomplete disclosures in a Form S-4 Registration Statement (the "Registration Statement") filed with the United States Securities and Exchange Commission on August 16, 2017. The Complaint alleges that the Registration Statement, which recommends that Xenith stockholders vote in favor of the Proposed Transaction, omits material information necessary to enable shareholders to make an informed decision as to how to vote on the Proposed Transaction, including material information with respect to Xenith's and Union's financial projections, the analyses performed by the companies' financial advisors, and potential conflicts of interest. The Complaint seeks injunctive and equitable relief and damages on behalf of holders of Xenith common stock. If you wish to serve as lead plaintiff, you must move the Court no later than November 27, 2017. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Any member of the proposed class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. With offices in Wilmington, Delaware and Garden City, New York, Rigrodsky & Long, P.A. -- http://www.rigrodskylong.com--regularly prosecutes securities fraud, shareholder corporate, and shareholder derivative litigation on behalf of shareholders in state and federal courts throughout the United States. [GN] ZELTIQ AESTHETICS: Seeks Dismissal of CoolSculpting System Suit --------------------------------------------------------------- Dee Thompson, writing for Legal Newsline, reports that the defendant in a class action regarding a "cool sculpting" product supposed to reduce body fat is seeking dismissal of the suit. Zeltiq Aesthetics Inc. filed its motion to dismiss first amended class action complaint on Aug. 21 arguing that the plaintiffs' claims brought under federal consumer protection laws must fail because Zeltiq actually did receive clearance by the Food and Drug Administration for its CoolSculpting System. Defendants refute the plaintiffs' claim that the phrase "FDA approved," when in fact the device was only "FDA cleared," is misbranding. Carmen Otero and Abbey Lerman filed suit in April against Zeltiq Aesthetics Inc. alleging that the CoolSculpting system it markets to spas and businesses is advertised falsely as being approved by the Food and Drug Administration. Plaintiffs argue that FDA approval, which requires rigorous testing and trials, is very different from FDA clearance. They allege that consumers are misled into thinking that FDA "clearance" in the same things as "FDA approved," when it is not the same. In its motion, Zeltiq argues that "Zeltiq had no duty to educate consumers on parameters of the 510(k) process or clarify that FDA Cleared is not the same as FDA Approved." Zeltiq also notes that ". . . their attempt to impose an additional, novel duty of disclosure on Zeltiq is contrary to California law, which rejects a broad obligation to disclose. Instead, the law imposes liability on manufacturers for omissions only where the undisclosed information relates to a known defect in a product that creates an unreasonable safety hazard," the motion states. The company promotes its product as ". . . an innovative way to contour your body by freezing unwanted fat away with no surgery or downtime" on its website. Zeltiq is represented by Hueston Hennigan LLP law firm in Newport Beach, California. Plaintiffs are represented by Capstone Law APC in Los Angeles. [GN] * Mandatory Class Action Waivers in Employment Agreements --------------------------------------------------------- Frank C. Morris, Jr., Esq., and Shira M. Blank, Esq., of Epstein Becker & Green, P.C., in an article for The National Law Review, wrote that many employers use or have considered using arbitration agreements that both require all employment-related claims to be adjudicated in arbitration and preclude class and/or collective claims. These agreements can be invaluable tools to limit costly and time-consuming class and collective actions brought by, or on behalf of, large groups. In recent years, the U.S. Supreme Court has interpreted the Federal Arbitration Act, 9 U.S.C. Sec. 1 et seq. ("FAA"), to enforce arbitration agreements despite objections mounted by the plaintiffs' bar and some state courts. While the Supreme Court has upheld class action waivers in the consumer context, it is unclear whether the FAA's liberal approach to arbitration applies in the employment context. The National Labor Relations Board ("NLRB" or "Board") contends that these provisions are unlawful because the potential formation of class or collective actions contesting employment issues is a "group activity" allegedly embraced by the National Labor Relations Act's ("NLRA's") Section 7 right of employees to engage in "protected concerted" activities. On October 2, 2017, the first day of its fall 2017 term, the Supreme Court will hear arguments in three related cases involving the legality of class action waivers in arbitration agreements for employment-related claims: Ernst & Young LLP v. Morris, Epic Systems Corp. v. Lewis, and NLRB v. Murphy Oil USA, Inc. In all three cases, the plaintiffs, who had previously signed arbitration agreements containing waivers, asserted collective action claims under the FLSA, as well as state law wage claims. The defendant employers moved to dismiss the collective actions and compel individual arbitration of the employees' claims. At issue in all three cases is whether arbitration agreements prohibiting class and/or collective actions are enforceable or barred by the NLRA. The Circuit Court Split The Fifth Circuit, in NLRB v. Murphy Oil USA, Inc., 808 F.3d 1013 (5th Cir. 2015), rejected the NLRB's position and held that adjudicating a claim collectively is not a substantive right protected by the NLRA, and that the Board's interpretation of the NLRA impermissibly conflicts with the FAA. The Second and Eight Circuits have also held that class action waivers are enforceable. The Seventh and Ninth Circuits, on the other hand, have adopted the Board's position that such agreements are a violation of the NLRA, in Lewis v. Epic Systems Corp., 823 F.3d 1147 (7th Cir. 2016), and Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th Cir. 2016), respectively. In Lewis, the Seventh Circuit declined to enforce a clause that precluded employees from seeking any class, collective, or representative remedies in wage and hour disputes. The court found that the clause was unenforceable because it required employees to stipulate away their NLRA Section 7 rights. Moreover, the court found that the clause was unenforceable under the FAA. Because the court viewed the clause as unlawful under Section 7 of the NLRA, it was therefore an illegal provision and met the criteria of the FAA's saving clause for non-enforcement. A few months later, the Ninth Circuit in Morris also held that the NLRA precludes agreements requiring employees to waive concerted legal claims regarding wages, hours, and terms or conditions of employment. What Will the Supreme Court Do? As noted, the Supreme Court has demonstrated a preference for arbitration in recent years. The confirmation of Justice Neil Gorsuch may also favor the enforcement of class action waivers in arbitration agreements. Justice Gorsuch's past arbitration rulings demonstrate that he favors the FAA's liberal approach to enforcement of arbitration agreements and sees the FAA as establishing substantive federal law favoring arbitration that preempts conflicting state law doctrines. Moreover, past decisions show a reluctance to defer to administrative agency interpretations and skepticism of aggressive agency action. He has already expressed the view that the NLRB should have a more limited scope of authority. Accordingly, Justice Gorsuch may, in the case of a split, cast the deciding vote, and there is reason to believe that the Court will again find in favor of the legality of class action waivers. While we cannot definitively predict the Supreme Court's decision, we can be sure that the decision will greatly impact employers and employees alike, and that it will provide much-needed clarity on this key issue. Takeaways Once the Supreme Court issues its ruling, employers should (i) promptly review their existing mandatory arbitration and class waiver agreements and (ii) consider adopting them (if not already in use) if the Court rejects the NLRB's arguments. [GN] * More Than Half of American Workers Can't Sue Their Employer ------------------------------------------------------------- Preeti Varathan, writing for Quartz, reports in the past two years, Google, Facebook, Twitter, Microsoft, and Oracle have faced various high-profile lawsuits related to their employment practices. And while those cases generated headlines, workers in almost every sector sue their bosses over emotional abuse, unpaid wages, and discrimination (to cite just a few examples). The ability to sue over wrongful treatment at work is essential to the balance of bargaining power between employer and employee. Unfortunately, more than half of non-union, privately employed Americans -- some 60 million people -- have signed away this right. They are instead beholden to a process known as arbitration. Signing a mandatory arbitration agreement is theoretically voluntary, but refusing to do so can cost a candidate their job offer. Once signed, the agreement strips the employee of the right to take her employer to court for unfairly low pay, termination because of pregnancy, race-based discrimination, loss of paternity or maternity leave, and much more. Any legal claims filed under Title VII of the Civil Rights Act, The Americans with Disabilities Act, The Family and Medical Leave Act, or the Fair Labor Standards Act won't see their day in court. Instead, such claims are funneled through a pre-written arbitration procedure. Since the worker has no say in how that procedure takes shape, these legal battles often end in the company's favor. (Unionized workplaces differ: The labor-arbitration system used to resolve conflicts between unions and management is run, developed, and designed by both parties.) According to a study published by Alexander Colvin of Cornell, more than half (54%) of private, non-unionized workplaces have mandatory arbitration procedures. For larger companies (over 1,000 workers), that jumps to 65%. By contrast, in 2003 Colvin found that just 14% of companies had arbitration agreements -- it's worth noting that the 2003 study had differing methodology -- and separate studies from the early 90s pegged that rate at or below 8%. While the comparison isn't apples to apples, Colvin says it's clear that asking employees to sign arbitration agreements is far more common today. Class-action lawsuits -- where an employee files a suit on behalf of herself and coworkers -- still tend to fall outside of mandatory arbitration. (The case against Google is class-action.) But this could soon change, too. Next week, the US Supreme Court will decide whether arbitration agreements that include collective or class-action suits are legal. In National Labor Relations Board v. Murphy Oil USA, the NLRB argues that such agreements violate the National Labor Relations Act, which protects collective bargaining. The Supreme Court will also hear two more cases (Ernst & Young LLP v. Morris and Epic Systems v. Lewis) before ruling on the constitutionality of such agreements. As it stands, 41% of employees who sign mandatory arbitration agreements also waive their right to file a class-action lawsuit. If the Supreme Court upholds the legality of such agreements, it's likely that far more private workers will soon lose that right as well. [GN] * US Chamber of Commerce Warns of Risks of Dutch CA System ---------------------------------------------------------- DutchNews.nl reported that the Netherlands is moving into dangerous territory by rolling out the red carpet for organisations that bring class action suits against international companies, the US Chamber of Commerce has told the Financieele Dagblad. The organisation's executive vice president Lisa Rickard told the paper in an interview that class action suits are becoming popular in Europe and a growing number of large American law firms are currently opening offices in the EU. 'They believe there is money to be made here,' Rickard told the paper. The European Commission is expected to present a new proposal for legal rules shortly but Rickard say the Netherlands largely ignores the guarantees against abuses included in previous guidelines, which date from 2013. 'It is very worrying that the Netherlands is positioning itself as a hub for this type of mass claim and suggesting that the rulings of the Dutch courts also have extra-territorial effect,' she said. 'It could prove very harmful for large companies in the country if the Netherlands becomes a magnet for these class actions.' Rickard said there is fierce competition between London and Amsterdam to attract this type of case and that Brexit will tip the balance in favour of Amsterdam. [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2017. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Joseph Cardillo at 856-381- 8268. * * * End of Transmission * * *