/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/171018.mbx C L A S S A C T I O N R E P O R T E R Wednesday, October 18, 2017, Vol. 19, No. 206 Headlines ACCIDENT FUND: Refuses to Pay Interest Under IWCA, Beatty Claims AETNA INC: Faces "S.A." Suit in E. Dist. Penn. ALIBABA.COM INC: Faces Copyright Infringement Class Action ALLSTATE PROPERTY: "Larey" Class Settlement Has Prelim Approval ARKEMA: Faces Second Class Action Over Crosby Plant Explosion BANK OF AMERICA: Faces "O'Dell" Suit in W. Dist. Va. BANK OF AMERICA: Faces "Rhodes" Suit in E. Dist. Va. BANK OF AMERICA: Fights Class Action Over Inflated Appraisals BANK OF NEW YORK: Court Denies Bid to Strike Putative Class Rep BASKIN-ROBBINS LLC: "Abedi" Suit Alleges TCPA Violation BAYER CORP: Essure Class Action Remanded to State Court BMW AG: Newton Files Suit Over Sherman Act Violation BP EXPLORATION: Wins Summary Judgment in MBCASA Member's Suit BP EXPLORATION: 5th Cir. Affirms Denial of Discretionary Review CACH LLC: Court Allows Substitution for Deceased Party CALIFORNIA: Court Dismisses All Claims in "Corena" Suit CAMDEN COUNTY, NJ: Court Dismisses "Cunningham" Pro Se Complaint CARLSON RESTAURANTS: Judge Tosses $19.1-Mil. Wage-Hour Settlement CHARLES SCHWAB: Court Approves Extension of Briefing Schedule CITIMORTGAGE INC: 9th Cir. Reversed Dismissal of "Kester" Suit COCA-COLA CO: Third Circuit Appeal Filed in "Enslin" Class Suit CONNECTICUT: Settlement in Inmates' Class Suit Has Final OK CONVERGYS CORP: Texas Employers Can Enforce Class Action Waivers COOPER CITY, FL: "Joliff" Final Judgment Flipped in City's Favor COUNTRYWIDE HOME: 11th Cir. Affirms Dismissal of "Espinoza" Suit DELAWARE: Medicaid Loosens Up Hepatitis C Treatment Criteria DEUTSCHE BANK: Seeks Review of Class Cert. Order in "Moreno" Suit DODEKA LLC: Ohio App. Flips Summary Judgment in "Keith" DR HORTON: Court Denies Move to Compel Mediation Attendance DRAFTKINGS: Court Dismisses Ex-Football Players' Copyright Case EDEGREEADVISOR LLC: Court Dismisses "Priester" TCPA Suit EQUIFAX INC: Ignored Known Flaws in Security, Alexander Suit Says EQUIFAX INC: Partridge Sues Over Failure to Secure Consumers' PII EQUIFAX INC: Accused by "Kohn" Suit of Failing to Protect Info EQUIFAX INC: Faces "Prejean" Suit in Hawaii Over Data Breach EQUIFAX INC: O'Dell Sues for Small Businesses Over Data Breach EQUIFAX INC: Sued by Rajput for Failing to Secure Consumers' PII EQUIFAX INC: Faces "Falco" Suit in S.D.N.Y. EQUIFAX INC: Army Aviation Suit Alleges FTCA Violations EQUIFAX INC: 500+ Credit Unions Mull Data Breach Class Action EQUIFAX INC: Faces Data Breach Class Action in Pennsylvania EQUIFAX INC: Face Congressional Hearings Following Data Breach EQUIFAX INFORMATION: Fails to Protect Personal Info, Fausz Says EQUIFAX INFORMATION: Faces Foley Consumer Class Action in Minn. EQUIFAX INFORMATION: Sued by Hingle for Not Securing Private Info EXPLOITS VALLEY: Faces Class Action Over Air Canada Runway Crash FERRING PHARMACEUTICALS: Faces Suit for Breach of Warranty FIRED UP: Ex-Employees' WARN Class Action Put on Hold FIRSTSOURCE SOLUTIONS: "Bernardez" Suit Alleges FLSA Violation FOUND MY ANIMAL: Sued Over Failure to Pay Minimum & OT Wages FRONTIER COMMUNICATIONS: Faces Securities Class Action in Conn. GATE GOURMET: "Little" FLSA Class Settlement Has Prelim Approval GREEN PHARMACEUTICAL: Snoring Aid Class Action Dismissal Reversed HEALTHCARE REVENUE: Court Dismisses "Levins" FDCPA Suit HOMEADVISOR INC: Court Strikes Notice to Intervene JASPER COUNTY, MS: Bid to Certify Inmates Class in "Askew" Denied JASPER COUNTY, MS: Bid to Certify Class in "Wilson" Denied JASPER COUNTY, MS: Inmates Class Cert in "Thigpen" Denied LANDTEK INC: Johnson Seeks to Recover Unpaid Wages Under FLSA LEWIS ENERGY: Guerra Sues on Behalf of Welders Over Unpaid OT LEXINGTON TECHNOLOGIES: Fails to Pay Workers OT, "Levy" Suit Says LTI TRUCKING: Faces "Ratliff" Suit in N. Distr. Ill. MAJU PUNCAKBUMI: Apartment Owners' Class Action Begins MAXPOINT INTERACTIVE: Freeborn Challenges Merger With Harland MDL 2284: Ct. Affirms Arborist Panel's Denial of Willses' Appeal MY PILLOW: Court Partly Grants Bid to Dismiss "Marlowe" Suit NATIONAL COLLEGIATE: Student-Athletes File FLSA Class Action NATIONWIDE CREDIT: Faces "Rich" Suit in S. Dist. New York NORTHWEST CASCADE: Faces Class Action Over Porta Potty Plant Odor NY NJ RESTORATION: Faces "Gomez" Suit in E. Dist. New York PACIFIC COAST: Sued Over Failure to Properly Pay Employees PHARMERICA CORP: Faces "Berg" Suit Over Sale to Phoenix PIZZA ON STONE: Faces "Moran" Suit in S. Dist. New York PLUSFOUR INC: Court Denies Bid to Transfer "Cardinali" POLTER BERRY: "Blas-Lopez" Suit Seeks to Recover Unpaid Wages POTBELLY SANDWICH: Faces "Bryant" Suit in S. Dist. New York PRECISION MOTOR: Faces "Ratliff" Suit in N. Dist. Ill. PRICELINE.COM: Must Face Spirit Ticket Pricing Class Action PROVIDENCE LITTLE: Does Not Properly Pay Workers, Suit Claims RENT-A-CENTER INC: Court Stays "Cook" Pending SCOTUS Ruling ROMA PHARMACY: Faces "Diaz" Suit in E. Dist. New York ROYAL CARIBBEAN: Liberty of the Seas Passengers File Class Action SANTANDER CONSUMER: "Barber" Suit Alleges Invasion of Privacy SCRIPPS NETWORKS: Inzlicht-Sprei Challenges Sale to Discovery SECOND CHANCE: Faces Class Action Over Misleading Guarantees SENECA RESOURCES: Accused by McLaughlin of Misclassifying Workers SLICE TECHNOLOGIES: "Cooper" Suit Moved From Calif. to S.D.N.Y. SMITH TRANSPORT: Faces "Ratliff" Suit N.D. Ill. SOCIAL SECURITY: Fed. Cir. Affirms Removal in ALJ Candidate List STARRETT CITY: Montgomery Sues Over Denied Air-Conditioning STEARNS LENDING: Faces "Olachea" Suit in C. Dist. Cal. TAURUS: Opens Pistol Class Action Settlement Claims Period TGI FRIDAYS: Averts Class Action Over Drink-Pricing Policies TRISTAR PLUMBING: Faces "Luo" Suit in E. Dist. New York UNITED NATIONS: Second Circuit Appeal Filed in "LaVenture" Suit UNITED STATES: Court Denies Govt's Move to Dismiss PACER Suit UNLIMITED ELECTRICAL: Refuses to Pay OT Under FLSA, Giner Alleges US BANK: Ohio App. Affirms Denial of Counterclaims in "Schubert" VIKING CLIENT: Court Denies Bid to Dismiss "Broderick" FDCPA Suit WELD SPEC: Faces "Fithian" Suit in E. Dist. Tex. WELLS FARGO: To Refund Mortgage Rate-Lock Extension Fees WELLS FARGO: Two Law Firms File ARM Class Action in California WEST OF CHICAGO RESTAURANTS: Faces "Wilson" Suit in Ca. Super. Ct WISE ELECTRICAL: Suit Seeks to Recover Electricians' Unpaid Wages ZM PRIVATE EQUITY: Court Dismisses "Gibbons" Due to Res Judicata * Lawmakers Debate Over Tip Pool at Legislative Hearing * NLRB Withdraws Argument on Mandatory Arbitration Programs * PracticePanther Attorney Discusses Various Class Actions ********* ACCIDENT FUND: Refuses to Pay Interest Under IWCA, Beatty Claims ---------------------------------------------------------------- MICHAEL E. BEATTY, M.D. d/b/a THE SOUTHWESTERN ILLINOIS PLASTIC & HAND SURGERY ASSOCIATES, individually and as the Representative of a class of similarly-situated persons v. ACCIDENT FUND GENERAL INSURANCE COMPANY; ACCIDENT FUND INSURANCE COMPANY OF AMERICA; ACCIDENT FUND NATIONAL INSURANCE COMPANY; ACUITY, A MUTUAL INSURANCE AMERICAN COMPENSATION INSURANCE COMPANY; AMERICAN ZURICH INSURANCE COMPANY; AMERISURE MUTUAL INSURANCE COMPANY; AUTO OWNERS INSURANCE COMPANY; BERKSHIRE HATHAWAY HOMESTATE INSURANCE COMPANY; BROADSPIRE SERVICES INC.; CANNON COCHRAN MANAGEMENT SERVICES, INC.; CONSTITUTION STATE SERVICES, LLC; CHUBB INDEMNITY INSURANCE COMPANY; COMMERCE AND INDUSTRY INSURANCE COMPANY, INC; CONTINENTAL CASUALTY COMPANY, INC.; AMERICAN CASUALTY COMPANY OF READING PENNSYLVANIA; CORPORATE CLAIMS MANAGEMENT, INC; COUNTRY MUTUAL INSURANCE COMPANY; CREATIVE RISK SOLUTIONS LLC; ESIS, INC; FEDERATED MUTUAL INSURANCE COMPANY; FIREMAN'S FUND INSURANCE COMPANY; FIRST LIBERTY INSURANCE CORPORATION; GENERAL CASUALTY COMPANY OF WISCONSIN; GALLAGHER BASSETT SERVICES, INC; HARTFORD ACCIDENT & INDEMNITY COMPANY; HARTFORD CASUALTY INSURANCE COMPANY; HARTFORD FIRE INSURANCE COMPANY, INC.; HARTFORD INSURANCE COMPANY OF ILLINOIS; HARTFORD INSURANCE COMPANY OF THE MIDWEST; HARTFORD UNDERWRITERS INSURANCE COMPANY; ILLINOIS NATIONAL INSURANCE COMPANY; INDEMNITY INSURANCE COMPANY OF NORTH AMERICA; INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA; LIBERTY MUTUAL INSURANCE COMPANY; NEW HAMPSHIRE INSURANCE COMPANY; OLD REPUBLIC INSURANCE COMPANY; PMA COMPANIES; PERKIN INSURANCE COMPANY; QBE INSURANCE COMPANY; SEDGWICK CLAIMS MANAGEMENT SERVICES, INC.; SENTRY CASUALTY COMPANY; SYNERGY INSURANCE COMPANY; TRAVELERS PROPERTY & CASUALTY COMPANY OF AMERICA; TRISTAR INSURANCE GROUP, INC.; AND ZURICH AMERICAN INSURANCE COMPANY, Case No. 3:17-cv-01001 (S.D. Ill., September 19, 2017), seeks redress for the Defendants' alleged failure and refusal to pay interest due under the Illinois Workers' Compensation Act, which has resulted in a loss of the Plaintiff's property and a detriment to his business. The Defendants are corporations, who are either authorized to and have issued Workers' Compensation Insurance Policies in Illinois covering workers employed in Illinois, or Third Party Administrators (TPAs) employed by Illinois employers to administer Illinois workers' compensation claims of their employees, or claims adjusting companies employed by insurance carriers or TPAs to administer Illinois workers' compensation claims in consequence of which they are subject to the provisions of the Act.[BN] The Plaintiff is represented by: John G. Simon, Esq. Kevin M. Carnie, Jr., Esq. Benjamin R. Askew, Esq. THE SIMON LAW FIRM, P.C. 800 Market Street, Suite 1700 St. Louis, MO 63101 Telephone: (314) 241-2929 Facsimile: (314) 241-2029 E-mail: jsimon@simonlawpc.com kcarnie@simonlawpc.com baskew@simonlawpc.com - and - Robert H. Wendt, Esq. THE WENDT LAW FIRM 1015 Locust Street, Suite 1036 Saint Louis, MO Phone: (314) 588-0097 E-mail: rwendt@wendtlawfirm.com AETNA INC: Faces "S.A." Suit in E. Dist. Penn. ---------------------------------------------- A class action lawsuit has been filed against AETNA, Inc. The case is styled as S.A. on behalf of himself individually and of all others similarly situated, Plaintiff v. AETNA, Inc., AETNA Health of California Inc. and DOES 1 TO 10, Defendants, Case No. 2:17-cv- 04442-JS (E.D. Penn., October 5, 2017). Aetna caters to HIV patients and mail-orders their HIV medicines. However, HIV medication prescriptions are sent in an opaque envelope with a large transparent glassine window clearly indicating the name of the patient, thus failing to respect the privacy rights of people who are taking HIV-medications, says the complaint. [BN] The Plaintiff is represented by: TORIN aaron Dorros, Esq. DORROS LAW 8730 WILSHIRE BLVD SUITE 350 BEVERLY HILLS, CA 90211 Tel: (310) 997-2050 The Defendants are represented by: Donna L. Wilson, Esq. MANATT PHELPS & PHILLIPS 11355 W OLYMPIC BLVD LOS ANGELES, CA 90064 Email: dwilson@manatt.com - and - Matthew P. Kanny, Esq. MANATT PHELPS & PHILLIPS 11355 W. OLYMPIC BLVD LOS ANGELES, CA 90064 Tel: (310) 312-4225 Email: mkanny@manatt.com ALIBABA.COM INC: Faces Copyright Infringement Class Action ---------------------------------------------------------- Ross Todd, writing for The Recorder, reports that Alibaba.com Inc. has been hit with a class action lawsuit claiming that its network of e-commerce websites is home to rampant copyright infringement of visual artwork. The lawsuit brought on behalf of professional Indiana artist Michel Keck seeks to certify a class of copyright holders who have seen their work copied and sold on Alibaba's network of websites. The 81-page complaint, filed on Oct. 2 in U.S. District Court for the Northern District of California, spins a Kafkaesque tale about Mr. Keck's attempts to get dozens of China-based sellers to stop selling knock-offs and copies of her work -- primarily modern abstract canvas prints that feature dog portraits and religious themes. Mr. Keck claims she first became aware that sellers in China were offering unauthorized copies of her work on Alibaba sites at "significantly lower" prices than she was charging after receiving a tip in late 2015 from an art dealer who had stopped buying paintings from her. Mr. Keck claims that she repeatedly filled out online forms to report the alleged infringement to Alibaba, only to run into error messages, requests for documentation, or messages in Chinese. Often, she claims, she simply received no response. According to the complaint, Mr. Keck eventually contacted officials at the U.S. embassy in Beijing in November 2016, who then put her in contact with IP officials with the company based in the United States, who ultimately routed her back through the company's official channels in China. One of Mr. Keck's lawyers, Doris Cheng of Walkup, Melodia, Kelly & Schoenberger, said in a phone interview on Oct. 3 that despite the effort, her client's copyrighted works are still being infringed. "We're not seeing any systems in place to deal with the level of infringement by sellers on the sites," said Ms. Cheng, whose firm filed suit alongside lawyers at Bradley Arant Boult Cummings and Hare, Wynn, Newell & Newton in Birmingham, Alabama. "Alibaba knows that there's a problem." Representatives for Alibaba didn't immediately respond to a request for comment on Oct. 3. Alibaba for years has faced allegations that its network of sites have allowed counterfeiters to traffic in knock-offs of branded goods. But the company seemed to have turned a corner in August when it reached a deal with the company behind luxury brands such as Gucci and Saint Laurent to establish a task force to work with law enforcement and share information to combat counterfeiting. The new suit from Keck seeks to certify a class of all copyright holders of pictorial, graphic, or visual works who have had at least one of their works sold on an Alibaba site without authorization as well as subclasses of those who have attempted to provide notice of infringement to Alibaba. "The evidence demonstrates the extreme carelessness that Alibaba showed, in fact, just ignoring" Mr. Keck's notices, Ms. Cheng said. "That's how this came to be a lawsuit." [GN] ALLSTATE PROPERTY: "Larey" Class Settlement Has Prelim Approval --------------------------------------------------------------- The United States District Court for the Western District of Arkansas, Texarkana Division, issued an Order granting Plaintiff's Agreed Motion for Preliminary Approval of Class Settlement in the case captioned MICHAEL H. LAREY, individually and on behalf of all others similarly situated, Plaintiff, v. ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant, Case No. 4:14-cv-4008 (W.D. Ark.). The following Class is conditionally certified for settlement purposes only: All Persons in Arkansas who had a Covered Loss, where estimated labor depreciation was initially deducted from the claim payment, and where the claim was paid at less than the limit of liability (accounting for deductible) as set forth on the declarations page of the applicable Policy. Michael H. Larey is preliminary appointed as the representative of the Class and the Court preliminarily finds that the following attorneys for Plaintiff satisfy the adequacy requirement of Federal Rule of Civil Procedure 23, and appoints the counsel for the Class: D. Matt Keil, Esq. John C. Goodson, Esq. KEIL & GOODSON P.A. 406 Walnut Street Texarkana, AR 71854 -- and -- R. Martin Weber, Jr., Esq. Richard E. Norman, Esq. CROWLEY NORMAN LLP Three Riverway, Suite 1775 Houston, TX 77056 -- and -- James M. Pratt, Jr., Esq. JAMES M. PRATT, JR. P.A. 144 Washington NW, P.O. Box 938 Camden, AR 71701 -- and -- Matthew L. Mustokoff, Esq. Richard A. Russo, Jr., Esq. KESSLER TOPAZ MELTZERCHECK, LLP 280 King of Prussia Road Radnor, PA 19087 -- and -- William B. Putman, Esq. TAYLOR LAW PARTNERS 303 E. Millsap Road, P.O. Box 8310 Fayetteville, AR 72703 -- and -- A.F. "Tom" Thompson, III, Esq. Kenneth P. Castleberry, Esq. MURPHY, THOMPSON, ARNOLD, SKINNER & CASTLEBERRY P.O. Box 2595 555 East Main Street, Suite 200 Batesville, AR 72503 -- and -- Jason Earnest Roselius, Esq. Jack Austin Mattingly, Jr., Esq. Tanner Hicks, Esq. MATTINGLY & ROSELIUS, PLLC 13182 N. MacArthur Blvd. Oklahoma City, OK 73142 A full-text copy of the District Court's September 25, 2017 Order is available at http://tinyurl.com/y77njustfrom Leagle.com. Michael H. Larey, Plaintiff, represented by D. Matt Keil, Attorney at Law, 611 Pecan St, Texarkana, AR 71854 Michael H. Larey, Plaintiff, represented by George L. McWilliams, Law Office of George L. McWilliams, P.C., PO Box 58, Texarkana, TX 75504-0058, John C. Goodson, Keil & Goodson, 611 Pecan St, Texarkana, AR 71854, William B. Putman, Taylor Law Partners, A.F., 303 E. Millsap Road, Fayetteville, AR 70703, (Tom) Thompson, III, Murphy, Thompson, Arnold, Skinner & Castleberry, 1141 East Main Street, Suite 300 P.O. Box 2595, Batesville, Arkansas 72501, Jack Austin Mattingly, Jr., Mattingly Roselius PLLC, 215 East Oak Avenue, Seminole, OK 74868, James M. Pratt, Jr., James M. Pratt, Jr., P.A., 144 Washington Street, Northwest, Camden, AR 71701, Jason Earnest Roselius, Mattingly & Roselius, 13182 N. MacArthur Blvd. Oklahoma, OK 73142, Kenneth P. Castleberry, Murphy, Thompson, Arnold, Skinner & Castleberry, 555 E Main St Ste 200, Batesville, AR 72501-4645, Matthew L. Mustokoff -- mmustokoff@ktmc.com -- Kessler Topaz Meltzer Check LLP, R. Martin Weber, Jr. -- mweber@crowleynorman.com -- Crowley Norman LLP, Richard E. Norman -- rnorman@crowleynorman.com -- Crowley Norman LLP, Richard A. Russo, Jr. --rrusso@ktmc.com -- Kessler Topaz Meltzer Check LLP & Tanner Hicks, Mattingly Roselius PLLC, 13182 N. MacArthur Blvd. Oklahoma, OK 73142. Allstate Property and Casualty Company, Defendant, represented by Christopher J. Heller --heller@fridayfirm.com -- Friday, Eldredge & Clark, Mark L. Hanover, Dentons US LLP, pro hac vice & Leah R. Bruno, Dentons US LLP, 233 South Wacker Drive, Suite 7800, Chicago, IL 60606-6404 ARKEMA: Faces Second Class Action Over Crosby Plant Explosion ------------------------------------------------------------- Stephanie Kuzydym and Scott Noll, writing for KHOU, report that a Texas state trooper, Harris County sheriff's deputy, and sergeant are among the more than a dozen Crosby residents who filed a class action lawsuit against Arkema on Oct. 3 in federal court in Houston. This is the second lawsuit to be filed against the global chemical company after the plant's organic peroxides ignited after back-up generators were flooded and failed during Hurricane Harvey. The lawsuit alleges testing on soil, water and ash samples found on the plaintiff's property revealed residents were exposed to toxic substances released from the facility. The lawsuit also states that the 15 plaintiffs, some of whom live nearly seven miles from the Crosby factory, suffered personal injury, emotional distress, property damage, loss of income and more. One of the plantiffs, Shannan Wheeler, told KHOU he found more than 40 pieces of black ash on his property. His frustration, he was outside the evacuation zone. He says Arkema gave no warning. He showed KHOU pictures of what he describes as a chemical burn. One of the many problems we heard about affecting people's health, property and livelihood. "After I'd mowed the yard, I was picking up grass clippings, I still had gloves on but grass had gotten up behind the part of my gloves, at first I felt stinging and some redness, thought maybe I got ants, looked no it's not ants, couple more handfuls, it's burning," said Mr. Wheeler. Arkema's Crosby facility made national news when chemical explosions began around 2 a.m. on Aug. 31, then continued for several days. Nearly half a million pound of liquid organic peroxides were stored at the facility in six containers. The organic peroxides must remain cool. But as Hurricane Harvey released historic rain across Southeast Texas, the plant flooded under six feet of water. The company says that triggered a chain reaction of failures that allowed the chemicals to heat up and explode, releasing smoke into the air. Arkema did release a statement saying, "We won't comment on specific ongoing litigation. Based on testing results received to date, Arkema has not detected chemicals in off-site ash, soil, surface or drinking water samples that exceeded Residential Protective Concentration Levels established by TCEQ for soil and groundwater. We do not know what these lawyers tested for. We are cooperating with authorities in ongoing investigations and we will not comment further on these lawyers' accusations." The initial lawsuit against Arkema was filled by first responders on Sept. 7. Nearly two weeks later, more first responders and some Crosby residents joined the lawsuit. That lawsuit, filed in district court, sought at least $1 million. The federal lawsuit, thus far, includes only residents, including one who operates a horse stable west of the factory. The plaintiff returned to the stables each day following the explosion because "the valuable horses under his care would not have survived had he not fed and watered them." Attorney say that triggered respiratory issues and eye irritation. Tests of his property found toxic compounds contaminated his property, according to the suit. The lead counsel for the new lawsuit is Dennis Spurling. [GN] BANK OF AMERICA: Faces "O'Dell" Suit in W. Dist. Va. ---------------------------------------------------- A class action lawsuit has been filed against Bank of America, N.A. The case is styled as Dana O'Dell and Kathy O'Dell, on behalf of themselves and all individuals similarly situated, Plaintiffs v. Bank of America, N.A., Defendant, Case No. 7:17-cv- 00467-MFU (W.D. Va., October 5, 2017). Defendant owns and operate full service banks, which serve the general public with call centers, throughout the United States, including California, where Castillo worked as a call center agent. [BN] The Plaintiffs are represented by: Andrew Joseph Guzzo Kelly & Crandall, PLC 3925 Chain Bridge Road, Suite 202 Fairfax, VA 22030 Tel: (703) 424-7570 Fax: (703) 591-0167 Email: aguzzo@kellyandcrandall.com - and - Casey Shannon Nash, Esq. Kelly & Crandall, PLC 3925 Chain Bridge Road, Suite 202 Fairfax, VA 22030 Tel: (703) 424-7570 Fax: (703) 591-0167 Email: casey@kellyandcrandall.com - and - Kristi Cahoon Kelly, Esq. Kelly & Crandall, PLC 3925 Chain Bridge Road, Suite 202 Fairfax, VA 22030 Tel: (703) 424-7572 Fax: (703) 591-0167 Email: kkelly@kellyandcrandall.com BANK OF AMERICA: Faces "Rhodes" Suit in E. Dist. Va. ---------------------------------------------------- A class action lawsuit has been filed against Bank of America, N.A. The case is styled as Adam Rhodes and Stacie Rhodes, on behalf of themselves and all similarly situated individuals, Plaintiffs v. Bank of America, N.A., Defendant, Case No. 3:17-cv- 00678-JAG (E.D. Va., October 5, 2017). Defendant owns and operate full service banks, which serve the general public with call centers, throughout the United States, including California, where Castillo worked as a call center agent. [BN] The Plaintiffs are represented by: Andrew Joseph Guzzo, Esq. Kelly & Crandall PLC 3925 Chain Bridge Road, Suite 202 Fairfax, VA 22030 Tel: (703) 424-7570 Fax: (703) 591-0167 Email: aguzzo@kellyandcrandall.com - and - Casey Shannon Nash, Esq. Kelly & Crandall PLC 3925 Chain Bridge Road, Suite 202 Fairfax, VA 22030 Tel: (703) 424-7570 Fax: (703) 591-0167 Email: casey@kellyandcrandall.com - and - Kristi Cahoon Kelly, Esq. Kelly & Crandall PLC 3925 Chain Bridge Road, Suite 202 Fairfax, VA 22030 Tel: (703) 424-7570 Fax: (703) 591-0167 Email: kkelly@kellyandcrandall.com BANK OF AMERICA: Fights Class Action Over Inflated Appraisals ------------------------------------------------------------- Jack Newsham, Bonnie Eslinger, Daniel Siegal, Shayna Posses and Melissa Daniels, writing for Law360, report that Bank of America Corp. urged a California federal judge on Oct. 2 not to recognize a proposed class of borrowers who accuse BofA and Countrywide Financial Corp. of making them use a crooked home appraisal company, saying the alleged wrongdoing varies too widely for a class action to be appropriate. The bank, which snapped up Countrywide and its appraisal subsidiary LandSafe Inc. during the financial crisis in 2008, asserted that there are too many problems with the proposed class and its representatives for the consolidated cases to move forward. The plaintiffs have argued that Countrywide and BofA had LandSafe and affiliates bang out inflated appraisals so they could make irresponsible loans, but the bank and its co-defendants argued that the whole theory "makes no sense." For starters, the defendants asserted, none of the plaintiffs fit the proposed class definition. Several of their loans originated with Countrywide KB Home Loans LLC, a nonparty, and another's home wasn't even appraised at a high enough value for her to get the loan she was seeking, the bank said. And one has said she can't make time for a trial, the defendants said, while another wasn't even a borrower -- her husband was. "In short, plaintiffs have produced no evidence of common proof, such as of classwide defective appraisals, that could justify class certification," the bank said. The bank said two of the proposed class representatives reached out to one of the plaintiffs' law firms so long ago that the statute of limitations for claims under the Racketeer Influenced and Corrupt Organizations Act, which could lead to triple damages, had passed by the time the suit was filed. Three of them can't show that they paid for the appraisals they seek refunds for, and another can't sue under the laws of the state where she lives, BofA asserted. Although much of the latter half of the bank's brief was redacted, it argued that individual issues outweigh the commonalities among proposed class members. In other parts of the brief, BofA said LandSafe worked with a wide array of independent appraisers who are not parties to the suit, and it cited witnesses who said there was no coordination or common enterprise between the bank and appraisers. They exercised independent judgment, BofA said. The bank also filed motions to strike portions of two declarations submitted by the plaintiffs' experts. The documents were almost completely redacted. A lawyer for the plaintiffs didn't immediately respond to a request for comment on Oct. 3. In March, a judge rejected Bank of America and LandSafe's bid to dismiss one of the consolidated cases, saying that although the transactions at issue in the June 2016 suit occurred in 2006 and 2007, well outside RICO's four-year statute of limitations, the plaintiffs had satisfactorily alleged they couldn't have known that they had a claim until the 2012 unsealing of a qui tam complaint over the same scheme brought by whistleblower Kyle Lagow. The plaintiffs seek certification of two classes: a nationwide RICO class that would include U.S. residents who, from Jan. 1, 2003, through Dec. 31, 2008, obtained an appraisal from LandSafe in connection with a loan originated by Countrywide; and a Texas unjust enrichment class for Texas residents during the same period who got a Countrywide loan that came with a LandSafe appraisal. The plaintiffs are represented by Christopher R. Pitoun, Steve W. Berman and Thomas E. Loeser of Hagens Berman Sobol Shapiro LLP, and Daniel Alberstone, Roland Tellis, Mark Pifko and Evan Zucker of Baron & Budd PC. The defendants are represented by Robert E. Boone III -- reboone@bryancave.com -- Douglas A. Thompson -- douglas.thompson@bryancave.com -- Linda C. Hsu -- linda.hsu@bryancave.com -- and Richard P. Steelman Jr. -- ricky.steelman@bryancave.com -- of Bryan Cave LLP. The cases are Waldrup v. Countrywide Financial Corp. et al., case number 2:13-cv-08833, and Williams et al. v. Countrywide Financial Corp. et al., case number 2:16-cv-04166, in the U.S. (C.D. Cal.). The case is assigned to Judge Christina A. Snyder. The case was filed June 10, 2016. [GN] BANK OF NEW YORK: Court Denies Bid to Strike Putative Class Rep --------------------------------------------------------------- The United States District Court for the District of Massachusetts issued an Order Denying Defendant's motion to strike putative class representative in the case captioned ASHBY HENDERSON and THOMAS HERSHENSON, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. THE BANK OF NEW YORK MELLON, NATIONAL ASSOCIATION, Defendants, Civil Action No. 15-10599-PBS (D. Mass.). The Court defers ruling on the plaintiffs' motion for class certification until the Court has the opportunity to review full briefing on summary judgment. The plaintiffs move for class certification. As part of its opposition, BNY Mellon moves to strike putative class representative, Ashby Henderson, on the basis of inadequacy. BNY Mellon also filed its motion for summary judgment ahead of schedule and sought to defer decision on class certification until after adjudication of its motion to strike and its motion for summary judgment. This proposed class action claims that defendant, the trustee for thousands of trusts, breached its fiduciary duties to its trust beneficiaries in two ways: by imprudently investing trust assets in poorly performing proprietary and affiliated investment vehicles and by charging unauthorized fees for the preparation of tax returns. BNY Mellon's instant motion challenges only the adequacy prong of Rule 23, under which a class action may proceed only if the representative parties will fairly and adequately protect the interests of the class. The First Circuit has stated that there are two elements to the adequacy requirement: first that the interests of the representative party will not conflict with the interests of any of the class members, and second, that counsel chosen by the representative party is qualified, experienced and able to vigorously conduct the proposed litigation. The District Court finds that Henderson has demonstrated sufficient knowledge of her claims to serve as class representative. At her deposition, Henderson was able to explain the essential nature of her claims, at least to the extent that is reasonable to expect from a layperson class representative in a complex financial case. Henderson's level of understanding of her claims was greater than that of putative class representatives that courts found to be inadequate in some of the cases cited by BNY Mellon. Henderson did not display a disqualifying lack of knowledge or interest in the case by displaying some uncertainty about whether her trust level fee claim remained in the latest amended complaint or by responding to certain deposition questions on some of the details of her claims by deferring to her counsel. The Court also finds that Henderson has not ceded control of the litigation to lawyer Brian McTigue. Her continued contact with McTigue does not give rise to a conflict with the class. Last summer, the Court was made aware of discord among the plaintiffs' counsel that resulted in McTigue firing the other plaintiffs' counsel. Henderson represented to the Court that she was only willing to serve as named class representative if McTigue was appointed as interim co-lead or sole lead class counsel. The Court denied McTigue's motion to be appointed interim lead class counsel upon finding that his conduct during the litigation was deeply disturbing contumacious, and uncivil. Subsequently, plaintiffs' counsel came to an agreement in which Bailey & Glasser LLP and the Howard Law Firm would serve as interim co-lead counsel and McTigue's firm would serve on an Executive Committee under the direction of the colead counsel. The Court engaged in a colloquy with Henderson regarding this arrangement. Henderson stated that while she wanted McTigue to be involved, she did not demand that McTigue serve as lead counsel and she was willing to work with the other plaintiffs' lawyers. The Court confirmed that Henderson understood that even if McTigue served as her contact person, the whole team of plaintiffs' lawyers was representing the putative class. The Court finds that Henderson has adequate knowledge of the case to serve as class representative, that she has not ceded control of the case to unfit class counsel, and that her interests do not conflict with the interests of the class. A full-text copy of the District Court's September 25, 2017 Memorandum and Order is available at http://tinyurl.com/y8xxyrjo from Leagle.com. Ashby Henderson, Plaintiff, represented by J. Brian McTigue, McTigue Law LLP, pro hac vice, 4530 Wisconsin Avenue, NorthWest, Suite 300 Washington, DC 20016 Ashby Henderson, Plaintiff, represented by Regina M. Markey, McTigue Law, LLP, pro hac vice, Brooke Edwards, McTigue Law LLP, 4530 Wisconsin Avenue, NorthWest, Suite 300 Washington, DC 20016 pro hac vice, Benjamin Lajoie --blajoie@baileyglasser.com -- Bailey & Glasser LLP, Derek G. Howard -- derek@derekhowardlaw.com -- Derek G. Howard Law Firm, Inc., pro hac vice, Elizabeth A. Ryan,- eryan@baileyglasser.com -- Bailey & Glasser LLP, Gregory Y. Porter -- gporter@baileyglasser.com -- Bailey & Glasser LLP, pro hac vice, John J. Roddy --jroddy@baileyglasser.com -- Bailey & Glasser LLP & Michael Murphy -- mmurphy@baileyglasser.com -- Bailey & Glasser LLP, pro hac vice. Thomas J. Hershenson, Plaintiff, represented by John J. Roddy, Bailey & Glasser LLP, Benjamin Lajoie, Bailey & Glasser LLP & Gregory Y. Porter, Bailey & Glasser LLP. The Bank of New York Mellon Trust Company, National Association, Defendant, represented by K. Issac deVyver -- kdevyver@mcguirewoods.com -- McGuireWoods LLP, pro hac vice, Nellie E. Hestin -- nhestin@mcguirewoods.com -- McGuireWoods LLP, Mary J. Hackett -- mhackett@mcguirewoods.com -- McGuireWoods LLP, pro hac vice & Melissa M. Taylor -- mmtaylor@mcguirewoods.com -- McGuireWoods LLP, pro hac vice. BNY Mellon, National Association, Defendant, represented by K. Issac deVyver, McGuireWoods LLP, pro hac vice, Nellie E. Hestin, McGuireWoods LLP, Mary J. Hackett, McGuireWoods LLP, pro hac vice & Melissa M. Taylor, McGuireWoods LLP, pro hac vice. BASKIN-ROBBINS LLC: "Abedi" Suit Alleges TCPA Violation ------------------------------------------------------- Deeba Abedi, and all others similarly-situated v. Baskin-Robbins LLC, and Does 1-100, Case No. 1:17-at-00749 (E.D. Ca., October 4, 2017), seeks damages and injunctive relief for the Defendants' violation of the Telephone Consumer Protection Act. The Plaintiff is a citizen of the County of Merced, State of California. Defendant Baskin-Robbins LLC operates and franchises a chain of ice cream specialty shops. The Defendants conducted business in the State of California and in the County of Merced. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Meghan E. George, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Tel: (877) 206-4741 Fax: (866) 633-0228 E-mail: tfriedman@toddflaw.com mgeorge@toddflaw.com abacon@toddflaw.com BAYER CORP: Essure Class Action Remanded to State Court ------------------------------------------------------- Sam Knef, writing for St. Louis Record, reports that U.S. District Judge Stephen Limbaugh for a second time has granted plaintiffs' request to remand a proposed class action against Bayer over its birth control product, Essure, to state court. In a ruling filed Sept. 27, Judge Limbaugh, of the Eastern District of Missouri, held that the defendants' removal was not "procedurally proper" as it was not filed within 30 days of receiving the original state court complaint. He was not persuaded by the arguments of Bayer attorneys who removed the case July 18 after the landmark ruling a month earlier in Bristol-Myers Squibb v. Superior Court of California. In that ruling, the U.S. Supreme Court held that a court cannot "exercise specific personal jurisdiction where a nonresident fails to show a connection between the nonresident's specific claim and the forum," Judge Limbaugh wrote. Bayer had argued that the Bristol-Myers Squibb decision triggered a new removal period. "But Bristol-Myers is a separate case with different parties," he wrote. In its second removal action, Bayer also cited a Missouri Supreme Court decision in State ex rel. Bayer Corp. v. Moriarty to support its position, "a ruling which issued a preliminary writ of prohibition, ordering a circuit court judge to show cause 'why a writ of prohibition should not issue prohibiting [her] from doing anything other than vacat[ing]' an order denying Bayer's motion to dismiss," the order said. And a third case that Bayer cited was Jordan v. Bayer in which Limbaugh found that the Bristol-Myers Squibb decision was dispositive of the specific jurisdiction issue in denying a plaintiffs' motion to remand. In those two cases, Judge Limbaugh held that neither one formed the basis of an "order or other paper." The case that Judge Limbaugh remanded for a second time involves 94 plaintiffs from 26 different states and was originally filed Nov. 7, 2016. After Bayer's first removal action, Judge Limbaugh ruled that the plaintiffs had not fraudulently joined or fraudulently misjoined non-Missouri plaintiffs and remanded it. [GN] BMW AG: Newton Files Suit Over Sherman Act Violation ---------------------------------------------------- RENEE NEWTON, OREN ARBIT, BILTRITE FURNITURE, INC., DENNIS LANE, MARK ROSEN, TYLER CARVER, MILES ROSEN, and FRANK PALUMBO, individually and on behalf of all others similarly situated v. BAYERISCHE MOTOREN WERKE AKTIENGESELLSCHAFT, BMW OF NORTH AMERICA, LLC, DAIMLER AKTIENGESELLSCHAFT, MERCEDESBENZ USA, LLC, VOLKSWAGEN AKTIENGESELLSCHAFT, VOLKSWAGEN GROUP OF AMERICA, INC., AUDI AKTIENGESELLSCHAFT, AUDI OF AMERICA, LLC, DR. ING. H.C. F. PORSCHE AKTIENGESELLSCHAFT, and PORSCHE CARS NORTH AMERICA, INC., Case No. 2:17-cv-07267 (D.N.J., September 20, 2017), is brought on behalf of a class of all persons similarly situated in the United States, who purchased or leased a new Circle of Five vehicle. The Plaintiffs bring the action under the Clayton Act for equitable and injunctive relief against the Circle of Five for violating the Sherman Act. The Plaintiffs allege, among other things, that the Defendants' conspiracy limited the pace and extent of innovation, causing the Circle of Five Vehicles to have fewer features and lesser performance than they would absent the conspiracy. A "Circle of Five Vehicle" is defined herein to include all cars sold in the United States by Volkswagen, Audi, Porsche, Daimler, or BMW since January 1, 1990. Bayerische Motoren Werke Aktiengesellschaft ("BMW AG") is a German corporation with its principal place of business located in Munich, Germany. BMW of North America, LLC, is a Delaware limited liability corporation with its principal place of business located in Woodcliff Lake, New Jersey. BMW America is a wholly-owned subsidiary of BMW AG that imports and distributes vehicles sold under the Mini and BMW brands in all 50 states. Daimler Aktiengesellschaft is a German corporation with its principal place of business located in Stuttgart, Germany. Daimler AG is the parent corporation of Mercedes-Benz USA, LLC and numerous other companies globally. Mercedes-Benz USA, LLC, is a Delaware limited liability corporation with its principal place of business located in Montvale, New Jersey. MB USA is a wholly- owned subsidiary of Daimler AG that markets and distributes Mercedes-Benz vehicles in all 50 states. Volkswagen Aktiengesellschaft is a German corporation with its principal place of business in Wolfsburg, Germany. Volkswagen Group of America, Inc., is a New Jersey corporation with its principal place of business located in Herndon, Virginia. VW America is a wholly-owned subsidiary of Volkswagen AG, and it engages in business, including the advertising, marketing and sale of Volkswagen automobiles, in all 50 states. Audi Aktiengesellschaft is a German corporation with its principal place of business in Ingolstadt, Germany. Audi AG is the parent of Audi of America, LLC and a subsidiary of the Audi Group, which is a wholly-owned subsidiary of VW AG. Audi of America, LLC, is a Delaware limited liability company with its principal place of business located in Herndon, Virginia. Dr. Ing. h.c. F. Porsche Aktiengesellschaft is a German corporation with its principal place of business located in Stuttgart, Germany. Porsche AG designs, develops, manufacturers, and sells luxury automobiles. Porsche AG is a wholly-owned subsidiary of VW AG. Porsche Cars North America, Inc., is a Delaware corporation with its principal place of business located in Atlanta, Georgia. Porsche America is a wholly-owned U.S. subsidiary of Porsche AG, and it engages in business, including the advertising, marketing and sale of Porsche automobiles, in all 50 states. The Defendants engineered, designed, developed, and manufactured BMW Circle of Five Vehicles and exported these vehicles throughout the United States.[BN] The Plaintiffs are represented by: James E. Cecchi, Esq. CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO P.C. 5 Becker Farm Road Roseland, NJ 07068-1739 Telephone: (973) 994-1700 Facsimile: (973) 994-1744 E-mail: JCecchi@carellabyrne.com - and - Elizabeth J. Cabraser, Esq. Eric B. Fastiff, Esq. Brendan P. Glackin, Esq. Dean M. Harvey, Esq. Wilson M. Dunlavey, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 E-mail: ecabraser@lchb.com efastiff@lchb.com bglackin@lchb.com dharvey@lchb.com wdunlavey@lchb.com - and - David S. Stellings, Esq. Abbye R. Klamann, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 250 Hudson Street, 8th Floor New York, NY 10013-1413 Telephone: (212) 355-9500 Facsimile: (212) 355-9592 E-mail: dstellings@lchb.com aklamann@lchb.com - and - Dan Drachler, Esq. ZWERLING, SCHACHTER & ZWERLING, LLP 1904 Third Avenue, Suite 1030 Seattle, WA 98101 Telephone: (206) 223-2053 Facsimile: (206) 343-9636 E-mail: ddrachler@zsz.com - and - Jeffrey C. Zwerling, Esq. Robert S. Schachter, Esq. Sona R. Shah, Esq. ZWERLING, SCHACHTER & ZWERLING, LLP 41 Madison Avenue, 32nd Floor New York, NY 10010 Telephone: (212) 223-3900 Facsimile: (212) 371-5969 E-mail: jzwerling@zsz.com rschachter@zsz.com sshah@zsz.com BP EXPLORATION: Wins Summary Judgment in MBCASA Member's Suit ------------------------------------------------------------- The United States District Court for the Northern District of Alabama, Southern Division, issued a Memorandum Opinion granting Defendants' Motion for Summary Judgment in the case captioned ROBERT JAMES TOWNSEND, Plaintiff, v. BP EXPLORATION & PRODUCTION, INC., et. al., Defendants, Case No. 4:16-CV-301 (N.D. Ala.). Plaintiff Robert Townsend worked as a deck hand on a crew boat in the Gulf of Mexico between Brownsville, Texas, and Key West, Florida, during the months of August and September 2010. Townsend's vessel delivered cargo to boats in Mobile Bay that were assisting with the containment of the oil spill. Townsend claims that he was exposed to chemical dispersants and crude oil, as well as a fish-kill that occurred during August and September 2010. Townsend states that he has experienced the following health problems as a result of the exposure: shortness of breath, abdominal pain, lymph gland enlargement, acute sinusitis, upper respiratory infection, hypertension, chronic back pain, stomach pain, swollen lymph nodes, headaches, dizziness, severe sea sickness, high blood pressure, kidney pain, contact dermatitis, and what he believes to be nerve damage. The "Medical Benefits Class Action Settlement Agreement," approved by the United States District Court for the Eastern District of Louisiana on January 11, 2013, governs claims arising from clean- up efforts surrounding the Deepwater Horizon oil spill. The MBCASA defines the "Medical Benefits Settlement Class" so as to include "all natural persons who resided in the United States as of April 16, 2012, and who . . . worked as clean-up workers at any time between April 20, 2010, and April 16, 2012." Plaintiff falls under this definition and is therefore a class member whose claims are governed by the MBCASA. To prevail on his claims, Plaintiff must prove exposure to the dispersants and crude oil, their toxicity, and that their toxicity caused his illnesses. This type of proof requires expert testimony. Thus, to survive summary judgment, Plaintiff must put forth reliable expert testimony showing that there is a genuine issue for trial. Plaintiff's evidentiary submissions regarding his alleged injuries only consist of medical records indicating multiple occasions on which he sought treatment for various types of sickness. Because this case is a toxic tort, Plaintiff must provide expert testimony linking these illnesses to exposure to toxic chemicals Plaintiff encountered in the clean-up efforts. Plaintiff did not provide any expert testimony showing either exposure to toxic chemicals or that such exposure caused any injury. The court finds that there is no genuine dispute of material fact and BP is entitled to judgment as a matter of law. Defendants' Motion for Summary Judgment is therefore due to be granted. A full-text copy of the District Court's September 25, 2017 Opinion is available at http://tinyurl.com/y8thpz3bfrom Leagle.com. Robert James Townsend, Plaintiff, Pro Se. BP Exploration & Production Inc, Defendant, represented by Harlan Irby Prater, IV -- hprater@lightfootlaw.com -- LIGHTFOOT FRANKLIN & WHITE LLC, Jonathan R. Little -- little@lightfootlaw.com -- LIGHTFOOT FRANKLIN & WHITE LLC & William H. Morrow -- wmorrow@lightfootlaw.com -- LIGHTFOOT FRANKLIN & WHITE LLC. BP America Production Company, Defendant, represented by Harlan Irby Prater, IV, LIGHTFOOT FRANKLIN & WHITE LLC, Jonathan R. Little, LIGHTFOOT FRANKLIN & WHITE LLC & William H. Morrow, LIGHTFOOT FRANKLIN & WHITE LLC. BP EXPLORATION: 5th Cir. Affirms Denial of Discretionary Review --------------------------------------------------------------- In the case captioned CLAIMANT ID 100128765, Requesting Party -- Appellant, v. BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA PRODUCTION COMPANY; BP, P.L.C., Objecting Parties -- Appellees, Case No. 16-31087 (5th Cir.), Judge Thomas Morrow Reavley of the U.S. Court of Appeals for the Fifth Circuit affirmed the district court's denial of Bickford Appraisal Group's petition for discretionary review. The appeal involves a claim under the Deepwater Horizon Economic and Property Damages Settlement. Appellant Bickford is a real- estate-appraisal company located in Hammond, Louisiana. It filed a "Business Economic Loss" claim under the Settlement. The Settlement divides various geographic regions in the Gulf of Mexico into four economic loss zones: A, B, C, and D. It is undisputed that Bickford is a zone D claimant. In order to recover for losses pursuant to the Settlement, a zone D claimant is required to establish causation through one of various tests. In a hearing before the claims administrator, Bickford sought to establish causation pursuant to the "Decline Only" test. That Exhibit set out three subparts to the test, summarized in Policy Statement 474 in this abbreviated way: a. The first prong of this test examines the decline in percentage of revenue over three consecutive post-Spill months in 2010 compared to the same months in the Benchmark Period. b. The second prong requires the claimant to provide specific documentation that identifies factors outside the control of the claimant that prevented the recovery of revenues in 2011. c. The third prong examines the decline in the share of total revenue generated by certain customers over the same period of three consecutive post-Spill months in 2010 as used in the first prong compared to the same three consecutive month period in 2009. The Settlement Program refers to this analysis as the Customer Mix Test. In an attempt to satisfy the second prong, Bickford submitted two articles from an appraisal trade publication. It alleged that these articles explained that appraisal companies struggled in 2011 after the 2010 passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act. According to Bickford, Dodd-Frank required lenders to go through appraisal management companies to bid out appraisals, while before the enactment, lenders could contract directly with appraisal companies to request appraisals. It contends that the new requirements had the effect of driving down an appraiser's revenues. The claims administrator denied Bickford's claim, because Bickford has not provided documents sufficient to establish that its lost revenue occurred as a result of the Spill, in accordance with Exhibit 4B of the Settlement Agreement. Bickford sought reconsideration, but the request was denied. The appeal panel then upheld the denial of Bickford's claim. The appeal panel interpreted the specific documentation requirement in Section III.C as necessitating objective third-party documentation. The appeal panel concluded that the articles and the information within the articles were not objective. Bickford then sought discretionary review from the district court. The district court denied review. Having reviewed the district court's denial of discretionary review for abuse of discretion, Judge Reavley concludes he needs not consider whether the appeal panel applied a legally incorrect definition of "objective" when dismissing the documentation because Bickford's Dodd-Frank articles do not address any of the factors required by Section III.C. Bickford did not satisfy Section III.C because it failed to provide specific documentation addressing one of the enumerated factors. The district court therefore did not abuse its discretion in denying Bickford's petition for discretionary review. Accordingly, Judge Reavley affirmed. A full-text copy of the Court's Sept. 27, 2017 Order is available at https://is.gd/ZE8jl5 from Leagle.com. Don Keller Haycraft -- dkhaycraft@liskow.com -- for Objecting Party-Appellee. James M. Garner, for Requesting Party-Appellant. Martha Y. Curtis, for Requesting Party-Appellant. James Andrew Langan -- andrew.langan@kirkland.com -- for Objecting Party-Appellee. Richard Cartier Godfrey -- richard.godfrey@kirkland.com -- for Objecting Party-Appellee. Kevin Michael McGlone, for Requesting Party-Appellant. Jeffrey Bossert Clark, Sr. -- jeffrey.clark@kirkland.com -- for Objecting Party-Appellee. Aaron Lloyd Nielson -- aaron.nielson@kirkland.com -- for Objecting Party-Appellee. Martin R. Martos, II -- martin.martos@kirkland.com -- for Objecting Party-Appellee. CACH LLC: Court Allows Substitution for Deceased Party ------------------------------------------------------ The United States District Court for the District of Idaho issued an Order granting Plaintiff's Motion for Substitution in the case captioned CHRISTOPHER E. JOHNSON, Plaintiff, v. CACH, LLC, and MANDARICH LAW GROUP, LLP, Defendants, Case No. 1:16-cv-00383-BLW (D.Idaho). Defendant CACH filed a petition for Chapter 11 bankruptcy. During informal discussions between the Court's staff and counsel via email, counsel for both sides appeared to agree that the Court may proceed with this case as to the non-debtor party that the case is only stayed as to CACH. Defendants asked the Court to dismiss Johnson's claims or order the case to arbitration. The Court granted the motion in part by ordering all claims to arbitration. Since then, Johnson has filed a number of motions, and Defendant CACH, LLC, has filed a notice of bankruptcy. Johnson asks the Court to reconsider its order requiring arbitration. The motion originally asked the Court to reconsider its entire decision, but later withdrew the motion as to CACH because of the bankruptcy. Still, Johnson asks that the withdrawal be made without prejudice in case the bankruptcy is dismissed or unsuccessful. Here, Plaintiff argues that the Court committed clear error. However, the motion essentially just asks the Court to reconsider its earlier decision based on the same arguments Plaintiff initially made. The Court explained its earlier reasoning in detail, and nothing in the motion to reconsider changes the Court's mind. Accordingly, the motion to reconsider will be denied. Plaintiff asks the Court to amend the Complaint to remove defendant CACH and any claim brought under North Carolina law. Plaintiff suggests leave should be freely given under Rule 15(a)(2). However, that rule requires that leave be freely given when justice so requires. Here, justice does not so require. First and foremost, the case is stayed as to defendant CACH. Thus, pursuant to 11 U.S.C. Section 362, the Court cannot address the motion if it affects CACH. Second, the Court has already ordered all claims to arbitration in a detailed Order. Regarding the motion to substitute, Plaintiff asks to substitute the Estate of Johnson for Johnson as the plaintiff because Johnson recently passed away. Although the case was pled as a class action, no class has been certified, no motion to certify has been filed, and the case has been ordered to arbitration. Thus, nothing stands in the way of substituting the Estate of Johnson for Plaintiff Johnson, or the case proceeding to arbitration as ordered by the Court. A full-text copy of the District Court's September 25, 2017 Memorandum and Order is available at http://tinyurl.com/y927e6av from Leagle.com. Estate of Christopher E Johnson, Plaintiff, represented by Richard A. Hearn, HEARN LAW, PLC, 155 South 2nd Ave., Pocatello, ID, 83404 Estate of Christopher E Johnson, Plaintiff, represented by T. Jason Wood, Wood Law Group, PC., 2539 Channing Way, Suite 115 Idaho Falls, ID, 83404 Cach, LLC, Defendant, represented by William T. Sali, William T. Sali, Attorney, 175 Linke Court, Kuna, ID 83634 Mandarich Law Group, LLP, Defendant, represented by William T. Sali, William T. Sali, Attorney. CALIFORNIA: Court Dismisses All Claims in "Corena" Suit ------------------------------------------------------- In the case captioned JORGE CORENA, Plaintiff, v. KIM HOLLAND, et al., Defendants, Case No. 1:16-cv-01025-EPG (PC) (E.D. Cal.), the Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. Section 1983. He filed a complaint on July 15, 2016, alleging, among other things, that he was assaulted by Defendants Rodriguez, Cerveza, and Doe. On Aug. 26, 2016, the Plaintiff consented to magistrate judge jurisdiction in this action pursuant to 28 U.S.C. Section 636(c), and no other parties have made an appearance. Magistrate Judge Erica P. Grosjean of the U.S. District Court for the Eastern District of California screened the Plaintiff's complaint and found that it stated a claim for excessive force in violation of the Eighth Amendment against Defendants Rodriguez, Cerveza, and Doe, and a claim for retaliation in violation of the First Amendment against Defendants Rodriguez and Doe. The Court allowed him to choose between going forward with the claims the Court found cognizable, filing a First Amended Complaint, or standing on the complaint subject to dismissal of claims and defendants as laid out in the order. On Jan. 23, 2017, the Plaintiff filed a First Amended Complaint purported to be a class action. It did not include detailed factual allegations. He also claimed that the California Department of Corrections and Rehabilitation needs to develop a policy against civil rights violations. As he was attempting to file a class action, and as the First Amended Complaint did not include detailed factual allegations, the Court dismissed the First Amended Complaint with leave to amend. On June 19, 2017, the Plaintiff filed his Second Amended Complaint. On Sept. 22, 2017, the Court issued a screening order, finding cognizable claims for excessive force in violation of the Eighth Amendment against Defendants Rodriguez, Cerveza, and Doe, and for retaliation in violation of the First Amendment against Defendants Rodriguez and Doe. The Court also dismissed all other claims and the Defendants. Because it was unclear what excessive force claims were allowed, and because there was an error in not allowing a failure to protect claim against Defendant Doe, Magistrate Judge Grosjean issues the amended screening order. The Magistrate Judge has screened the Plaintiff's Second Amended Complaint and finds that it states cognizable claims for excessive force in violation of the Eighth Amendment against Defendants Rodriguez, Cerveza and Doe, for failure to protect in violation of the Eighth Amendment against Defendant Doe, and for retaliation in violation of the First Amendment against defendants Rodriguez and Doe. She also finds that the Second Amended Complaint states no other cognizable claims. The Magistrate will not permit further leave to amend. It is the Plaintiff's third complaint, and the Court has given him ample legal guidance. Additionally, the Plaintiff's original complaint and Second Amended Complaint contain substantially the same underlying facts. Accordingly, the Magistrate Judge ordered that this action proceed on the Plaintiff's claims against Defendants Rodriguez, Cerveza, and Doe for excessive force in violation of the Eighth Amendment, against Defendant Doe for failure to protect in violation of the Eighth Amendment, and against Defendants Rodriguez and Doe for retaliation in violation of the First Amendment. All other claims and the Defendants are dismissed. The service of the Plaintiff's complaint which was filed on June 19, 2017, is appropriate for the following defendants: (i) Correctional Officer Rodriguez; and (ii) Correctional Officer Cerveza. The instructions for completing and returning the service documents remain unchanged. The deadline for the Plaintiff to complete and return the service documents remains unchanged. Failure to complete and return the service documents within the applicable time period may result in the dismissal of this action. A full-text copy of the Court's Sept. 26, 2017 Amended Screening Order is available at https://is.gd/e6GsDw from Leagle.com. Jorge Corena, Plaintiff, Pro Se. CAMDEN COUNTY, NJ: Court Dismisses "Cunningham" Pro Se Complaint ---------------------------------------------------------------- The United States District Court for the District of New Jersey issued an Opinion dismissing, for failure to state a claim, the Complaint in the case captioned DAVID CUNNINGHAM, Plaintiff, v. CAMDEN COUNTY CORRECTIONAL FACILITY, Defendant, Civil Action No. 17-0257(JBS-AMD) (D.N.J.). Plaintiff alleges that he was detained at the CCCF and remained in the facility for the following two years. He further alleges that during this time he was forced to endure deplorable and inhuman living conditions such as sleeping on the floor by the toilet, being in a cell with four other inmates, living in a filthy living area in which exposed me to the flesh eating bacteria known as Mercer. Plaintiff requests that the Court to add him as a class member to the class action suit and to award him $1,250 in damages. The Court must sua sponte dismiss any claim that is frivolous, is malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. This action is subject to sua sponte screening for dismissal under 28 U.S.C. Section 1915(e)(2)(B) because Plaintiff is proceeding in forma pauperis. The allegedly unconstitutional conditions of confinement at CCCF would have been immediately apparent to Plaintiff at the time of his detention; therefore, the statute of limitations for Plaintiff's claims expired in 2010 at the latest, well before this complaint was filed in 2017. Plaintiff has filed his lawsuit too late. Although the Court may toll, or extend, the statute of limitations in the interests of justice, certain circumstances must be present before it can do so. Tolling is not warranted in this case because the state has not actively misled" Plaintiff as to the existence of his cause of action, there are no extraordinary circumstances that prevented Plaintiff from filing his claim, and there is nothing to indicate Plaintiff filed his claim on time but in the wrong forum. The complaint is dismissed with prejudice for failure to state a claim. A full-text copy of the District Court's September 6, 2017 Opinion is available at http://tinyurl.com/yccqdgo8from Leagle.com. DAVID CUNNINGHAM, Plaintiff, Pro Se. CARLSON RESTAURANTS: Judge Tosses $19.1-Mil. Wage-Hour Settlement ----------------------------------------------------------------- Erin Norris Bass, Esq. -- ebass@steptoe.com -- of Steptoe & Johnson LLP, in an article for Lexology, wrote that on September 21, 2017, a federal district judge rejected a $19.1 Million proposed deal to end a nationwide wage-hour class action against the TGI Friday's restaurant chain. In Zorrilla v. Carlson Restaurants Inc., 14-cv-2740 (SDNY), a class of nearly 29,000 tipped workers in nine states alleged violations of the FLSA and state wage-hour laws, including that the restaurant improperly took a tip credit, required an unlawful tip pool, and failed to pay spread-of-hours and uniform-related expenses. After more than four years of litigation, the parties reached perhaps the largest wage-hour settlement for the restaurant industry and sought court approval as required under the FLSA. The court rejected the settlement agreement without prejudice to renew based on two common wage-hour class action settlement pitfalls: (1) confidentiality provisions, and (2) release and waiver provisions. The court first rejected the confidentiality provisions because they could be construed to prevent employees and their counsel from discussing the case publicly and the parties did not offer "compelling justifications" for requiring confidentiality. As a general rule, courts rarely approve wage-hour settlements with confidentiality provisions. The court then rejected the release and waiver provisions as overly broad because they required plaintiffs to waive "discrimination, harassment, retaliation, or hostile work environment claims of any kind," which have "no relationship to wage-and-hour issues." The court required the parties to limit the releases "to wage-and-hour claims relating to the existing suit." Notably, not all courts impose such strict requirements on releases in wage-hour settlements. On September 28, 2017, plaintiffs filed a revised settlement agreement and request for court approval. According to the plaintiffs' motion for settlement approval, the restaurant employed a Rule 68 pick-off strategy early on in the litigation, offering between "$82,000.00 and $2,500.00" to more than 23 proposed named plaintiffs. Tip credits and tip pooling have proved hot topics for wage-hour class action plaintiffs in recent years and can lead to substantial liability. Employers taking advantage of tip credits should carefully scrub pay policies and practices to ensure compliance, which at a minimum requires proper notice and recordkeeping. [GN] CHARLES SCHWAB: Court Approves Extension of Briefing Schedule ------------------------------------------------------------- The United States District Court for the Northern District of California issued an Order approving Joint Stipulation for Extension of Briefing Schedule in the case captioned ROBERT CRAGO, Individually And On Behalf Of All Others Similarly Situated, Plaintiff, v. CHARLES SCHWAB & CO., INC., and THE CHARLES SCHWAB CORPORATION, Defendants, Case No. 3:16-cv-3938-RS (N.D. Cal.). Pursuant to Local Rule 6-2, Lead Plaintiffs Robert Wolfson and Frank Pino and Defendants Charles Schwab & Co., Inc., and The Charles Schwab Corporation, by and through their counsel, stipulated the new deadlines as follows: October 4, 2017: Opposition to motion to dismiss October 25, 2017: Reply in support of motion to dismiss November 13, 1017: Hearing on motion to dismiss Lead Plaintiffs' deadline to file an opposition to Schwab's motion will be October 4, 2017. Schwab's deadline to file the reply in support of its motion will be October 25, 2017. The hearing on Schwab's motion to dismiss will be held on November 13, 2017, or another date as determined by the Court. A full-text copy of the District Court's September 25, 2017 Order is available at http://tinyurl.com/yb928hblfrom Leagle.com. Robert Crago, Plaintiff, represented by Adam Christopher McCall, LEVI & KORSINSKY, LLP. Robert Wolfson, Plaintiff, represented by Robert Vincent Prongay - - rprongay@glancylaw.com -- Glancy Prongay & Murray LLP, David Jay Stone, Bragar Eagel & Squire, P.C., 885 3rd Ave Ste 3040 New York, NY 10022, Jeffrey H. Squire, Bragar Eagel & Squire, P.C., 885 3rd Avenue, Suite 3040, New York, NY 10022, pro hac vice, Joshua L. Crowell -- jcrowell@glancylaw.com -- Glancy Prongay & Murray LLP, Lawrence Paul Eagel -- eagel@bespc.com -- Bragar Eagel and Squire, P.C., pro hac vice & Todd Harris Henderson -- henderson@bespc.com -- Bragar Eagel and Squire, P.C., pro hac vice. Frank Pino, Plaintiff, represented by Robert Vincent Prongay, Glancy Prongay & Murray LLP, David Jay Stone, Bragar Eagel & Squire, P.C., Jeffrey H. Squire, Bragar Eagel & Squire, P.C., pro hac vice, Joshua L. Crowell, Glancy Prongay & Murray LLP, Lawrence Paul Eagel, Bragar Eagel and Squire, P.C., pro hac vice & Todd Harris Henderson, Bragar Eagel and Squire, P.C., pro hac vice. K. Scott Posson, Plaintiff, represented by Joshua L. Crowell, Glancy Prongay & Murray LLP. Charles Schwab & Co., Inc., Defendant, represented by Gilbert Ross Serota -- gilbert.serota@apks.com -- Arnold & Porter Kaye Scholer LLP & Jee Young You, Arnold & Porter Kaye Scholer LLP. The Charles Schwab Corporation, Defendant, represented by Gilbert Ross Serota, Arnold & Porter Kaye Scholer LLP & Jee Young You, Arnold & Porter Kaye Scholer LLP. Scott Posson, Movant, represented by Nicholas Ian Porritt, Levi and Korsinsky & Adam Christopher McCall, Levi Korsinsky, LLP, 1101 30th St NW, Washington, DC, 20007-3708 CITIMORTGAGE INC: 9th Cir. Reversed Dismissal of "Kester" Suit -------------------------------------------------------------- Judge Terrence Berg of the U.S. Court of Appeals for the Ninth Circuit reversed the district court's dismissal of the case captioned DAVID A. KESTER, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. CITIMORTGAGE, INC.; et al., Defendants-Appellees, Case No. 16-15774 (9th Cir.) and remanded for further proceedings. Kester filed a putative class action suit alleging that CitiMortgage and CR Title knowingly caused the recording of invalid property documents in violation of Ariz. Rev. Stat. ("A.R.S.") Section 33-420(A). The district court granted the Defendants' motion to dismiss. Judge Berg finds that Kesler has standing to bring the action, despite the fact that A.R.S. Section 33-411(C) provides that an instrument affecting real property containing any defect, omission or informality in the certificate of acknowledgment and which has been recorded for longer than one year will be deemed to have been lawfully recorded on and after the date of its recording. The Judge concludes that the district court incorrectly held that A.R.S. Section 33-420(A) requires Kester to allege "material" invalidity in the trustee's sale documents. Arizona caselaw does not clearly resolve the question whether a plaintiff must allege materiality to state any claim under A.R.S. Section 33-420(A), rather than just for alleged "misstatements or false claims." The Defendants and the district court relied on two Arizona intermediate appellate cases, Sitton v. Deutsche Bank Nat. Trust Co., and Stauffer v. Premier Service Mortgage, to argue that materiality is a necessary element of all claims under A.R.S. Section 33-420(A). The Judge says those cases, however, interpret only the statute's requirement that a "material misstatement or false claim" gives rise to liability under A.R.S. Section 33- 420(A). They do not clearly hold that a plaintiff must plead materiality to state a claim for recording of "forged," "groundless," or "otherwise invalid" documents. Finally, even if Stauffer and Sitton did stand for the proposition that materiality is an element of any and all claims under Section 33-420(A), the plain text and purpose of the statute constitute "convincing evidence" that the Arizona Supreme Court would not follow this broad reading of the word "material" in Section 33- 420(A). Judge Berg further concludes that the district court erred in concluding that any invalidity of the Assignment and Substitution was cured "by operation of law" pursuant to the governing recording statutes A.R.S. Section 33-411 and the Deed of Trust Act A.R.S. Section 33-811(B). The district court's reasoning fundamentally misunderstands the significant distinction between a cause of action for damages pursuant to A.R.S. Section 33-420(A), and a cause of action to quiet title, which seeks a judicial determination of title, rather than damages. The recording statutes and the Deed of Trust Act deal with the latter, by protecting bona-fide third-party purchasers and essentially quieting title as to such purchasers. Neither provision precludes a prior owner's cause of action under Section 33-420(A) for recording irregularities that occurred prior to the sale. For the reasons stated, Judge Berg reversed and remanded for further proceedings consistent with his disposition. A full-text copy of the Court's Sept. 29, 2017 Memorandum is available at https://is.gd/lOuyCC from Leagle.com. COCA-COLA CO: Third Circuit Appeal Filed in "Enslin" Class Suit --------------------------------------------------------------- Plaintiff Shane E. Enslin filed an appeal from a court ruling in the lawsuit titled Shane Enslin v. Coca Cola Co., et al., Case No. 2-14-cv-06476, in the U.S. District Court for the Eastern District of Pennsylvania. As previously reported in the Class Action Reporter, Shane Enslin filed the complaint November 12, 2014, seeking damages under the Drivers Piracy Protection Act for negligence, fraud, conspiracy and other claims. Enslin said he entrusted the soda giant with his personal identifying and financial information. Coke allegedly sent Enslin a letter in February, alerting him to the fact that his PII was "stored on or accessed from at least one of the 55 laptops stolen sometime between January of 2007 and December of 2013." The breach on the company's largest bottler, Coca-Cola Enterprises, compromised the PII of at least 74,000 current and former Coke employees, according to the complaint. Mr. Enslin blames Coca-Cola for failing to properly encrypt such PII, which the thieves used "to wreak havoc on the plaintiff's life." He said the thieves used his bank account to pay for more than $958 worth of Bloomingdale's merchandise, delivered to Staten Island. They also allegedly had more than $825 of Fingerhut merchandise shipped to that Staten Island address, which the thieves tried to make the primary address for all of Enslin's accounts, according to the complaint. The appellate case is captioned as Shane Enslin v. Coca Cola Co., et al., Case No. 17-3153, in the United States Court of Appeals for the Third Circuit.[BN] Plaintiff-Appellant SHANE E. ENSLIN, on behalf of himself and all others similarly situated, is represented by: Donald E. Haviland, Jr., Esq. HAVILAND HUGHES 111 South Independence Mall East The Bourse, Suite 1000 Philadelphia, PA 19106 Telephone: (215) 609-4661 E-mail: haviland@havilandhughes.com - and - William H. Platt, II FLAMM WALTON 4905 West Tilghman Street Suite 310, Westfield Corporate Center Allentown, PA 18104 Telephone: (610) 336-6800 E-mail: whplatt@flammlaw.com Defendants-Appellees COCA COLA CO., COCA COLA REFRESHMENTS USA INC., COCA COLA ENTERPRISES INC., KEYSTONE COCA COLA AND BOTTLING AND DISTRIBUTION CORP., KEYSTONE COCA COLA BOTTLING CO., KEYSTONE COCA COLA BOTTLING CO INC., and KEYSTONE COCA COLA BOTTLING CORP. are represented by: Mark S. Melodia, Esq. REED SMITH LLP 136 Main Street Suite 250, Princeton Forrestal Village Princeton, NJ 08540 Telephone: (609) 987-0050 E-mail: mmelodia@reedsmith.com CONNECTICUT: Settlement in Inmates' Class Suit Has Final OK ----------------------------------------------------------- The United States District Court, District of Connecticut, issued an Order granting Parties' Joint Motion for Final Approval of Settlement Agreement in the case captioned VALERIE WEST, ET AL., v. COMMISSIONER JOHN R. MANSON, ET AL., Civil No. 2:83-CV-366(RNC) (D. Conn.). The parties, including the plaintiff classes of women who are or who in the future will be confined in Connecticut's correctional institution for women, and the plaintiff class of children of these women and the Defendant Commissioner of the Department of Correction (DOC) jointly move for the final approval of the Stipulation preliminarily approved by the Court. The provisions of the Consent Judgment, approved and adopted on January 9, 1989, resolve the existing disputes and issues in the case between the plaintiffs, individually and those similarly situated as present and future inmates confined at The Connecticut Correctional Institution at Niantic (CCIN), and the defendants, all of whom are officials and employees of the Connecticut Department of Corrections, and Department of Children and Youth Services. Rule 23(e) requires court approval for a class action settlement to insure that it is procedurally and substantively fair, reasonable and adequate. The Court finds that the parties have worked out a meaningful agreement for defendant to contract/arrange for attorneys or paralegals to conduct trainings and seminars on legal proceedings and remedies in civil family court, and facilitate access to legal self-help materials and forms on CTLawhelp.org that will benefit all inmates regardless of gender. Moreover, the Settlement Agreement preserved the provision of these services to female inmates which were at risk of immediate termination. On balance, the agreement is substantially fair in light of the attendant risks and costs of further litigating this issue. At the fairness hearing, all counsel moved for approval of the Settlement Agreement. The Court finds that experienced and able counsel reached a fair, adequate and reasonable compromise to the benefit of all incarcerated individuals of both genders, while preserving for the plaintiff classes those kinds of legal assistance for which the most interest and need has been demonstrated during the operation of the consent decree. Accordingly, the Court approves the parties' Settlement Agreement. The parties' Joint Motion for Final Approval of Settlement Agreement is granted. Defendants' Motion to Immediately Terminate Prospective Injunctive Relief Pursuant to 18 U.S.C. Section3626(b)(2) as to Section IX, Paragraph 2 of the 1989 Consent Judgment is granted. A full-text copy of the District Court's September 7, 2017 Order is available at http://tinyurl.com/ycr72z85from Leagle.com. Valerie West, Plaintiff, represented by Lynn B. Cochrane, Greater Hartford Legal Aid, 999 Asylum Ave Fl 3, Hartford, CT, 06105-2431 Valerie West, Plaintiff, represented by Toya Alek Graham, Toya Alek Graham, 30 Mystic StArlington, MA 02174-1155, Alexis S. Gettier -- agettier@daypitney.com -- Day Pitney LLP, Dan Barrett, American Civil Liberties Union, Giovanna E. Shay, Greater Hartford Legal Aid & Linda Allard, Greater Hartford Legal Aid, 999 Asylum Ave Fl 3, Hartford, CT, 06105-2431. Passion Rayne West, Plaintiff, represented by Dan Barrett, American Civil Liberties Union, Lynn B. Cochrane, Greater Hartford Legal Aid, Toya Alek Graham, Toya Alek Graham & Alexis S. Gettier, Day Pitney LLP-Stmfd. Victoria Bellavita, Plaintiff, represented by Dan Barrett, American Civil Liberties Union, Lynn B. Cochrane, Greater Hartford Legal Aid, Toya Alek Graham, Toya Alek Graham & Alexis S. Gettier, Day Pitney LLP. Joann Parker, Plaintiff, represented by Dan Barrett, American Civil Liberties Union, Lynn B. Cochrane, Greater Hartford Legal Aid, Toya Alek Graham, Toya Alek Graham & Alexis S. Gettier, Day Pitney LLP. Donnielle Parker, Plaintiff, represented by Dan Barrett, American Civil Liberties Union, Lynn B. Cochrane, Greater Hartford Legal Aid, Toya Alek Graham, Toya Alek Graham & Alexis S. Gettier, Day Pitney LLP. Linda Shelton, Plaintiff, represented by Dan Barrett, American Civil Liberties Union, Lynn B. Cochrane, Greater Hartford Legal Aid, Toya Alek Graham, Toya Alek Graham & Alexis S. Gettier, Day Pitney LLP. John R. Manson, Defendant, represented by Steven R. Strom, Office of the Attorney General. Marie Cerino, Defendant, represented by Steven R. Strom, Office of the Attorney General. Comm., DCYS Mark Marcus, Defendant, represented by Steven R. Strom, Office of the Attorney General. James A. Harnage, Movant, Pro Se. CONVERGYS CORP: Texas Employers Can Enforce Class Action Waivers ---------------------------------------------------------------- Attorney Keith Clouse of Dallas Employment Lawyer on Oct. 4 disclosed that employers may require employees to sign class action waivers as a condition of employment, and the Fifth Circuit has made it clear that such waivers will be enforceable against employees -- preventing them from litigating disputes as a class or collective action. Convergys Corp. v. National Labor Relations Board, No. 15-60860 (5th Cir. Aug. 07, 2017), available at http://caselaw.findlaw.com/us-5th-circuit/1869998.html This ruling is good news for Texas employers because defending class action lawsuits often results in costly legal fees and the potential for large verdicts against the company. Utilizing class action waivers, either as part of an arbitration agreement or an employment contract, forces employees to bring any disputes with the company as individual claims -- saving both time and money for employers. However, this employer protection may not last for long -- there is currently a split among circuit courts regarding whether such waivers are valid and enforceable in the employment context. The United States Supreme Court is expected to address the issue this term with the three consolidated class action waiver cases which are currently pending before the Court. The circuit court split is the result of varying interpretations of Section 7 of the National Labor Relations Act (NLRA) which, "guarantees employees the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." Additionally, Section 8 of the NLRA makes it an "unfair labor practice" for an employer to "interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7." In the Convergys Corp. case, the National Labor Relations Board argued that class action waivers are unenforceable because they violate an employee's rights under Section 7 of the NLRA to "engage in other concerted activities." However, the Fifth Circuit ultimately rejected this argument and reiterated its view that the NLRA does not give employees any substantive right to bring class actions suits; rather, the right to bring suit as a class action is procedural. This distinction between what the court classifies as a substantive vs. a procedural right is important because substantive rights cannot be waived, while procedural rights may be waived. Oral arguments before the Supreme Court are set to begin in October. However, until a decision is reached by the Court, employers in Texas will remain protected from class action suits by employees who have signed such waivers as part of their employment agreement. [GN] COOPER CITY, FL: "Joliff" Final Judgment Flipped in City's Favor ---------------------------------------------------------------- In the case captioned CITY OF COOPER CITY, Appellant, v. WALTER S. JOLIFF, BARBARA JOLIFF and BRENDA J. KEZAR, Appellees, Case No. 4D16-2504 (Fla. Dist. App.), Judge Jeffrey T. Kuntz of the District Court of Appeal of Florida, Fourth District, reversed the circuit court's final judgment and remanded for entry of judgment in favor of Cooper City. In 1999, Cooper City passed Ordinance 99-7-1, levying a special assessment for Fire Rescue Services. The ordinance defined "Fire Rescue Services" as "Emergency Medical Services and Rescue Services." Three years later, in City of North Lauderdale v. SMM Properties, Inc., the Florida state Supreme Court held that emergency medical services do not provide a "special benefit" to property and, therefore, cannot be the basis for a special assessment. In accordance with that decision, Cooper City amended the ordinance, removing the term "emergency medical services" from the definition of "Fire Rescue Services." Thereafter, for 2006, 2007, 2008, and 2009, Cooper City passed annual resolutions implementing the special assessment without emergency medical services as an item for which the property owner was being assessed. In 2011, the Plaintiffs filed a two-count putative class action lawsuit against Cooper City. Count I sought damages for assessments collected for the years 2006 through the present; and Count II sought a declaratory judgment determining the Fire Protection Assessment set forth in the Ordinance lacks foundation and thus is improperly apportioned. The circuit court granted a motion to certify the putative class and certified the class as any and all record title owners of residential real property located within Cooper City subject to the Cooper City Fire Rescue Assessment, who paid the Cooper City Fire Rescue Assessment for the fiscal tax years commencing Oct. 1, 2006, 2007, 2008, and 2009. The court affirmed the court's class- certification order. After the court affirmed the certification order, the Plaintiffs renewed a previously-filed motion for summary judgment. Cooper City filed its own motion for summary judgment, asking the circuit court to decide whether a 21-day deadline contained in the ordinance barred the Plaintiffs' claims. The Plaintiffs argued the 21-day deadline in this provision was inapplicable; that rather, the four-year statute of limitations in section 95.11, Florida Statutes (2011), controlled the time within which they were required to file their complaint. Therefore, they asserted that even if the claims were voidable, the majority of their claims were timely filed. The court granted the Plaintiffs' motion for summary judgment, denied Cooper City's motion, and found the special assessments void. Importantly, the Plaintiffs then moved to voluntarily dismiss Count I and to amend Count II, seeking supplemental relief for the second count. The court granted the motion, and then entered final judgment in favor of the Plaintiffs. Cooper City appealed, asking that this Court reverses the judgment in favor of the Plaintiffs and enter judgment in its favor or, alternatively, reverse the summary judgment for further proceedings. Both parties twice confirmed at oral argument that the sole issue remaining in this case is the apportionment of Cooper City's special assessment. Judge Kuntz disagrees with the circuit court that the special assessment is void and, therefore, the 21-day deadline to challenge it is inapplicable. The Plaintiffs limited their challenge to Cooper City's apportionment of the special assessment and the improper apportionment of a special assessment renders it voidable. As a result of the special assessment being voidable, rather than void, the deadline to challenge the special assessment applied. Having failed to do so, Judge Kuntz concludes that the Plaintiffs were not entitled to judgment in their favor. Cooper City was. Accordingly, he reversed the circuit court's judgment and remanded for entry of judgment in favor of Cooper City. A full-text copy of the Court's Sept. 27, 2017 Order is available at https://is.gd/m0yHtG from Leagle.com. Edward G. Guedes -- eguedes@wsh-law.com -- and Adam A. Schwartzbaum -- aschwartzbaum@wsh-law.com -- of Weiss Serota Helfman Cole & Bierman, P.L., Coral Gables, Jamie A. Cole -- jcole@wsh-law.com -- and Matthew H. Mandel -- mmandel@wsh-law.com -- of Weiss Serota Helfman Cole & Bierman, P.L., Fort Lauderdale, for appellant. Christopher J. Lynch of Christopher J. Lynch, P.A., Coral Gables, and David Frankel, P.A., Fort Lauderdale, for appellees. COUNTRYWIDE HOME: 11th Cir. Affirms Dismissal of "Espinoza" Suit ---------------------------------------------------------------- Judge Beverly B. Martin of the U.S. Court of Appeals for the Eleventh Circuit affirmed the district court's dismissal of the case captioned JORGE E ESPINOZA, SILVIA ESPINOZA, individually and on behalf of a class similarly situated, Plaintiffs-Counter Defendants-Appellants, v. COUNTRYWIDE HOME LOANS SERVICING, LP, other, BAC home Loans Servicing, L.P., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., BANK OF AMERICA, N.A., FANNIE MAE, Defendants-Counter Claimants-Appellees, Case No. 14-13933 (11th Cir.). The Espinozas obtained a loan from Amerimortgage Bankers, LLC, to purchase a home in Miami-Dade County. Their promissory note required them to repay the loan, in monthly installments, by Sept. 1, 2035. To secure the note, they executed a mortgage on their property, which Amerimortgage later assigned to Countrywide. The mortgage contained an optional acceleration clause allowing the holder to accelerate all amounts due and foreclose in the event of a default. The Espinozas defaulted on their payments on Aug. 1, 2008. On that day, Countrywide notified the Espinozas of its intent to trigger the acceleration clause unless the Espinozas cured their default by Oct. 16, 2008. The Espinozas failed to cure, and Countrywide filed a foreclosure complaint in state court on March 26, 2009. The foreclosure action was dismissed without prejudice on Sept. 13, 2013, due to Countrywide's failure to produce loan documents. The Espinozas remained in their home, where they continue to reside today. In January 2014, the Espinozas filed a class action suit to quiet title against Countrywide, Amerimortgage, Mortgage Electronic Registration Systems, Inc., and the Federal National Mortgage Association ("Countrywide") in state court. They argued that Countrywide could not foreclose on their property because its 2008 notice of intent to foreclose had triggered Florida's five-year statute of limitations for such actions; they sought declaratory and injunctive relief nullifying the note and mortgage, expunging the lien from their property's title, and preventing Countrywide from collecting on payments more than five years old or reporting the Espinozas' default to credit agencies. They also sought to quiet title. Countrywide removed the case to the district court and moved to dismiss. The district dismissed the Espinozas' second amended complaint with prejudice. The Espinozas timely appealed. After they filed their initial brief, this Court stayed their appeal pending the Supreme Court of Florida's resolution of Bartram v. U.S. Bank National Ass'n. After Bartram was decided, the Court lifted the stay and ordered Countrywide to file a response brief. The Espinozas' counsel moved to withdraw, and the Court granted their motion. The Espinozas argue that the statute of limitations began running as to the entirety of the loan -- and so bars Countrywide from foreclosing now -- on either Aug. 1, 2008, the date Countrywide notified them that it would foreclose if they did not cure their default, or March 23, 2009, the date it filed its first foreclosure action. They concede, however, that despite the fact that Countrywide threatened to trigger the acceleration clause in its notification, it did not actually do so until it filed its foreclosure complaint. In Bartram, the Supreme Court of Florida said that the statute of limitations on the balance under the note and mortgage does not continue to run after an involuntary dismissal of a foreclosure action, and thus the mortgagee is not barred by the statute of limitations from filing a successive foreclosure action premised on a separate and distinct default. Rather, after the dismissal, the parties are simply placed back in the same contractual relationship as before, where the residential mortgage remained an installment loan, and the acceleration of the residential mortgage declared in the unsuccessful foreclosure action is revoked. Thus, under Florida law, a mortgage-lender's acceleration of a loan is not effective before final judgment in favor of the mortgagee- lender in a foreclosure action. Applying Bartram to the facts of this case, Judge Martin concludes that neither Countrywide's notice of intent to foreclose nor its prior foreclosure action that was dismissed without prejudice triggered the statute of limitations, as neither resulted in a foreclosure judgment in Countrywide's favor. As such, the district court properly dismissed the Espinozas' complaint. Accordingly, Judge Martin affirmed the district court's dismissal of Espinozas' complaint. A full-text copy of the Eleventh Circuit's Sept. 26, 2017 Order is available at https://is.gd/nzJy0Q from Leagle.com. Dora Faye Kaufman -- dfk@lgplaw.com -- for Defendant-Appellee. James Randolph Liebler -- jrlii@lgplaw.com -- for Defendant- Appellee. John H. Ruiz, for Plaintiff-Appellant. Karen Jill Barnet-Backer, for Plaintiff-Appellant. Douglas E. Winter, for Defendant-Appellee. Joshua Robert Levine -- jrlevine@bakerdonelson.com -- for Defendant-Appellee. Jennifer A. Jackson -- jjackson@bryancave.com -- for Defendant- Appellee. Alejandro Raul Alvarez -- intake@integrityforjustice.com -- for Plaintiff-Appellant. Phillip Edward Holden, for Plaintiff-Appellant. Jed P. White -- jed.white@bryancave.com -- for Defendant-Appellee. Robert Edward Boone, III -- reboone@bryancave.com -- for Defendant-Appellee. DELAWARE: Medicaid Loosens Up Hepatitis C Treatment Criteria ------------------------------------------------------------ Michelle Andrews, writing for WABE, reports that Valerie Green is still waiting to be cured. The Delaware resident was diagnosed with hepatitis C more than two years ago, but she doesn't qualify yet for the Medicaid program's criteria for treatment with a new class of highly effective but pricey drugs. The recent approval of a less expensive drug that generally cures hepatitis C in just eight weeks may make it easier for more insurers and correctional facilities to expand treatment. The drug, Mavyret, is the first to be approved by the Food and Drug Administration that can cure all six genetic types of hepatitis C in about two months in patients who haven't previously been treated. Other approved drugs generally require 12 weeks to treat the disease and often aren't effective for all types of hepatitis C. In addition, Mavyret's price tag of $26,400 for a course of treatment is significantly below that of other hepatitis C drugs whose sticker price ranges from about $55,000 to $95,000 to beat the disease. Patients and insurers often pay less, however, through negotiated insurance discounts and rebates. "It certainly stands to reason that the continual march downward on cost would lead to continual opening up of criteria," says Matt Salo, executive director of the National Association of Medicaid Directors. Hepatitis C is a viral liver infection spread through blood that affects an estimated 3.5 million people in the United States. It can take years to cause problems. Many baby boomers who contracted it decades ago before blood was screened for the virus don't realize they have it until they develop liver disease. In addition, the growing heroin epidemic is adding to the problem as people become infected by sharing contaminated needles. "Direct-acting antiviral" therapies like Harvoni, a once-a-day pill introduced in 2014 that generally cured hepatitis C in 12 weeks, are much more effective than earlier treatments that required weekly interferon injections and multiple daily pills for nearly a year. But the newer regimens came at a price: $94,500, in Harvoni's case. State Medicaid programs, which cover a high proportion of people with hepatitis C, balked at the high prices, even with the 23 percent drug discount the programs typically receive. Many threw up roadblocks to limit drug approval until the disease was advanced. Some required people to be drug- and alcohol-free for six months or more before treatment would be approved. Those moves prompted advocates to push for better access, in some cases filing suit to force the programs to cover more people. Faced with a lawsuit in Delaware, the state Medicaid program began loosening up treatment criteria this year, and in January will begin approving enrollees regardless of the severity of their disease. The state joins more than a dozen others that no longer (or never did) restrict hepatitis C treatment based on disease severity, says Kevin Costello, director of litigation at Harvard Law School's Center for Health Law and Policy Innovation, which has been a key player in litigation in Delaware and other states. It can't happen soon enough, says Green. She is 58 and believes she contracted the disease 31 years ago when she suffered complications during childbirth and required a blood transfusion. Although her liver isn't damaged, Green says, she has suffered with abdominal and joint pain, weight loss and fatigue for decades -- all symptoms her doctors attribute to the hepatitis C virus. "It's been a difficult fight for us Medicaid patients," she says. People who are incarcerated face an even tougher battle to get treatment for hepatitis C. A recent study of state prisoners suggested that roughly 17 percent of prisoners are infected with hepatitis C, compared with about 1 percent of the general population. Prisons have a duty not to be deliberately indifferent to the medical needs of incarcerated people. Prisons don't get the price discounts that the Medicaid programs have, and their budgets are fixed. "Administrators have to make do with what is there," says Dr. Anne Spaulding, an epidemiologist and associate professor at Emory University's public health school, who has worked as a medical director in corrections and published research on hepatitis C among prisoners. Lawyers in a handful of states are pursuing class action lawsuits to force prisons to provide hepatitis C treatment. Mavyret may make a difference, says David Rudovsky, a civil rights lawyer who's litigating a class action lawsuit against the Pennsylvania Department of Corrections. "Everyone recognizes that it's going to make it easier to cover people," he says. Coverage for drugs that treat hepatitis C is typically less problematic for people who have private insurance (though some obstacles remain). For example, Mavyret is one of seven hepatitis C drugs that are included in the 2018 national preferred formulary by Express Scripts, which manages the pharmacy benefits for 83 million people. "The benefit to patients and payers is the additional competition, which brings down costs across the class, thus resulting in greater access and affordability," says Jennifer Luddy, director of corporate communications at Express Scripts. [GN] DEUTSCHE BANK: Seeks Review of Class Cert. Order in "Moreno" Suit ----------------------------------------------------------------- Defendants Deutsche Bank Americas Holding Corp., et al., filed an appeal from the District Court's class certification order entered in the lawsuit entitled RAMON MORENO, DONALD O'HALLORAN, OMKHARAN ARASARATNAM, BAIJU GAJJAR, and RAJATH NAGARAJA, individually, as representatives of a class, and on behalf of the Deutsche Bank Matched Savings Plan v. DEUTSCHE BANK AMERICAS HOLDING CORP., DEUTSCHE BANK MATCHED SAVINGS PLAN INVESTMENT COMMITTEE, DEUTSCHE BANK AMERICAS HOLDING CORP. EXECUTIVE COMMITTEE, RICHARD O'CONNELL, JOHN ARVANITIS, ROBERT DIBBLE, TIM DOWLING, RICHARD FERGUSON, JAMES GNALL, LOUIS JAFFE, PATRICK MCKENNA, DAVID PEARSON, JOSEPH RICE, SCOTT SIMON, ANDREW THREADGOLD, and JAMES VOLKWEIN, Case No. 1:15-cv-09936-LGS, in the U.S. District Court for the Southern District of New York. As previously reported in the Class Action Reporter, the Hon. Lorna G. Schofield granted the Plaintiffs' motion to certify a class with respect to their claims asserted on behalf of the Deutsche Bank Matched Savings Plan. The Plan is a defined contribution plan, or 401(k) plan, for eligible employees of Defendant Deutsche Bank Americas Holding Corp. ("DBAHC") and its affiliates. It entitles eligible employees to contribute a certain portion of their earnings into individual investment accounts. The Plaintiffs are five current or former participants in the Plan. The Third Amended Complaint alleges that the Defendants mismanaged the Plan by favoring high-cost proprietary funds to benefit Defendants at the expense of participants. Citing the report prepared by their proposed expert, Dr. Steven Pomerantz, which was filed in support of the motion, the Plaintiffs contend that three of the 10 proprietary funds offered by the Plan were passive "index" funds that consistently charged higher fees than non- proprietary funds that tracked the same index. The appellate case is captioned as RAMON MORENO, et al. v. DEUTSCHE BANK AMERICAS HOLDING CORP., et al., in the United States Court of Appeals for the Second Circuit. The two questions presented to the Second Circuit are: 1. In light of the Supreme Court's decision that a 401(k) plan participant can bring an individual action to recover for alleged harm to her individual investment account, LaRue v. DeWolff, Boberg & Assocs., Inc., 552 U.S. 248, 256 (2008), may a class of 401(k) plan participants seeking monetary relief based on alleged harm to their individual investment accounts be certified under Rule 23(b)(1) without a showing that "individual adjudications would be impossible or unworkable." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 361 (2011)? 2. Does a class of "all participants" "whose individual accounts suffered losses as a result of the conduct alleged in Counts One through Four of the Third Amended Complaint" fail Rule 23's ascertainability requirement or create an impermissible fail-safe class where (a) the definition contains no objective criteria that establishes a membership with definite boundaries and instead simply incorporates by reference ten pages of allegations in the complaint, and (b) the Plaintiffs' failure to meet their burden of proving loss causation -- an element of an ERISA claim -- would prevent an adverse judgment from binding absent class members?[BN] The Plaintiffs-Respondents are represented by: Carl Engstrom, Esq. Jacob Schutz, Esq. Kai Heinrich Richter, Esq. Paul J. Lukas, Esq. Michele Renee Fisher, Esq. NICHOLS KASTER, PLLP 4600 IDS Center, 80 South 8th St. Minneapolis, MN 55402 Telephone: (612) 256-3233 E-mail: cengstrom@nka.com jschutz@nka.com krichter@nka.com lukas@nka.com fisher@nka.com The Defendants-Petitioners are represented by: James O. Fleckner, Esq. Alison V. Douglass, Esq. GOODWIN PROCTER LLP 100 Northern Avenue Boston, MA 02210 Telephone: (617) 570-1000 Facsimile: (671) 523-1231 E-mail: jfleckner@goodwinprocter.com adouglass@goodwinprocter.com - and - Richard M. Strassberg, Esq. GOODWIN PROCTER LLP The New York Times Building 620 Eighth Avenue New York, NY 10018 Telephone: (212) 813-8800 Facsimile: (212) 355-3333 E-mail: rstrassberg@goodwinprocter.com - and - Jaime A. Santos, Esq. GOODWIN PROCTER LLP 901 New York Avenue NW Washington, DC 20001 Telephone: (202) 346-4000 Facsimile: (202) 346-4444 E-mail: jsantos@goodwinlaw.com DODEKA LLC: Ohio App. Flips Summary Judgment in "Keith" ------------------------------------------------------- The Court of Appeals of Ohio, Eleventh District, Portage County, issued an Order reversing the Judgment of the District Court granting Defendant's Motion for Summary Judgment in the case captioned DODEKA, L.L.C., Plaintiff-Appellee, v. CINDY KEITH, Defendant/Third Party Plaintiff-Appellant, RICHARD J. WELT, Third Party Defendant-Appellee, No. 2016-P-0043 (Ohio App.). Cindy Keith appeals two decisions granting summary judgment against her on her counterclaims and third-party complaint. In September 1991, appellant was married to Andrew Keith. At that time, Andrew submitted an application to U.S. Bank for a credit card. After receiving the card, Andrew continued to use it throughout the next eleven years. During that time frame, appellant's name appeared on the various account statements that were mailed to the Keith residence. In 2000, the Keiths were divorced pursuant to a judicial decree. As part of the distribution of the marital property, Andrew was held solely responsible for any debt under U.S. Bank card. However, no steps were ever taken to remove appellant's name from the account, and the account statements mailed to Andrew at his separate address continued to have her name on them. In November 2007, U.S. Bank's interest in the Keith account was sold to Dodeka, LLC. Accordingly, that entity sought recovery on the outstanding balance, $10,964.56. Within one year of the transfer, Dodeka filed an action for money damages against appellant in the Portage County Municipal Court. After a ten-month delay, appellant answered the complaint and asserted multiple counterclaims against Dodeka. She also filed a third-party complaint against Dodeka's original counsel, Attorney Richard J. Welt, advancing the same claims against him as were raised in the counterclaims against Dodeka. Appellant alleged that Dodeka and Welt violated both the federal Fair Debt Collection Practices Act and Ohio's Consumer Sales Practices Act in three respects: (1) by seeking attorney fees when Ohio law does not allow the recovery of such fees in a consumer debt collection case; (2) by asserting a claim that is barred under the statute of limitations; and (3) by basing that claim upon fraudulent documentation. In addition, she maintained that her counterclaims should go forward as a class action. After appellant's summary judgment motion was pending for nearly fifteen months, Dodeka moved for summary judgment on all of her counterclaims. After Dodeka also filed a response to the show cause judgment, the trial court issued a separate entry that granted summary judgment in favor of appellant as to Dodeka's account complaint and summary judgment in favor of Dodeka in regard to all of appellant's counterclaims. As to appellant's attorney fees counterclaim, the court concluded that because the choice of law provision in the July 2002 amended credit card agreement was enforceable against appellant, Dodeka was permitted under North Dakota law to request attorney fees as part of its relief under its account claim. Approximately one month later, Attorney Welt filed a motion for summary judgment on appellant's third-party complaint asserting many of the same arguments as Dodeka's. Appellant responded and the trial court issued a second entry granting Attorney Welt's motion and dismissing appellant's third-party complaint against him. This ruling was based upon the same analysis followed in granting summary judgment in favor of Dodeka. In appealing the summary judgment ruling in favor of Dodeka and Welt, appellant asserts that the trial court committed prejudicial error in granting summary judgment. Appellant contends the trial court erred in concluding that North Dakota law rather than Ohio governs the attorney fee issue in light of the choice-of-law provision. In granting summary judgment against appellant as to her attorney fee counterclaim, the trial court predicated its entire analysis upon its conclusion that North Dakota law was controlling as to whether Dodeka and Attorney Welt could request such fees in Dodeka's complaint. Yet, in order for North Dakota law to apply, the trial court had to first find that appellant was a party to the credit card agreement. Not only did the trial court fail to make the necessary determination, but Dodeka had not even moved for summary judgment on the crucial issue. Therefore, the trial court's summary judgment analysis as to the attorney fee counterclaims is flawed. Besides her attorney fee counterclaims, appellant raised counterclaims alleging that Dodeka and Attorney Welt violated consumer protection laws by asserting a claim that was barred under the applicable statute of limitations and was based upon fraudulent documentation. In moving for summary judgment, Dodeka and Attorney Welt presented separate arguments on these counterclaims. In dismissing all of appellant's counterclaims and third-party complaint, the trial court did not address the merits of the counterclaims themselves or the parties' arguments regarding them. Thus, the granting of summary judgment was also inappropriate as to the other two counterclaims. Since the trial court did not engage in the necessary analysis to determine whether the choice-of-law provision in the credit card agreement is enforceable against appellant, Dodeka and Attorney Welt were not entitled to prevail on the attorney fee counterclaims as a matter of law. As summary judgment should not have been granted, appellant's sole assignment has merit. The judgment of the Portage County Court of Common Pleas is reversed, and the case is remanded for further proceedings consistent with this opinion. A full-text copy of the Ohio App.'s September 5, 2017 Opinion is available at http://tinyurl.com/y7p458m8from Leagle.com. Ralph C. Megargel, Megargel & Eskridge Co., LPA, 231 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee). Anand N. Misra, The Misra Law Firm, L.L.C., 3659 Green Road, #100, Beachwood, OH 44122 and Robert S. Belovich, 9200 South Hills Boulevard, Suite 320, Broadview Heights, OH 44147 (For Defendant/Third Party Plaintiff-Appellant). Lawrence G. Reinhold -- lreinhold1@neo.rr.com -- Jewish Family Services of Akron, 525 Rocky Hollow Drive, Akron, OH 44313-5945 (For Third Party Defendant-Appellee). DR HORTON: Court Denies Move to Compel Mediation Attendance ----------------------------------------------------------- The United States District Court for the District of Nevada issued an Order denying Defendant's Motion to Compel Attendance at Mediation in the case captioned AZURE MANOR/RANCHO DE PAZ HOMEOWNERS ASSOCIATION, Plaintiff(s), v. D.R. HORTON, INC., Defendant(s), Case No. 2:14-cv-02222-JCM-NJK (D. Nev.). Plaintiff Azure Manor Community's Homeowner's Association brings suit in the instant case on behalf of the homeowners for alleged construction defects. Defendant constructed 103 of the 202 homes in the community. Nevada Revised Statute (N.R.S.) requires a plaintiff in a construction defect claim to provide the defendant with the opportunity to inspect the alleged defect and determine if the defendant will repair the damage or proceed with litigation. In the parties' attempts to schedule and conduct the N.R.S. Section 40.680 mediation, Defendant requested the presence of each of the homeowners of the 64 homes it inspected to attend the mediation in the stead of the HOA representative. Plaintiff, nonetheless, scheduled a mediation without the presence of the homeowners, knowing Defendant would not participate. Plaintiff has standing to sue and therefore possesses full settlement authority. A named plaintiff in a class action has the authority to decide matters of litigation strategy on behalf of the class throughout the life of an action. Pre-litigation attempts to resolve a matter include the decision to settle through methods of alternative dispute resolution such as mediation, settlement conferences, and early neutral evaluations. Courts may grant conditional class certification prior to issuing a final determination on the merits, under the appropriate circumstances. By granting conditional class certification, the Court found that Plaintiff has standing to sue and to dictate the litigation strategy, as well as the required full authority to reach a settlement on behalf of the homeowners. Therefore, the Court finds that the individual homeowners are not required to be present at the mediation. Plaintiff has the required full settlement authority to participate in a mediation on behalf of the homeowners. Defendant told Plaintiff on three separate occasions it would not participate in the mediation unless all the homeowners were present Instead of filing a motion with the Court to ensure Defendant's required attendance, Plaintiff finalized the timing of the mediation, attended the mediation, and submits that the mediation as conducted is complete and sufficient. Although two subcontractors participated in the mediation, Defendant, did not. Therefore, the Court finds that the N.R.S. Section 40.680 mediation has not yet occurred. A full-text copy of the District Court's September 25, 2017 Memorandum and Order is available at http://tinyurl.com/yb9klq9f from Leagle.com. Azure Manor/Rancho de Paz Homeowners Association, Plaintiff, represented by Anna Mirijanian --annamirijanian@yahoo.com -- Angius & Terry, LLP. Azure Manor/Rancho de Paz Homeowners Association, Plaintiff, represented by Bradley Epstein, Angius & Terry LLP, Paul P. Terry, Jr., Angius & Terry LLP, Scott P. Kelsey, Angius & Terry LLP & David Bray, Angius & Terry LLP, 1451 River Park Drive, Suite 285, Sacramento, CA 95815 D.R. Horton, Inc., Defendant, represented by Ashley Alexandria Balducci -- abalducci@wshblaw.com -- Wood Smith Henning & Berman LLP, Elisa Wyatt -- ewyatt@wshblaw.com -- Wood, Smith, Henning & Berman LLP, Joel D. Odou -- jodou@wshblaw.com -- Wood Smith Henning & Berman LLP & Anthony S. Wong -- awong@wshblaw.com -- Wood, Smith, Henning & Berman. DRAFTKINGS: Court Dismisses Ex-Football Players' Copyright Case --------------------------------------------------------------- Samantha Beckett, writing for Casino.org, reports that DFS giants DraftKings and FanDuel have won a class action lawsuit, brought by a group of college football players, that posed a potential existential threat to their business model. Former northern Illinois University football players Akeem Daniels, Cameron Stingily and Nicholas Stoner claimed in their filing that the sites had used their names and images unlawfully. They brought the case on behalf of all football players in America. At the time of the lawsuit appeared, in 2016, both sites offered contests on college football and basketball, although they subsequently ceased to do so as part of an agreement with the NCAA later that year. On Sept. 29 the suit was dismissed by the US District Court for the Southern District of Indiana, which ruled that the use of football players' names and images was legal under Indiana law due to allowable exemptions based on the newsworthiness and public interest of the plaintiffs. Defining 'Newsworthy' According to the law, a "person may not use an aspect of a personality's right of publicity for a commercial purpose during the personality's lifetime or for one hundred (100) years after the date of the personality's death without having obtained previous written consent . . ." The term "right of publicity" includes an individual's name and likeness. But FanDuel and DraftKings argued their usage was exempt from the general prohibitions of the Indiana statute, that it was protected under the First Amendment to the US Constitution, and that copyright laws protected them from liability. It was the first time the court had had to define "newsworthiness" in relation to a copyright case and it chose to define it broadly. It accepted that the notion of newsworthy extended beyond the dissemination of current affairs and into the realms of data and entertainment. Thus, the achievements of athletes are considered to be "newsworthy" because they are closely followed by a large segment of the public. Close Call The court concluded that DraftKings and FanDuel could be seen as "reference sources" for those consuming sports in general. "The Court acknowledges that this is a close call," wrote the judge. "But given Indiana's interpretive preference to read statutes in a manner that avoids constitutional issues, as well as other Circuits' reasoning on similar issues, the Court concludes that Defendants' materials constitute 'reporting.'" Neither DraftKings nor FanDuel offered have comment on the courts' decision but they're likely breathing a sigh of relief. [GN] EDEGREEADVISOR LLC: Court Dismisses "Priester" TCPA Suit -------------------------------------------------------- The United States District Court for the Northern District of California, San Jose Division, issued an Order granting Defendant's Motion to Dismiss the case captioned ROOSEVELT PRIESTER, individually and on behalf of all others similarly situated, Plaintiff, v. EDEGREEADVISOR, LLC, Defendant, Case No. 5:15-cv-04218-EJD (N.D. Cal.). Presently before the court is Defendant's motion to dismiss the First Amended Complaint (FAC) under Federal Rule of Civil Procedure 12(b)(6). Plaintiff Roosevelt Priester alleges in this putative class action that Defendant eDegreeAdvisor, LLC, violated the Telephone Consumer Protection Act (TCPA). Plaintiff alleges Defendant "provides online and campus-based colleges and universities with highly engaged leads of consumers of have express an interest to enroll." Plaintiffs alleges Defendant contacted him on his cellular telephone in an attempt to solicit Defendant's services. According to Plaintiff, these calls were made using an automatic telephone dialing system, were perhaps obviously not for emergency purposes, were made to a telephone number for which Plaintiff incurs a charge for incoming calls, and were made without prior express consent. Defendant argues the Complaint fails to state a violation of the TCPA because it does not plausibly establish Defendant made calls to Plaintiff using an "automated telephone dialing system, or ATDS." Defendant's purported use of an ATDS when calling Plaintiff is only addressed once in the FAC. Plaintiff alleges that Defendant used an automatic telephone dialing system, as defined by 47 U.S.C. Section 227(a)(1) to place its call to Plaintiff seeking to solicit its services. That statement is a classic conclusory allegation. Plaintiff argues the court can infer that Defendant utilized an ATDS from other allegations in the FAC. To that end, Plaintiff notes the allegation that Defendant persistently continued to call after Plaintiff told Defendant to stop and revoked any consent provides sufficient indirect or contextual facts to support Plaintiff's allegation that called were placed using an ATDS. The court is not persuaded. The problem for Plaintiff is that his sparse factual allegations are insufficient to plausibly suggest, even indirectly, that Defendant used an ATDS when it called him. The simple facts that calls were numerous, or that Plaintiff received calls after revoking consent, do not separately or jointly make it any more likely that Defendant used an ATDS; indeed, it is just as plausible to infer those calls were placed manually. And there are no other allegations relevant to this issue in the FAC. For example, Plaintiff does not allege anything about the specific content of the calls he received or explain how that content demonstrates the use of an ATDS. Plaintiff does reference information from a certain website in his opposition, but those allegations are nowhere in the FAC, and the court cannot consider them in support of the FAC's plausibility. In sum, the court finds the FAC fails to plausibly allege Defendant's use of an ATDS. Because the causes of action fail on an essential element of a claim under the TCPA, the FAC must be dismissed. A full-text copy of the District Court's September 25, 2017 Memorandum and Order is available at http://tinyurl.com/ybnvudle from Leagle.com. Roosevelt Priester, Plaintiff, represented by Adrian R. Bacon, Law Offices of Todd M. Friedman, P.C., 21550 Oxnard St Ste 780. Woodland Hills, CA 91367-7104 Roosevelt Priester, Plaintiff, represented by Suren Naradha Weerasuriya, Law Offices of Todd M. Friedman, P.C., Adrian R. Bacon, Law Offices of Todd M. Friedman, P.C. & Todd Michael Friedman --tfriedman@toddflaw.com -- Law Offices of Todd M. Friedman, P.C., 21550 Oxnard St Ste 780. Woodland Hills, CA 91367- 7104 eDegreeAdvisor, LLC, Defendant, represented by Mark Ewell Ellis, Ellis Law Group, LLP, 740 University Ave Ste 100. Sacramento, CA 95825 EQUIFAX INC: Ignored Known Flaws in Security, Alexander Suit Says ----------------------------------------------------------------- JOHN ALEXANDER and RODNEY WILLIAMS, (Missouri) consumers, individually and on behalf of all others v. EQUIFAX INC., Case No. 4:17-cv-00788-DW (W.D. Mo., September 20, 2017), accuses the Defendant of failing to implement adequate security measures to safeguard consumers' data and ignoring known weaknesses in its data security, including its information systems. On September 7, 2017, Equifax advised the general public that information that it collected on behalf of over 143 million consumers was the subject of a data breach, in which unauthorized individuals accessed the personal and credit information of those individuals. Equifax Inc. is a multi-billion dollar Georgia corporation that provides credit information services to millions of businesses, governmental units, and consumers across the globe. Equifax operates through various subsidiaries, including Equifax Information Services, LLC, and Equifax Consumer Services, LLC aka Equifax Personal Solutions aka PSOL. Equifax is one of the major credit reporting agencies in the United States.[BN] The Plaintiffs are represented by: Nimrod T. Chapel, Jr., Esq. THE CHAPEL LAW GROUP, LLC 219 E. Dunklin, Suite A Jefferson City, MO 65101 Telephone: (573) 634-8884 Facsimile: (573) 635-6291 E-mail: nimrod@chapellaw.com - and - Jason O. Barnes, Esq. BARNES AND ASSOCIATES, LLC 219 E. Dunklin, Suite A Jefferson City, MO 65101 Telephone: (573) 634-8884 Facsimile: (573) 635-6291 E-mail: jaybarnes5@gmail.com EQUIFAX INC: Partridge Sues Over Failure to Secure Consumers' PII ----------------------------------------------------------------- BARRON PARTRIDGE, individually and on behalf of all other residents of the State of Alabama similarly situated v. EQUIFAX, INC., Case No. 1:17-cv-00423-WS-B (S.D. Ala., September 20, 2017), is brought against Equifax for its alleged failure to secure and safeguard consumers' personally identifiable information, which Equifax collected from various sources in connection with the operation of its business as a consumer credit reporting agency. Equifax, Inc., is a corporation organized under the laws of the state of Delaware with its principal place of business located in Atlanta, Georgia. Equifax is one of three nationwide credit- reporting companies that track and rate the financial history of U.S. consumers. The companies are supplied with data about loans, loan payments, and credit cards, as well as information on such things as child-support payments, credit limits, missed rent and utilities payments, addresses, and employer history.[BN] The Plaintiff is represented by: Steven A. Martino, Esq. W. Lloyd Copeland, Esq. W. Bradford Kittrell, Esq. Kenneth A. Metzger, Esq. TAYLOR MARTINO, P.C. P.O. Box 894 Mobile, AL 36601 Telephone: (251) 433-3131 Facsimile: (251) 405-5080 E-mail: stevemartino@taylormartino.com lloyd@taylormartino.com bkittrell@taylormartino.com kenny@taylormartino.com - and - Richard R. Rosenthal, Esq. LAW OFFICES OF RICHARD R. ROSENTHAL, P.C. Title Building, Suite 200 300 North Richard Arrington Jr., Blvd. Birmingham, AL 35203 Telephone: (205) 533-9909 E-mail: rosenthallaw@bellsouth.net EQUIFAX INC: Accused by "Kohn" Suit of Failing to Protect Info -------------------------------------------------------------- ROBERT KOHN, SUSAN KOHN, and MARK ISACOFF, on behalf of themselves and all others similarly situated v. EQUIFAX, INC., and EQUIFAX INFORMATION SERVICES, LLC, Case No. 1:17-cv-07257-RBK-AMD (D.N.J., September 19, 2017), accuses the Defendants of failing to protect the Plaintiffs' most highly secretive information causing them substantial injury. On September 7, 2017, Equifax publicly disclosed one of the largest data breach incidents in United States history, implicating the release of confidential and secure information belonging to 143 million United States consumers. Equifax Incorporated is a global consumer credit reporting agency and information solutions company incorporated in Georgia, with its principal place of business located in Atlanta, Georgia. Equifax Information Services LLC is a subsidiary of Equifax Incorporated that collects consumer information and reports that information to financial institutions.[BN] The Plaintiffs are represented by: David S. Stone, Esq. Robert A. Magnanini, Esq. Jason S. Kanterman, Esq. STONE & MAGNANINI LLP 100 Connell Dr., Suite 2200 Berkeley Heights, NJ 07922 Telephone: (973) 218-1111 Facsimile: (973) 218-1106 E-mail: dstone@stonemagnalaw.com rmagnanini@stonemagnalaw.com jkanterman@stonemagnalaw.com EQUIFAX INC: Faces "Prejean" Suit in Hawaii Over Data Breach ------------------------------------------------------------ BRETT N.J. PREJEAN and THERESA M. GALPIN, individually and on behalf of all others similarly situated v. EQUIFAX INC., Case No. 1:17-cv-00468-HG-RLP (D. Haw., September 19, 2017), arises from the Defendant's alleged failure to secure and safeguard the private information of approximately 143 million Americans. On July 29, 2017, Equifax discovered unauthorized access to databases storing the confidential and private consumer information of millions of U.S. consumers. On September 7, 2017, Equifax publicly announced that due to a vulnerability in its systems, its files were accessed by criminals for at least the period of mid-May through July of 2017. Equifax Inc. 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: John Francis Perkin, Esq. Brandee J.K. Faria, Esq. James J. Wade, Esq. PERKIN & FARIA, LLLC 841 Bishop Street, Suite 1000 Honolulu, HI 96813 Telephone: (808) 523-2300 Facsimile: (808) 697-5302 E-mail: perkin@perkinlaw.com bjkfaria@perkinlaw.com jwade@perkinlaw.com EQUIFAX INC: O'Dell Sues for Small Businesses Over Data Breach -------------------------------------------------------------- O'DELL PROPERTIES, LLC, O'DELL & O'NEAL, P.C., JELLI DONUTS, LLC, ONE CENT LANE, LLC CHASELIGHT, LLC, RAFCO, LLC, RAHUL FARUQI, MICHAEL CHASE, and JUSTIN O'DELL, individually and on behalf of others similarly situated v. EQUIFAX, INC., Case No. 1:17-cv- 03618-AT (N.D. Ga., September 19, 2017), is brought on behalf of small businesses across the United States and their owners against Equifax for damages (current and future) resulting from the September 2017 cybersecurity incident that impacted approximately 143 million individuals and their businesses. Equifax, Inc. is a Delaware corporation with its principal place of business located in Atlanta, Georgia. Equifax, a global corporation, "organizes, assimilates and analyzes data on more than 820 million consumers and more than 91 million businesses worldwide, and its database includes employee data contributed from more than 7,100 employers," according to its Web site.[BN] The Plaintiffs are represented by: Jason R. Doss, Esq. Samuel T. Brannan, Esq. THE DOSS FIRM, LLC 36 Trammell Street, Suite 101 Marietta, GA 30064 Telephone: (770) 578-1314 Facsimile: (770) 578-1302 E-mail: jasondoss@dossfirm.com stbrannan@dossfirm.com EQUIFAX INC: Sued by Rajput for Failing to Secure Consumers' PII ---------------------------------------------------------------- SANJAY KUMAR RAJPUT v. EQUIFAX, INC., Case No. 5:17-cv-01606-HNJ (N.D. Ala., September 19, 2017), is a national class action on behalf of over 140 million consumers across the country harmed by Equifax's alleged failure to secure and safeguard consumers' personally identifiable information which Equifax collected from various sources, and for failing to provide timely, accurate and adequate notice to the Plaintiff and other Class members that their information had been stolen and precisely what types of information were stolen. Equifax is a multi-billion-dollar Georgia corporation that provides credit information services to millions of businesses, governmental units, and consumers across the globe. Equifax operates through various subsidiaries, including Equifax Information Services, LLC, and Equifax Consumer Services, LLC, aka Equifax Personal Solutions aka PSOL.[BN] The Plaintiff is represented by: Eric J. Artrip, Esq. D. Anthony Mastando, Esq. MASTANDO & ARTRIP, LLC 301 Washington St., Suite 302 Huntsville, AL 35801 Telephone: (256) 532-2222 Facsimile: (256) 513-7489 E-mail: artrip@mastandoartrip.com tony@mastandoartrip.com EQUIFAX INC: Faces "Falco" Suit in S.D.N.Y. ------------------------------------------- A class action lawsuit has been filed against Equifax Inc. The case is styled as Paige Abramowitz, Joe Falco, Maria Falco, Robert W. Larkin, Jr., Jane Guzi Macedonia, Summer Nicole Starbuck, Brian Sternemann and Phyllis Sternemann, individually and on behalf of all others similarly situated, Plaintiffs v Equifax Inc., Defendant, Case No. 1:17-cv-07642-DLC (S.D.N.Y., October 5, 2017). Equifax Inc. operates a consumer credit reporting agency in New York. [BN] The Plaintiffs are represented by: Paul C. Whalen, Esq. Law Offices of Paul C. Whalen, P.C. 768 Plandome Road Manhasset, NY 11030 Tel: (516) 627-5610 Fax: (212) 658-9685 Email: paul@paulwhalen.com EQUIFAX INC: Army Aviation Suit Alleges FTCA Violations ------------------------------------------------------- Army Aviation Center Federal Credit Union, Greater Cincinnati Credit Union, and Credit Union National Association, and all others similarly-situated v. Equifax Inc., Case No. 1:17-cv-03892 (N.D. Ga., October 4, 2017), is brought against the Defendants for violations of the Federal Trade Commission Act. Plaintiff Army Aviation Center Federal Credit Union is a federally chartered credit union with a principal place of business in Daleville, Alabama. Plaintiff Greater Cincinnati Credit Union is an Ohio-chartered credit union with a principal place of business in Cincinnati, Ohio. Plaintiff Credit Union National Association is a Wisconsin membership corporation whose members are financial institutions. 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: Thomas A. Withers, Esq. Anthony C. Lake, Esq. GILLEN WITHERS & LAKE, LLC 8 E. Liberty Street Savannah, GA 31401 Tel: (912) 447-8400 Fax: (912) 629-6347 E-mail: twithers@gwllawfirm.com aclake@gwllawfirm.com - and - Joseph P. Guglielmo, Esq. Erin Green Comite, Esq. SCOTT+SCOTT, ATTORNEYS AT LAW, LLP 230 Park Avenue, 17th Floor New York, NY 10169 Tel: (212) 223-6444 Fax: (212) 223-6334 E-mail: jguglielmo@scott-scott.com ecomite@scott-scott.com - and - Gary F. Lynch, Esq. Jamisen A. Etzel, Esq. Bryan A. Fox, Esq. CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP 1133 Penn Avenue, 5th Floor Pittsburgh, PA 15222 Tel: (412) 322-9243 Fax: (412) 231-0246 E-mail: glynch@carlsonlynch.com jetzel@carlsonlynch.com bfox@carlsonlynch.com - and - Karen Hanson, Esq. Riebel Kate M. Baxter-Kauf, Esq. LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Ave. S., Suite 2200 Minneapolis, MN 55401 Tel: (612) 339-6900 Fax: (612) 339-0981 E-mail: khriebel@locklaw.com kmbaxter-kauf@locklaw.com - and - Arthur M. Murray, Esq. Stephen B. Murray Sr., Esq. Caroline W. Thomas, Esq. MURRAY LAW FIRM 650 Poydras Street, Suite 2150 New Orleans, LA 70130 Tel: (504) 525-8100 Fax: (504) 584-5249 E-mail: amurray@murray-lawfirm.com smurray@murray-lawfirm.com cthomas@murray-lawfirm.com - and - Brian C. Gudmundson, Esq. ZIMMERMAN REED LLP 1100 IDS Center, 80 South 8th Street Minneapolis, MN 55402 Tel: (612) 341-0400 Fax: (612) 341-0844 E-mail: brian.gudmundson@zimmreed.com - and - Bryan L. Bleichner, Esq. CHESTNUT CAMBRONNE 17 Washington Avenue North Suite 300 Minneapolis, MN 55401 Tel: (612) 339-7300 Fax: (612) 336-2940 E-mail: bbleichner@chestnutcambronne.com - and - Charles H. Van Horn, Esq. BERMAN FINK VAN HORN P.C. 3475 Piedmont Road, Suite 1100 Atlanta, GA 30305 Tel: (404) 261-7711 Fax: (404) 233-1943 E-mail: CVanHorn@bfvlaw.com EQUIFAX INC: 500+ Credit Unions Mull Data Breach Class Action ------------------------------------------------------------- Tina Orem, writing for Credit Union Times, reports that CUNA said on Oct. 4 that it held a members-only conference call with more than 500 credit unions on Oct. 3 to share information about potential participation in class-action lawsuits against Equifax. The call, which also included CUNA's outside counsel, discussed credit unions' legal rights and the pros and cons of directly participating in a lawsuit against the credit-reporting agency over its massive data breach. "From time to time you will work with attorneys to review documents such as the complaint, and be involved in discovery. Equifax will want to take some information as to the losses and damages that the credit union has suffered," said Joseph Guglielmo, who is an attorney with Scott and Scott, LLP. "You'll also be involved in settlement discussions and review and approve the settlement, to the extent we're able to obtain one." Credit unions interested becoming named plaintiffs will need to retain a law firm to file on their own behalf and stay involved at key junctures in the case, CUNA added. In the lawsuit, Summit Credit Union claims outdated software may have contributed to the Equifax data breach. The Equifax breach, announced September 7, affects 143 million U.S. consumers. Compromised information primarily includes names, Social Security numbers, birth dates, addresses and in some cases driver's license numbers. The breach also jeopardized credit card numbers for about 209,000 people, as well as dispute documents for about 182,000 consumers. At least three credit unions have already sued Equifax. Madison, Wis.-based Summit Credit Union filed a class-action lawsuit against Equifax on September 11; Colorado Springs, Colo.-based Aventa Credit Union and New Castle, Pa.-based First Choice Federal Credit Union, along with the New Orleans-based Bank of Louisiana, filed their own class-action complaint against Equifax on September 22. Summit Credit Union has $2.8 billion in assets and about 167,000 members. Aventa Credit Union has $175 million in assets and about 23,700 members; First Choice Federal Credit Union has $44 million in assets and about 6,700 members. On September 29, CUNA announced plans to file its own lawsuit against Equifax over the credit bureau's massive data breach. "Equifax needs to be held accountable for this massive data breach that gave hackers access to the personally identifiable information of 143 million Americans and the credit card information of 209,000 people," CUNA president and CEO Jim Nussle said in a statement. "Equifax's disregard for protecting this highly sensitive data means credit unions are left bearing the brunt for damages in replacing members' cards payment cards, covering fraudulent purchases and taking protective measures to reduce risk of identity theft and false loans." CUNA said credit unions and other financial institutions will likely have to shoulder these costs over the long term. They will also suffer reputational harm and have to bear the burden of notifying consumers of potential fraudulent activity, it added. [GN] EQUIFAX INC: Faces Data Breach Class Action in Pennsylvania ----------------------------------------------------------- Louie Torres, writing for Pennsylvania Record, reports that an Erie man and a Fairless Hills woman have filed a class action lawsuit against Equifax Inc. and Equifax Credit Information Services Inc. over allegations the credit reporting agencies failed to take adequate steps to protect consumers' personal information. Leslie Whipper and Roberta Serafine filed a complaint on behalf of themselves and all others similarly situated in the U.S. District Court for the Western District of Pennsylvania Sept. 13 against Equifax Inc. and Equifax Credit Information Services Inc., citing the Fair Credit Reporting Act and the Pennsylvania Unfair Trade Practices and Consumer Protection Law. According to the complaint, the plaintiffs allege they were damaged from having their personal information stolen in the defendants' May to July data breach. The plaintiffs hold Equifax Inc. and Equifax Credit Information Services Inc. responsible because the defendants allegedly failed to implement sufficient safety measures to protect the personal information of the plaintiffs from their system. The plaintiffs request a trial by jury and seek injunction against the defendants; compensatory, consequential, incidental and statutory damages; restitution and disgorgement; monetary relief; court costs; interest and any further relief the court grants. They are represented by Saba Bireda -- sbireda@sanfordheisler.com -- Jeremy Heisler, Andrew Melzer -- amelzer@sanfordheisler.com -- and Kevin H. Sharp -- ksharp@sanfordheisler.com -- of Sanford Heisler Sharp LLP in Washington, D.C. U.S. District Court for the Western District of Pennsylvania case number 1:17-cv-00248-SPB [GN] EQUIFAX INC: Face Congressional Hearings Following Data Breach -------------------------------------------------------------- Andrew Perez, writing for Fast Company, reports that Equifax, which allowed financial records of more than 145 million Americans to be exposed to hackers, was blasted at congressional hearings -- even as lawmakers continue to consider anti-consumer legislation that would benefit the credit reporting giant. The company's political action committee donated $100,000 to federal candidates during the 2016 election cycle, with 85% of the money going to Republicans, according to data compiled by the Center for Responsive Politics. So far this year, the company has spent at least $500,000 on lobbying; the Consumer Data Industry Association, a trade association affiliated with Equifax, has spent $400,000. Equifax is one of three primary credit reporting agencies in the United States. The firm and its competitors collect extensive personal information to create credit reports and help banks make decisions on loan and credit card applications. Though Equifax has come under fire in recent weeks, the company successfully pursued its agenda in Congress for most of the year. The firm has lobbied lawmakers to overturn a Consumer Financial Protection Bureau (CFPB) rule that would prevent companies like Equifax from including mandatory arbitration clauses in the fine print of their contracts to block consumers from filing class- action lawsuits against them. House Republicans passed a resolution under the Congressional Review Act to eliminate the CFPB's rule in July. Reuters reported that Senate Republicans plan to vote on the resolution soon. Both Equifax and its trade association have lobbied Congress on a Republican bill that would set a $500,000 cap on the amount of money consumers can win in class action lawsuits filed against credit reporting agencies under the Fair Credit Reporting Act (FCRA). Republicans held a hearing on the legislation last month, on the same day that the Atlanta-based company announced its data breach. While the bill's sponsor, Rep. Barry Loudermilk, R-Ga., argued that the measure wouldn't grant immunity to Equifax for its recent security lapse, he said the House Financial Services Committee wasn't moving forward with it just yet. Hearings in the House and Senate on Oct. 3 and Oct. 4 featured bipartisan condemnation for Equifax's failure to protect consumers. "How does this happen when so much is at stake?" asked Rep. Greg Walden, R-Ore on Oct. 3. "I don't think we can pass a law that, excuse me for saying this, fixes stupid. I can't fix stupid." On Oct. 4, several Senate Republicans and Democrats questioned why Equifax was just recently awarded a contract to help the IRS prevent fraud. "Why should anyone hire Equifax for fraud protection right now after this exposure?" asked Sen. Ben Sasse, R-Neb., one of 32 lawmakers sponsoring the Senate resolution to kill the CFPB arbitration rule. At least one House Democrat accused Republican lawmakers of trying to reward Equifax in the wake of the security disaster. "Equifax deserves to be shamed in this hearing, but we should also ask what Congress has done or failed to do to stop data breaches from occurring, and what Equifax plans to do," said Rep. Jan Schakowsky, D-Ill. She said that Equifax continued to lobby Congress on the FCRA liability bill in the months after it learned of its data breach - - and before the company informed the public. "The 14 Republicans sponsoring this bill should ask themselves whether this is really the industry they want to be in bed with," said Rep. Schakowsky. [GN] EQUIFAX INFORMATION: Fails to Protect Personal Info, Fausz Says --------------------------------------------------------------- Ella J. Fausz, individually, and on behalf of a class of similarly situated persons v. Equifax Information Services, LLC, Case No. 3:17-cv-00576-TBR (W.D. Ky., September 19, 2017), accuses the Defendant of violating the Plaintiff and the Class Members' rights by disclosing private information about them to third parties and by failing to properly safeguard their personal information. In early August 2017, before the breach was made public, Equifax executives sold shares of Equifax worth at least $1,800,000, according to the complaint. On September 7, 2017, Equifax admitted the breach in a press release. Headquartered in Atlanta, Georgia, Equifax Information Services, LLC, is a limited liability company organized and existing under the laws of the state of Georgia. Equifax is engaged in the business of acquiring, using, furnishing, and disseminating consumer information in the Commonwealth of Kentucky.[BN] The Plaintiff is represented by: Zachary L. Taylor, Esq. Nina B. Couch, Esq. TAYLOR COUCH PLLC 2815 Taylorsville Road, Suite 101 Louisville, KY 40205 Telephone: (502) 625-5000 Facsimile: (502) 822-2500 E-mail: ztaylor@taylorcouchlaw.com ncouch@taylorcouchlaw.com EQUIFAX INFORMATION: Faces Foley Consumer Class Action in Minn. --------------------------------------------------------------- JOHN HENRY FOLEY, on behalf of himself and all others similarly situated v. EQUIFAX INFORMATION SERVICES, LLC, Case No. 0:17-cv- 04320-JNE-FLN (D. Minn., September 20, 2017), is a consumer class action under the Fair Credit Reporting Act against Equifax, a national consumer reporting agency. In violation of the FCRA, Mr. Foley alleges, Equifax prepares and furnishes consumer reports that include tax liens that: (a) the FCRA prohibits Equifax from reporting; and (b) that have been paid in full, satisfied or cancelled, but are not reported by the Defendant as paid, satisfied or cancelled. Equifax is a "person" and "consumer reporting agency" and is authorized to do business in the state of Minnesota. Headquartered in Atlanta, Georgia, the Defendant is one of the "big three" credit reporting agencies in the United States. The Defendant sells consumer reports about millions of consumers annually, including consumers in Minnesota.[BN] The Plaintiff is represented by: Thomas J. Lyons, Esq. LYONS LAW FIRM P.A. 367 Commerce Court Vadnais Heights, MN 55127 Telephone: (651) 770-9707 E-mail: tlyons@lyonslawfirm.com - and - James A. Francis, Esq. John Soumilas, Esq. FRANCIS & MAILMAN, P.C. Land Title Building, 19th Floor 100 South Broad Street Philadelphia, PA 19110 Telephone: (215) 735-8600 Facsimile: (215) 940-8000 E-mail: jfrancis@consumerlawfirm.com jsoumilas@consumerlawfirm.com EQUIFAX INFORMATION: Sued by Hingle for Not Securing Private Info ----------------------------------------------------------------- WALDON MICHAEL HINGLE v. EQUIFAX INFORMATION SERVICES, LLC, Case No. 2:17-cv-09370 (E.D. La., September 20, 2017), alleges that as a proximate result of the Defendant's alleged failure to secure and safeguard the private information it collects, stores, and sells, the Plaintiff's and Class Members' private information was accessed and stolen by hackers. Equifax is a limited liability company incorporated under the laws of the state of Georgia with a principal place of business in Atlanta, Georgia. Equifax is a "Consumer Reporting Agency" as defined by the Fair Credit Reporting Act. Equifax is in the business of collecting, assessing, storing, and maintaining the information of approximately 800 million worldwide consumers.[BN] The Plaintiff is represented by: Michael Hingle, Esq. Bryan Pfleeger, Esq. MICHAEL HINGLE & ASSOCIATES, LLC 220 Gause Boulevard Slidell, LA 70458 Telephone: (985) 641-6800 Facsimile: (985) 646-1471 E-mail: wmhipad@hinglelaw.com bryan@hinglelaw.com EXPLOITS VALLEY: Faces Class Action Over Air Canada Runway Crash ---------------------------------------------------------------- VOCM reports that a St. John's lawyer is proceeding with a class action lawsuit on behalf of passengers aboard an Exploits Valley Air Services flight which had a rough landing in Gander last year. The Air Canada Express flight with 14 passengers and two crew left Goose Bay for Gander last April, but struck a snowbank during the landing. The landing gear collapsed and the blades of the propeller separated. A portion of a blade penetrated the cabin wall. Three people sustained what are being described as minor injuries. The Transportation Safety Board says blowing snow, reduced visibility and strong crosswinds were contributing factors. TSB says neither pilot considered landing at night, in reduced visibility with a crosswind to be a potential hazardous situation. It has recommended more training for pilots. Lawyer Bob Buckingham says three people may have suffered minor physical injuries, but people are nervous of flying in the best of times. He says they survived an airplane crash on a very windy night in the middle of winter, then all were left on the tarmac for a long period of time with no assistance from either of the pilots. [GN] FERRING PHARMACEUTICALS: Faces Suit for Breach of Warranty ---------------------------------------------------------- American Federation of State, County and Municipal Employees, District Council 47 Health and Welfare Fund, and all others similarly-situated v. Ferring Pharmaceuticals, Inc., Case No. 2:17-cv-07897 (D. N.J., October 4, 2017), is brought against the Defendant for breach of express warranty, breach of implied warranty, unjust enrichment, violation of the various consumer fraud statutes and violation of the Magnuson-Moss Warranty Act. Plaintiff American Federation of State, County and Municipal Employees, District Council 47 Health and Welfare Fund, is a health and welfare trust fund providing medical benefits, including prescription drug coverage, to participants and their dependents, representing active or retired employees of the City of Philadelphia. Defendant Ferring Pharmaceuticals, Inc. manufactures, warrants, advertises, and sells Bravelle, the brand name version of the generic drug urofollitropin designed to treat infertility in women. [BN] The Plaintiff is represented by: Katrina Carroll, Esq. Kyle A. Shamberg, Esq. Ismael T. Salam, Esq. LITE DEPALMA GREENBERG, LLC 211 W. Wacker Drive Suite 500 Chicago, IL 60606 Tel: (312) 750-1265 Fax: (312) 212-5919 E-mail: kcarroll@litedepalma.com kshamberg@litedepalma.com isalam@litedepalma.com - and - Shanon J. Carson, Esq. Jeffrey L. Osterwise, Esq. BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Tel: (215) 875-3000 Fax: (215) 875-4604 E-mail: scarson@bm.net josterwise@bm.net - and - Charles E. Schaffer, Esq. LEVIN, SEDRAN & BERMAN 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Tel: (215) 592-1500 Fax: (215) 592-4663 E-mail: cschaffer@lfsblaw.com FIRED UP: Ex-Employees' WARN Class Action Put on Hold ----------------------------------------------------- Sarah Self-Walbrick, writing for Amarillo.com, reports that the class-action lawsuit filed last month by former Lubbock and Amarillo Fired Up Holding Company employees against their ex- employers is temporarily on hold after one of the defendants filed for bankruptcy. Magdalena Baier, a business partner at Fired Up, filed for Chapter 7 bankruptcy. Chapter 7 bankruptcy allows for "liquidation" -- the sale of a debtor's nonexempt property and the distribution of the proceeds to creditors, according to the U.S. Courts website. In the filed documents, Baier's business partner, Richard Foote, was listed as a co-debtor. Some of the assets listed in the document relate to Fired Up Holding Co., specifically debts owed to the 50-plus former employees who are a part of the lawsuit. Requests for comment from Ms. Baier or her legal representative went unanswered by late on Oct. 4. The bankruptcy puts a minimum 21-day hold on the civil case against Fired Up Holding Co. as the court processes the bankruptcy. Amarillo lawyer Jeff Blackburn, who is representing the spurned employees, said the motion may prolong the case, but it won't make it go away. "Under the law, you can't absolve yourself of wrongdoing like this," Mr. Blackburn said. He described the bankruptcy filing as "not unexpected" and said business people in this legal position often file for bankruptcy. He said it is different when CEOs of large corporations go through this process. In this case, he said average people are being affected. "The real tragedy of this is that all we want is for these people to get paid the money they're owed," Mr. Blackburn said. A class-action lawsuit was filed against Baier and Foote, as well as R Tequila Acquisition, Chalak Mitras Group and Gurdev and Rajeev Singh Gill, in September. Chalak Mitras, a Dallas-based investment group, sold the four Ruby Tequila's locations to Fired Up Holdings in May. The completion of that sale is debated by the two parties, with Foote previously telling A-J Media it was never finalized. When Ruby Tequila's closed in July, the lawsuit alleges several former employees lost their homes and were unable to collect unemployment benefits. The lawsuit states the Worker Adjustment and Retraining Notification Act was violated by the defendants, since notice of the mass layoffs and the required steps to help former employees find new work were not followed. Blackburn and Young & Newsom legal partner Jeremi Young have yet to identify the damages they seek but will ask for at least 60 days of wages and benefits for employees. A motion to dismiss for failure to state a claim was filed by Rajeev and Gurdev Gill in later September. The motion claims The Gills had no role in paying or managing employees and they should be removed from the lawsuit. The motion has yet to be decided on. Jeffrey Tate, one of the seven named plaintiffs in the suit and a former dishwasher at a Lubbock Ruby Tequila's, told the Amarillo Globe-News in September that he wants to stop Foote from doing this again. Foote has had numerous restaurants fail in the past, including the closure of Bennigan's in Amarillo two months after its purchase. "We can't let (Foote) get away with this. He's done it before and he's still able to go into business and open restaurants," Mr. Tate told the Globe-News. "He came here and messed with the wrong people." [GN] FIRSTSOURCE SOLUTIONS: "Bernardez" Suit Alleges FLSA Violation -------------------------------------------------------------- Alan Bernardez and Tawanna Pittman, and all others similarly- situated v. Firstsource Solutions USA, LLC dba MedAssist, Case No. 3:17-cv-00613 (W.D. Ky., October 4, 2017), seek to recover unpaid overtime compensation, liquidated damages, costs, and attorneys' fees under the Fair Labor Standards Act and attendant regulations. Plaintiff Alan Bernardez is a resident of the State of Virginia. He worked for the Defendant as a Patient Service Representative and then became a Team Lead. Plaintiff Tawana Pittman is a resident of the State of Virginia and also worked as a Patient Service Representative for the Defendant. Defendant Firstsource Solutions USA, LLC, dba MedAssist, provides revenue cycle management services to healthcare providers. The company provides patient access services, including call center operations, insurance verification and certification, financial counseling, eligibility prescreening, patient notification of expected liability, emergency department verification, and point of service collections. [BN] The Plaintiffs are represented by: Trent Taylor, Esq. Robi J. Baishnab, Esq. BARKAN MEIZLISH HANDELMAN GOODIN DEROSE WENTZ, LLP 250 E. Broad Street, 10th Floor Columbus, OH 43215 Tel: (800) 274-5297 Fax: (614) 744-2300 E-mail: ttaylor@barkanmeizlish.com rbaishnab@barkanmeizlish.com - and - Jason T. Brown, Esq. Nicholas R. Conlon, Esq. JTB LAW GROUP, LLC 155 2nd Street, Suite 4 Jersey City, NJ 07302 Tel: (201) 630-0000 Fax: (855) 582-5297 E-mail: jtb@jtblawgroup.com nicholasconlon@jtblawgroup.com FOUND MY ANIMAL: Sued Over Failure to Pay Minimum & OT Wages ------------------------------------------------------------ Rene Jefferson, individually, and on behalf of all others similarly situated v. Found My Animal, LLC, Case No. 518415/2017 (N.Y. Sup. Ct., September 25, 2017), is brought against the Defendants for failure to pay minimum and overtime wages in violation of New York Labor Law. Found My Animal, LLC is engaged in the business of making and selling accessories and other products for animals. [BN] The Plaintiff is represented by: Abdul K. Hassan, Esq. ABDUL HASSAN LAW GROUP, PLLC 215-28 Hillside Avenue Queens Village, NY 11427 Telephone: (718) 740-1000 Facsimile: (718) 355-9668 E-mail: abdul@abdulhassan.com FRONTIER COMMUNICATIONS: Faces Securities Class Action in Conn. --------------------------------------------------------------- Bonnie Eslinger, writing for Law360, reports that Frontier Communications Corp. was hit with a putative class action on Oct. 4 in Connecticut federal court alleging the communication services provider violated securities law by hiding financial concerns related to a mass of unpaid user accounts acquired with its $10.5 billion Verizon Communications Inc. purchase. The suit filed by investor plaintiff Larisa Rozenberg accuses Frontier of selling its securities at artificially inflated prices in the 13 months after it acquired the wireline operations of Verizon in California, Texas and Florida in April 2016 -- and thus securities holders were damaged upon the revelation of the company's alleged corrective disclosures earlier this year. "As a result of defendants' wrongful acts and omissions, and the precipitous decline in the market value of the company's securities, plaintiff and other class members have suffered significant losses and damages," the suit states. After the company publicly stated on Feb. 27, that it suffered a net loss of $80 million for the fourth quarter of 2016 as a result of the company's efforts to resolve "nonpaying" accounts acquired in California, Texas and Florida, the Company's stock price fell $0.36 per share, almost 11 percent to close at $2.93 per share on February 28, 2017, according to the complaint. During a Feb. 27 conference call to discuss the company's financial results, during which Frontier Financial Officer Ralph Perley McBride provided a timeline of the account cleanup matter and said Verizon stopped treatment of overdue accounts in February 2016 "in anticipation of the deal close," Frontier "continued non- treatment" of the accounts through to July 2016, the company then began working on the account cleanup process, including disconnecting non-paying accounts in August 2016. Then, on May 2, Frontier Financial Officer Ralph Perley McBride said during a conference call to discuss the company's first quarter financial results and said handling the account "cleanup," including disconnecting users with unpaid bills, reduced revenue that quarter by $16 million. On this news, the Frontier's stock price fell $0.32 per share, or more than 16 percent, to close at $1.61 per share on May 3, 2017, according to the complaint. The suit alleges that Frontier and its officials knew when it purchased the Verizon holdings that it was taking on a substantial number of non-paying accounts as part of its acquisition, and as a result the company would have to take such curative measures as increasing its reserves, and writing off those unpaid debts. The suit against the company also names as defendants company CEO Daniel J. McCarthy, Senior VP/Controller Donald W. Daniels, former CFO John M. Jureller and McBride. "As officers and/or directors of a publicly-held company, the individual defendants had a duty to disseminate timely, accurate, and truthful information with respect to Frontier's businesses, operations, future financial condition and future prospects," the suit states. "As a result of the dissemination of the false and misleading reports, releases and public statements, the market price of Frontier securities was artificially inflated." The suit seeks payment of damages, including prejudgment and postjudgment interest, along with attorney's fees and other costs. Frontier first announced it agreed to buy a wireline service provider network from Verizon in early 2015, a move the company said would significantly strengthen its presence in California, Florida and Texas. The Verizon network in the three states provided residential, commercial and wholesale customers service with 3.7 million voice connections, 2.2 million broadband connections and 1.2 million FiOS video connections, and generated more than $5.7 billion in revenue last year alone, according to a joint press release issued by the parties when the deal was announced. In a written statement, Mr. McCarthy said the acquisition would "maximize value for our shareholders and create a great experience for new customers." Representatives for Verizon and the plaintiff did not immediately respond to requests for comment on Oct. 4. Plaintiff Larisa Rozenberg is represented by Shannon L. Hopkins of Levi & Korsinsky LLP, Patrick V. Dahlstrom, Jeremy A. Lieberman and J. Alexander Hood II of Pomerantz LLP, and Peretz Bronstein of Bronstein Gewirtz & Grossman LLC. Counsel information for Frontier Communications Corporation was not immediately available on Oct. 4. The case is Rozenberg v. Frontier Communications Corp., et al., number 3:17-cv-01672 (D. Conn.). The case is assigned to Judge Michael P. Shea. The case was filed October 4, 2017. [GN] GATE GOURMET: "Little" FLSA Class Settlement Has Prelim Approval ---------------------------------------------------------------- The United States District Court for the Southern District of California issued an Order granting Plaintiff's Motion for Preliminary Approval of Class and Collective Settlement in the case captioned ALFONSO LITTLE, et al., Plaintiffs, v. GATE GOURMET, INC., Defendant, Case No. 3:16-cv-01084-L-AGS (S.D. Cal.). In this putative class action, Alfonso Little and Shantel Gates allege that Defendant Gate Gourmet, Inc., violated provisions of the California Labor Code, the California Business and Professions Code, and the Fair Labor Standards Act by failing to pay all owed straight time and overtime wages, failing to provide rest and meal periods or compensatory premium payments, and by failing to provide adequate pay stubs, pay upon termination of employment, and reimbursement of business expenses. The Court finds that this Action meets the class certification requirements of Federal Rules of Civil Procedure 23(a) and (b)(3). Accordingly, and solely for the purposes of the proposed settlement, the Class is provisionally certified as follows: all persons who are, have been, or will be employed by Defendant in a non-exempt position in California at any time during the period of March 30, 2012 through the date of Preliminary Approval. It shall be an opt-out class. The Court confirms CPT Group, Inc., as the claims administrator. Having found the requirements of Federal Rule of Civil Procedure 23(g) met, the Court appoints William Turley, Esq., David Mara, Esq., Jill Vecchi, Esq., Kevin T. Barnes, Esq., Gregg Lander, Esq., and Emil Davtyan, Esq., as Class Counsel, solely for the purposes of the proposed settlement. The Court confirms Alfonzo Little and Shantel Gates as the Class Representatives, solely for the purposes of the proposed settlement. A full-text copy of the District Court's September 25, 2017 Order is available at http://tinyurl.com/ycw2lgcgfrom Leagle.com. Alfonso Little, Plaintiff, represented by David Mara, The Turley & Mara Law Firm, APLC. 7428 Trade St. San Diego, CA 92121 Alfonso Little, Plaintiff, represented by William D. Turley -- bturley@turleylawfirm.com -- The Turley Law Firm, APLC & Jill M. Vecchi, The Turley & Mara Law Firm, APLC, 7428 Trade St San Diego, CA, 92121-2410 Shantel Gates, Plaintiff, represented by Emil Davtyan -- 21900 Burbank Blvd #300, Woodland Hills, CA 91367, USA -- Davtyan PLC, Gregg Lander --Lander@kbarnes.com -- Law Offices of Kevin T Barnes & Kevin T. Barnes, Law Offices of Kevin Barnes. Gate Gourmet, Inc., Defendant, represented by Diana Tabacopoulos - - dtabacopoulos@seyfarth.com -- Seyfarth Shaw LLP, Rocio Herrera, Los Angeles City Attorney, David Duane Jacobson -- djacobson@la.seyfarth.com -- Seyfarth Shaw LLP & Kristen M. Peters, Seyfarth & Shaw LLP. 800 Third Avenue, 24th Floor, New York, NY 10022 GREEN PHARMACEUTICAL: Snoring Aid Class Action Dismissal Reversed ----------------------------------------------------------------- Emily Field, writing for Law360, reports that a California appellate panel on Oct. 4 reversed the dismissal of a class action alleging that a homeopathic snoring aid was nothing more than a sugar pill, saying that the lower court wrongly disregarded expert testimony that the snore remedy and homeopathy in general is ineffective. The Fourth Appellate District panel said that, while the lower court didn't expressly reject expert witness Dr. Lynn Willis' testimony on the inefficacy of Green Pharmaceutical's SnoreStop and homeopathy, it did disregard his testimony and mischaracterize parts of it in its decision. For example, the lower court said that the pharmacologist testified about the remedy's individual ingredients, but couldn't testify about the product as a whole. However, Dr. Willis testified that each individual active ingredient in SnoreStop wouldn't have an effect on snoring, nor would it shrink swollen tissues that block air passage in the back of the throat. He also testified that he wasn't aware of any credible scientific evidence that the combination of ingredients would shrink those tissues and believed that they wouldn't, according to the panel. The lower court had also said that neither lead plaintiff Rachel Rosendez nor Willis had shown proof that a clinical study referenced on SnoreStop's label was flawed, but in fact, Willis had testified about a number of the study's flaws, the panel said. According to the panel, the principles of homeopathy date back to the 1700s. One tenet holds that "like cures like," or in other words, a substance that can cause certain symptoms when given to a healthy person can cure those same symptoms in someone who is sick. The other main principle is that a drug's therapeutic power is increased when it's diluted. "Willis' testimony about the inefficacy and scientific implausibility of homeopathy in general alone was sufficient to satisfy plaintiffs' burden of proving the inefficacy of SnoreStop as a snoring remedy," the panel said. The lower court based its ruling that Ms. Rosendez had failed to meet her burden of proof largely on the fact that neither she nor Willis had tested the actual tablets. However, given the list of active ingredients and dilution levels of those ingredients on the SnoreStop label, Willis didn't need to test the actual product to opine on its efficacy, the panel said. The panel also noted that the lower court had found that the testimony of Green's homeopathic expert wasn't credible. "The debate is now over, and homeopathy lost: A unanimous Court of Appeal has held that 'the fundamental principles of homeopathy have no basis in science,'" Scott J. Ferrell -- sferrell@pacifictrialattorneys.com -- of Pacific Trial Attorneys, lead counsel for the plaintiff and class, told Law360 on Oct. 4. "Game, set, match." The appellate court also reversed the class' decertification and ordered the lower court to determine the class' damages and restitution and award those to the class. Mr. Ferrell said that they believe classwide damages amount to more than $50 million. Ms. Rosendez filed suit in 2011, alleging violations of California's Consumers Legal Remedies Act, unfair competition law and false advertising law. In 2013, the court certified a class of Californians who bought SnoreStop since June 28, 2007. Eric Lampel of The Lampel Firm, attorney for Green Pharmaceuticals, told Law360 on Oct. 4 that the company will appeal the "unfortunate and error-ridden" decision to the California Supreme Court. "The court of appeal completely ignored the compelling lack of evidence that the trial court relied upon in dismissing plaintiffs claims," Mr. Lampel said. "Green Pharmaceuticals has been in business for decades with no complaints of any kind against it. It produces effective and superior products." Ms. Rosendez is represented by Scott J. Ferrell and Ryan M. Ferrell of Newport Trial Group. Green Pharmaceuticals is represented by Eric P. Lampel and Carlos F. Negrete of The Lampel Firm. The case is Rosendez et al. v. Green Pharmaceuticals, case number CIVDS1108022, in the Court of Appeal, Fourth Appellate District, for the State of California. [GN] HEALTHCARE REVENUE: Court Dismisses "Levins" FDCPA Suit ------------------------------------------------------- Judge Robert B. Kugler of the U.S. District Court for the District of New Jersey, Camden Vicinage, dismissed the case captioned ELAINE LEVINS and WILLIAM LEVINS, on behalf of themselves and other similarly situated, Plaintiffs, v. HEALTHCARE REVENUE RECOVERY GROUP, LLC D/B/A ARS ACCOUNT RESOLUTION SERVICES, AND JOHN and JANE DOES 1 THROGH 25 CORRECTIONS, et al. Defendants, Civil No. 1:17-cv-00928 (RBK/KMW) (D. N.J.). The Plaintiffs, on their own behalf and on behalf of the class they seek to represent, allege that HRRG used false, deceptive, misleading, harassing, and abusive practices in connection with its attempt to collect alleged debts from the Plaintiffs and similarly situated customers. HRRG operates as a debt collector, with its principal place of business in City of Sunrise, Florida. The Plaintiffs specifically contend that HRRG collection practices violate the Fair Debt Collection Practices Act ("FDCPA"), because the practices: (i) fail to provide meaningful disclosure of HRRG's identity; (ii) use false representations and deceptive means to collect or attempt to collect any debt and to obtain information concerning a consumer; and (iii) use the name of any business, company, or organization other than the true name of the debt collections business, company, or organization. The Plaintiffs allegedly owe a medical debt which was assigned, placed, or transferred to HRRG for collection. HRRG then contacted the Plaintiffs and third parties via telephone and left messages in an attempt to collect the alleged debt, which HRRG contends is in default. The Plaintiffs allege that HRRG's pre-recorded message violates FDCPA. They further contend that it is deceptive and improper to abbreviate "ARS Account Resolution Services" as "ARS" for the purposes of collection because "ARS" is not the Defendant corporation's true name. They have thus brought this case as a class action on behalf of all persons with addresses in the State of New Jersey for whom HRRG left such a voice message. The Defendant moves motion to dismiss the Plaintiffs' suit for failure to state a claim upon which relief can be granted. Judge Kugler finds that HRRG's use of "ARS" constitutes a "true name" and provides meaningful disclosure of HRRG's identity. The Plaintiffs and/or least sophisticated consumers can tell who is calling and for what reason. While the Plaintiffs argue that the inclusion of a phone number and internet website improperly shifts the burden to the consumer to investigate the nature of the call, this is not so. Instead, these additions constitute further means of ensuring that there are not any mistaken or false representations about either identity or purpose. Furthermore, HRRG warns consumers that any information provided in these calls will be used to collect a debt. Thus there is no violation of 15 U.S.C. Section 1692(e)(10), as any attempts to collect information have been explicitly flagged and are therefore not deceptive. Because the complaint as pleaded does not present facts, accepted as true, that give rise to any plausible entitlement to relief, Judge Kugler granted the Defendants motion to dismiss. A full-text copy of the Court's Sept. 26, 2017 Opinion is available at https://is.gd/vZC1Av from Leagle.com. ELAINE LEVINS, Plaintiff, represented by DANIEL ADAM FRISCHBERG, LAW OFFICE OF ANDREW B. FINBERG, LLC. ELAINE LEVINS, Plaintiff, represented by PHILIP D. STERN -- webinquiry@philipstern.com -- STERN THOMASSON LLP & ANDREW T. THOMASSON, Stern Thomasson LLP. WILLIAM LEVINS, Plaintiff, represented by DANIEL ADAM FRISCHBERG, LAW OFFICE OF ANDREW B. FINBERG, LLC, PHILIP D. STERN, STERN THOMASSON LLP & ANDREW T. THOMASSON, Stern Thomasson LLP. HOMEADVISOR INC: Court Strikes Notice to Intervene -------------------------------------------------- The United States District Court for the District of Kansas issued a Memorandum and Order Denying Intervenor Frederick Banks' Motion to Intervene as of Right and Claim in the case captioned EMERALD LENGEL, on behalf of herself and all those similarly situated, Plaintiffs, v. HOMEADVISOR, INC., Defendant, Civil Action No. 15- 2198-KHV (D. Kan.). Under Rule 24(a), Fed. R. Civ. P., the Court must allow a party to intervene if (1) his application is timely; (2) he claims an interest relating to the property or transaction which is the subject of the action; (3) his interest may as a practical matter be impaired or impeded and (4) his interest is not adequately represented by existing parties. Intervenor fails to allege a sufficient factual basis to establish a legal interest in this action. In this class action suit, plaintiffs allege that HomeAdvisor, Inc., violated the Fair Credit Reporting Act because it failed to give job applicants proper notice before it obtained consumer reports that contained personal information. The putative intervenor's notice does not claim that he worked for or applied for a job with HomeAdvisor in the Class period. Thus, the Court strikes the notice to intervene. A full-text copy of the District Court's September 25, 2017 Memorandum and Order is available at http://tinyurl.com/yd2mblwa from Leagle.com. Emerald Lengel, Plaintiff, represented by Kai H. Richter -- krichter@nka.com -- Nichols Kaster, PLLP, pro hac vice. Emerald Lengel, Plaintiff, represented by Mark A. Kistler -- mkistler@mbradylaw.com -- Brady & Associates Law Office & Michael F. Brady -- brady@mbradylaw.com -- Brady & Associates Law Office. HomeAdvisor, Inc., Defendant, represented by Alexander C. Clayden -- aclayden@lathropgage.com -- Lathrop Gage, LLP, Mark A. Samsel - - msamsel@lathropgage.com -- Lathrop & Gage, LLP & Stephen J. Horace --shorace@lathropgage.com -- Lathrop Gage, LLP, pro hac vice. Frederick Banks, Movant, Pro Se. JASPER COUNTY, MS: Bid to Certify Inmates Class in "Askew" Denied ----------------------------------------------------------------- In the case captioned MICHAEL ASKEW, Plaintiff, v. GLORIA STEVENS, et al., Defendants, Civil Action No. 2:17-cv-110-KS-MTP (S.D. Miss.), Judge Keith Starrett of the U.S. District Court for the Southern District of Mississippi, Eastern Division, denied the Plaintiff's attempt to institute a class action. The Plaintiff files this civil action pursuant to 42 U.S.C. Section. He states in the relief portion of the Complaint that he is requesting for this suit to become a class action. The Plaintiff and the other inmates referred to in the Complaint are inmates at the Jasper County Jail, Bay Springs, Mississippi. The Plaintiff complains about the general conditions of confinement of the Jasper County Jail. He also alleges that the constitutional rights of the detainees are being violated by the Jasper County court system, including the Jasper County Circuit Court. Even though the Plaintiff's allegations, liberally construed, assert questions of law that are common to all inmates at the Jasper County Jail, Bay Springs, Mississippi, Judge Starrett finds the Plaintiff he has not demonstrated that the remaining requirements for class certification are met. Therefore, the denial of class certification is appropriate. Having reviewed the Complaint, the Judge further finds that it does not present allegations and arguments to meet the requirements of Federal Rule of Civil Procedure 23(a). As a result, this civil action will not be treated as a class action. The enactment of the Prison Litigation Reform Act of 1995 militates against multi-plaintiff prisoner complaints. Commingling the various claims of multiple plaintiffs makes it difficult for the court to discern how the alleged constitutional violation affected each plaintiff. Meritorious claims may be obscured by the frivolous. With these concerns in mind, and with the objective of achieving judicial economy and maintaining efficient control of its docket, Judge Starrett finds that if the other inmates wish to pursue a civil action concerning the conditions of confinement in the Jasper County Jail, Bay Springs, Mississippi, they may do so by filing a separate individual Complaint. Accordingly, Judge Starrett ordered that to the extent the Plaintiff is seeking certification of a class action pursuant to Federal Rule of Civil Procedure 23 such a request is denied. The case will proceed only as to the claims of Plaintiff Askew. A full-text copy of the Court's Sept. 26, 2017 Order is available at https://is.gd/y0X0lZ from Leagle.com. Michael Askew, Plaintiff, Pro Se. JASPER COUNTY, MS: Bid to Certify Class in "Wilson" Denied ---------------------------------------------------------- In the case captioned MALCOLM JAMAL WILSON, #198886, Plaintiff, v. GLORIA STEVENS, et al., Defendants, Civil Action No. 2:17-cv-106- KS-MTP (S.D. Miss.), Judge Keith Starrett of the U.S. District Court for the Southern District of Mississippi, Eastern Division, denied the Plaintiff's attempt to institute a class action. The Plaintiff files this civil action pursuant to 42 U.S.C. Section. He states in the relief portion of the Complaint that he is requesting for this suit to become a class action. The Plaintiff and the other inmates referred to in the Complaint are inmates at the Jasper County Jail, Bay Springs, Mississippi. The Plaintiff complains about the general conditions of confinement of the Jasper County Jail. He also alleges that the constitutional rights of the detainees are being violated by the Jasper County court system, including the Jasper County Circuit Court. Even though the Plaintiff's allegations, liberally construed, assert questions of law that are common to all inmates at the Jasper County Jail, Bay Springs, Mississippi, Judge Starrett finds the Plaintiff he has not demonstrated that the remaining requirements for class certification are met. Therefore, the denial of class certification is appropriate. Having reviewed the Complaint, the Judge further finds that it does not present allegations and arguments to meet the requirements of Federal Rule of Civil Procedure 23(a). As a result, this civil action will not be treated as a class action. The enactment of the Prison Litigation Reform Act of 1995 militates against multi-plaintiff prisoner complaints. Commingling the various claims of multiple plaintiffs makes it difficult for the court to discern how the alleged constitutional violation affected each plaintiff. Meritorious claims may be obscured by the frivolous. With these concerns in mind, and with the objective of achieving judicial economy and maintaining efficient control of its docket, Judge Starrett finds that if the other inmates wish to pursue a civil action concerning the conditions of confinement in the Jasper County Jail, Bay Springs, Mississippi, they may do so by filing a separate individual Complaint. Accordingly, Judge Starrett ordered that to the extent the Plaintiff is seeking certification of a class action pursuant to Federal Rule of Civil Procedure 23 such a request is denied. The case will proceed only as to the claims of Plaintiff Wilson. A full-text copy of the Court's Sept. 26, 2017 Order is available at https://is.gd/y0X0lZ from Leagle.com. Malcolm Jamal Wilson, Plaintiff, Pro Se. JASPER COUNTY, MS: Inmates Class Cert in "Thigpen" Denied --------------------------------------------------------- In the case captioned MICHAEL EUGENE THIGPEN, #133771, Plaintiff, v. GLORIA STEVENS, et al., Defendants, Civil Action No. 2:17-cv- 108-KS-MTP (S.D. Miss.), Judge Keith Starrett of the U.S. District Court for the Southern District of Mississippi, Eastern Division, denied the Plaintiff's attempt to institute a class action. The Plaintiff files this civil action pursuant to 42 U.S.C. Section. He states in the relief portion of the Complaint that he is requesting for this suit to become a class action. The Plaintiff and the other inmates referred to in the Complaint are inmates at the Jasper County Jail, Bay Springs, Mississippi. The Plaintiff complains about the general conditions of confinement of the Jasper County Jail. He also alleges that the constitutional rights of the detainees are being violated by the Jasper County court system, including the Jasper County Circuit Court. Even though the Plaintiff's allegations, liberally construed, assert questions of law that are common to all inmates at the Jasper County Jail, Bay Springs, Mississippi, Judge Starrett finds the Plaintiff he has not demonstrated that the remaining requirements for class certification are met. Therefore, the denial of class certification is appropriate. Having reviewed the Complaint, the Judge further finds that it does not present allegations and arguments to meet the requirements of Federal Rule of Civil Procedure 23(a). As a result, this civil action will not be treated as a class action. The enactment of the Prison Litigation Reform Act of 1995 militates against multi-plaintiff prisoner complaints. Commingling the various claims of multiple plaintiffs makes it difficult for the court to discern how the alleged constitutional violation affected each plaintiff. Meritorious claims may be obscured by the frivolous. With these concerns in mind, and with the objective of achieving judicial economy and maintaining efficient control of its docket, Judge Starrett finds that if the other inmates wish to pursue a civil action concerning the conditions of confinement in the Jasper County Jail, Bay Springs, Mississippi, they may do so by filing a separate individual Complaint. Accordingly, Judge Starrett ordered that to the extent the Plaintiff is seeking certification of a class action pursuant to Federal Rule of Civil Procedure 23 such a request is denied. The case will proceed only as to the claims of Plaintiff Thigpen. A full-text copy of the Court's Sept. 26, 2017 Order is available at https://is.gd/t7ThB2 from Leagle.com. Michael Eugene Thigpen, Plaintiff, Pro Se. LANDTEK INC: Johnson Seeks to Recover Unpaid Wages Under FLSA ------------------------------------------------------------- BENNY JOHNSON and DALTON RAY JOHNSON, on behalf of themselves and those similarly situated v. LANDTEK, INC., a Domestic Profit Corporation, and LUCIEN LONGLAIS, Individually, Case No. 4:17-cv- 00191-CDL (M.D. Ga., September 20, 2017), is brought under the Fair Labor Standards Act to recover from the Defendants alleged unpaid wages, liquidated damages, and reasonable attorneys' fees and costs. LANDTEK, INC., is a Domestic Profit Corporation, which operates and conducts business in the City of Columbus, in Muscogee County, Georgia. Lucien Longlais is/was an acting Owner and Officer of LANDTEK. The Defendants provide landscaping services.[BN] The Plaintiffs are represented by: C. Ryan Morgan, Esq. MORGAN & MORGAN, P.A. 20 N. Orange Ave., 14th Floor P.O. Box 4979 Orlando, FL 32802-4979 Telephone: (407) 420-1414 Facsimile: (407) 245-3401 E-mail: RMorgan@forthepeople.com LEWIS ENERGY: Guerra Sues on Behalf of Welders Over Unpaid OT ------------------------------------------------------------- ERNESTO GUERRA, Individually and on behalf of all others similarly situated v. LEWIS ENERGY GROUP, L.P. and LEWIS RESOURCE MANAGEMENT, LLC, Case No. 5:17-cv-00916 (W.D. Tex., September 19, 2017), is brought under the Fair Labor Standards Act on behalf of all structure/structural welders and pipeline welders, who worked for the Defendants and were paid hourly but no overtime. Lewis Energy Group, L.P., is a Delaware limited partnership, having its principal place of business in San Antonio, Texas. Lewis Resource Management, LLC, is a Texas limited liability company, having its principal place of business in San Antonio. Lewis Energy is a "vertically integrated oil and gas company" that has been "exploring, drilling and completing wells since 1983," according to the Defendants' Web site.[BN] The Plaintiff is represented by: Clif Alexander, Esq. Lauren E. Braddy, Esq. Alan Clifton Gordon, Esq. ANDERSON2X, PLLC 819 N. Upper Broadway Corpus Christi, Tx 78401 Telephone: (361) 452-1279 Facsimile: (361) 452-1284 E-mail: clif@a2xlaw.com lauren@a2xlaw.com cgordon@a2xlaw.com LEXINGTON TECHNOLOGIES: Fails to Pay Workers OT, "Levy" Suit Says ----------------------------------------------------------------- Samuel Levy, individually and on behalf of all others similarly- situated v. Lexington Technologies Inc., Case No. 706381/2017 (N.Y. Sup. Ct., September 26, 2017), is brought against the Defendants for failure to pay overtime wages for work more than 40 hours in a week. Lexington Technologies Inc. is engaged in the business of providing maintenance and engineering services. [BN] The Plaintiff is represented by: Abdul Karim Hassan, Esq. ABDUL HASSAN LAW GROUP, PLLC 215-28 Hillside Avenue Queens Village, NY 11427 Telephone: (718) 740-1000 Facsimile: (718) 740-2000 E-mail: abdul@abdulhassan.com LTI TRUCKING: Faces "Ratliff" Suit in N. Distr. Ill. ---------------------------------------------------- A class action lawsuit has been filed against LTI Trucking Services, Inc. The case is styled as Jerome Ratliff, Jr., on behalf of all other employees similarly situated, Plaintiff v. LTI Trucking Services, Inc., Defendant, Case No. 1:17-cv-07190 (N.D. Ill., October 5, 2017). LTI Trucking Services, Inc. provides truckload carrier and logistic services in the United States.[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 MAJU PUNCAKBUMI: Apartment Owners' Class Action Begins ------------------------------------------------------ Wan Ilaika Mohd Zakaria, writing for The Sun Daily, reports that a class-action lawsuit involving 137 unit owners, who are seeking the return of outstanding rentals owed to them by Maju Puncakbumi Sdn Bhd, the developer of serviced apartment project named The Arc @ Cyberjaya kicked off at the Shah Alam High Court on Oct. 4. The apartment owners' claims against the developer include 8% interest on the outstanding rentals, agreed liquidated damages as stated in the agreement, general damages, and/or aggravated damages, as well as exemplary damages. The Arc @ Cyberjaya is a RM700 million freehold development, which was launched in 2011, comprising four blocks of serviced apartments with at an average price of RM350,000 per unit and four blocks of office towers. Incorporated in 2009, Maju Puncakbumi offers commercial and residential property development services. The company is based in Subang Jaya and operates as a subsidiary of Meda Inc Bhd. Vincent Lim, the lawyer representing the owners, told SunBiz today the owners have applied for summary judgement to be granted by the court on the decision date, in order to avoid trial. Shah Alam High Court judge Datuk Roslan Abu Bakar has fixed Nov 2, 2017 as the decision date. It was reported that the owners were given an option to sign up for a guaranteed rental return (GRR) scheme, which promised a fixed rental income for up to 25 years, when they signed the sale and purchase agreement. The scheme, with an annual return rate of 8%, is offered in packages lasting six, 10 or 25 years. Previously, the development project manager, Andaman Property Management Sdn Bhd (APM), said the scheme is offered to the buyers to ease their concerns about a possible slowdown and to reduce fears they may have on finding tenants or collecting rental payments. Under GRR scheme, which is also known as a leaseback programme, the developer will be responsible for looking for tenants and managing the property for the buyers, with a guaranteed rental income for a predetermined period. APM also said it believed it could afford to guarantee the gross rental rate due to its leasing agreement with Multimedia University to provide the apartments as hostels for its students for up to 25 years. However, the owners claimed they have stopped receiving their rental after a year, from as far back as March last year. [GN] MAXPOINT INTERACTIVE: Freeborn Challenges Merger With Harland ------------------------------------------------------------- ANTHONY FREEBORN, Individually and on Behalf of All Others Similarly Situated v. MAXPOINT INTERACTIVE, INC., JOSEPH EPPERSON, KEVIN DULSKY, LYNNETTE FRANK, LEN K. JORDAN, and AUGUSTUS TAI, Case No. 5:17-cv-00479-BO (E.D.N.C., September 20, 2017), seeks to enjoin the Defendants from closing a proposed transaction or taking any steps to consummate a proposed merger, unless and until material information is disclosed to MaxPoint stockholders or, in the event the proposed merger is consummated, to recover damages resulting from the Defendants' alleged violations of the Securities Exchange Act of 1934. The action is brought as a class action by the Plaintiff on behalf of himself and the other public holders of the common stock of MaxPoint against MaxPoint and members of the Company's board of directors in connection with the tender offer (the "Proposed Transaction") by Harland Clarke Holdings Corp. through its wholly- owned subsidiary Mercury Merger Sub, Inc. ("Merger Sub"), pursuant to which all of the issued and the outstanding shares of MaxPoint common stock will be purchased for $13.86 per share. MaxPoint is a Delaware corporation and maintains its headquarters in Morrisville, North Carolina. MaxPoint is a digital advertising company that helps retailers and brands increase in-store traffic. The Individual Defendants are directors and officers of the Company.[BN] The Plaintiff is represented by: Janet Ward Black, Esq. Nancy Meyers, Esq. WARD BLACK LAW 208 West Wendover Avenue Greensboro, NC 27401 Telephone: (336) 510-2014 Facsimile: (336) 510-2181 E-mail: jwblack@wardblacklaw.com - and - Juan E. Monteverde, Esq. MONTEVERDE & ASSOCIATES PC The Empire State Building 350 Fifth Avenue, Suite 4405 New York, NY 10118 Telephone: (212) 971-1341 Facsimile: (212) 202-7880 E-mail: jmonteverde@monteverdelaw.com MDL 2284: Ct. Affirms Arborist Panel's Denial of Willses' Appeal ---------------------------------------------------------------- Judge Gene E.K. Pratter of the U.S. District Court for the Eastern District of Pennsylvania issued a Memorandum affirming the Imprelis Arborist Panel's decision and denying Dennis and Lonell Wills' appeal in the case captioned IN RE: IMPRELIS HERBICIDE MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION. THIS DOCUMENT APPLIES TO: ALL ACTIONS, Case No. 2:11-md-02284-GEKP (E.D. Pa.). The Willes appeal the decision of the Imprelis Arborist Panel, claiming that their warranty claim was improperly denied. In the fall of 2010, DuPont introduced Imprelis, a new herbicide designed to selectively kill unwanted weeds without harming non-target vegetation. After widespread reports of damage to non-target vegetation, the Environmental Protection Agency ("EPA") began investigating Imprelis, leading to lawsuits, a suspension of Imprelis sales, and an EPA order preventing DuPont from selling Imprelis. In September 2011, DuPont started its own Claim Resolution Process to compensate victims of Imprelis damage. Despite this voluntary process, various plaintiffs continued to pursue their lawsuits, alleging consumer fraud/protection act violations, breach of express and/or implied warranty, negligence, strict products liability, nuisance, and trespass claims based on the laws of numerous states. After months of settlement discussions, including mediation, the parties came to a settlement agreement. The Imprelis Class Action Settlement covers three classes of Imprelis Plaintiffs. Among the three settlement classes is a property owner class. That class includes all persons or entities who own or owned property in the United States to which Imprelis was applied from Aug. 31, 2010 through Aug. 21, 2011, as well as all persons who own or owned property adjacent to property to which Imprelis was applied and whose trees showed damage from Imprelis on or before the date of entry of the Preliminary Approval Order, or Feb. 11, 2013. Under the Settlement, property owner class members who filed claims by the claims deadline would receive tree removal (or compensation for tree removal), payments for replacement trees, tree care and maintenance payments, and a 15% payment for incidental damages. The Settlement included a warranty that provided for all benefits but the 15% incidental damages award for Imprelis damage that manifested after the claims period closed but before May 31, 2015. On Feb. 12, 2013, the Court preliminarily approved the Settlement, and on Sept. 27, 2013, the Court held a Final Fairness Hearing. On Oct. 17, 2013, it granted the Class Plaintiffs' Motion for Final Approval of the Settlement. After the Willses discovered and reported Imprelis damage to their property, they accepted an amended claims resolution agreement to compensate them for the loss of several trees and the care of others. In the fall of 2014, they submitted a warranty claim, contending that 24 trees that had previously been designated for tree care had continued to decline and should be removed and replaced and that two additional trees had also been damaged by Imprelis. A DuPont arborist visited the Willses property about a year later and concluded that one tree should be removed and two others should receive additional care. DuPont's warranty resolution offer reflected these findings, but the Willses objected, submitting photographs and arguing that the warranty trees not marked for removal were sufficiently damaged to warrant removal. DuPont denied the Willses' objections and included with its denial an addendum including notes and comments from Dr. Richard Rathjens, an arborist who reviewed the photographs submitted by the Willses and taken during DuPont site visits and who agreed with DuPont's assessment of the warranty claim. The Willses then appealed their warranty claim to the Arborist Panel. In that appeal, they claimed that 26 trees on their property were in need of removal and replacement, and they included with their appeal a report from their own expert arborist, Faith Appelquist. The Appeals Panel granted the appeal with regard to two trees, one of which was inadvertently removed without compensation and the other of which was marked for removal but not yet removed. As to the remaining trees, however, the Panel denied the appeal, concluding that those trees did not show sufficient Imprelis damage to warrant removal. The Willses appeal the decision of the Imprelis Arborist Panel. The Willses argue on appeal that 24 of their trees are so severely damaged by Imprelis that they should be removed and replaced. They argue that if one compares their expert's comments on the trees in question with Dr. Rathjens's comments, both experts actually support removal and replacement for the trees in dispute. Dr. Rathjens's ultimate conclusion, however, was that the trees in question were not severely damaged enough to warrant removal, and he questioned whether Imprelis was the cause of all of the damage displayed in the photographs. Thus, to the extent that the Willses attempt to draw parallels between their expert and one of DuPont's, the clear conclusions drawn by Dr. Rathjens from his own observations make the Willses' attempt at comparison less than compelling. The appeal, then, comes down to a battle of experts. After a review of the full record, including the Appelquist report and photographs, as well as notes from DuPont arborists, the Appeals Panel observed that the only symptomology seen was old and the trees in question appear to be showing new growth. They determined, therefore, that DuPont's assessment of the 24 trees in question was correct. Despite the evidence put forward by the Willses and after reviewing the record before the Arborist Panel, Judge Pratter cannot conclude that the Panel's decision was arbitrary or capricious. As a result, he affirmed the Arborist Panel decision and denied the Willses' appeal. A full-text copy of the Court's Sept. 26, 2017 Memorandum is available at https://is.gd/VNyaz2 from Leagle.com. MY PILLOW: Court Partly Grants Bid to Dismiss "Marlowe" Suit ------------------------------------------------------------ In the case captioned TIM MARLOWE, etc., Plaintiff, v. MY PILLOW, INC., Defendant, Case No. 1:17CV463 (N.D. Ohio), Judge Christopher A. Boyko of the U.S. District Court for the Northern District of Ohio, Eastern Division, granted in part and denied in part the Defendant's Motion to Dismiss Plaintiff's First Amended Complaint. Marlowe filed his original Complaint on Jan. 27, 2017 against the Defendant, alleging three causes of action relating to the Defendant's advertising campaign. His First Amended Complaint was filed on March 9, 2017. The Defendant filed a Motion to Dismiss all claims on April 13, 2017. According to the Plaintiff's Complaint, he purchased two King pillows for a total price of $119.96 in response to the Defendant's "buy one, get one" ("BOGO") offer on or about Dec. 11, 2015. He asserts, however, that one Kingsize pillow can be purchased from My Pillow on Amazon for $54.95. His argument is that the Defendant's BOGO offer does not result in one free pillow, but instead inflates the price of the first pillow to twice its regular price, passing the cost of the second pillow on to the customer. The Plaintiff brought class and individual claims alleging a violation of the Ohio Consumer Sales Practices Act ("OCSPA"), unjust enrichment and fraud. The Defendant filed a Motion to Dismiss all of Plaintiff's claims. Judge Boyko concludes that without facts supporting the proposition that two pillows from My Pillow are of less value than that which the Plaintiff paid when he bought two pillows, the Plaintiff has failed to show actual damages as required for recovery under an OCSPA class claim. Therefore, the Judge granted the Defendant's Motion to Dismiss Plaintiff's Class Action OCSPA claim. Importantly, this conclusion does not necessarily preclude the Plaintiff from recovering under an individual OCSPA claim. The Plaintiff has sufficiently alleged conduct proscribed by Ohio Admin. As such, his individual claim under the OCSPA cannot be dismissed under Fed. R. Civ. P. 12(b)(6). Judge Boyko denied the Defendant's Motion to Dismiss Plaintiff's individual OCSPA claim. For recovery under a claim of unjust enrichment, the Judge finds that even assuming the Plaintiff were able to establish that he did suffer economic loss that by itself would not support his claim for unjust enrichment. Therefore, since the Defendant did not retain a benefit under circumstances in which it would have been unjust to retain that benefit, the Defendant's Motion to Dismiss Plaintiff's claim for unjust enrichment is granted. Finally, Judge Boyko concludes that a failure to allege actual damages or any injury beyond the reliance on the misrepresentation itself is fatal to a fraud claim. Similarly, the Plaintiff does not sufficiently allege actual damages, failing to satisfy the sixth element of a valid fraud claim. Therefore, the Judge granted the Defendant's Motion to Dismiss Plaintiff's claim for fraud. Accordingly, Judge Boyko granted the Defendant's Motion to Dismiss as it relates to the OCSPA Class Action claim, unjust enrichment claim, and fraud claim, and denied as to the individual OCSPA claim. A full-text copy of the Court's Sept. 26, 2017 Opinion and Order is available at https://is.gd/BbO4hE from Leagle.com. Tim Marlowe, Plaintiff, represented by Frank A. Bartela -- fbartela@dworkenlaw.com -- Dworken & Bernstein. Tim Marlowe, Plaintiff, represented by Nicole T. Fiorelli -- nfiorelli@dworkenlaw.com -- Dworken & Bernstein & Patrick J. Perotti -- pperotti@dworkenlaw.com -- Dworken & Bernstein. My Pillow, Inc., Defendant, represented by Daniel H. Bryan -- dbryan@taftlaw.com -- Taft Stettinius & Hollister, Michael J. Zbiegien -- mzbiegien@taftlaw.com -- Jr., Taft Stettinius & Hollister & Ronald D. Holman, II -- rholman@taftlaw.com -- Taft Stettinius & Hollister. NATIONAL COLLEGIATE: Student-Athletes File FLSA Class Action ------------------------------------------------------------ Stephanie L. Goutos, Esq. -- Stephanie.Goutos@jacksonlewis.com -- of Jackson Lewis P.C., in an article for The National Law Review, wrote that in the latest effort to argue that student athletes qualify as employees under the Fair Labor Standards Act ("FLSA"), a class action lawsuit was filed in a federal court in Pennsylvania against the National Collegiate Athletic Association ("NCAA") and 20 universities. Last year, the U.S. Court of Appeals for the Seventh Circuit affirmed U.S. District Judge William T. Lawrence's dismissal of a student-athlete litigation against the NCAA and over 120 NCAA Division I member schools alleging that student-athletes are employees who are entitled to a minimum wage under the FLSA. Berger v. NCAA, No. 16-1558 (7th Cir. Dec. 5, 2016). Jackson Lewis had the privilege of representing 30 of the Universities named in that lawsuit. Now, Plaintiff Lawrence "Poppy" Livers has filed a lawsuit on behalf of himself and others alleged to be similarly situated, claiming that college student athletes who receive scholarships are employees who are entitled to compensation. Plaintiff argues the "crux" of the Complaint is that recipients of athletic scholarships, which require them to participate in NCAA athletics under daily supervision of full-time coaching and training staff, are employees of NCAA member schools as much as, "and arguably more than, fellow students employed in work study programs, e.g., student ticket takers, seating attendants and food concession workers at NCAA contests." Further, Plaintiff argues that this Complaint differs from Berger in that the putative collective in this case "only includes Scholarship Athletes, and does not address the status of 'walk- ons,' i.e., student athletes who are not obligated to, and controlled by, NCAA member schools pursuant to Athletic Financial Aid Agreements." The Plaintiffs in Berger attended the University of Pennsylvania which does not enter into Athletic Financial Aid Agreements. [GN] NATIONWIDE CREDIT: Faces "Rich" Suit in S. Dist. New York --------------------------------------------------------- A class action lawsuit has been filed against Nationwide Credit and Collections, Inc. The case is styled as Patricia Rich, on behalf of herself and all others similarly situated, Plaintiff v. Nationwide Credit and Collections, Inc., Defendant, Case No. 1:17- cv-07628-RJS (S.D.N.Y., October 5, 2017). Nationwide Credit and Collections, Inc. is engaged in the collection business.[BN] The Plaintiff is represented by: Sergei Lemberg, Esq. Lemberg Law, LLC 43 Danbury Rd Wilton, CT 06897 Tel: (203) 653-2250 Fax: (203) 653-3424 Email: slemberg@lemberglaw.com NORTHWEST CASCADE: Faces Class Action Over Porta Potty Plant Odor ----------------------------------------------------------------- Sara E. Teller, writing for Legal Reader, reports that living by a porta potty plant really stinks. And, what's more, it can be hazardous to one's health and bring down property values. Four neighbors filed a lawsuit against Northwest Cascade and the company's Honey Bucket and FloHawks divisions claiming odors, gases and fumes caused unbearable headaches, irritated their asthma and devalued their homes. Northwest Cascade heads a wastewater-treatment plant and cleaning station for Honey Buckets, which are porta potty units. Pumper trucks extract the contents of the Honey Buckets and transport the waste to the property. The sewage is then pressed into biosolids and used for agricultural and landscaping needs. Any remaining wastewater is sent to the King County Wastewater Treatment system, and the units are taken to the Pacific facility where they are power washed and stored for future use. On September 27, Pierce County Superior Court Judge Helen Whitener certified the case as a class action, allowing additional residents to join. This could mean others from the approximately 40 lots in the neighborhood decide to take action. The Honey Bucket operation has been expanding since its inception in 2014 and neighbors have smelled sewage. "Sometimes the smell is so heavy it engulfs your home, whether your windows are open or not. And it's just really difficult to live in this environment now," said Samantha Niemi, a mother who lives in the neighborhood. She is worried about the health of her children and others in the area. "When they're playing outside, they have their shirts over their faces. We're really scared about the future of the kids in the area," Ms. Niemi said. "My biggest goal in all of this is to literally just have the processors and the trucks removed." "I think nobody wants to experience what we experience, even the company or anybody," resident Ganna Shtogryn, said. "The smell, it's the same as a porta-potty standing right next to your door. It's hard to be outside." Another resident, Samantha Binder, has a treasure trove of evidence she's collected for the battle sprawled out in her home. "This is my life," she said. "My everyday life." "The hardest smell we experience is the sewage smell. Plus, we experience chemicals. Sometimes perfumes. Sometimes they mix together, so it's like different kind of . . . It depends on what type of operations the company has at the moment," said plaintiff Anna Shtogryn. "This is like a stressful life because we never know what to expect during the day and during the night." The Puget Sound Clean Air Agency has received complaints about the facility, according to an agency spokesperson who indicated that all of the complaints appear to be focused on odors. The agency issued two violation notices earlier in 2017, but both incidences were either dismissed or resolved. Porta potty use has been linked to life-threatening infections, including norovirsus, salmonella, Shigellosis, a bacterial infection that causes rectal pain, vomiting and other bowel issues, Hepatitis A and the flu. Just having the facility that close to their neighborhood, has residents concerned with contracting serious illnesses. [GN] NY NJ RESTORATION: Faces "Gomez" Suit in E. Dist. New York ---------------------------------------------------------- A class action lawsuit has been filed against NY NJ Restoration Inc. doing business as: NY NJ Restoration. The case is styled as Cesar Reyes Gomez, Lucas Galindo Ortiz, Manuel Galindo, Sixto Galindo and Zeferino Hernandez, individually and on behalf of others similarly situated, Plaintiffs v. NY NJ Restoration Inc. doing business as: NY NJ Restoration, Edmund Imeri, Izet Imeri and Bruno Doe, Defendants, Case No. 1:17-cv-05831 (E.D.N.Y., October 5, 2017). The Defendants are engaged in the construction industry.[BN] The Plaintiffs appear PRO SE. PACIFIC COAST: Sued Over Failure to Properly Pay Employees ---------------------------------------------------------- Guadalupe Leyva, on behalf of herself and all others similarly situated v. Pacific Coast Home Furnishings, Inc. and Does 1 through 100, inclusive, Case No. BC677197 (Cal. Super. Ct., September 25, 2017), is brought against the Defendants for failure to pay overtime wages and failure to provide uninterrupted meal periods. Pacific Coast Home Furnishings, Inc. is a California corporation that manufactures and distributes home furnishings. [BN] The Plaintiff is represented by: Michael Nourmand, Esq. James A. De Sario, Esq. THE NOURMAND LAW FIRM, APC 8822 West Olympic Boulevard Beverly Hills, CA 90211 Telephone (310) 553-3600 Facsimile (310) 553-3603 PHARMERICA CORP: Faces "Berg" Suit Over Sale to Phoenix ------------------------------------------------------- ROBERT BERG, Individually and On Behalf of All Others Similarly Situated v. PHARMERICA CORPORATION, GEOFFREY G. MEYERS, GREGORY S. WEISHAR, FRANK E. COLLINS, W. ROBERT DAHL, JR., MARJORIE W. DORR, BOB OAKLEY, PATRICK G. LEPORE, PHOENIX PARENT HOLDINGS INC., and PHOENIX MERGER SUB INC., Case No. 3:17-cv-00582-DJH (W.D. Ky., September 20, 2017), stems from a proposed transaction, pursuant to which PharMerica will be acquired by Phoenix Parent Holdings Inc. and Phoenix Merger Sub Inc. On August 1, 2017, PharMerica's Board of Directors caused the Company to enter into an agreement and plan of merger with Phoenix, according to the complaint. Pursuant to the terms of the Merger Agreement, shareholders of PharMerica will receive $29.25 in cash for each share of PharMerica they own. PharMerica is a Delaware corporation and maintains its headquarters in Louisville, Kentucky. The Individual Defendants are directors and officers of the Company. Parent is Delaware corporation and a party to the Merger Agreement. Merger Sub is a Delaware corporation, a wholly-owned subsidiary of Parent, and a party to the Merger Agreement. Merger Sub and Parent are affiliates of private equity firm Kohlberg Kravis Roberts & Co. L.P. Formed in 2006, PharMerica is an institutional pharmacy services company that services healthcare facilities, provides pharmacy management services to hospitals, provides specialty infusion services to patients outside a hospital setting, and offers the only national oncology pharmacy in the United States. PharMerica is the second largest institutional pharmacy services company in the United States based on revenues and customer licensed beds under contract, operating 99 institutional pharmacies, 19 specialty infusion centers, and four specialty oncology pharmacies in 45 states. The Company's customers are typically institutional healthcare providers, such as skilled nursing facilities, assisted living facilities, hospitals, individuals receiving in-home care, and patients with cancer.[BN] The Plaintiff is represented by: Mark K. Gray, Esq. Jacob E. Levy, Esq. GRAY & WHITE LAW 713 E. Market St. #200 Louisville, KY 40202 Telephone: (502) 805-1800 E-mail: mgray@grayandwhitelaw.com jlevy@grayandwhitelaw.com - and - Brian D. Long, Esq. Gina M. Serra, Esq. RIGRODSKY & LONG, P.A. 2 Righter Parkway, Suite 120 Wilmington, DE 19803 Telephone: (302) 295-5310 Facsimile: (302) 654-7530 E-mail: bdl@rigrodskylong.com gms@rl-legal.com - and - Richard A. Maniskas, Esq. RM LAW, P.C. 1055 Westlakes Drive, Suite 300 Berwyn, PA 19312 Telephone: (484) 324-6800 E-mail: rmaniskas@rmclasslaw.com PIZZA ON STONE: Faces "Moran" Suit in S. Dist. New York ------------------------------------------------------- A class action lawsuit has been filed against Pizza on Stone, LLC. The case is styled as Oscar Enmanuel Carcamo Moran, individually and on behalf of others similarly situated, Plaintiff v. Pizza on Stone, LLC. doing business as: Adrienne's Pizzabar, Restaurant on the Square Inc., doing business as: Adrienne's Pizzabar, Pearl Stone Restaurant Inc. doing business as: Adrienne's Pizzabar, Nick Angelis and Harry Polakakos, Defendants, Case No. 1:17-cv-07643 (S.D.N.Y., October 5, 2017). The Defendants are engaged in the restaurant business.[BN] The Plaintiff is represented by: Michael Antonio Faillace, Esq. Michael Faillace & Associates, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Tel: (212) 317-1200 Fax: (212) 317-1620 Email: michael@faillacelaw.com PLUSFOUR INC: Court Denies Bid to Transfer "Cardinali" ------------------------------------------------------ Judge Nancy J. Koppe of the U.S. District Court for the District of Nevada denied without prejudice Defendant Experian's motion to transfer the case captioned LOUIS A. CARDINALI, Plaintiff(s), v. PLUSFOUR, INC., et al., Defendant(s), Case No. 2:16-cv-02046-JAD- NJK (D. Nev.). Experian moves to transfer pursuant to 28 U.S.C. Section 1404(a). The Plaintiff filed a response to which Experian filed a reply. Experian filed supplemental authority, and the Plaintiff has filed a response to the supplemental authority. The Court held a hearing on the motion on Sept. 25, 2017. The motion to transfer is premised in significant part on the contention that the case is better handled in the Northern District of Illinois in light of an overlapping nationwide class action being litigated in that court. In the latest filing in relation to this motion, however, the Plaintiff has attached a minute order from that court allowing the Plaintiff there to withdraw his class action allegations and his motion to certify a class. Further, Experian represented at the hearing that the primary case on which it premised its motion to transfer has now been dismissed. In light of the changed landscape, Judge Koppe denied Experian's motion to transfer without prejudice. To the extent Experian continues to believe circumstances warrant transfer, it may file a renewed motion to transfer more specifically focused on the current state of affairs. A full-text copy of the Court's Sept. 26, 2017 Order is available at https://is.gd/1oebnU from Leagle.com. Louis A. Cardinali, Plaintiff, represented by Matthew I. Knepper - - matthew.knepper@knepperclark.com -- Knepper & Clark, LLC. Louis A. Cardinali, Plaintiff, represented by Miles N. Clark -- miles.clark@knepperclark.com -- Knepper & Clark LLC, Sean N. Payne, PAYNE LAW FIRM LLC & David H. Krieger -- info@hainesandkrieger.com -- Haines & Krieger, LLC. Experian Information Solutions, Inc., Defendant, represented by Adam W. Wiers -- awwiers@jonesday.com -- Jones Day, pro hac vice, Christopher A. Hall -- chall@jonesday.com -- Jones Day, pro hac vice, Andrew J. Sharples -- asharples@naylorandbrasterlaw.com -- Naylor & Braster Attorneys at Law, PLLC & Jennifer L. Braster -- jbraster@naylorandbrasterlaw.com -- Naylor & Braster. POLTER BERRY: "Blas-Lopez" Suit Seeks to Recover Unpaid Wages ------------------------------------------------------------- Aristeo Blas-Lopez, Antonio De Jesus ChavezResendiz, Paz Vargas- Gonzalez, Miguel Angel Rojo-Trejo, Emiliano Juarez-Trejo, Jairo Perez-Gonzalez, and Pedro Martinez-Gonzalez, and all others similarly-situated v. Polter Berry Farm, Inc., Dan L. Polter, Carol Polter, Steve Polter, Anthony L. Polter, and Pedro Lopez, Case No. 3:17-cv-02084 (N.D. Ohio, October 4, 2017), seeks to recover unpaid wages and liquidated damages under the Fair Labor Standards Act. Plaintiffs are migrant agricultural workers recruited by Defendants' authorized agents in Mexico in 2016 and 2017 to work on Defendants' berry and vegetable farm under the H-2A guestworker program in and around Sandusky County, Ohio. The Polter Defendants, and Defendant Pedro Lopez were day to day managers with operational control over Polter Berry Farm, Inc. [BN] The Plaintiffs are represented by: Stephen B. Johnston, Esq. Law Offices of Stephen B. Johnston 316 N. Erie St. Suite 416 Toledo, OH 43604 Tel: (419) 244-9722 Fax: (419) 449-9723 E-mail: sbjlegal@gmail.com - and - Robert J. Willis, Esq. P.O. Box 1828 Pittsboro, NC 27312 Tel: (919) 821-9031 Fax: (919) 821-1763 E-mail: rwillis@rjwillis-law.com POTBELLY SANDWICH: Faces "Bryant" Suit in S. Dist. New York ----------------------------------------------------------- A class action lawsuit has been filed against Potbelly Sandwich Works, LLC. The case is styled as Robert Bryant and Trinton Hatton, Individually and on behalf of themselves and all others similarly situated, Plaintiffs v. Potbelly Sandwich Works, LLC, Defendant, Case No. 1:17-cv-07638-CM (S.D.N.Y., October 5, 2017). Potbelly Sandwich Works, LLC owns and operates a chain of food restaurants with a registered agent at 111 Eighth Avenue, New York, New York 10011.[BN] The Plaintiffs are represented by: Fran L. Rudich, Esq. Klafter, Olsen & Lesser, LLP Two International Drive, Ste 350 Rye Brook, NY 10573 Tel: (914) 997-5656 Fax: (914) 997-2444 Email: frudich@klafterolsen.com - and - Seth Richard Lesser, Esq. Klafter, Olsen & Lesser, LLP Two International Drive, Ste 350 Rye Brook, NY 10573 Tel: (914) 997-5656 Fax: (914) 997-2444 Email: SLesser@klafterolsen.com PRECISION MOTOR: Faces "Ratliff" Suit in N. Dist. Ill. ------------------------------------------------------ A class action lawsuit has been filed against Precision Motor Transport Group, LLC. The case is styled as Jerome Ratliff, Jr., individually and on behalf of others similarly situated, Plaintiff v. Precision Motor Transport Group, LLC, Defendant, Case No. 1:17- cv-07196 (N.D. Ill., October 5, 2017). Precision Motor Transport Group, LLC provides automotive logistics and transportation services to luxury automobile manufacturers in the Eastern Seaboard and interior of the United States.[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 PRICELINE.COM: Must Face Spirit Ticket Pricing Class Action ----------------------------------------------------------- Tycko & Zavareei LLP on Oct. 4 disclosed that on September 30, 2017, Judge Robert N. Chatigny of the United States District Court for the District of Connecticut denied Priceline's motion to dismiss Plaintiff's claims, allowing Plaintiff's claims to move forward against Priceline.com. The class action lawsuit alleges that Priceline breaches its "Best Price Guaranteed" promise when advertising tickets from Spirit Airlines because Priceline adds its own markup to Spirit tickets, unbeknownst to consumers. As a result, Plaintiffs allege, Spirit tickets are always cheaper on Spirit.com than on Priceline.com, despite Priceline's explicit promise to the contrary. Plaintiff, Austin Chapman, brings his claims on behalf of himself and all consumers nationwide who purchased Spirit Airlines tickets through Priceline.com. In his ruling denying Priceline's motion to dismiss in its entirety, Judge Chatigny held that Plaintiff had adequately stated a claim for relief because "it is plausible that a reasonable consumer would interpret the contract language to include a promise not to add hidden surcharges." Jeffrey Kaliel, attorney for Plaintiff and the putative class and a partner with Tycko & Zavareei LLP, commented, "Priceline's practice of adding surcharges to Spirit Airline tickets is in violation of its best price guarantee. The Court's ruling on the motion to dismiss is the first step toward achieving an important victory for consumers." If you purchased Spirit Airlines tickets through Priceline.com or other travel websites, please contact Tycko & Zavareei LLP for more information regarding the pending lawsuit and your legal rights. About Tycko & Zavareei Tycko & Zavareei LLP, based in Washington, D.C. with offices in Oakland, California, has a long and successful record of litigating complex cases. The firm routinely handles large and complex matters throughout the country, advocating on behalf of individuals fighting for their civil rights, consumers seeking redress for unfair business practices, whistleblowers exposing fraud and corruption, and non-profit entities and businesses facing difficult litigation. [GN] PROVIDENCE LITTLE: Does Not Properly Pay Workers, Suit Claims ------------------------------------------------------------- Velika Turner, individually and on behalf of other individuals similarly situated v. Providence Little Company of Mary Foundation, Providence Health & Services, and Providence Health & Services Foundation/San Fernando and Santa Clarita Valleys Service Areas, a California nonprofit, and Does 1-10, Case No. BC676996 (Cal. Super. Ct., September 25, 2017), is brought against the Defendants for failure to pay the Plaintiff and said members of the Plaintiff Class for all wages due to them, failure to provide meal and rest breaks and failure to pay for missed breaks, and failure to furnish the Plaintiff and Class members accurate, itemized wage statements required by the California Labor Code upon payment of wages. The Defendants operate 6 medical centers including Providence Holy Cross, Providence Little Company of Mary Torrance and Providence Little Company of Mary San Pedro, Providence Saint John's Health Center and their John Wayne Cancer Institute, Providence Saint Joseph and their Roy and Patricia Disney Family Cancer Center, and Providence Tarzana. [BN] The Plaintiff is represented by: Marcus J. Bradley, Esq. Kiley L. Grombacher, Esq. Taylor L. Emerson, Esq. BRADLEY/GROMBACHER, LLP 2815 Townsgate Road, Suite 130 Westlake Village, CA 91361 Telephone: (805) 270-7100 Facsimile: (805) 270-7589 E-mail: mbradley@bradleygrombacher.com kgrombacher@bradleygrombacher.com RENT-A-CENTER INC: Court Stays "Cook" Pending SCOTUS Ruling ----------------------------------------------------------- The United States District Court for the Eastern District of California issued a Memorandum and Order granting Defendant's Motion to Stay the case captioned KUREEN COOK, individually, and on behalf of other members of the general public similarly situated, Plaintiff, v. RENT-A-CENTER, INC., a Delaware corporation; RENT-A-CENTER WEST, INC., a Delaware corporation; RENT-A-CENTER FRANCHISING INTERNATIONAL INC., a Texas corporation; and DOES 1 through 10, inclusive, Defendants, No. 2:17-cv-00048- MCE-EFB (E.D. Cal.). RAC moves to dismiss Plaintiff's individual claims on grounds that under the terms of an arbitration agreement reached with Plaintiff, Plaintiff agreed to arbitrate all past, present and future disputes with RAC, including all claims for wages and other compensation due and any statutory claims (Agreement). RAC further moves to strike Plaintiff's collective and class action claims on grounds that the Arbitration Agreement precludes those claims. Finally, and in the alternative, since resolution of a case currently pending before the United States Supreme Court may be dispositive of much of Plaintiff's action in any event, RAC asks the Court to stay the entire action if it is disinclined to simply enforce the terms of the Arbitration Agreement. Plaintiff Kureen Cook alleges a nationwide collective action claim against his former employer, Rent-A-Center, for overtime under the Fair Labor Standards Act (FLSA), as well as numerous Rule 23 class action claims under California law for alleged unpaid wages, unpaid overtime, unpaid meal and rest breaks, unreimbursed business expenses, failure to compensate for split shifts, and penalties arising from allegedly non-compliant wage statements under the California Labor Code and California Business and Professions Code. The Court agrees that a stay is compelling under the circumstances of this case. Despite Plaintiff's individual claims, the gravamen of his lawsuit would appear to rest with the viability of his collective and class action allegations. If the Supreme Court agrees with the Fifth, Eighth, and Second Circuit decisions holding that class action waivers are enforceable, and disagrees with the contrary position taken by the Ninth Circuit, the collective and class action claims here will fail. As a practical matter, that determination could well be dispositive of Plaintiff's entire lawsuit. Requiring the parties to go forward with litigation given the uncertainty in this regard would waste the time and resources of both the parties and the Court. Engaging in collective and class action discovery, not to mention handling disputes over conditional certification, potential class members, and the merits of the collective/class action allegations themselves, will require substantial effort on the part of all concerned, efforts that may well be unnecessary depending on the Supreme Court's ultimate decision in Morris. Additionally, by forcing RAC to litigate this matter while the class waiver issue is pending before the Supreme Court, would effectively deprive RAC of its right under the Federal Arbitration Act to enforce its Arbitration Agreement as written. The Court will stay this lawsuit until such time as the Supreme Court issues its decision in Ernst & Young LLP v. Morris, 137 S.Ct. 809 (Jan. 13, 2017). A full-text copy of the District Court's September 25, 2017 Memorandum and Order is available at http://tinyurl.com/y8xxyrjo from Leagle.com. Kureen Cook, Plaintiff, represented by Jennifer Renee Bagosy -- jennifer.bagosy@capstonelawyers.com -- Capstone Law Group. Kureen Cook, Plaintiff, represented by Suzy E. Lee -- suzy.lee@capstonelawyers.com -- Capstone Law, APC & Andrew Joseph Sokolowski --asokolowski@materlawgroup.com -- Matern Law Group, PC. Rent-A-Center, Inc., Defendant, represented by Julie A. Dunne, Littler Mendelson, PC & Robert F. Friedman, Littler Mendelson, P.C., pro hac vice. Rent-A-Center West, Inc., Defendant, represented by Julie A. Dunne -- jdunne@littler.com -- Littler Mendelson, PC. Rent-A-Center Franchising International, Inc., Defendant, represented by Julie A. Dunne, Littler Mendelson, PC. ROMA PHARMACY: Faces "Diaz" Suit in E. Dist. New York ----------------------------------------------------- A class action lawsuit has been filed against Roma Pharmacy Corp., d/b/a First Aid Pharmacy. The case is styled as Roman Diaz, individually and on behalf of all other employees similarly situated, Plaintiff v. Roma Pharmacy Corp., d/b/a First Aid Pharmacy, Desai Ramila and Alpesh Patel, Defendants, Case No. 1:17-cv-07646 (E.D.N.Y., October 5, 2017). Roma Pharmacy Corp offers Medical Supplies and Equipment in Bronx, NY.[BN] The Plaintiff appears PRO SE. ROYAL CARIBBEAN: Liberty of the Seas Passengers File Class Action ----------------------------------------------------------------- Lipcon, Margulies, Alsina & Winkleman, PA, on Oct. 4 disclosed that a class action lawsuit has been filed against Royal Caribbean in connection to what happened to passengers booked on the Liberty of the Seas, the week of Hurricane Harvey. Maritime Attorney Michael Winkleman from Lipcon, Margulies, Alsina & Winkleman is representing dozens of people who were supposed to set sail out of Galveston, Texas August 27th Winkleman has filed a class action lawsuit against Royal Caribbean Cruises Ltd in the U.S. District Court for the Southern District of Florida. The Class Action complaint alleges that despite Hurricane Harvey literally flooding parts of Texas, Royal Caribbean told passengers they would get no refund if they did not board. The suit states: "RCCL's misconduct was predicated on a profit motive because, simply put, cruise lines like RCCL make no money when passengers don't sail." And: "RCCL's knowing and intentional decision to effectively force individuals who had purchased a cruise aboard the Liberty of the Seas leaving August 27, 2017 to fly to Texas while it was in a state of emergency due to Hurricane Harvey, because RCCL would not cancel or modify its planned cruise. In so doing, RCCL forced hundreds of would be passengers, including children and the elderly, to be subjected to catastrophic flooding and potential loss of life." Before flying in from Canada, with her husband and two kids, Nikki McIntosh says she repeatedly contacted RCCL asking whether the cruise would be canceled. Weather reports showed Harvey would have an effect on coastal areas of Texas. Ms. McIntosh says, "We were told that despite the category 4 hurricane barreling down, the ship would set sail. We were told repeatedly . . . if we didn't make it to the port, we would not be refunded." Ms. McIntosh says, "We ended up being trapped in Houston at our own expense for 6 days, surrounded by flood waters, our hotel leaking badly. Food shortages were a concern. I didn't know if we would have to evacuate to a shelter. It was very stressful and completely unavoidable. RCI should not have insisted on a sailing. They should have rebooked and offered credit instead of holding our hard earned money hostage. Between wasted flights, hotel and food, we are out over $4500." [GN] SANTANDER CONSUMER: "Barber" Suit Alleges Invasion of Privacy ------------------------------------------------------------- TRILEISE BARBER, individually and on behalf of all others similarly situated v. SANTANDER CONSUMER USA, INC., Case No. 2:17- cv-01227-CB (W.D. Pa., September 20, 2017), seeks damages and other remedies resulting from the illegal actions of the Defendant in negligently, knowingly and willfully contacting the Plaintiff on her cellular telephone in violation of the Telephone Consumer Protection Act, thereby, invading her privacy. Santander Consumer USA Inc., a consumer finance company, provides vehicle finance and unsecured consumer lending products. Based in Dallas, Texas, the Company offers new and used car loans, and auto and cash-back refinance services. The Company provides products through dealers in the United States. The Company operates as a subsidiary of Santander Consumer USA Holdings Inc. The true names and capacities of the Doe Defendants are currently unknown to the Plaintiff.[BN] The Plaintiff is represented by: Cynthia Z. Levin, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 1150 First Avenue, Suite 501 King of Prussia, PA 19406 Telephone: (888) 595-9111 Facsimile: (866) 633-0228 E-mail: clevin@attorneysforconsumers.com SCRIPPS NETWORKS: Inzlicht-Sprei Challenges Sale to Discovery ------------------------------------------------------------- ELI INZLICHT-SPREI, Individually and on Behalf of All Others Similarly Situated v. SCRIPPS NETWORKS INTERACTIVE, INC., JARL MOHN, NICHOLAS B. PAUMGARTEN, JEFFREY SAGANSKY, RONALD W. TYSOE, GINA L. BIANCHINI, MICHAEL R. COSTA, PHILIP I. KENT, KENNETH W. LOWE, DONALD E. MEIHAUS, RICHELLE P. PARHAM, MARY MCCABE PEIRCE, and WESLEY W. SCRIPPS, Case No. 3:17-cv-00420 (E.D. Tenn., September 20, 2017), accuses the Defendants of violating the Securities Exchange Act of 1934. On July 31, 2017, Discovery Communications, Inc. and Scripps announced that they signed a definitive agreement for Discovery to acquire Scripps in a cash-and-stock transaction valued at $14.6 billion, or $90 per share, based on Discovery's Friday, July 21 closing price. The Plaintiff contends that the Form S-4 Registration Statement, filed with the United States Securities and Exchange Commission on September 14, 2017, in connection with the Transaction, omits material information with respect to the Transaction. Accordingly, the Plaintiff seeks to enjoin the Transaction or recover damages resulting from the Individual Defendants' violations of securities laws. Scripps is a corporation organized and existing under the laws of the state of Ohio and maintains its principal executive offices in Knoxville, Tennessee. The Individual Defendants are directors and officers of the Company. Scripps is a global media company with respected high-profile brands and purports to be a leading developer of lifestyle- oriented content, providing primarily home, food, travel and other lifestyle-related programming. The Company's content is distributed via multiple methods, including television, the internet, digital platforms and licensing arrangements. Scripps portfolio of networks includes HGTV, Food Network, Travel Channel, DIY Network, Cooking Channel and Great American Country within and outside the United States, with the exception of Great American Country, which is only distributed in the United States, and Fine Living, Asian Food Channel and TVN S.A.'s portfolio of networks outside the United States.[BN] The Plaintiff is represented by: J. Gerard Stranch, IV, Esq. BRANSTETTER, STRANCH & JENNINGS, PLLC The Freedom Center 223 Rosa L. Parks Avenue, Suite 200 Nashville, TN 37203 Telephone: (615) 254-8801 Facsimile: (615) 255-5419 E-mail: gstranch@bsjfirm.com - and - Thomas J. McKenna, Esq. Gregory M. Egleston, Esq. GAINEY McKENNA & EGLESTON 440 Park Avenue South New York, NY 10016 Telephone: (212) 983-1300 Facsimile: (212) 983-0380 E-mail: tjmckenna@gme-law.com gegleston@gme-law.com SECOND CHANCE: Faces Class Action Over Misleading Guarantees ------------------------------------------------------------ A Bethesda, Maryland married couple is leading a class action lawsuit against a charity and an appraisal company for allegedly misleading them and hundreds of other Maryland consumers. The lawsuit, filed in the Circuit Court for Montgomery County, Maryland, details how Baltimore-based Second Chance, Inc. deceived consumers into donating to the charity and how Virginia-based NoVaStar Appraisals, Inc. deceived consumers into purchasing its high-priced appraisals. The couple, Nitin Gogtay and Kiran Dixit, and their lawyers at Duane Morris LLP and at New Jersey-based Buttaci Leardi & Werner LLC, say that Second Chance, through misleading promises of significant financial benefits in the form of tax refunds and deductions, persuaded hundreds of consumers to donate their homes to the charity through what is called "deconstruction" -- a process that involves dismantling a house and preserving finished and reusable materials from that house for other uses or purposes. NoVaStar independently made misleading guarantees of delivering appraisals of deconstructed homes that would be "IRS compliant" and that provided consumers "peace of mind" because there would be "no IRS audits." The problem, the lawsuit contends, is that Second Chance and NoVaStar have known for many years that (1) the IRS audited consumers and did not allow tax refunds or deductions for house donations made to Second Chance, and (2) that NoVaStar's appraisals were IRS non-compliant. According to the complaint, despite this knowledge, Second Chance and NoVaStar concealed that information from Maryland consumers, including Gogtay and Dixit. In 2013, Gogtay and Dixit used Second Chance to deconstruct their home in Bethesda, Maryland. They were told by the charity -- through tax planning worksheets, emails, and telephone conversations -- that donating their house after paying for or using Second Chance's deconstruction services would produce a net benefit of $76,000. That supposed benefit was primarily based on an expensive and supposed IRS-compliant appraisal from NoVaStar. Second Chance also persuaded the couple to commit to an additional cash contribution of $35,000 that would be paid over a three-year period. In March 2014, the couple filed their federal and Maryland state tax returns, claiming a $250,000 non-cash charitable contribution to Second Chance, as the charity had indicated was allowed and that NoVaStar declared was valid through its "IRS compliant" appraisal. In the fall of 2015, however, the IRS audited the couple's 2013 federal tax returns and disallowed the deduction in its entirety, concluding that the appraisal was non-compliant (among other things). The class action complaint alleges that such disallowances happened many other times in the past to other Maryland consumers. Yet, Second Chance and NoVaStar aggressively marketed its services, benefits, and appraisals knowing that the IRS disallowed those benefits and rejected those appraisals. The class action complaint further claims that none of this information was public or otherwise disclosed to Maryland consumers (including Gogtay and Dixit). Yet, Second Chance and NoVaStar continued marketing their services and supposed benefits anyway. Second Chance still claims on its website (www.secondchanceinc.org) that donating a house to the charity "generates generous tax savings" that purportedly "translates into cash in your pocket!" NoVaStar likewise still claims on its website that its clients have "never" been audited by the IRS and that it is "#1" with a "100% IRS success rate." The class action seeks injunctive and monetary relief to stop Second Chance and NoVaStar from continuing to make these false representations to Maryland consumers, and to compensate Gogtay, Dixit, and other class members for the financial harm caused by Second Chance's and NoVaStar's misrepresentations. Gogtay and Dixit are represented by Ugo Colella -- ucolella@duanemorris.com -- John J. Zefutie, Jr. -- jjzefutie@duanemorris.com -- and Michael J. Schrier -- mjschrier@duanemorris.com -- of Duane Morris LLP, and John W. Leardi of Buttaci Leardi & Werner LLC. For more information on the class action, or if you have questions as to whether you may qualify as a member, contact Ugo Colella at ucolella@duanemorris.com. About Duane Morris Duane Morris LLP provides innovative solutions to today's legal and business challenges through the collaborative culture of its more than 750 attorneys in offices across the United States and internationally. The firm represents a broad array of clients, spanning all major practices and industries. About Buttaci Leardi & Werner Buttaci Leardi & Werner LLC is a health law and commercial litigation boutique located in Princeton, New Jersey. The firm's practice includes representing individuals in class action lawsuits challenging systemic misconduct by corporate defendants. [GN] SENECA RESOURCES: Accused by McLaughlin of Misclassifying Workers ----------------------------------------------------------------- GARY MCLAUGHLIN individually and on behalf of all others similarly situated v. SENECA RESOURCES AND NATIONAL FUEL GAS COMPANY, Case No. 1:17-cv-00255-NBF (W.D. Pa., September 19, 2017), alleges that instead of paying overtime as required by the Fair Labor Standards Act and the Pennsylvania Minimum Wage Act, the Defendants improperly classified Plaintiff and other oilfield workers as independent contractors and paid them a daily rate with no overtime compensation. Seneca Resources is corporation doing business throughout the United States, including Pennsylvania. National Fuel Gas Company is corporation doing business throughout the United States, including Pennsylvania. The Defendants are an oil and natural gas exploration and production company operating throughout the United States, including Pennsylvania.[BN] The Plaintiff is represented by: Joshua P. Geist, Esq. GOODRICH & GEIST, P.C. 3634 California Ave. Pittsburgh, PA 15212 Telephone: (412) 766-1455 Facsimile: (412)766-0300 E-mail: josh@goodrichandgeist.com - and - Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. JOSEPHSON DUNLAP LAW FIRM 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: (713) 352-1100 Facsimile: (713) 352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH, P.L.L.C. 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: (713) 877-8788 Facsimile: (713) 877-8065 E-mail: rburch@brucknerburch.com SLICE TECHNOLOGIES: "Cooper" Suit Moved From Calif. to S.D.N.Y. --------------------------------------------------------------- The putative class action lawsuit styled JASON COOPER, individually and on behalf of all others similarly situated v. SLICE TECHNOLOGIES, INC., a Delaware corporation, and UNROLLME INC., a Delaware corporation, Case No. 3:17-cv-02340, was transferred on September 19, 2017, from the U.S. District Court for the Northern District of California to the U.S. District Court for the Southern District of New York. The New York District Court Clerk assigned Case No. 1:17-cv-07102-JPO to the proceeding. Mr. Cooper brings the action against the Defendants to stop their alleged practice of unlawfully mining and selling data collected from the private e-mails of millions of unwitting consumers. The putative class action seeks (1) to prevent Defendants' unlawful interception and reading of consumers' e-mails, and (ii) statutory and punitive damages for violations under the Electronic Communications Privacy Act and the Stored Communications Act. Slice Technologies, Inc., is a corporation existing under the laws of the state of Delaware, with its principal place of business located in San Mateo, California. UnrollMe Inc. is a corporation existing under the laws of the state of Delaware, with its principal place of business located in Broadway, New York City. UnrollMe is a subsidiary of Slice.[BN] Plaintiffs Jason Cooper and Meghna Parikh are represented by: Rafey Sarkis Balabanian, Esq. Nina Eisenberg, Esq. EDELSON PC 123 Townsend Street, Suite 100 San Francisco, CA 94107 Telephone: (415) 212-9300 Facsimile: (415) 373-9435 E-mail: rbalabanian@edelson.com neisenberg@edelson.com Plaintiff Meghna Parikh is represented by: Kathryn Yvette Schubert, Esq. Noah M. Schubert, Esq. SCHUBERT JONCKHEER AND KOLBE LLP Three Embarcadero Center, Suite 1650 San Francisco, CA 94111 Telephone: (415) 788-4220 Facsimile: (415) 788-0161 E-mail: kschubert@schubertlawfirm.com nschubert@schubertlawfirm.com Defendants Slice Technologies, Inc., and UnrollMe Inc. are represented by: Ian Ballon, Esq. GREENBERG TRAURIG LLP 1900 University Avenue, 5th Floor East Palo Alto, CA 94303 Telephone: (650) 328-8500 Facsimile: (650) 328-8508 E-mail: ballon@gtlaw.com - and - Lori Chang, Esq. Rebekah Susanne Strawn Guyon, Esq. GREENBERG TRAURIG LLP 1840 Century Park East, Suite 1900 Los Angeles, CA 90067 Telephone: (310) 586-7700 Facsimile: (310) 586-7800 E-mail: changl@gtlaw.com Guyonr@gtlaw.com SMITH TRANSPORT: Faces "Ratliff" Suit N.D. Ill. ----------------------------------------------- A class action lawsuit has been filed against Smith Transport Inc. The case is styled as Jerome Ratliff, Jr., on behalf of himself and all other similarly situated consumers, Plaintiff v. Smith Transport Inc and Smith Transport USA, Inc., Defendants, Case No. 1:17-cv-07199 (N.D. Ill., October 5, 2017). Smith Transport is engaged in the trucking business.[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 SOCIAL SECURITY: Fed. Cir. Affirms Removal in ALJ Candidate List ---------------------------------------------------------------- The United States Court of Appeals, Federal Circuit, issued an Opinion Affirming Final Decision of the Merit Systems Protection Board removing Plaintiff from list of eligibles for candidacy as an Administrative Law Judge in the case captioned COTTY P. O'LEARY, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, SOCIAL SECURITY ADMINISTRATION, Respondents. No. 2016-2477. (Fed. Cir.) Cotty O'Leary petitions for review of a final decision of the Merit Systems Protection Board (Board). O'Leary was removed from the 2012 Office of Personnel Management (OPM) certificate of eligibles for candidacy as an administrative law judge by the Social Security Administration (SSA). O'Leary alleged that he had not received three considerations from the appointing officer, Nancy Peters, as required by the regulation. Rather, according to O'Leary, Peters performed merely 'ministerial approvals,' while the actual appointment considerations were made by various other individuals. O'Leary also moved to certify a class action on behalf of other candidates who were similarly removed from the list. 5 C.F.R. Section 332.405 provides that an appointing officer is not required to consider an eligible who has been considered by him for three separate appointments from the same or different certificates for the same position. Known as the rule of three, Section 332.405 has a long history dating back to 1886, and this court has specifically held that this regulation is lawful. The Federal Circuit must affirm the Board's decision unless it is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. The Federal Circuit agrees with the Board that given the number of appointments under her auspices, it is reasonable for Peters to delegate duties to others with first-hand knowledge of the requirements of the administrative law judge position. Having effectively delegated her appointment duties, Peters was not required to personally consider the merits of O'Leary's candidacy and could appropriately defer to the merits recommendations from Chief Judge Cristaudo. The Federal Circuit also affirms the denial of O'Leary's class- certification motion. A full-text copy of the Federal Circuit's September 6, 2017 Opinion is available at http://tinyurl.com/ybzonga9from Leagle.com. COTTY P. O'LEARY, Metairie, LA, pro se. ALISON VICKS, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondents. Also represented by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., ALLISON KIDD-MILLER. STARRETT CITY: Montgomery Sues Over Denied Air-Conditioning ----------------------------------------------------------- Kathryn Montgomery, individually, and on behalf of all others similarly situated v. Starrett City, Inc. and Grenadier Realty Corp., Case No. 518440/2017 (N.Y. Sup. Ct., September 25, 2017), is brought against the Defendants for failure to provide the Plaintiff and Class members with air-conditioning, causing them to endure sweltering temperatures and uninhabitable living conditions. The Defendants operate Spring Creek Towers, the largest government-subsidized residential rental complex in the United States. [BN] The Plaintiff is represented by: Israel Klein, Esq. Brittany Weiner, Esq. IMBESI LAW P.C. 450 Seventh Avenue, Suite 1408 New York, NY 10123 Telephone: (646) 767-2265 Facsimile: (212) 658-9177 E-mail: Israel@lawicm.com STEARNS LENDING: Faces "Olachea" Suit in C. Dist. Cal. ------------------------------------------------------ A class action lawsuit has been filed against Stearns Lending, LLC. The case is styled as Renee Olachea, individually and on behalf of all others similarly situated, Plaintiff v. Stearns Lending, LLC, Defendant, Case No. 8:17-cv-01741-JVS-KES (C.D. Penn., October 5, 2017). Stearns Lending, LLC provides mortgage lending services.[BN] The Plaintiff is represented by: Michael F Ram, Esq. Robins Kaplan LLP 2440 W El Camino Real Suite 100 Mountain View, CA 94040 Tel: (650) 784-4007 Fax: (650) 784-4041 Email: mram@robinskaplan.com - and - Susan S Brown,Esq. Robins Kaplan LLP 2440 West El Camino Real Mountain View, CA 94040 Tel: (650) 784-4040 Fax: (650) 784-4041 Email: sbrown@robinskaplan.com TAURUS: Opens Pistol Class Action Settlement Claims Period ---------------------------------------------------------- Daniel Terrill, writing for Guns.com, reports that as part of a class action settlement agreement, the claims period for owners of defective Taurus pistols opens. The Florida gun maker sent out an email blast notifying class members that the claims period runs Oct. 9 through Feb. 6. Per the settlement agreement, the company will offer three options: a cash payment, enhanced warranty, and safety training. The options will allow participants to either receive up to $200 cash in exchange for the defective pistol or owners to have their pistol inspected and repaired for no charge. Taurus will also publish free online training videos and materials instructing how to properly operate and handle the Taurus pistols in question. The company will cover shipping and handling costs, but asks class members to review state and federal regulations before shipping the materials. Detailed instructions are found on the settlement website. In July, a federal judge approved the settlement agreement, which could cost the company up to $239 million. A range of Taurus pistols contain an alleged defect that allows the gun to discharge if dropped. Taurus pistols subject to the defects include the Millennium, Millennium Pro, Millennium Pro Compact, Millennium Pro Sub- Compact, 24/7, and others. The lead plaintiff in the case, a sheriff's deputy from Iowa, was injured when his Taurus pistol discharged when the handgun hit the ground after it fell out of its holster as he pursued a fleeing suspect. He never touched the trigger. [GN] TGI FRIDAYS: Averts Class Action Over Drink-Pricing Policies ------------------------------------------------------------ Jim Walsh, writing for Courier-Post, reports that the state Supreme Court issued a split decision on Oct. 4 on two class- action lawsuits that challenged drink-pricing policies at some South Jersey restaurants. In a 5-1 vote, the high court ruled against a suit claiming TGI Fridays, by omitting the price of drinks from its menus, tricked customers into overpaying for soda, beer and mixed drinks. But the justices cleared the way for a suit alleging customers were charged different prices for the same drinks during a single visit to eateries run by OSI Restaurant Partners LLC, whose operations include Carrabba's Italian Grill and Bonefish Grill. The suits, both filed in Burlington County, argued the restaurants' pricing policies violated the state's consumer protection laws. The Fridays' suit was brought by Debra Dugan, a customer at the chain's outlet in Mount Laurel. The OSI suit was filed by Ernest Bozzi, a patron at a Carrabba's in Maple Shade. Each suit cleared its first hurdle, winning approval to represent classes of customers from separate state judges in Mount Holly. But an appeals court overturned the favorable ruling in the Fridays case, saying those customers could sue only as individuals. Among other concerns, it noted the proposed class "erroneously" included people who had not looked at their menu or who knew the costs of a drink based on previous visits to Fridays. The same panel declined to hear an appeal from OSI. In the Oct. 4 ruling, the Supreme Court agreed the Fridays challenge did not meet requirements for class-action status. It said state law "has consistently rejected" the plaintiffs' view that a customer's loss could be based on the difference between their actual cost and "what they contend would be 'fair' or 'reasonable' prices." The Fridays' plaintiffs were prepared to estimate a loss per customer based on the company's market research that showed customers on average spent $1.72 less on beverages when prices were known. In a dissent, Justice Barry Albin said the majority's decision "will make it more difficult for a class of many thousands of defrauded consumers to act collectively in pursuit of a common remedy against a corporate wrongdoer." The court's decision said the Bozzi lawsuit could continue with a narrowed focus on "customers who, in the course of a single visit to an OSI restaurant, were charged different prices for beverages of the same brand, type and volume." The class previously had been defined as any customer who, since Dec. 23, 2004, had purchased an item "for which no price was disclosed on the menu or table placard." Mr. Bozzi filed his suit after he ordered two Peroni beers during a 2010 meal at Carrabba's and discovered a one-dollar difference between the prices. According to the ruling, a restaurant employee told him "that 'the computer changes the price at certain times The ruling said Mr. Bozzi complained to a restaurant staffer, "who told him that 'the computer changes the price at certain times' and that it was the restaurant's policy to charge customers accordingly." The OSI class is expected to include more than 750,000 New Jersey customers of Carrabba's, Outback, Bonefish Grille and Fleming's Steakhouse, said Donald Doherty, a Berlin Township attorney representing the class. "Customers were not told the prices of drinks and other items, and then the prices were raised while they dined," he said, adding the restaurants "have not stopped the practice." "Common sense says that's wrong and Carrabba's wanted to push it to the point of the Supreme Court having to tell them so," Doherty said. Justice Lee Solomon did not participate in the Oct. 4 decision. [GN] TRISTAR PLUMBING: Faces "Luo" Suit in E. Dist. New York ------------------------------------------------------- A class action lawsuit has been filed against Tristar Plumbing Supply Inc. The case is styled as Hai Qing Luo, individually and on behalf of all other employee similarly situated, Plaintiff v. Tristar Plumbing Supply Inc., Long River International Group (USA) Inc., Logo Mechanical Inc., Hao Yang, ZhiZhong Lin, Victor Peng, Michael Ma and Bao Ling Liang, Defendants, Case No. 1:17-cv-05849 (E.D.N.Y., October 5, 2017). TRISTAR PLUMBING SUPPLY is an Interstate DOT registered company based in FLUSHING NY. The company operates 2 power units and 2 drivers.[BN] The Plaintiff appears PRO SE. UNITED NATIONS: Second Circuit Appeal Filed in "LaVenture" Suit --------------------------------------------------------------- Plaintiffs Carmen LaVenture, Maggie LaVenture, Marie LaVenture and Sane LaVenture filed an appeal from a court ruling in the lawsuit titled LaVenture, et al. v. United Nations, et al., Case No. 14- cv-1611, in the U.S. District Court for the Eastern District of New York (Brooklyn). As previously reported in the Class Action Reporter, the Plaintiffs blame the United Nations for the cholera epidemic that killed 9,000 people and infected 700,000 more after the 2010 Haiti earthquake. Lead plaintiff Marie LaVenture sued March 11, 2014, on behalf of her parents, who died, "and those additional 1,479 plaintiffs or deceased parties whose representatives are plaintiffs" in Federal Court. The class seeks damages at least equal to the $2.2 billion it estimates it will cost Haiti to eliminate the cholera that was brought by the United Nations Stabilization Mission in Haiti. In the lawsuit, LaVenture claims that studies "by the United Nations itself, showed definitively that the outbreak was caused by an Asian strain of cholera imported to Haiti by a Nepalese peacekeeping force. Although Nepal was in the midst of a cholera outbreak, none of the Nepalese peacekeepers were tested for cholera before being sent to Haiti." The appellate case is captioned as LaVenture, et al. v. United Nations, et al., 17-2908, in the United States Court of Appeals for the Second Circuit. Defendants-Appellees are the United Nations; United Nations Stabilization Mission in Haiti; Ban Ki-moon, Secretary-General of the United Nations; Edmond Mulet, former Under Secretary-General for the United Nations Stabilization Mission in Haiti; Chandra Srivastava, former Chief Engineer for the United Nations Mission to Haiti; Paul Aghadjanian, Chief of Mission Support for the United Nations Mission to Haiti; Pedro Medrano, Assistant United Nations Secretary General; and Miguel De Serpa, Under Secretary for Legal Affairs.[BN] Plaintiffs-Appellants Marie LaVenture, each individually and on behalf of the Estate of Cherylusse LaVenture, and the Estate of Marie Therese Fleuriciane Delinais, and the additional persons and their representatives listed on Exhibit 1, and on behalf of all others similarly situated; Maggie LaVenture, each individually and on behalf of the Estate of Cherylusse LaVenture, and the Estate of Marie Therese Fleuriciane Delinais, and the additional persons and their representatives listed on Exhibit 1, and on behalf of all others similarly situated; Sane LaVenture, each individually and on behalf of the Estate of Cherylusse LaVenture, and the Estate of Marie Therese Fleuriciane Delinais, and the additional persons and their representatives listed on Exhibit 1, and on behalf of all others similarly situated; and Carmen LaVenture, each individually and on behalf of the Estate of Cherylusse LaVenture, and the Estate of Marie Therese Fleuriciane Delinais, and the additional persons and their representatives listed on Exhibit 1, and on behalf of all others similarly situated, are represented by: James Francis Haggerty, Esq. JAMES F. HAGGERTY, ATTORNEY AT LAW 45 Broadway New York, NY 10006 Telephone: (212) 480-0700 E-mail: jamesfhaggerty@gmail.com - and - Tim Howard, Esq. HOWARD & ASSOCIATES, P.A. 8511 Bull Headley Road Takkahassee, FL 32312 Telephone: (850) 298-4455 E-mail: tim@howardjustice.com UNITED STATES: Court Denies Govt's Move to Dismiss PACER Suit ------------------------------------------------------------- The United States District Court for the Southern District of Florida issued an Order denying Defendant's Motion to Dismiss the case captioned Theodore D'Apuzzo, P.A., Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. The United States of America, Defendant, Civil Action No. 16-62769-Civ-Scola (S.D. Fla.). The Plaintiff brings this putative class action lawsuit against the United States government alleging that the Federal Judiciary's Public Access to Court Electronic Records (PACER) system improperly charges users for judicial opinions in violation of the contract between the Government and PACER users. D'Apuzzo alleges that the Government breached a contract with him and the proposed class by improperly charging to access judicial opinions. He also alleges that the Government breached the implied covenant of good faith and fair dealing. Finally, D'Apuzzo alleges that the Government's collection of excessive PACER user fees amounts to an illegal exaction that violates the Due Process Clause of the Fifth Amendment to the United States Constitution. The Government argues that the District Court lacks subject matter jurisdiction over this case or, in the alternative, that D'Apuzzo's complaint fails to state a claim upon which relief may be granted. Lack of Subject Matter Jurisdiction The alleged contract at issue is the contract that all PACER users enter into with the Government when they sign up for PACER accounts. According to this contract, PACER users and the Government agree (mutual agreement, offer, and acceptance) that the users will pay for access to court records (consideration). The Fee Schedule, which according to D'Apuzzo is incorporated into the alleged contract at issue, states that, "[n]o fee is charged for access to judicial opinions." Thus, PACER users should have free access to judicial opinions under PACER's terms and conditions. According to D'Apuzzo, the Government has breached the contract between the Government and PACER users by improperly charging for access to judicial opinions. D'Apuzzo has met his burden of pleading jurisdiction. Failure to State a Claim The Government moves to dismiss each cause of action in the First Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6). Count One: Breach of Contract According to the First Amended Complaint, the clickwrap agreement at issue set forth the obligations of the parties to the contract. D'Apuzzo, as the PACER user, would pay a ten-cents-per-page fee for access to documents other than judicial opinions. In return, the Government would provide D'Apuzzo access to electronic records and would provide access to judicial opinions free of charge. The Government claims that these provisions do not create a contract between the parties. The Government is effectively asking the Court to conclude that the clickwrap agreement at issue did not create contractual obligations on the part of the Government. But such a conclusion requires the Court to interpret the Agreement, which the Court will not do at the motion to dismiss stage. It is noteworthy that the case law relied upon by the Government throughout its briefing predominantly addresses this issue at the motion for summary judgment stage. And every case relied upon by the Government in arguing that D'Apuzzo has waived his claims considers the waiver question on a motion for summary judgment. That is the appropriate stage to address the Government's arguments. But when considering a motion to dismiss, the Court must accept all of the plaintiff's allegations as true. Through the allegations of his First Amended Complaint, D'Apuzzo has sufficiently pleaded the four elements of a claim for breach of contract. Accordingly, the Government's motion is denied as to Count I. Count Two: Breach of Implied Covenant of Good Faith and Fair Dealing The Government also argues that D'Apuzzo's breach of an implied covenant of good faith and fair dealing claim should be dismissed. In support, the Government makes three arguments, two of which are predicated on its argument that D'Apuzzo has not sufficiently alleged the existence of a contract or a breach of contract. Applied to the alleged contract at issue here, this means that an implied covenant existed in the PACER contract pursuant to which the Government should have implemented safeguards to ensure free access to judicial opinions via PACER, so as to not deprive PACER users of this contractual benefit. This implied covenant is not duplicative of D'Apuzzo's express contract claims, which allege that the overcharges themselves violate the PACER contract's express terms. The breach of contract claim focuses on the Government's charging D'Apuzzo for access to judicial opinions in direct contravention to the PACER contract's terms. The breach of implied covenant of good faith and fair dealing focuses on the Government's failure to adequately exercise the discretion afforded it under the PACER contract to insure proper designation of judicial opinions as such. The Government attempts to distinguish the Fisher court's in Fisher v. United States 128 Fed. Cl. 780, 787-88, determination that claims for breach of the implied covenant of good faith and fair dealing are not duplicative of breach of contract claims, asserting that the factual allegations in Fisher are distinct from this case. But the Government does not explain how the analysis should differ in this case, nor is the Court able to discern sufficient differences to warrant a result contrary to the Fisher court's ruling. Therefore, D'Apuzzo's claim for breach of the implied covenant of good faith and fair dealing survives, and the Government's motion is denied as to Count II. Count Three: Illegal Exaction The Government argues that the Court should dismiss D'Apuzzo's illegal exaction claims because he has not alleged that the fees he paid for judicial opinions were improperly paid. D'Apuzzo alleges that PACER's governing statutes, codified at 28 U.S.C. Section 1913-14, its policies, and the Fee Schedule prohibit the AO from charging a fee to access judicial opinions on PACER. Under D'Apuzzo's theory, any money charged to access judicial opinions would be paid contrary to law. The entire premise of D'Apuzzo's case is that he was improperly charged a fee to access judicial opinions that should have been provided free of charge. Therefore, D'Apuzzo has sufficiently alleged that the Government illegally overcharged him contrary to PACER's governing statutes and policies, and his complaint states a claim for illegal exaction. The Government's motion is denied as to Count III. Accordingly, the Court denies the Government's motion to dismiss. A full-text copy of the District Court's September 25, 2017 Order is available at http://tinyurl.com/ybhevfh6from Leagle.com. Theodore D'Apuzzo, P.A., Plaintiff, represented by Nicole W. Giuliano, Giuliano Law, P.A., 500 East Broward Blvd., Suite 1710 Fort Lauderdale, FL, 33394 Theodore D'Apuzzo, P.A., Plaintiff, represented by John Anthony Van Ness, Van Ness Law Firm PA, 1239 E Newport Center Dr., Ste 110 Deerfield Beach, FL 33442-7711 United States of America, Defendant, represented by Alicia Hayley Welch, U.S. Attorney's Office. UNLIMITED ELECTRICAL: Refuses to Pay OT Under FLSA, Giner Alleges ----------------------------------------------------------------- ENRIQUE PERERA GINER and all others similarly situated under 29 U.S.C. 216(b) v. UNLIMITED ELECTRICAL CONTRACTORS CORP., SALIM MOHAMMED SHEHADEH, Case No. 1:17-cv-23431-JEM (S.D. Fla., September 19, 2017), alleges that the Defendants willfully and intentionally refused to pay the Plaintiff's overtime wages as required by the Fair Labor Standards Act. Unlimited Electrical Contractors Corp. is a corporation company that regularly transacts business within Miami-Dade County. Salim Mohammed Shehadeh is a corporate officer, owner or manager of the Defendant Corporation.[BN] The Plaintiff is represented by: J.H. Zidell, Esq. J.H. ZIDELL, P.A. 300 71st Street, Suite 605 Miami Beach, FL 33141 Telephone: (305) 865-6766 Facsimile: (305) 865-7167 E-mail: zabogado@aol.com US BANK: Ohio App. Affirms Denial of Counterclaims in "Schubert" ---------------------------------------------------------------- The Court of Appeals of Ohio, Ninth District, Lorain County, issued a Decision affirming the Judgment of the Court of Common Pleas denying cross-appellant Counterclaims in the case captioned U.S. BANK NA, Appellants/Cross Appellees, v. DENNIS M. SCHUBERT, et al., Appellees/Cross-Appellants, C.A. No. 15CA010814 (Ohio App.). U.S. Bank, N.A., and Ocwen Loan Servicing, LLC, have appealed a judgment of the Lorain County Court of Common Pleas that foreclosed on the property of Dennis and Sue Schubert. The Schuberts obtained a loan from Bank One that they secured with a mortgage of property they owned in Elyria. Shortly after obtaining the loan, Mr. Schubert lost his job, which led to the Schuberts declaring bankruptcy twice. During this period, the Schuberts fell behind in their loan payments. Ocwen began servicing the loan, and the mortgage was transferred to U.S. Bank. The Schuberts discovered there was something wrong with the accounting of the loan. Ocwen also sent the Schuberts a notice of default. Following additional communications, the Schuberts and Ocwen entered into a forbearance agreement. Despite the agreement, the trustee at the time filed a foreclosure action against the Schuberts. The court later dismissed the action in light of the forbearance agreement. Following a trial to the bench, the court found that the Schuberts defaulted on the note as modified and that U.S. Bank, as trustee, was entitled to foreclose on the mortgage. It denied the Schuberts' counterclaims. U.S. Bank has appealed the trial court's conclusion that the Schuberts' breach of contract claim was not subject to a three-year statute of limitations period under the Uniform Commercial Code (UCC). The Schuberts have cross-appealed, assigning five errors. The loan modification agreement provided that the Schuberts had to make an initial down payment followed by two equal monthly payments. It called those payments the "Trial Period." It also provided that, at the end of the trial period, the principle balance of the loan would be $144,755.26. The Schuberts agreed to the terms and complied with the agreement through the trial period. They have not contested the accounting of the loan from the time of the loan modification, only the payments they made from 2000 through 2006. Because those alleged discrepancies preceded their agreement in 2008 about the correct principal balance, and they were aware that there might be discrepancies in the accounting of their loan before entering into the modification agreement, we conclude that the trial court's finding as to the amount owed on the loan was not against the manifest weight of the evidence. The Schuberts' first assignment of error is overruled. Whether the Schuberts subjectively believed they had no obligation to make payments on their loan at the time of the forbearance agreement, they agreed in that document that they had defaulted on the note and mortgage and that they were entering into the agreement to reduce their delinquency. The record, therefore, demonstrates that there was sufficient consideration for them to enter into that agreement. Regarding the loan modification agreement, the Schuberts do not dispute that they were seeking to reduce their monthly payments, which the modification accomplished. The Court, therefore, concludes that they had sufficient consideration to enter into the loan modification agreement. The Schuberts' second assignment of error is overruled. It is not necessary to analyze the merits of the Schuberts' argument because, even if they are correct, they have not demonstrated any harm. The trial court denied the Schuberts' counterclaims against Ocwen, concluding that they were not entitled to any damages. Accordingly, even if the trial court incorrectly found that Ocwen was not U.S. Bank's agent, it is not grounds for vacating or modifying the court's judgment. Regarding the complaint that U.S. Bank and Ocwen filed in December 2010 to initiate this action, the trial court found that the Schuberts failed to establish any false or deceptive practice. The court found that, to the contrary, the foreclosure action was proper, noting that the Schuberts admitted that they stopped paying on their loan in June 2010. The court also noted that the foreclosure action prevailed. The court further found that all of the inspections that were done over the course of the proceedings were appropriate to monitor the condition of the property and were commercially reasonable. The Schuberts have not pointed to any evidence in the record that undermines the trial court's findings. Upon review of the record, we cannot say that the court's findings were against the manifest weight of the evidence. The Schuberts' fourth and fifth assignments of error are overruled. Regarding whether this case involves a matter that is one of a public or great general interest, we note that U.S. Bank and Ocwen have not identified any cases in which a statute of limitations question was held to rise to that level. In addition, in light of their admission that this issue may return to this Court in connection with the Schuberts' class action, the Court declined to issue what would constitute an advisory opinion. U.S. Bank's and Ocwen's assignment of error is overruled. The Schuberts' assignments of error are overruled. U.S. Bank's and Ocwen's assignment of error is overruled as moot. The judgment of the Lorain County Court of Common Pleas is affirmed. A full-text copy of the Court of Appeals' September 5, 2017 Decision is available at http://tinyurl.com/ya82bytzfrom Leagle.com. BENJAMIN D. CARNAHAN -- bcarnahan@dhplaw.com -- Attorney at Law, for Appellants/Cross-Appellees. JACK MALICKI, 300 Fourth Street, Second Floor, Elyria, OH 44035 and THOMAS R. THEADO, 401 Broadway Ave, Unit 104, Lorain, OH 44052-1745, Attorney at Law, for Appellees/Cross-Appellants. VIKING CLIENT: Court Denies Bid to Dismiss "Broderick" FDCPA Suit ----------------------------------------------------------------- Judge Jose L. Linares of the U.S. District Court for the District of New Jersey denied the Defendant's Motion to Dismiss the case captioned MARGARET BRODERICK, on behalf of herself and all others similarly situated, Plaintiffs, v. VIKNG CLIENT SERVICES, INC., Defendant, Civil Action No. 17-1827 (JLL) (D. N.J.). The Plaintiff brings this putative class action alleging that the Defendant has violated the Fair Debt Collection Practices Act ("FDCPA"). Specifically, she alleges that the Defendant is a Minnesota based collection agency and is in the business of collecting debts owed by various debtors to banks and/or other institutions, which had previously extended the debtors some form of credit. The Defendant performs such debt collection actions by utilizing regular mail, telephone calls, and/or emails. At some point prior to March 17, 2016, the Plaintiff incurred a debt due and owing to non-party PNC Bank ("PNC"). Also prior to the aforementioned date, PNC placed said debt incurred by the Plaintiff with the Defendant for purpose of collections. The debt was in default at all times it was in the Defendant's possession for said purpose. On March 17, 2016, the Defendant sent the Plaintiff a letter to collect the outstanding PNC balance of $1,366.83. According to her, the language in the Defendant's letter is deceptive since it is confusing to the least sophisticated consumer because it can be read to mean the entire amount discharged will be reported to the IRS, but can also be read to mean only the stated principal balance can be reported to the IRS. According to the Plaintiff, the letter is further confusing because the letter asserts that IRS Reporting may be possible if the Settlement amount that the consumer agreed to pay results in a discharge of $600 or more, but the fact of the matter is that such reporting is not triggered by the amount that the consumer agrees to pay, but rather by the amount actually paid. Accordingly, the Plaintiff brought the action asserting that the letter contained language in violation of the FDCPA and seeking to recover damages. The Defendant filed its Motion to Dismiss the Plaintiff's Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Plaintiff has submitted Opposition, to which the Defendant has replied. The Defendant moves to dismiss the Plaintiff's Complaint for two reasons. First, it asserts that this action is untimely because it was supposedly filed one year after the date of the subject letter and is therefore barred by the applicable statute of limitations. Additionally, it asserts that the Plaintiff has failed to plead a prima facie cause of action under the FDCPA. Judge Linares rejects both of these arguments. Because the alleged FDCPA violation occurred on March 17, 2016, the Plaintiff had until March 17, 2017 to bring her action. She filed her lawsuit on March 17, 2017, which was within the one-year statute of limitations period, and is therefore timely. The Judge also finds that the Plaintiff has pled a prima facie cause of action under the FDCPA. Indeed, she has alleged that she is a consumer and the Defendant is a debt collector as required by the FDCPA. Additionally, the Plaintiff concedes she incurred a debt, which was due and owing to PNC, and that the Defendant, a debt collector, made attempts to collect the debt, as a debt collector, by sending her the March 17, 2016 letter. Finally, Plaintiff asserts the March 17, 2016 letter violates the FDCPA because the IRS reporting language is confusing to the least sophisticated consumer. With regards to the language in the letter, Judge Linares finds that, at this stage in the litigation, the IRS reporting language can be confusing to the least sophisticated consumer. The first sentence of the language can be read as a definitive reporting requirement, while the second makes reporting seem like a potential, but not definite, occurrence. Additionally, the IRS reporting language fails to explain, in clear terms, whether the entire forgiven amount (including interest), or merely the stated principal balance, would be reported to the IRS if reporting is required. Hence, the Judge is satisfied that the Plaintiff has sufficiently pled a prima facie cause of action for violation of the FDCPA and will not dismiss her Complaint. For these, Judge Linares denied the Defendant's Motion to Dismiss Plaintiff's Complaint. A full-text copy of the Court's Sept. 26, 2017 Opinion is available at https://is.gd/oT2AFo from Leagle.com. MARGARET BRODERICK, Plaintiff, represented by LAWRENCE C. HERSH -- lh@hershlegal.com. VIKING CLIENT SERVICES, INC., Defendant, represented by NICHOLAS M. GAUNCE -- ngaunce@eckertseamans.com -- Eckert Seamans & WILLIAM JOHN BIGHAM -- wbigham@eckertseamans.com -- ECKERT SEAMANS CHERIN & MELLOT, LLC. WELD SPEC: Faces "Fithian" Suit in E. Dist. Tex. ------------------------------------------------ A class action lawsuit has been filed against Weld Spec Inc. The case is styled as James Fithian, individually and on behalf of themselves and all others similarly situated, Plaintiff v. Weld Spec Inc., Defendant, Case No. 1:17-cv-00425 (E.D. Tex., October 5, 2017). Weld Spec Inc. is engaged in Machinery-Rebuild & Repair and Welders business.[BN] The Plaintiff is represented by: Beatriz Adriana Sosa-Morris, Esq. Sosa-Morris Neuman, Attorneys at Law 5612 Chaucer Drive Houston, TX 77005 Tel: (281) 885-8844 Fax: (281) 885-8813 Email: bsosamorris@smnlawfirm.com WELLS FARGO: To Refund Mortgage Rate-Lock Extension Fees -------------------------------------------------------- Lauren Raab, writing for Los Angeles Times, reports that Wells Fargo & Co. said on Oct. 4 that it will refund a swath of fees it assessed to mortgage borrowers whose delays in completing their loan applications were primarily the bank's fault. As it looks to win back trust after a scandal over its sales practices, the San Francisco bank said it will reach out to customers who paid so-called "rate-lock extension" fees from Sept. 16, 2013, through Feb. 28, 2017, and give refunds to customers who don't think they should have paid. The fees are supposed to only be charged when borrowers fail to finish their paperwork on time and want to retain the initially quoted interest rate on their home loan. The San Francisco bank said that roughly $98 million in extension fees were assessed to about 110,000 borrowers during that period, but it thinks a substantial number of the fees were appropriately charged. The bank said the amount to be refunded probably will be lower, as not all of the fees assessed were actually paid and some fees already have been refunded. In July, The Times reported on a wrongful-termination lawsuit by a former Wells Fargo mortgage banker who alleged that the bank falsified records so it could blame mortgage-processing holdups on borrowers -- and that it fired him for trying to report the practice. The mortgage fee matter also has been the subject of a class- action lawsuit, and the bank reported in August that the Consumer Financial Protection Bureau was investigating the matter. Wells Fargo has acknowledged that the controversy was a factor in a shake-up of bank's mortgage division. Rate-lock fees can be significant, typically ranging from 0.125% to 0.25% of the total amount of a mortgage, depending on the size of the loan and other factors. For a home buyer looking to borrow $400,000, a 0.25% fee is $1,000. Wells Fargo is by far the nation's largest mortgage lender, originating $244 billion in home loans last year, or about 12% of all U.S. mortgages. The bank said on Oct. 4 that an internal review "determined a rate-lock extension policy implemented in September 2013 was, at times, not consistently applied, resulting in some borrowers being charged fees in cases where the company was primarily responsible for the delays that made the extensions necessary." As of March 1 of this year, the bank said, a centralized review team is making sure the policy is applied consistently. The refunds will start to go out this quarter, it said. The Oct. 4 announcement comes the day after Wells Fargo Chief Executive Timothy Sloan was grilled by Senate Banking Committee members about reforms put in place by the bank since it admitted that employees created millions of customer accounts without those customers' knowledge or permission. The bank has acknowledged that onerous sales goals and a focus on selling multiple products to consumers were at the heart of the scandal. That pressure-cooker sales culture was first described in a 2013 Los Angeles Times investigation. In October 2016, then-CEO John Stumpf was ousted after two brutal Capitol Hill hearings that were held just weeks after the scandal broke. Since then, there has been a stream of new disclosures about wrongdoing in other business units. The issue of erroneous rate-lock extension fees was first reported by ProPublica in January. [GN] WELLS FARGO: Two Law Firms File ARM Class Action in California -------------------------------------------------------------- Famed class action attorney, Thomas V. Girardi, Esq., of Erin Brockovich notoriety, and his firm Girardi/Keese, and Los Angeles attorney Keith M. Fromm, have filed a class action lawsuit in the U.S. District Court, in Los Angeles, against Wells Fargo Bank, N.A. seeking, potentially, billions in damages. The lawsuit alleges that Wells Fargo committed thousands of instances of extortion, theft, mail fraud and racketeering, against its hundreds of thousands of ARM borrowers throughout the U.S. This class action is the latest of many accusations assailing how Wells Fargo treats its customers. Wells Fargo's reputation has recently been tarnished by its own admission (and payment of $185 million in fines and penalties), that it opened up 3.5 million fake accounts in the names of its customers, resulting in illegal fees and charges to such customers. Another lawsuit charges that Wells Fargo cheated 500,000 of its customers out of millions of dollars in unnecessary insurance premiums for car loans. Another alleges it swindled thousands of its customers out of fees the bank charged to lock in mortgage rates. This latest class action complaint alleges that Wells Fargo intentionally violated its duties under a provision in its own standard loan documents known as Section 4(F). Section 4(F) requires the bank to deliver certain mandatory consumer protections, including the phone number and title of a "single point of contact", who can answer any questions from a borrower, before the effective date of any increases in the interest rates or payments on such ARM's. The purpose of the provision is to provide borrowers with personnel who can assist them with alternatives to foreclosure. The complaint alleges that Wells Fargo intentionally did not comply with the provision 4(F) that Wells Fargo itself drafted, so that it could thwart the consumer protections contained in such provision. Such an alleged intentional non-compliance by Wells Fargo, according to the complaint, resulted in the illegal collection by Wells Fargo of many millions or billions of dollars, and the loss of thousands of borrowers' homes, which may have been saved had they received the consumer protection benefits intended to be afforded by Section 4(F) and its "single point of contact" requirement. The case is LINDA MORAVEC VARGA v. WELLS FARGO BANK, N.A. and Does 2-10, Case No. 2:16-cv-09650-DMG-KS. For information, please contact Keith M. Fromm at keithfromm@aol.com, or 310-472-1049. [GN] WEST OF CHICAGO RESTAURANTS: Faces "Wilson" Suit in Ca. Super. Ct ----------------------------------------------------------------- A class action lawsuit has been filed against West of Chicago Restaurants Inc. The case is styled as Elijah P. Wilson, on behalf of himself and all other similarly situated consumers, Plaintiff v. West of Chicago Restaurants Inc, Defendant, Case No. 34-2017-00220170-CU-OE-GDS (Cal. Super. Ct., October 5, 2017). The Defendant is engaged in the restaurants industry.[BN] The Plaintiff is represented by: Shaun Setareh, Esq. Setareh Law Group 9454 Wilshire Blvd Ste 907 Beverly Hills, CA 90212 Tel: (310) 888-7771 Fax: (310) 888-0109 Email: shaun@setarehlaw.com WISE ELECTRICAL: Suit Seeks to Recover Electricians' Unpaid Wages ----------------------------------------------------------------- Lenny Perez, individually and on behalf of all other persons similarly situated v. Wise Electrical Services, Inc., Whalen Construction, Inc. and John Doe Bonding Company, Case No. 158511/2017 (N.Y. Sup. Ct., September 25, 2017), seeks to recover electricians' unpaid prevailing wages and supplemental benefits which they are statutorily and contractually entitled to receive for their services performed on a modernization project at John Jay College in New York. Wise Electrical Services, Inc. operates a construction business located at 6 East 32nd Street, New York, NY 10016. Whalen Construction, Inc. is engaged in the construction business and subcontracted electrical work to Wise. [BN] The Plaintiff is represented by: Lloyd Ambinder, Esq. VIRGINIA & AMBINDER, LLP 40 Broad Street 7th Floor New York, NY 10004 Telephone: (212) 943-9080 E-mail: lambinder@vandallp.com ZM PRIVATE EQUITY: Court Dismisses "Gibbons" Due to Res Judicata ---------------------------------------------------------------- The United States District Court for the Southern District of New York issued an Opinion and Order granting Defendant's Motion for Summary Judgment in the case captioned LISA A. GIBBONS and REVIVE INVESTING, LLC, Plaintiffs, v. QUINN MORGAN, ZM PRIVATE EQUITY FUND I, L.P., ZM PRIVATE EQUITY FUND II, L.P., and ERICKSON INCORPORATED, Defendants, No. 14-cv-9061 (KBF) (S.D.N.Y.). Defendants have moved for summary judgment, arguing that plaintiffs' claim is precluded as a result of a related class and derivative settlement approved by the Delaware Court of Chancery in 2016. Erickson Incorporated is an aircraft manufacturing and operating company headquartered in Portland, Oregon. Erickson acquired 100 percent of the stock of Evergreen Helicopters from Evergreen Aviation in exchange for a package including: (1) $185,000,000 cash; (2) 4,008,439 shares of Erickson Preferred Stock (Preferred Stock); (3) a note for $17,500,000; and (4) an additional earn-out amount. Defendants ZM Private Equity Fund I, L.P. (ZMPEF1) and ZM Private Equity Fund II, L.P. (ZMPEF2) (ZM Funds), together with affiliated entities including ZM EAC LLC (ZMEAC), owned a majority of Erickson's Common Stock (Common Stock) on the Closing Date. This action principally concerns a series of transactions that the ZM Funds and ZMEAC executed in the weeks following the Evergreen Transaction. In this action, plaintiffs seek disgorgement of alleged "short-swing" profits realized by defendants in violation of Section 16(b) of the Securities Exchange Act of 1934, 15 U.S.C. Sec 78p(b). Defendants have moved for summary judgment, arguing that plaintiffs' claim is precluded as a result of a related class and derivative settlement approved by the Delaware Court of Chancery in 2016. Although the parties dispute the exact nature and characterization of those transactions, there is no dispute regarding the precise amount of Preferred Stock acquired by the ZM Funds and the amount of Common Stock subsequently sold by ZMEAC. Specifically, ZMPEF1 acquired a total of 913,732.61 shares of Preferred Stock, and ZMPEF2 acquired a total of 391,559.70 shares on the Closing Date. An Erickson stockholder (Delaware Plaintiff) filed a derivative and class complaint (Delaware Action) arising out of the Evergreen Transaction in the Delaware Court of Chancery (Delaware Court). The Delaware Action included both: (1) derivative claims brought on Erickson's behalf; and (2) direct claims brought on behalf of a class of similarly situated Erickson stockholders. Relevant to the present action, Count IV of the Delaware Action was a derivative claim alleging insider trading and breach of fiduciary duty in violation of Delaware state law. Based on its review of the operative complaint, the Court concludes that plaintiffs' Section 16(b) claim is precluded by res judicata and must be dismissed. First, the Delaware Court clearly had jurisdiction to adjudicate the Delaware Plaintiff's claims for breach of fiduciary duty in violation of Delaware state law. Second, the Delaware Judgment is no doubt adverse to the current plaintiffs. The Delaware Judgment, if held applicable to the plaintiffs and claims in this case, requires this Court to dismiss the present action; it is therefore adverse to the current plaintiffs in the truest sense Third, the Delaware Judgment is unquestionably final. The Delaware Judgment completely and unequivocally disposed of the Delaware Action, and plaintiffs do not dispute this point. In Feldman, 951 A.2d at 733, the Delaware Supreme Court has held that in order to state a direct claim, the plaintiff must have suffered some individualized harm not suffered by all of the stockholders at large. Plaintiffs in this action cannot demonstrate any individualized harm distinct from that suffered by all of Erickson's stockholders there is simply nothing unique or special about their ownership of Erickson stock that would suffice to make this a direct suit. As such, it is clear that plaintiffs' Section 16(b) claim is derivative under Delaware law. And because both the current claim and prior claims were brought derivatively on behalf of Erickson, the parties are in privity for purposes of res judicata. It is also clear to the Court that the current claim arises out of the same transaction as the Delaware Action. Plaintiffs' claim arises from a series of May 2013 transactions in which the ZM Funds bought, and ZMEAC sold, certain quantities of Erickson stock. Count IV of the Delaware Action, alleging insider trading and breach of fiduciary duty, was based on precisely the same transactions Thus, the two claims share more than a common nucleus of operative fact they depend on all of the same facts. Accordingly, defendants' motion for summary judgment is granted. A full-text copy of the District Court's September 6, 2017 Opinion and Order is available at http://tinyurl.com/y97mtnlxfrom Leagle.com. Revive Investing LLC, Plaintiff, represented by Daniel Eugene Doherty, Law Offices of Daniel E. Doherty, 7300 W 110th St Ste 930 Overland Park, KS, 66210-2394 pro hac vice. Revive Investing LLC, Plaintiff, represented by Charles Joseph Hyland, Hyland Law Firm LLC, 7300 W 110th St Ste 930, Overland Park, KS, 66210-2394 Lisa A. Gibbons, Plaintiff, represented by Charles Joseph Hyland, Hyland Law Firm LLC & Daniel Eugene Doherty, Law Offices of Daniel E. Doherty. Quinn Morgan, Defendant, represented by Martin Jonathan Crisp -- Martin.Crisp@ropesgray.com -- Ropes & Gray LLP, Robert G. Jones -- Robert.Jones@ropesgray.com -- Ropes & Gray LLP, pro hac vice & Timothy Ryan Farrell -- Timothy.Farrell@ropesgray.com -- Ropes & Gray LLP. ZM Private Equity Fund I, L.P., Defendant, represented by Martin Jonathan Crisp, Ropes & Gray LLP, Robert G. Jones, Ropes & Gray LLP & Timothy Ryan Farrell, Ropes & Gray LLP. ZM Private Equity Fund II, L.P., Defendant, represented by Martin Jonathan Crisp, Ropes & Gray LLP, Robert G. Jones, Ropes & Gray LLP & Timothy Ryan Farrell, Ropes & Gray LLP. Erickson Incorporated, Nominal Defendant, Pro Se. * Lawmakers Debate Over Tip Pool at Legislative Hearing ------------------------------------------------------- Colin A. Young, writing for Gloucester Times, reports that the battle between Dunkin' Donuts and Starbucks popped up at a legislative hearing, but the conflict was not over which coffee chain the committee's coffee would come from. Instead, a representative of independent Dunkin' franchises made the case for a change in labor laws that would clarify which employees are entitled to share in a tip pool while union representatives argued the quick service industry should follow the lead of Starbucks, which addressed the issue internally. A 2004 law denying managers tips -- spurred by reports that restaurants and banquet facilities were forcing wait staff to share tips with managers -- had unintended consequences because it did not include a clear definition of managerial authority and consequently can deny tips to non-managerial workers who otherwise would be able to supplement their wage with tips. "In the absence of managerial authority or a definition thereof, anybody who is operating a cash drawer qualifies as a manager, anybody who puts the key in the door to open a store in the morning qualifies as a manager, conversely anybody who puts a key in the door to close that store at night qualifies as a manager," Ed Shanahan, executive director of the Dunkin' Donuts Independent Franchise Owners Association, said on Oct. 3. "Anybody who trains another employee -- notwithstanding their title, notwithstanding the fact that they may be a 17-year-old employee training a new 16-year-old employee -- they qualify as a manager." Lawmakers on the Labor and Workforce Development Committee are considering legislation (H 3142/S 1042) that would revise the tip law by adopting the federal Fair Labor Standards Act definition of "employee employed in a bona fide executive capacity" and barring those employees from participating in a tip pool. Under the legislation, filed by Rep. Ann-Margaret Ferrante of Gloucester and Sen. Michael Rodrigues, supervisors who serve customers and do not fall under the definition of an "employee employed in a bona fide executive capacity" would be eligible to participate in a tip pool. Opposition to the bill on Oct. 3 came from the AFL-CIO and Unite Here Local 26, labor unions that argued the problem could be solved if coffee chains and other quick service restaurants paid their supervisors more. "This is a solution in search of a problem," Jaimie McNeil from Unite Here Local 26 said. "Starbucks took care of this in 2013. They said 'look, we have shift supervisors, when you are promoted or apply for this position . . . you get a higher wage, we don't want to deal with class action lawsuits, we don't want you to take from other employees' tips.' " He added, "This bill would allow shift supervisors to cut into a lifeline for low-wage workers, making it even harder for working mothers and fathers to put food on the table." Mr. Shanahan rejected that notion and said low-wage workers are the ones being hurt because many store owners have decided not to allow tip jars at all to avoid the risk of class action lawsuits. In 2013, then-Senate President Therese Murray quashed an attempt to alter the tip-pooling law during debate on a bill to raise the minimum wage, but promised the matter would be a priority the following year. Since then, efforts in that area have withered. The Senate in 2014 narrowly rejected -- by a 19 to 20 vote -- an amendment to an economic development bill that would have changed the tip-pooling law after an impassioned speech by then-Sen. Ken Donnelly, who said the bill would water down the pay of fast-food workers and remove the incentive for the fast service restaurants to pay their supervisors more. [GN] * NLRB Withdraws Argument on Mandatory Arbitration Programs ----------------------------------------------------------- Andrew L Scroggins, Esq. -- ascroggins@seyfarth.com -- Noah A. Finkel, Esq. -- nfinkel@seyfarth.com -- David S. Baffa, Esq. -- dbaffa@seyfarth.com -- of Seyfarth Shaw LLP, in an article for Lexology, wrote that the NLRB has withdrawn the significant concession it offered at oral argument on the nature of the NLRA rights it seeks to assert in the face of employers' mandatory arbitration programs. As noted in Seyfarth Shaw's earlier blog post, the Supreme Court heard oral argument on October 2, 2017, on one of the most significant employment law cases in some time, to consider whether to permit employers to use mandatory arbitration programs that contain waivers of collective and class actions. In the most dramatic moment of the morning, the NLRB's General Counsel Richard Griffin made a significant admission. In response to a series of questions by a skeptical Chief Justice Roberts, Mr. Griffin to agree that it would not be an unfair labor practice for a mandatory arbitration program to require use of a forum whose rules did not allow class arbitration. Justice Alito quickly realized the significance of this point: "if that's the rule, you have not achieved very much because, instead of having an agreement that says no class, no class action, not class arbitration, you have an agreement requiring arbitration before the XYZ arbitration association, which has rules that don't allow class arbitration." Mr. Griffin did not dispute this. He commented that "the provisions of the [NLRA] run to prohibitions against employer restraint." Next to the podium was counsel for the employees, Daniel Ortiz of the University of Virginia School of Law. Mr. Ortiz did not agree with that concession, thus seeming to highlight a fundamental dissent from the NLRB's position. This gap was all the more notable for the fact that the Solicitor General already had abandoned the NLRB to side with the employers. In an unusual development, just one day after the argument, the NLRB's Griffin sent a short letter to the Court disavowing its argument and adopting the position staked out by Mr. Ortiz: "I am writing to correct an inaccurate response I gave at oral argument in response to the line of questioning by Chief Justice Roberts found at pages 47-50 of the transcript of the oral argument. My responses, to the extent they indicated any difference from the responses given by employees' counsel, Mr. Ortiz, to the questions of Chief Justice Roberts found at pages 60-64 of the transcript of the oral argument, were a result of my misunderstanding the Chief Justice's questions and were inaccurate; Mr. Ortiz correctly stated the Board's position and there is no disagreement between the Board's and the employees' position on the answers to those questions." Such letters are not unprecedented. Still, it is a remarkable about face. For the justices who already seemed skeptical of the NLRB's position, this change of position may only serve to highlight that the NLRB is not clear in the reasoning of its position or the effects such reasoning may have if ordered more broadly by the Court to apply to future cases. [1] The New York Times highlighted Griffin's concession: The labor board's general counsel, Richard F. Griffin Jr., argued for the workers. He made a concession at odds with the position of another lawyer on his side. Mr. Griffin said that employment contracts could not require workers to give up collective action in arbitration but that the private entities that conduct arbitration could require that cases be pursued one by one. If that is so, Justice Samuel A. Alito Jr. responded, "you have not achieved very much because, instead of having an agreement that says no class arbitration, you have an agreement requiring arbitration before the XYZ arbitration association, which has rules that don't allow class arbitration." [GN] * PracticePanther Attorney Discusses Various Class Actions ---------------------------------------------------------- Jaliz Maldonado, Esq., of PracticePanther, in an article for The National Law Review, wrote that a case filed by a group of people who are affected by a similar action or product against one defendant is categorized as a class lawsuit. Multi-district litigation and mass tort litigation are other names used to refer to cases brought by groups of individuals who have experienced similar losses. People choose to pursue justice in class action suits when faulty products have caused the damages. These consumer goods include motor vehicles and pharmaceutical medicines. Victims can also choose to seek justice against conduct such as corporate misconduct, employment practices, consumer, and security fraud. There is another type of class lawsuits called mass tort action. A mass tort action is when a multi-party lawsuit is filed due to an accident that involves an entire group of people. Examples of such accidents include a plane crash in which a lot of people sustain injuries, or worse, death. There were two hundred and thirty-four class action cases filed in federal courts in the year 2015 alone. The Purpose of a Class Action Lawsuit When a sizable number of people are involved in an event that caused the same or similar injuries, more often than not, they do not seek legal redress as individuals. If they, however, decide to stick together, the value of the claims adds up. Filling a lawsuit as a class necessitates merging all pieces of the litigation process including evidence, defendants, witnesses, as well as attorneys. Sometimes, when the number of victims affected by the conduct or product is too high, it might become unreasonable or even impossible for them to file lawsuits as individuals. After being given the go-ahead, they file the suit with a representative who is referred to as a lead plaintiff or a named plaintiff. There are numerous instances of class action lawsuits, some of which are discussed below. CITGO Unwanted Text TCPA Class Action Settlement CITGO Petroleum Corporation Inc. settled an $8 million class- action lawsuit for allegedly sending text messages to recipients before written consent. Case summary: The suit asserts that the accused sent text messages to the plaintiff's wireless phone numbers without written consent, which violated the Telephone Consumer Protection Act47. This lawsuit seeks damages under the TCPA in support of the lead plaintiff and all the affected individuals in the USA. Kenneth Cole Unpaid Internship Class Action Settlement Qualified class members are those who did not receive payment from Kenneth Cole Consumer Direct, LLC or Kenneth Cole Productions, Inc. during the 2 December 2008 through 31 July 2017. Case Summary: This class action lawsuit was filed by one of the unpaid interns, alleging that the accused failed to pay minimum wages, which violated the New York labor law. Oluseyi Awogbile, the current lead plaintiff, on behalf of himself and others who are in the same situation, as he declares, seeks to recover unpaid minimum wages, interest, costs, and attorney's fees. The defendants have denied any violation of the law or owing any wages to the interns. The accused also denied any liability, maintaining that they have acted by the law. They have however suggested that to avoid expenses, the uncertainty of the case and inconveniences, it would be better to enter into a settlement agreement. The case is yet to conclude. New Hawaii Sea Restaurant Hepatitis Class Action Settlement The class members of this case included anyone who took a beverage or consumed food at the New Hawaii Sea Restaurant located at 1475 Williamsbridge Road between 7th of September 2013 through the 19th of September 2013. It also included anyone who was in proximity to someone who had consumed a drink and/or food where they later obtained a blood test, immune globulin, or a vaccination shot for hepatitis A vaccine (HAV) within thirty days of dining at the restaurant. Those who developed HAV infections after eating or drinking in the restaurant during the class period were not eligible to participate in this class lawsuit. Case Summary: New Hawaii Restaurant settled the class action suit that alleged that customers were exposed to the hepatitis A virus. The goal of the lawsuit was to obtain compensation for time lost, medical expenses, and anxiety that was associated with the incident. The restaurant agreed to settle despite denying any wrongdoing. HSBC Overdraft Fee Class Action Settlement The members of this class action lawsuit include all U.S HSBC customers who suffered overdraft fees on their accounts as a result of any transaction that included a debit card on sale transactions from the lowest to the highest dollar amount. The class period of the suit ranges between the 7th of December 2004 through the 13th of June 2010 for consumer accounts, while that of business accounts ranges between the 7th of December 2004 through the 11th of November 2011. Case Summary: The case claims that the bank allowed the customers to purchase items via their debit cards despite their accounts being insufficient in order to charge thirty-five dollars as an overdraft fee. With that said, the bank used a software program to reorder transactions that lead to extra overdraft fees automatically. The ruling given was to the effect that the individuals affected after thirtieth June 2007 would automatically receive compensation. Sony Mobile Devices Xperia Water Damage Class Action Settlement Members of the settlement included those who at any time before the 3rd of August 2017 owned, purchased, or was gifted as a customer service exchange any mobile devices that are sold, distributed, marketed, or manufactured by Sony Mobile Communications in the District of Columbia, Puerto Rico or any of the US fifty states. Case Summary: This suit alleged that Sony sold devices that were advertised as waterproof while they were not. The action claimed that among other things, Sony violated various consumer protection laws. The defendant denied claims of any wrongdoing and that the devices were defective. Both parties decided to settle the matter out of court. Conclusion In a class action lawsuit, the final decision made by the court applies to everyone who opted to be included. Every person who qualified as a class member is bound to the court's decision, whether they attended the court sessions or not. The compensation for everyone in the class action usually follows a well laid out distribution plan, and the amount distributed is typically lessened by the litigation costs and the attorney's fees. [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 * * *