/raid1/www/Hosts/bankrupt/CAR_Public/171108.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, November 8, 2017, Vol. 19, No. 221
Headlines
AEGIS SENIOR: Seeks 9th Cir. Review of Decision in "Newirth" Suit
ALBANY MOLECULAR: Robbins Geller Files Class Action in New York
ALCON LABORATORIES: Amended Complaint in Eye Dropper Suit Junked
ALCON LABORATORIES: Gustavsen Appeals Suit Dismissal to 1st Cir.
ALLIED NEVADA: Slomnitsky Appeals Ruling in Securities Litigation
ALLIED SOLUTIONS: Seventh Cir. Appeal Filed in "Robertson" Suit
AMN SERVICES: Seeks 9th Cir. Review of Decision in "Clarke" Suit
ANADARKO E&P: Bay Appeals D. Colorado Ruling to Tenth Circuit
ANTHONY SOLOMON: Nearly 100 People Join Voyeurism Class Action
AURORA BEHAVIORAL: Court Dismisses "Fredeking" Suit w/o Prejudice
AUSTRALIA: Immigration Minister Faces Asylum Seeker Class Action
AUSTRALIA: Aldermen Criticized Over Class Action Meeting Absence
BANCO BRADESCO: Court Narrows Claims in Securities Suit
BARCLAYS BANK: Askelson Appeals Ruling in Securities Litigation
BAYER & MERCK: Faces Class Action Over Copperstone SPF Claims
BLOOMBERG LP: Appeals Class Certification in "Roseman" Suit
BLUE CROSS: Second Circuit Appeal Filed in "Mahajan" Class Suit
BMW: Faces Class Action in Canada Over Defective N20 Engine
BMW OF NORTH AMERICA: Somma Appeals Approval of "Catalano" Deal
BOIRON INC: Ninth Circuit Appeal Filed in "Lewert" Class Suit
BURLINGTON COUNTY, NJ: Szczpaniak Moves for Order Approving Deal
CALIFORNIA: Los Angeles County Appeals Ruling in "Ray" Suit
CARRINGTON TEA: Court Denies Bid to Dismiss "Zemola" Suit
CENTURYLINK INC: Bronstein, Gewirtz Files Class Action
CENTURYLINK: Federman & Sherwood Files Securities Class Action
CHIPOTLE MEXICAN: Scott Appeals S.D.N.Y. Order to Second Circuit
CIGNA CORP: Singh Appeals Judgment in "Patel" Suit to 2nd Circuit
CMRE FINANCIAL: Court Won't Reconsider "Thomollari" Dismissal
COCA-COLA CO: Seeks 3rd Circuit Review of Order in "Enslin" Suit
CODE 42 SOFTWARE: Wins Prelim. OK of $400K "Kissel" Settlement
CONVERSE INC: Ninth Circuit Appeal Filed in "Chavez" Class Suit
DEJA VU CONSULTING: Bid to Amend Judgment in FLSA Suit Denied
DETROIT, MI: Homeowners Ask Judge to Review Foreclosures
DFT INC: Ninth Cir. Appeal Filed in Copper Sands Homeowners Suit
DOLGENCORP LLC: Seeks 6th Cir. Review of Ruling in "Hubbard" Suit
DOMETIC CORP: Bid to Dismiss "Papasan" Suit Partly Granted
DOVENMUEHLE MORTGAGE: Shipkovitz Appeals Order to Fourth Circuit
ELDORADO LOUNGE: Court Denies Bid for Surreply in "Braxton" Suit
ENCORE RECEIVABLE: Class Certification Sought in "Spilski" Suit
EQUIFAX INC: May Not Need to Take Out Arbitration Language
EQUIFAX INC: Faces Class-Action Lawsuit in Hawaii
EROS INTERNATIONAL: 2nd Circuit Appeal Filed in Securities Suit
FCA US: Court Narrows Claims in "Mooradian" Warranty Suit
FIRST STUDENT: Humes Appeals E.D. Calif. Ruling to Ninth Circuit
FRANKLIN RESOURCES: Ninth Circuit Appeal Filed in "Cryer" Suit
GCA SERVICES: Court Denies Jama's Bid to Amend Minimum Wage Suit
GLOBAL TEL*LINK: Jacobs Appeals W.D. Arkansas Ruling to 8th Cir.
GNC HOLDINGS: KBC Asset Appeals "Martin" Suit Ruling to 3rd Cir.
GNS & ASSOCIATES: Oasis Appeals Ruling in "Marquez" to 11th Cir.
GOOD TECH: Bid to Enforce Term Sheet in Stockholder Suit Denied
HAMILTON COUNTY, TN: Sixth Circuit Appeal Filed in M.S. Suit
HASAKI RESTAURANT: Seeks 2nd Circuit Review of Order in "Yu" Suit
HAWAII: Court Refuses to Strike Class Allegations in "Hyland"
HEALTHCARE REVENUE: Levins Appeals Decision to Third Circuit
HESO INC: Court Resolves Certification Issues in "Lopes"
HEWLETT PACKARD: Ninth Circuit Appeal Filed in "Forsyth" Suit
HITACHI-MAXELL: Nov. 29 Settlement Claims Filing Deadline Set
HUMANADENTAL INSURANCE: Brodsky Appeals Decision to 7th Circuit
INDIANA: Seeks 7th Circuit Review of Ruling in "Lacy" Suit
INTERCEPT PHARMA: Klein Law Firm Files Class Action Lawsuit
J. JILL INC: Pomerantz LLP Files Class Action Lawsuit
JAHM J NAJAFI: McCauley Appeals D. Ariz. Ruling to Ninth Circuit
JAMAICA PUBLIC SERVICE: Privy Council Dismisses Class Action Suit
KING'S CORNER: Court OKs $40K Settlement in "Redden" Wage Suit
KOODO SUSHI: Gamero Appeals S.D.N.Y. Judgment to Second Circuit
LOUISIANA: 350 Filipino Teachers to Get Class Action Payout
M&T BANK: 2nd Amended "Jaroslawicz" Suit Dismissed w/o Prejudice
MARATHON PETROLEUM: Court Rules Class-Action Suit Can Continue
MARS INC: Vigil Appeals N.D. California Ruling to Ninth Circuit
MARVELL TECHNOLOGY: Court Certifies Class in "Luna"
MASTERCARD INC: Judicial Review Sought in GBP14BB Class Suit
MBF INSPECTION: Court Certifies Class in "Ganci" Wage Suit
MCDONALD'S: Settles Debit Card Fee Class Action for Nearly $1MM
MDL 2420: Court Awards $4.5MM Partial Attys' Fees
MDL 2420: Court Dismisses IPP Claims Against Hitachi, et al.
MDL 2420: Settlement in Batteries Antitrust Suit Has Final OK
MDL 2633: Premera Must Produce Docs in Data Breach Suit
MENARD INC: Court Dismisses All Claims in "Fuchs" ICFA Suit
METHUEN, MA: Sued Over Incorrect Spanish Breathanalyzer Test Form
MINNESOTA: Eighth Circuit Appeal Filed in "Murphy" Suit
MONAVIE INC: "Pontrelli" Consumer Fraud Suit Moved to Utah
MORGAN PROPERTIES: Court Narrows Claims in "Zehm" Suit
NEW YORK: Second Circuit Appeal Filed in "Doe" Suit vs. PSC
NIMBLE STORAGE: Arkansas Teachers Appeal Order in Securities Suit
NORTHERN MARIANAS: Betty Johnson Case Closed
PHENIX CITY, AL: Worthy Appeals M.D. Ala. Decision to 11th Cir.
PTTEP AUSTRALASIA: Hope For People Involved in Oil Spill Suit
PURDUE PHARMA: Coryell County Joining Opioid Class Suit
RENZENBERGER INC: Seeks 9th Cir. Review of Order in "Wright" Suit
RIO TINTO: Hagens Berman Files Securities Class Action
SALSAS AND BEER: Fourth Circuit Appeal Filed in "Velasquez" Suit
SAN DIEGO, CA: Morrow Appeals S.D. Calif. Ruling to Ninth Circuit
SANOFI PASTEUR: Third Circuit Appeal Filed in "Weitzner" Suit
SEATTLE, WA: Ninth Circuit Appeal Filed in "Hooper" Class Suit
SETERUS INC: Court Narrows Claims in "Cawood"
SFBSC MANAGEMENT: Murphy Appeals Ruling in Exotic Dancers Suit
SMARTPAY LEASING: Seeks 9th Cir. Review of Ruling in "Esparza"
SOULCYCLE INC: Sweeney Appeals Decision in "Cody" Class Suit
SPARK NETWORKS: Monteverde & Associates Files Class Action Lawsuit
SPEEDYPC SOFTWARE: Appeals Ruling in "Beaton" Suit to 7th Circuit
SPX CORPORATION: Di Biase Appeals Ruling to Fourth Circuit
STATE FARM: Seeks Sixth Circuit Review of Ruling in "Bailey" Suit
STERICYCLE INC: Court Preliminarily Approves $295MM Settlement
TESLA INC: Owners File Suit Over Musk's Self-Driving Claims
TEXAS, USA: Fifth Circuit Appeal Filed in "Malone" Class Suit
THERANOS INC: Court Narrows Claims in Medical Battery Suit
UBER TECHNOLOGIES: Judge Likely to Toss Data Hack Class Action
UNITED RECOVERY: Seeks 3rd Cir. Review of Ruling in "Pacanowski"
UNITED STATES: Court Certifies "Nio" Selected Reserve Class
UNITED STATES: Ruling Fuels Suit Against HHS Abortion Policy
UNITED STATES: Wants Emergency Stay of TRO in "Garza" Class Suit
UNITED STATES: Second Circuit Stays Discovery in "Vidal" Suit
UNITED STATES: Ninth Cir. Appeal Filed in "Marroquin-Perez" Suit
VERIFONE SYSTEMS: Stelmachers Appeals Decision to Ninth Circuit
VERMONT: Judge Hears Class Action Over Homeless People Encampment
WAL-MART STORES: District Court Refuses to Remand "Hamilton"
WELLS FARGO: Seeks 9th Circuit Review of Ruling in "Nguyen" Suit
WILMINGTON TRUST: Brundle Appeals Decision to Fourth Circuit
* Senate Voted Against CFPB's New Mandatory Arbitration Rule
* Rejection of Class-Action Rule a Win for Consumers
*********
AEGIS SENIOR: Seeks 9th Cir. Review of Decision in "Newirth" Suit
-----------------------------------------------------------------
Defendant Aegis Senior Communities, LLC, filed an appeal from a
court ruling in the lawsuit entitled June Newirth, et al. v. Aegis
Senior Communities, LLC, Case No. 4:16-cv-03991-JSW, in the U.S.
District Court for the Northern District of California, Oakland.
The appellate case is captioned as June Newirth, et al. v. Aegis
Senior Communities, LLC, Case No. 17-17227, in the United States
Court of Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Appellant Aegis Senior Communities, LLC's opening brief is
due on December 27, 2017;
-- Appellees Elizabeth Barber, Andrew Bardin, Thomas Bardin
and June Newirth's answering brief is due on January 26,
2018; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiffs-Appellees JUNE NEWIRTH, by and through her Guardian ad
Litem, Frederick J. Newirth, on her own behalf and on behalf of
others similarly situated; ELIZABETH BARBER, as successors-in-
interest to the Estate of Margaret Pierce; on their own behalves
and on behalf of others similarly situated; ANDREW BARDIN, as
successors-in-interest to the Estate of Margaret Pierce; on their
own behalves and on behalf of others similarly situated; and
THOMAS BARDIN, as successors-in-interest to the Estate of Margaret
Pierce; on their own behalves and on behalf of others similarly
situated, are represented by:
Robert S. Arns, Esq.
ARNS LAW FIRM
515 Folsom St., 3rd Floor
San Francisco, CA 94105
Telephone: (415) 495-7800
E-mail: rsa@arnslaw.com
- and -
Sarah Colby, Esq.
Jennifer Uhrowczik, Esq.
Guy B. Wallace, Esq.
SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Telephone: (415) 421-7100
Facsimile: (415) 421-7105
E-mail: scolby@schneiderwallace.com
juhrowczik@schneiderwallace.com
gwallace@schneiderwallace.com
- and -
Christopher J. Healey, Esq.
MCKENNA LONG & ALDRIDGE LLP
600 West Broadway
San Diego, CA 92101-3391
Telephone: (619) 699-2491
E-mail: chris.healey@dentons.com
- and -
Kelly Knapp, Esq.
PRISON LAW OFFICE
1917 Fifth Street
Berkeley, CA 94710-1916
Telephone: (510) 280-2621
E-mail: kknapp@prisonlaw.com
Defendant AEGIS SENIOR COMMUNITIES, LLC, DBA Aegis Living, is
represented by:
Jeffrey Scott Ranen, Esq.
LEWIS BRISBOIS BISGAARD & SMITH LLP
633 W. 5th Street, Suite 4000
Los Angeles, CA 90071
Telephone: (213) 580-3921
Facsimile: (213) 250-7900
E-mail: jeffrey.ranen@lewisbrisbois.com
ALBANY MOLECULAR: Robbins Geller Files Class Action in New York
---------------------------------------------------------------
Robbins Geller Rudman & Dowd LLP ("Robbins Geller") on Oct. 25
disclosed that a class action has been commenced on behalf of
holders of Albany Molecular Research, Inc. ("AMRI") (NASDAQ:AMRI)
stockholders as of July 10, 2017. This action was filed in the
Northern District of New York and is captioned Rodak v. D'Ambra,
et al., No. 1:17-cv-01179.
If you wish to serve as lead plaintiff, you must move the Court no
later than 60 days from October 25, 2017. If you wish to discuss
this action or have any questions concerning this notice or your
rights or interests, please contact plaintiff's counsel, Darren
Robbins of Robbins Geller at 800/449-4900 or 619/231-1058, or via
e-mail at djr@rgrdlaw.com. Any member of the putative class may
move the Court to serve as lead plaintiff through counsel of their
choice, or may choose to do nothing and remain an absent class
member.
The complaint charges AMRI, certain of its senior officers and
directors and UIC Parent Corporation and UIC Merger Sub, Inc.
(collectively, "UIC"), which were formed and are controlled by
affiliates of The Carlyle Group, L.P. and Carlyle Investment
Management L.L.C. (collectively, "Carlyle") and affiliates of GTCR
LLC (collectively, "GTCR"), with violations of the Securities
Exchange Act of 1934 ("1934 Act"). AMRI was a global contract
research and manufacturing organization that had been working with
the life sciences sector and pharmaceutical industry to improve
patient outcomes and the quality of life for more than two
decades.
On June 5, 2017, AMRI and UIC entered into an Agreement and Plan
of Merger (the "Merger Agreement"). Under the Merger Agreement,
AMRI's Board of Directors (the "Board") agreed to the acquisition
of AMRI by Carlyle and GTCR in exchange for $21.75 per share in
cash (the "Merger").
The complaint alleges that in order to make the Merger price
appear attractive to AMRI's outside stockholders, on July 14,
2017, the defendants issued a proxy statement recommending
approval of the Merger (the "Proxy Statement") that contained
materially false and misleading information and omitted other
material information that was necessary to make the information
that was disclosed not misleading, in violation of Sec. 14(a) of
the 1934 Act. Most notably, in contrast to the Company's actual
expected growth, the financial projections that were disclosed in
the Proxy Statement, and were relied upon by the Board's financial
advisor in opining that the Merger price was fair to stockholders,
were falsely pessimistic, as demonstrated by defendants' own prior
statements. These downwardly manipulated financial projections
were central to the Proxy Statement and to the defendants'
advocacy of the Merger.
According to the complaint, as a result of these and other
materially false and misleading statements and/or omissions in the
Proxy Statement, defendants were able to obtain stockholder
approval of the sale of the Company to Carlyle and GTCR and
deprive AMRI stockholders of the full value of their interest in
AMRI. On August 18, 2017, a majority of AMRI stockholders voted
in favor of the Merger Agreement. On August 31, 2017, the Merger
closed. The preparation and dissemination of the false and
misleading Proxy Statement thus induced stockholder action that
resulted in substantial harm to plaintiff and AMRI's other
stockholders.
Plaintiff seeks to recover damages on behalf of all stockholders
of AMRI as of July 10, 2017 (the "Class"). The plaintiff is
represented by Robbins Geller, which has extensive experience in
prosecuting investor class actions including actions involving
financial fraud.
Robbins Geller -- http://www.rgrdlaw.com-- is a law firm advising
and representing U.S. and international investors in securities
litigation and portfolio monitoring. [GN]
ALCON LABORATORIES: Amended Complaint in Eye Dropper Suit Junked
----------------------------------------------------------------
The United States District Court for the District of Massachusetts
issued a Memorandum and Order allowing Defendant's Motion to
Dismiss the case captioned ROBERT GUSTAVESEN, JOSEPH CUGINI,
DEMETRA COHEN, LEE WILBURN, JACKIE CORBIN, MARY LAW and CECELIA
BRATHWAITE, on behalf of themselves and all others similarly
situated. Plaintiffs v. ALCON LABORATORIES, INC.; ALCON RESEARCH,
LTD.; FALCON C.A. PHARMACEUTICALS, LTD.; SANDOZ, INC.; ALLERGAN,
INC.; ALLERGAN USA, INC.; ALLERGAN SALES, LLC; PFIZER INC.;
VALEANT PHARMACEUTICALS INTERNATIONAL, INC.; BAUSCH AND LOMB
INCORPORATED; ATON PHARMA, INC.; MERCK & CO., INC.; MERCK, SHARP &
DOHME CORP.; PRASCO, LLC; and AKORN, INC., Defendants, No. 1:14-
11961-MLW (D. Mass.).
Plaintiffs timely filed an Amended Complaint, in which plaintiffs
assert three counts against all defendants. Count I alleges
violations of Massachusetts General Laws Chapter 93A (Chapter
93A), as well as consumer protection statutes of 16 other
jurisdictions that prohibit unfair or deceptive acts and
practices. Plaintiffs contend that designing eye droppers to
dispense more medication than necessary is an unfair act or
practice in violation of these consumer protection statutes.
Counts II and III seek recovery under theories of unjust
enrichment and money had and received under the laws of 17 states,
asserting that defendants were enriched by plaintiffs having to
purchase more medication than necessary.
The defendants have filed two motions to dismiss the Amended
Complaint. Defendants argue, among other things, that the FDA's
regulation pre-empts plaintiff's claims. Because defendant are
correct, it is not necessary to decide the merits of the other
grounds for dismissal.
Impossibility Pre-emption
Impossibility pre-emption bars state law claims when it is
impossible for a private party to comply with both state and
federal requirements. The question for 'impossibility' is whether
the private party could independently do under federal law what
state law requires of it If a party cannot satisfy its duties
under a state law without the Federal Government's special
permission and assistance, which is dependent on the exercise of
judgment by the federal agency, that party cannot independently
satisfy those state duties for pre-emption purposes, and the state
law is pre-empted.
Obstacle Pre-emption
Obstacle pre-emption is a form of implied pre-emption which
mandates that if the purpose of the act cannot otherwise be
accomplished, if its operation within its chosen field else must
be frustrated and its provisions be refused their natural effect-
the state law must yield to the regulation of Congress within the
sphere of its delegated power. If it occurs when under the
circumstances of the particular case, the state law stands as an
obstacle to the accomplishment and execution of the full purposes
and objectives of Congress.
Impossibility pre-emption bars plaintiffs' claims. A verdict for
plaintiffs would be a finding that state law requires defendants
to design their dropper tips to dispense less solution.
Specifically, plaintiffs claim that the dropper must dispense 15
unit per liter or less at a time. However, changes to the size or
shape of the dropper tip would be major changes requiring pre-
approval from the FDA and, therefore, plaintiff's claims are pre-
empted.
Defendants' supplemental memorandum relies on Bartlett, 133 S. Ct.
at 2469, 2477-79. In Bartlett, the defendant faced a conflict
between violating state law and redesigning its product in
violation of the federal regulation requiring generic drugs to
maintain the same active ingredients, route of administration,
dosage form, strength, and labeling as the brand-name drug.
Federal law prohibits any person from introducing or delivering
for introduction into interstate commerce any new drug if the FDA
has not determined that the probable therapeutic benefits outweigh
its risk of harm. Therefore, as in Bartlett, defendants here
could not have marketed droppers that complied with state consumer
protection and unjust enrichment laws in the manner plaintiffs
advocate without the FDA's prior approval. It is irrelevant that
the defendants could have designed an entirely different product
before they sought approval, which may never have been granted.
Therefore, the court concludes that plaintiff's claims are pre-
empted.
Because the claims against all defendants are pre-empted by the
FDCA and regulations enforcing it, the Generic Motion is moot.
Defendants' Motion to Dismiss First Amended Complaint is allowed,
and the case is dismissed.
A full-text copy of the District Court's September 29, 2017
Memorandum and Order is available at http://tinyurl.com/ycnwqqnp
from Leagle.com.
Robert Gustavsen, Plaintiff, represented by John G. Simon --
simonjg@slu.edu -- The Simon Law Firm, P.C., pro hac vice.
Robert Gustavsen, Plaintiff, represented by Kenneth J. DeMoura,
DeMoura Smith LLP, One International Place, 14th Floor, Boston,
MA, 02110, Kevin M. Carnie, Jr., The Simon Law Firm, pro hac vice,
Ryan A. Keane, The Simon Law Firm, P.C., 501 N 7th St, St. Louis,
MO 63101, USA, pro hac vice, Emily L. Perini, Perini-Hegarty &
Associates, P.C., 1770 Motor Parkways # 300, Hauppauge, NY 11749
& Richard S. Cornfeld -- info@cornfeldlegal.com -- Law Office of
Richard S. Cornfeld, pro hac vice.
Joseph Cugini, Plaintiff, represented by John G. Simon, The Simon
Law Firm, P.C., pro hac vice, Kenneth J. DeMoura, DeMoura Smith
LLP, Kevin M. Carnie, Jr., The Simon Law Firm, pro hac vice, Ryan
A. Keane, The Simon Law Firm, P.C., pro hac vice, Emily L. Perini,
Perini-Hegarty & Associates, P.C. & Richard S. Cornfeld, Law
Office of Richard S. Cornfeld, pro hac vice.
Demetra Cohen, Plaintiff, represented by John G. Simon, The Simon
Law Firm, P.C., pro hac vice, Kenneth J. DeMoura, DeMoura Smith
LLP, Kevin M. Carnie, Jr., The Simon Law Firm, pro hac vice, Ryan
A. Keane, The Simon Law Firm, P.C., pro hac vice, Emily L. Perini,
Perini-Hegarty & Associates, P.C. & Richard S. Cornfeld, Law
Office of Richard S. Cornfeld, pro hac vice.
Lee Wilburn, Plaintiff, represented by John G. Simon, The Simon
Law Firm, P.C., pro hac vice, Kenneth J. DeMoura, DeMoura Smith
LLP, Kevin M. Carnie, Jr., The Simon Law Firm, pro hac vice, Ryan
A. Keane, The Simon Law Firm, P.C., pro hac vice, Emily L. Perini,
Perini-Hegarty & Associates, P.C. & Richard S. Cornfeld, Law
Office of Richard S. Cornfeld, pro hac vice.
Jackie Corbin, Plaintiff, represented by John G. Simon, The Simon
Law Firm, P.C., pro hac vice, Kenneth J. DeMoura, DeMoura Smith
LLP, Kevin M. Carnie, Jr., The Simon Law Firm, pro hac vice, Ryan
A. Keane, The Simon Law Firm, P.C., pro hac vice, Emily L. Perini,
Perini-Hegarty & Associates, P.C. & Richard S. Cornfeld, Law
Office of Richard S. Cornfeld, pro hac vice.
Mary Law, Plaintiff, represented by John G. Simon, The Simon Law
Firm, P.C., pro hac vice, Kenneth J. DeMoura, DeMoura Smith LLP,
Kevin M. Carnie, Jr., The Simon Law Firm, pro hac vice, Ryan A.
Keane, The Simon Law Firm, P.C., pro hac vice, Emily L. Perini,
Perini-Hegarty & Associates, P.C. & Richard S. Cornfeld, Law
Office of Richard S. Cornfeld, pro hac vice.
Cecelia Brathwaite, Plaintiff, represented by John G. Simon, The
Simon Law Firm, P.C., pro hac vice, Kenneth J. DeMoura, DeMoura
Smith LLP, Kevin M. Carnie, Jr., The Simon Law Firm, pro hac vice,
Ryan A. Keane, The Simon Law Firm, P.C., pro hac vice, Emily L.
Perini, Perini-Hegarty & Associates, P.C. & Richard S. Cornfeld,
Law Office of Richard S. Cornfeld, pro hac vice.
Alcon Laboratories, Inc., Defendant, represented by Christiana C.
Jacxsens -- jacxsensc@gtlaw.com -- Greenberg Taurig, LLP, pro hac
vice, Gregory E. Ostfeld -- ostfeldg@gtlaw.com -- Greenberg
Traurig, LLP, pro hac vice, Lori G. Cohen -- cohenl@gtlaw.com --
Greenberg Traurig LLP, pro hac vice, Peter J. Simshauser --
peter.simshauser@skadden.com -- Skadden, Arps, Slate, Meagher &
Flom LLP, David S. Clancy -- david.clancy@skadden.com -- Skadden,
Arps, Slate, Meagher & Flom LLP & David G. Thomas --
thomasda@gtlaw.com -- Greenberg Traurig, LLP.
Alcon Research Ltd., Defendant, represented by Christiana C.
Jacxsens, Greenberg Taurig, LLP, pro hac vice, Gregory E. Ostfeld,
Greenberg Traurig, LLP, pro hac vice, Lori G. Cohen, Greenberg
Traurig LLP, pro hac vice, Peter J. Simshauser, Skadden, Arps,
Slate, Meagher & Flom LLP, David S. Clancy, Skadden, Arps, Slate,
Meagher & Flom LLP & David G. Thomas, Greenberg Traurig, LLP.
Falcon Pharmaceuticals Ltd., Defendant, represented by Christiana
C. Jacxsens, Greenberg Taurig, LLP, pro hac vice, Gregory E.
Ostfeld, Greenberg Traurig, LLP, pro hac vice, Lori G. Cohen,
Greenberg Traurig LLP, pro hac vice, Peter J. Simshauser, Skadden,
Arps, Slate, Meagher & Flom LLP, David S. Clancy, Skadden, Arps,
Slate, Meagher & Flom LLP & David G. Thomas, Greenberg Traurig,
LLP.
Sandoz, Inc., Defendant, represented by Christiana C. Jacxsens,
Greenberg Taurig, LLP, pro hac vice, Gregory E. Ostfeld, Greenberg
Traurig, LLP, pro hac vice, Lori G. Cohen, Greenberg Traurig LLP,
pro hac vice, David S. Clancy, Skadden, Arps, Slate, Meagher &
Flom LLP & David G. Thomas, Greenberg Traurig, LLP.
Allergan, Inc., Defendant, represented by James P. Muehlberger --
jmuehlberger@shb.com -- Shook, Hardy & Bacon LLP, pro hac vice,
Lori C. McGroder -- lmcgroder@shb.com -- Shook, Hardy & Bacon,
LLP, pro hac vice, Peter J. Simshauser, Skadden, Arps, Slate,
Meagher & Flom LLP, W. Scott O'Connell, Nixon Peabody LLP & David
S. Clancy, Skadden, Arps, Slate, Meagher & Flom LLP.
Allergan USA, Inc., Defendant, represented by James P.
Muehlberger, Shook, Hardy & Bacon LLP, pro hac vice, Lori C.
McGroder, Shook, Hardy & Bacon, LLP, pro hac vice, Peter J.
Simshauser, Skadden, Arps, Slate, Meagher & Flom LLP, W. Scott
O'Connell, Nixon Peabody LLP & David S. Clancy, Skadden, Arps,
Slate, Meagher & Flom LLP.
Allergan Sales, LLC., Defendant, represented by James P.
Muehlberger, Shook, Hardy & Bacon LLP, pro hac vice, Lori C.
McGroder, Shook, Hardy & Bacon, LLP, pro hac vice, Peter J.
Simshauser, Skadden, Arps, Slate, Meagher & Flom LLP, David S.
Clancy, Skadden, Arps, Slate, Meagher & Flom LLP & W. Scott
O'Connell, Nixon Peabody LLP.
Pfizer, Inc., Defendant, represented by Austin Norris --
austin.norris@kirkland.com -- Kirkland & Ellis LLP, pro hac vice,
David S. Clancy, Skadden, Arps, Slate, Meagher & Flom LLP, Peter
J. Simshauser, Skadden, Arps, Slate, Meagher & Flom LLP & Robyn E.
Bladow -- rbladow@kirkland.com -- Kirkland & Ellis LLP, pro hac
vice.
Valeant Pharmaceuticals International Inc., Defendant, represented
by James P. Muehlberger, Shook, Hardy & Bacon LLP, pro hac vice,
Lori C. McGroder, Shook, Hardy & Bacon, LLP, pro hac vice, Peter
J. Simshauser, Skadden, Arps, Slate, Meagher & Flom LLP, David B.
Chaffin, White and Williams LLP, David S. Clancy, Skadden, Arps,
Slate, Meagher & Flom LLP & David G. Thomas, Greenberg Traurig,
LLP.
Bausch and Lomb Incorporated, Defendant, represented by James P.
Muehlberger, Shook, Hardy & Bacon LLP, pro hac vice, Lori C.
McGroder, Shook, Hardy & Bacon, LLP, pro hac vice, Peter J.
Simshauser, Skadden, Arps, Slate, Meagher & Flom LLP, David B.
Chaffin, White and Williams LLP & David S. Clancy, Skadden, Arps,
Slate, Meagher & Flom LLP.
ALCON LABORATORIES: Gustavsen Appeals Suit Dismissal to 1st Cir.
----------------------------------------------------------------
Plaintiffs Robert Gustavsen, Joseph Cugini, Demetra Cohen, Lee
Wilburn, Jackie Corbin, Mary Law and Cecelia Brathwaite, took an
appeal to the United States Court of Appeals for the First Circuit
from an order entered on September 29, 2017, granting the
Defendants' motion to dismiss first amended complaint and
dismissing the case styled Gustavsen, et al. v. Alcon
Laboratories, Inc., et al., Case No. 1:14-cv-11961-MLW, in the
U.S. District Court for the District of Massachusetts (Boston).
The Plaintiffs bring the putative class action against a group of
pharmaceutical companies that either manufacture or distribute
prescription eye drops. The Plaintiffs' Amended Complaint alleges
that each of the Defendants manufactured or distributed
prescription eye drops that were intentionally designed to
dispense more liquid than the human eye is capable of absorbing.
As a result, the Plaintiffs contend, medication is wasted when the
excess liquid drains through consumers' tear ducts or rolls down
their cheeks. According to the Plaintiffs, the Defendants package
their products in this way to compel consumers to purchase
medication more frequently than necessary in order to increase
profits.
The appellate case is captioned as ROBERT GUSTAVSEN; JOSEPH
CUGINI; DEMETRA COHEN; LEE WILBURN; JACKIE CORBIN; MARY LAW;
CECELIA BRATHWAITE v. ALCON LABORATORIES, INC.; ALCON RESEARCH
LTD.; FALCON PHARMACEUTICALS LTD.; SANDOZ, INC.; ALLARGAN, INC.;
ALLERGAN USA, INC.; ALLERGAN SALES, LLC; PFIZER, INC.; VALEANT
PHARMACEUTICALS INTERNATIONAL, INC.; BAUSCH AND LOMB INCORPORATED;
ATON PHARMA INC.; MERCK & CO., INC.; MERCK SHARP & DOHME CORP.;
PRASCO, LLC; AKORN, INC., Case No. 17-2066, in the United States
Court of Appeals for the First Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Appellant must complete and return the following forms to
the clerk's office by November 13, 2017, to be deemed
timely filed:
* Appearance Form;
* Transcript Report/Order Form; and
* Docketing Statement.[BN]
The Plaintiffs-Appellants are represented by:
Kenneth J. DeMoura, Esq.
DEMOURAISMITH LLP
One International Place, 14th Floor
Boston, MA 02110
Telephone: (617) 535-7531
E-mail: kdemoura@demourasmith.com
- and -
Emily Lisa Perini, Esq.
PERINI-HEGARTY & ASSOCIATES, P.C.
225 Franklin Street, 26th Floor
Boston, MA 02110
Telephone: (617) 217-2832
E-mail: elp@perinihegartypc.com
- and -
Richard S. Cornfeld, Esq.
LAW OFFICE OF RICHARD S. CORNFELD
1010 Market Street, Suite 1720
St. Louis, MO 63101
Telephone: (314) 241-5799
Facsimile: (314) 241-5788
E-mail: rcornfeld@cornfeldlegal.com
- and -
John G. Simon, Esq.
Kevin M. Carnie, Jr., Esq.
Ryan A. Keane, 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
ryan@keanelawllc.com
Defendants-Appellees Alcon Laboratories, Inc., Alcon Research
Ltd., Falcon Pharmaceuticals Ltd. and Sandoz, Inc., are
represented by:
Christiana C. Jacxsens, Esq.
Lori G. Cohen, Esq.
GREENBERG TAURIG, LLP
3333 Piedmont Road, Suite 2500
Atlanta, GA 30305
Telephone: (678) 553-2105
Facsimile: (678) 553-2106
E-mail: jacxsensc@gtlaw.com
cohenL@gtlaw.com
- and -
Gregory E. Ostfeld, Esq.
GREENBERG TRAURIG, LLP
77 West Wacker Drive, Suite 3100
Chicago, IL 60601
Telephone: (312) 456-8400
E-mail: ostfeldg@gtlaw.com
- and -
David G. Thomas, Esq.
GREENBERG TRAURIG, LLP
One International Place, 20th Floor
Boston, MA 02110
Telephone: (617) 310-6000
Facsimile: (617) 310-6001
E-mail: thomasda@gtlaw.com
Defendants-Appellees Alcon Laboratories, Inc., Alcon Research
Ltd., Falcon Pharmaceuticals Ltd., Sandoz, Inc., Allergan, Inc.,
Allergan USA, Inc., and Allergan Sales, LLC, Pfizer, Inc., Valeant
Pharmaceuticals International Inc., Bausch and Lomb Incorporated,
Aton Pharma Inc., Merck & Co., Inc., Merck, Sharp & Dohme Corp.,
Prasco, LLC, and Akorn, Inc., are represented by:
Peter J. Simshauser, Esq.
David S. Clancy, Esq.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
500 Boylston Street
Boston, MA 02116
Telephone: (617) 573-4800
Facsimile: (617) 573-4822
E-mail: peter.simshauser@skadden.com
David.Clancy@skadden.com
Defendants-Appellees Allergan, Inc., Allergan USA, Inc., and
Allergan Sales, LLC, are represented by:
James P. Muehlberger, Esq.
Lori C. McGroder, Esq.
SHOOK, HARDY & BACON LLP
2555 Grand Boulevard
Kansas City, MO 64108
Telephone: (816) 474-6550
Facsimile: (816) 421-5547
E-mail: jmuehlberger@shb.com
lmcgroder@shb.com
- and -
W. Scott O'Connell, Esq.
NIXON PEABODY LLP
900 Elm Street
Manchester, NH 03101
Telephone: (603) 628-4087
Facsimile: (603) 628-4040
E-mail: soconnell@nixonpeabody.com
Defendant-Appellee Pfizer, Inc., is represented by:
Austin Norris, Esq.
Robyn E. Bladow, Esq.
Shaun Paisley, Esq.
KIRKLAND & ELLIS LLP
333 South Hope Street
Los Angeles, CA 90071
Telephone: (213) 680-8400
E-mail: austin.norris@kirkland.com
robyn.bladow@kirkland.com
shaun.paisley@kirkland.com
Defendants-Appellees Valeant Pharmaceuticals International Inc.,
Bausch and Lomb Incorporated and Aton Pharma Inc. are represented
by:
James P. Muehlberger, Esq.
Lori C. McGroder, Esq.
SHOOK, HARDY & BACON LLP
2555 Grand Boulevard
Kansas City, MO 64108
Telephone: (816) 474-6550
Facsimile: (816) 421-5547
E-mail: jmuehlberger@shb.com
lmcgroder@shb.com
- and -
David B. Chaffin, Esq.
WHITE AND WILLIAMS LLP
101 Arch Street, Suite 1930
Boston, MA 02110
Telephone: (617) 748-5200
Facsimile: (617) 748-5201
E-mail: chaffind@whiteandwilliams.com
Defendants-Appellees Valeant Pharmaceuticals International Inc.,
Prasco, LLC, and Akorn, Inc., are represented by:
David G. Thomas, Esq.
GREENBERG TRAURIG, LLP
One International Place, 20th Floor
Boston, MA 02110
Telephone: (617) 310-6000
Facsimile: (617) 310-6001
E-mail: thomasda@gtlaw.com
Defendants-Appellees Merck & Co., Inc., Merck, Sharp & Dohme Corp.
and Prasco, LLC, are represented by:
Randy J. Soriano, Esq.
Stephen G. Strauss, Esq.
Timothy J. Hasken, Esq.
BRYAN CAVE LLP
211 N. Broadway, Suite 3600
St. Louis, MO 63102
Telephone: (314) 259-2000
Facsimile: (314) 259-2020
E-mail: rjsoriano@bryancave.com
sgstrauss@bryancave.com
tim.hasken@bryancave.com
- and -
Amy Cashore Mariani, Esq.
FITZHUGH & MARIANI LLP
101 Federal Street, Suite 1900
Boston, MA 02110
Telephone: (617) 695-2330
Facsimile: (617) 695-2335
E-mail: amariani@fitzhughlaw.com
- and -
David J. Volkin, Esq.
LAW OFFICES OF DAVID J. VOLKIN
One Boston Place, Suite 2600
Boston, MA 02108
Telephone: (617) 235-7277
E-mail: djvolkin@volkinlaw.com
Defendant-Appellee Akorn, Inc., is represented by:
J. Stanton Hill, Esq.
POLSINELLI PC
1201 West Peachtree Street NW, Suite 1100
Atlanta, GA 30309-3232
Telephone: (404) 253-6000
Facsimile: (404) 253-6060
E-mail: jshill@polsinelli.com
- and -
John M. Kilroy, Esq.
POLSINELLI PC
900 W. 48th Place, Suite 900
Kansas City, MO 02199
Telephone: (816) 753-1000
E-mail: jkilroyjr@polsinelli.com
- and -
Joseph P. Crimmins, Esq.
POSTERNAK, BLANKSTEIN & LUND
Prudential Tower
800 Boylston Street
Boston, MA 02199-8004
Telephone: (617) 973-6273
Facsimile: (617) 722-4915
E-mail: jcrimmins@pbl.com
ALLIED NEVADA: Slomnitsky Appeals Ruling in Securities Litigation
-----------------------------------------------------------------
Plaintiff Andrey Slomnitsky filed an appeal from a court ruling in
the lawsuit styled In re: ALLIED NEVADA GOLD CORP. SECURITIES
LITIGATION, Case No. 3:14-cv-00175-LRH-WGC, in the U.S. District
Court for the District of Nevada, Reno.
The appellate case is captioned as Andrey Slomnitsky v. Scott
Caldwell, et al., Case No. 17-17110, in the United States Court of
Appeals for the Ninth Circuit.
As reported in the Class Action Reporter on Oct 9, 2017, Judge
Larry R. Hicks dismissed with prejudice the second consolidated
amended complaint.
The Plaintiffs filed their first complaint on April 3, 2014. They
brought this federal securities class action on behalf of
investors who purchased stock in Allied from Jan. 18, 2013, to
Aug. 5, 2013. The Court consolidated the case on Nov. 7, 2014,
and named Andrey Slomnitsky as the Lead Plaintiff.
The briefing schedule in the Appellate Case is set as follows:
-- Transcript must be ordered by November 15, 2017;
-- Transcript is due on December 15, 2017;
-- Appellant Andrey Slomnitsky's opening brief is due on
January 24, 2018;
-- Appellees Robert M. Buchan, Randy E. Buffington, Scott A.
Caldwell and Stephen M. Jones' answering brief is due on
February 26, 2018; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiff-Appellant ANDREY SLOMNITSKY, on behalf of himself and
all others similarly situated, is represented by:
David A.P. Brower, Esq.
BROWER PIVEN, A PROFESSIONAL CORPORATION
475 Park Avenue South, 33rd Floor
New York, NY 10016
Telephone: (212) 501-9000
E-mail: brower@browerpiven.com
- and -
Charles J. Piven, Esq.
BROWER PIVEN, A PROFESSIONAL CORPORATION
1925 Old Valley Road
Stevenson, MD 21153
Telephone: (410) 332-0030
E-mail: piven@browerpriven.com
- and -
Joseph David Daley, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway
San Diego, CA 92101
Telephone: (619) 231-1058
E-mail: jdaley@rgrdlaw.com
Defendants-Appellees SCOTT A. CALDWELL, ROBERT M. BUCHAN, RANDY E.
BUFFINGTON and STEPHEN M. JONES are represented by:
Brendan Peter Cullen, Esq.
Nathaniel Lyon Green, Esq.
Laura Kabler Oswell, Esq.
SULLIVAN & CROMWELL LLP
1870 Embarcadero Road
Palo Alto, CA 94303
Telephone: (650) 461-5650
E-mail: cullenb@sullcrom.com
greenj@sullcrom.com
oswelll@sullcrom.com
- and -
Robert A. Sacks, Esq.
SULLIVAN & CROMWELL LLP
1888 Century Park East
Los Angeles, CA 90067-1725
Telephone: (310) 712-6600
E-mail: sacksr@sullcrom.com
- and -
John P. Desmond, Esq.
Anjali Dianne Webster, Esq.
Brian R. Irvine, Esq.
DICKINSON WRIGHT PLLC
100 West Liberty Street, Suite 940
Reno, NV 89501
Telephone: (775) 343-7500
E-mail: jdesmond@dickinsonwright.com
AWebster@dickinson-wright.com
BIrvine@dickinson-wright.com
ALLIED SOLUTIONS: Seventh Cir. Appeal Filed in "Robertson" Suit
---------------------------------------------------------------
Plaintiff Shameca S. Robertson filed an appeal from a court ruling
in the lawsuit styled Shameca Robertson v. Allied Solutions, LLC,
Case No. 1:15-cv-01364-WTL-DML, in the U.S. District Court for the
Southern District of Indiana, Indianapolis Division.
The appellate case is captioned as Shameca Robertson v. Allied
Solutions, LLC, Case No. 17-3196, in the U.S. Court of Appeals for
the Seventh Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Transcript information sheet was due November 7, 2017;
and
-- Appellant's brief is due on or before December 4, 2017, for
Shameca S. Robertson.[BN]
Plaintiff-Appellant SHAMECA S. ROBERTSON, on behalf of herself and
all others similarly situated, is represented by:
Matthew A. Dooley, Esq.
O'TOOLE, MCLAUGHLIN, DOOLEY & PECORA, CO. LPA
5455 Detroit Road
Sheffield Village, OH 44054
Telephone: (440) 930-4001
Facsimile: (440) 934-7208
E-mail: mdooley@omdplaw.com
Defendant-Appellee ALLIED SOLUTIONS, LLC, is represented by:
Jeffrey S. Beck, Esq.
FAEGRE BAKER DANIELS LLP
300 N. Meridian Street
Indianapolis, IN 46204
Telephone: (317) 237-8329
E-mail: jeffrey.beck@FaegreBD.com
AMN SERVICES: Seeks 9th Cir. Review of Decision in "Clarke" Suit
----------------------------------------------------------------
Defendant AMN Services, LLC, filed an appeal from a court ruling
in the lawsuit styled Verna Clarke, et al. v. AMN Services, LLC,
Case No. 2:16-cv-04132-DSF-KS, in the U.S. District Court for the
Central District of California, Los Angeles.
As previously reported in the Class Action Reporter, the lawsuit
was filed in the Superior Court of the State of California for the
County of Los Angeles (Case No. BC619695). The lawsuit was later
removed to the District Court and assigned to the Hon. Dale S.
Fischer.
The appellate case is captioned as Verna Clarke, et al. v. AMN
Services, LLC, Case No. 17-80216, in the United States Court of
Appeals for the Ninth Circuit.[BN]
Plaintiffs-Respondents VERNA MAXWELL CLARKE, an individual on
behalf of herself and others similarly situated, and LAURA
WITTMANN, an individual on behalf of herself and others similarly
situated, are represented by:
Matthew Bryan Hayes, Esq.
Kye D. Pawlenko, Esq.
HAYES PAWLENKO LLP
595 East Colorado Boulevard
Pasadena, CA 91101
Telephone: (626) 808-4357
Facsimile: (626) 921-4932
E-mail: mhayes@helpcounsel.com
kpawlenko@helpcounsel.com
Defendant-Petitioner AMN SERVICES, LLC, DBA Nursechoice, is
represented by:
Steven B. Katz, Esq.
REED SMITH LLP
355 South Grand Avenue
Los Angeles, CA 90071
Telephone: (213) 457-8134
Facsimile: (213) 457-8080
E-mail: skatz@reedsmith.com
- and -
Kenneth D. Sulzer, Esq.
CONSTANGY, BROOKS, SMITH & PROPHETE, LLP
2029 Century Park East, Suite 1100
Los Angeles, CA 90067
Telephone: (310) 909-7775
Facsimile: (424) 276 7410
E-mail: ksulzer@constangy.com
ANADARKO E&P: Bay Appeals D. Colorado Ruling to Tenth Circuit
-------------------------------------------------------------
Plaintiffs Marvin Bay and Mildred Bay filed an appeal from a court
ruling in the lawsuit titled Bay, et al. v. Anadarko E&P Onshore
LLC, et al., Case No. 1:09-CV-02293-MSK-MJW, in the U.S. District
Court for the District of Colorado - Denver.
As previously reported in the Class Action Reporter, the lawsuit
was brought against the Defendants alleging that the Defendants'
lessees trespassed by using oil and gas drills with a larger
footprint on the surface estate than the Defendants were legally
entitled to use.
The appellate case is captioned as Bay, et al. v. Anadarko E&P
Onshore LLC, et al., Case No. 17-1374, in the United States Court
of Appeals for the Tenth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Docketing statement, Transcript order form and Notice of
Appearance were due November 2, 2017, for Marvin Bay and
Mildred Bay; and
-- Notice of appearance was due November 2, 2017, for
Anadarko E&P Onshore LLC, and Anadarko Land
Corporation.[BN]
Plaintiffs-Appellants MARVIN BAY and MILDRED BAY, Co-Trustees of
the Bay Family Trust, individually and on behalf of all others
similarly situated; and Plaintiffs VERNON JESSER, MARY JESSER,
KENT J. MCDANIEL and DEANNA R. MCDANIEL are represented by:
Lance Astrella, Esq.
Steven Louis-Prescott, Esq.
ASTRELLA LAW PC
1801 Broadway, Suite 1600
Denver, CO 80202
Telephone: (303) 292-9021
Facsimile: (303) 296-6347
E-mail: lance@astrellalaw.com
steven@astrellalaw.com
- and -
George Barton, Esq.
Stacy Ann Burrows, Esq.
LAW OFFICES OF GEORGE A. BARTON
7227 Metcalf, Suite 301
Overland Park, KS 66204
Telephone: (913) 563-6250
E-mail: gab@georgebartonlaw.com
stacy@georgebartonlaw.com
- and -
Donald M. Ostrander, Esq.
DUNCAN, OSTRANDER & DINGESS, P.C.
3600 South Yosemite Street, Suite 500
Denver, CO 80237-1829
Telephone: (303) 779-0200
E-mail: dostrander@hrodlaw.com
Plaintiffs VERNON JESSER, MARY JESSER, KENT J. MCDANIEL and DEANNA
R. MCDANIEL are represented by:
Stephanie Marie Ceccato, Esq.
DUNCAN, OSTRANDER & DINGESS, P.C.
3600 South Yosemite Street, Suite 500
Denver, CO 80237-1829
Telephone: (303) 779-0200
Defendants-Appellees ANADARKO E&P ONSHORE LLC and ANADARKO LAND
CORPORATION are represented by:
Jeffrey Max Lippa, Esq.
Lindsay Nicole Uhl, Esq.
John Voorhees, Esq.
GREENBERG TRAURIG LLP
1200 17th Street, Suite 2400
Denver, CO 80202
Telephone: (303) 572-6500
E-mail: LippaJ@gtlaw.com
uhll@gtlaw.com
voorheesj@gtlaw.com
ANTHONY SOLOMON: Nearly 100 People Join Voyeurism Class Action
--------------------------------------------------------------
Luke Hendry, writing for The Intelligencer, reports that nearly
100 people have registered for a class-action lawsuit against the
estate of a late Belleville orthodontist charged with voyeurism
and child pornography offences.
Trenton lawyer Kris Bonn -- krisbonn@bonnlaw.ca -- and Toronto
firm Thomson, Rogers are co-counsels in the case against Dr.
Anthony Garry Solomon, 69, who had retired and whom lawyers say
died recently of cancer.
Belleville police said in July they had since February been
investigating Solomon.
Police from Belleville and Toronto on July 12 searched
Dr. Solomon's home on the Toronto harbourfront, seizing hundreds
of videos which the claim describes as being "sexual in nature and
included video recordings of the victims' breasts."
Officers charged Dr. Solomon with separate counts of voyeurism --
surreptitiously recording images of both children and adults --
plus making child pornography and possession of child pornography.
They released him with strict conditions.
"We're going to be asking the court for permission to proceed
against the state, which is a requirement any time someone passes
away," lawyer Darcy Merkur of Thomson, Rogers said on Oct. 25 in a
telephone interview.
"We've got close to 100 people registered . . . maybe more than
100," Mr. Merkur said, adding they're divided between his firm and
Mr. Bonn's. Mr. Bonn was out of the office on Oct. 25 and
unavailable for comment.
Mr. Merkur represents a now 28-year-old woman who charges she was
recorded while she was 15 and Dr. Solomon's patient. Mr. Bonn
represents another former patient, listed only as Jane Doe, whom a
statement of claim alleges was recorded by Dr. Solomon while she
was 13.
The claims have not been proven in court. Anything may be alleged
in a statement of claim.
A publication ban in the criminal case against Dr. Solomon
prohibits publication of the names of complainants in the case
unless they provide written consent to the court.
Since learning of the allegations against Dr. Solomon, the claim
states, Doe distrusts men working in health care and is worried
about whether the videos have been shared with others, maybe made
public and who has seen them.
"The defendant video recorded the victims for his sexual
gratification," it claims.
"Throughout the many years he practised as an orthodontist, the
defendant would surreptitiously video record the victims during
the course of providing them with treatment," the statement reads,
adding Dr. Solomon never told patients of the recordings, which he
kept, it continues.
The police investigation identified about 400 patients, most of
whom were younger than 18, who had been recorded, the claim
states.
"They're seeking general damages," Mr. Merkur said.
"You all sue for the same thing," he said of class action suits.
In this case, he said, it's a matter of "intrusion on seclusion."
"It's basically a breach of privacy.
"The lawsuit collectively seeks many millions of dollars in
damages to be distributed amongst the several hundred potential
class members," Mr. Merkur said.
He added lawyers of his firm will "probably work within" the claim
filed by Mr. Bonn, but discussions continue.
Lawyers in the criminal case against Dr. Solomon, meanwhile, were
set to appear in Belleville court. [GN]
AURORA BEHAVIORAL: Court Dismisses "Fredeking" Suit w/o Prejudice
-----------------------------------------------------------------
Judge Cathy Ann Bencivengo of the U.S. District Court for the
Southern District of California granted the Defendant's motion to
dismiss the case captioned ROBERT FREDEKING and CRYSTAL ARANDA,
Plaintiffs, v. AURORA BEHAVIORAL HEALTH CENTER, INC., Defendant,
Case No. 3:17-CV-01807-CAB-(KSC) (S.D. Cal.).
On Sept. 20, 2017, the Defendant filed a motion to dismiss. More
than a month has passed, and the Plaintiffs have not filed an
opposition. District courts have broad discretion to enact and
apply local rules, including dismissal of a case for failure to
comply with the local rules. That Plaintiffs are proceeding pro
se in the action does not excuse their failure to follow the rules
of procedure that govern other litigants.
The Defendant filed proof of service of the motion, signaling that
the Plaintiffs were served at the address provided on the face of
the complaint. The motion had a noticed hearing date of Oct. 25,
2017. Therefore, the Plaintiffs' opposition to the motion was due
on Oct. 11, 2017. As of the date of the Order, the Plaintiffs
have not filed a response.
Additionally, Judge Bencivengo has reviewed the complaint and
notes that it fails to identify any claims asserted against the
Defendant and does not set forth any factual allegations.
Furthermore, the complaint purports to be a class action and a
plaintiff appearing pro se cannot act as counsel for a class.
In light of the foregoing, Judge Bencivengo granted Defendant's
motion to dismiss. Accordingly, the complaint is dismissed
without prejudice.
A full-text copy of the Court's Oct. 27, 2017 Order is available
at https://is.gd/XL4GjN from Leagle.com.
Robert Fredeking, Plaintiff, Pro Se.
Crystal Aranda, Plaintiff, Pro se.
Aurora Behavioral Health Center, Inc., Defendant, represented by
James R. Rogers -- jsr@jsrogerslaw.com -- Law Offices of James R
Rogers.
AUSTRALIA: Immigration Minister Faces Asylum Seeker Class Action
----------------------------------------------------------------
Michael Koziol, writing for The Sydney Morning Herald, reports
that Immigration Minister Peter Dutton has been hit with another
class action lawsuit brought on behalf of asylum seekers detained
under Labor and Coalition governments over the past six years.
Documents filed in the Federal Court allege a four-year-old boy,
born in Darwin and detained on Christmas Island with his asylum
seeker parents, was detained for no valid purpose and thus
unlawfully.
Law firm Maurice Blackburn estimates "thousands" of asylum seekers
are eligible to join the lawsuit, arguing their detention was
unlawful because the government did not actively pursue their visa
claims.
Mr Dutton would not comment on a matter before the courts, but has
previously noted his department is the most litigated of all
Commonwealth bureaucracies "due to Labor's failed border
policies".
Only in September the Turnbull government settled a $70 million
payout to nearly 2000 asylum seekers detained on Manus Island,
plus $20 million in legal costs -- avoiding a lengthy and
difficult trial.
That was not an admission of liability, but "decisions on how to
resolve legal matters are made on a case-by-case basis informed by
legal advice", Mr Dutton said at the time.
Numerous challenges to the legality of Australia's immigration
detention regime have failed, but Maurice Blackburn lawyer
Jennifer Kanis said this lawsuit was based on new, untested
claims.
"The points that we raise in our case have never been tested by
the court," she said. "This case has potentially wide-ranging
implications for the way Australia detains people who are seeking
asylum."
The four-year-old lead plaintiff in the claim was detained for 480
days from September 2013. Lawyers allege the government failed to
pursue his visa claim, nor was he detained for the purpose of
removal offshore, and therefore his detention had no legal basis.
Once officials "turned their minds" to his claim, the boy was
granted a bridging visa within three days, documents claim. The
suit does not contend all detention is unlawful but that it "must
only ever be used when there is a clear purpose", Ms Kanis said.
The claim was filed on October 19 and lawyers will next be heard
in December.
Meanwhile, a scathing new report has substantiated fears about a
looming tide of violence and unrest accompanying the closure of
Australia's detention centre on Manus Island.
Human Rights Watch interviewed 40 refugees and asylum seekers, as
well as service providers, in September, alleging a spate of
brutal attacks that were never properly investigated.
One Iranian refugee said he was robbed at knifepoint by seemingly
drunk young men armed with machetes, while another man was
allegedly hit with a metal rod and sustained injuries so severe he
had to be treated in Brisbane.
There were three serious attacks since June requiring medical
evacuation, the group found, and many refugees now afraid leaving
the regional processing centre.
Human Rights Watch Australia director Elaine Pearson said
refugees' concerns about the centre's looming closure -- and their
decision to physically resist it -- were justified.
"I don't blame them," she said. "The situation has deteriorated.
Things feel very tense now on the island in a way that they didn't
two years ago. It's a very volatile situation and I'm really
quite concerned."
Ms Pearson said Australia should send Australian Federal Police
officers to assist local Manusian police and "help ensure that
crimes committed are fully investigated".
The Australian government has denied refugees are unsafe in Papua
New Guinea. Immigration Department bureaucrats told a Senate
estimates hearing many men voluntarily made trips into Lorengau
township every day.
Gillian Triggs, former boss of the Australian Human Rights
Commission, also blasted the "illegal, cruel and unworkable" Manus
regime in a fiery speech to refugee activists on Oct. 25.
She said Australia had a "shameful history of chronic failure to
comply with our human rights obligations" and labelled it "ironic"
Australia was now taking a seat on the UN Human Rights Council.
[GN]
AUSTRALIA: Aldermen Criticized Over Class Action Meeting Absence
----------------------------------------------------------------
Chris McLennan, writing for Katherine Times, reports that
Katherine Town Council was questioned on their absence from a
class action meeting in Katherine.
Katherine Town Council aldermen have been criticised for not
attending a big class action public meeting in Katherine.
More than 250 residents attended the second of two public meetings
with law firms discussing PFAS contamination of land and water.
During the question and answer session before last night's council
meeting, the council was questioned over not being represented at
either meeting.
Mayor Fay Miller said she was offended at one comment which
claimed the non-attendance showed the council did not care.
"This is a highly emotive issue and we are all doing the best we
can.
"I take offence at being told we don't care, we do care," Cr
Miller said.
Several of the aldermen said they had not attended the Shine
Lawyers meeting on Oct. 19 as the development of a law suit was
not a council issue but a matter for individuals.
Mayor Miller said the council was not contemplating any law suit
against the Department of Defence.
Alderman Cr Peter Gazey said he considered the class action
meeting was a matter for individuals and not council, which is why
he did not attend.
Alderman Liz Clark said she was personally concerned for herself
and her family about the long-term impact of PFAS.
"We don't know what impact this has on us or on our community,"
she said.
Alderman Clark said she was also offended at the suggestion
council did not care.
"To attend a class action meeting like this was a personal
decision, not a council one," she said.
"IO have been to all the PFAS meetings as an elected member," she
said.
"I did not think it was appropriate for me to attend as an
alderman," she said.
Alderman Toni Tapp-Coutts said "we are all in this together". [GN]
BANCO BRADESCO: Court Narrows Claims in Securities Suit
-------------------------------------------------------
The United States District Court for the Southern District of New
York issued an Opinion and Order granting in part and denying in
part Defendant's Motion to Dismiss the case captioned In re BANCO
BRADESCO S.A. SECURITIES LITIGATION, No. 1:16-cv-4155-GHW
(S.D.N.Y.).
This putative class action arises indirectly out of Operacao
Zelotes (Operation Zealots), a multi-year investigation by
Brazilian authorities into allegedly widespread corporate bribery
of Brazilian tax officials. As a result of Operation Zealots,
Defendants Luiz Carlos Trabuco Cappi (Trabuco), Domingos
Figueiriedo de Abreu, and Luiz Carlos Angelotti (Angelotti)
(Individual Defendants), each senior executives of Defendant Banco
Bradesco S.A. (Company), were indicted by the Brazilian Federal
Police on charges of violating Brazilian anti-corruption laws
through an alleged scheme to unlawfully obtain favorable tax
treatment and tax rulings for Bradesco.
According to the amended complaint, each of the Individual
Defendants was named as a defendant in the Criminal Complaint for
his role in Bradesco's tax bribery scheme. Plaintiff alleges that
Trabuco and Angelotti made a series of false or misleading
statements in SEC and CVM filings during the Class Period, while
Abreu made one false or misleading statement in an SEC filing and,
by virtue of his committee membership, was involved in the
preparation and review of the false or misleading statements in
Bradesco's SEC and CVM filings.
The Federal Police indicted Trabuco, Abreu, and Angelotti. Based
on the information in the indictment and the police report
compiled by the Federal Police, the MPF filed a criminal complaint
against Trabuco, Abreu, Angelotti, Teixeira, Leite, Pagnozzi,
Tamazato, Victor, Nascimento, and Salazar.
Defendants have moved to dismiss the operative complaint on
several grounds. In addition, Defendant Abreu has moved to
dismiss the claims against him for lack of personal jurisdiction.
Personal Jurisdiction over Defendant Abreu
Defendant Abreu contends that the claims against him should be
dismissed for lack of personal jurisdiction. Because Abreu
challenges the assertion of personal jurisdiction based solely on
the allegations in the amended complaint, the Court's task is to
determine whether Plaintiff has established a prima facie showing
of personal jurisdiction over him.
Personal Jurisdiction Under the Exchange Act
In determining whether it may exercise personal jurisdiction over
a defendant, the Court must conduct a two-step inquiry. First, the
Court must determine whether there is a statutory basis for
exercising personal jurisdiction. A federal court applies the
forum state's personal jurisdiction rules unless a federal statute
specifically provides for national service of process. Second, the
Court must determine whether the exercise of personal jurisdiction
over the defendant would comport with due process under the
Constitution.
Abreu makes no argument whatsoever that jurisdiction over him
would be unreasonable, and so he has failed to present the
compelling case" necessary to defeat jurisdiction. Nevertheless,
the Court has evaluated the factors underlying the reasonableness
inquiry and does not find any compelling basis to conclude that
the exercise of jurisdiction over Abreu would be unreasonable. In
evaluating the reasonableness of jurisdiction, the Court is
required to consider: (1) the burden that the exercise of
jurisdiction will impose of the defendant; (2) the interests of
the forum state in adjudicating the case; (3) the plaintiff's
interest in obtaining convenient and effective relief; (4) the
interstate judicial system's interest in obtaining the most
efficient resolution of the controversy; and (5) the shared
interest of the states in furthering substantive social policies.
Because Abreu has not provided the Court with any argument on
these factors, the only potential burden the Court can imagine the
litigation to impose on him is the inconvenience of litigating in
a foreign forum. In the absence of some particular argument by
Abreu about the inconvenience this litigation would pose, the
Court cannot conclude that this is the rare case in which
inconvenience is so substantial as to achieve constitutional
magnitude. With respect to the second factor, because this is a
case brought under U.S. federal law, the judicial system has a
strong interest in resolving it here. Additionally, Plaintiff's
interest in obtaining a convenient and efficient resolution of
this dispute is self-evidently strong.
The Court therefore finds that the exercise of jurisdiction over
Abreu is not unreasonable.
Accordingly, the Court concludes that Plaintiff has met its burden
at this stage of the litigation of establishing a prima facie case
of personal jurisdiction over Abreu.
Section 10(b)/Rule 10b-5 Claim
Defendants challenge the sufficiency of Plaintiff's allegations as
to only two elements of their Section 10(b) claim: (i) Defendants'
materially false or misleading statements or omissions and (ii)
Defendants' scienter.
Materially False or Misleading Statements or Omissions
A statement or omission is material if there is a substantial
likelihood that a reasonable shareholder would consider it
important in deciding how to act. In other words, in order for the
misstatement to be material, 'there must be a substantial
likelihood that the disclosure of the omitted fact would have been
viewed by the reasonable investor as having significantly altered
the total mix of information made available.
Because the determination of whether a false or misleading
statement is material requires courts to engage in a fact-specific
inquiry that depends on all relevant circumstances, and because
materiality is a mixed question of law and fact, a complaint may
not properly be dismissed on the ground that the alleged
misstatements or omissions are not material unless they are so
obviously unimportant to a reasonable investor that reasonable
minds could not differ on the question of their importance.
Statements About Bradesco's ICFR and Disclosure Controls
Plaintiff makes in its opposition brief with respect to this
category of alleged misstatements. It fails, however, because, as
the Court has already explained, Plaintiff fails adequately to
allege that anyone within the Company was aware that tax credits
obtained were in any way unlawful, a deficiency that precludes
both a finding of scienter and the Company's ability to have
accounted for its payments as bribes, as Plaintiff asserts should
have been done.
Similarly, the Court has already concluded that Plaintiff has
failed adequately to allege that the payments made to Pagnozzi and
Victor between 2007 and 2015 were bribes. Moreover, the amended
complaint itself concedes that no other payments were exchanged,
and that the other alleged bribery schemes were never consummated.
For those reasons, even if it were sufficient to allege that the
controls were not in fact effective, the Court concludes that
Plaintiff has failed to allege that Bradesco's internal controls
relating to financial reporting were ineffective.
Plaintiff has failed to allege with requisite specificity why the
Company's statements concerning its ICFR and disclosure controls
were false or misleading.
Risk Factors in Forms 20-F and in Reference Forms
Plaintiff also alleges that the risk factor disclosures made in
Item 3.D of Bradesco's Forms 20-F were materially false or
misleading because the Company failed to disclose (i) the risk
that public disclosure of the bribery scheme would result in
Bradesco's executives facing criminal charges in Brazil; (ii) the
risk that public disclosure of the bribery scheme would result in
the Company and/or its executives incurring fines and penalties
related to the tax credits that Bradesco illegally obtained; (iii)
the risk that public disclosure of the bribery scheme would result
in the Company's liability pursuant to the Foreign Corrupt
Practices Act of 1977 and/or other criminal or civil penalties in
the United States; and (iv) the risk that public disclosure of the
bribery scheme would result in a loss of investor confidence and a
corresponding decline in the price of Bradesco PADS.
To the extent that Plaintiff also challenges the risk factors
disclosed in the Company's Reference Forms, the above analysis
applies equally to that challenge. The Reference Forms contained
the same disclosures concerning investigations and legal
proceedings that the Company included in its Forms 20-F. Because
Plaintiff does not identify any duty for a company to disclose in
its Reference Forms information that it need not disclose in its
Forms 20-F, the Court's analysis above leads to the same
conclusion here: Plaintiff has not pleaded any actionable
misstatements or omissions related to risk factors.
SOX Certifications
The Court next addresses Plaintiff's allegations that Trabuco's
SOX certifications were false or misleading.
Plaintiff challenges as false or misleading Trabuco's Section 302
certification that, based on his knowledge, this report does not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of
the circumstances under which they were made, not misleading with
respect to the period covered by this report. Plaintiff contends
that that statement was false or misleading because Bradesco's
Forms 20-F did, in fact, omit material facts.
This statement, and Plaintiff's corresponding argument, merely beg
the question that is the entire subject of this opinion. To the
extent that the Court finds Plaintiff to adequately have alleged
that Trabuco made any actionable misstatements or omissions in
Bradesco's Forms 20-F with the requisite scienter in other
portions of this opinion, Plaintiff may proceed both on any such
misstatement or omission and this portion of Trabuco's SOX
certification.
Reference Form Certifications
Plaintiff further challenges statements made by Trabuco and
Angelotti in Bradesco's Reference Forms that the set of
information contained therein is a true, accurate, and complete
description of the issuer's economic financial outcomes and of the
risks inherent to its activities and securities issued.
The Court is mindful again here of the maxim that, absent an
express prior disclosure, a corporation has no affirmative duty to
speculate or disclose uncharged, unadjudicated wrongdoing or
mismanagement. Plaintiff contends, in essence, that Trabuco's and
Angelotti's statement that its risk disclosures were complete
constituted an express prior disclosure that gave rise to such a
duty.
However, the Reference Forms did disclose the risks stemming from
the bribery scheme; they simply did in so in a less detailed and
specific manner than Plaintiff would have liked. Because Plaintiff
provides the Court with no case law stating that a generalized
statement that a company's risk disclosures were complete gives
rise not only to a duty to disclose the risks that could ensue
from uncharged conduct, but also to effectively disclose the
uncharged conduct itself, the Court concludes that Bradesco's risk
disclosures were sufficiently complete.
Accordingly, Plaintiff has not adequately alleged that Trabuco's
and Angelotti's Reference Form certifications were false or
misleading.
Code of Ethical Conduct and Anti-Corruption Statements
Having determined that Plaintiff has adequately alleged that these
statements were materially false or misleading, the Court must
determine who made them within the meaning of Janus, as
interpreted to preclude application of the group-pleading/group-
published documents doctrine. First, because the Management Report
is expressly attributed to Bradesco's Board of Directors and Board
of Executive Officers and because each of the Individual
Defendants was a member of one of those boards. Plaintiff has
adequately alleged that both the Company and each of the
Individual Defendants made those statements.
With respect to each of the other statements in this category,
which are found in the Company's Forms 20-F, the Court concludes
that only Bradesco and Trabuco are their makers. Trabuco is the
only Individual Defendant who signed the 20-Fs, and Plaintiff does
not allege any other facts suggesting that Angelotti or Abreu had
any form of ultimate authority over those statements.
Scienter
Notwithstanding, no defendant may be held liable for any of the
false or misleading statements unless Plaintiff has stated with
particularity facts giving rise to a strong inference that the
defendant acted with the required state of mind. Scienter has been
defined by the Supreme Court as a mental state embracing intent to
deceive, manipulate, or defraud.
Plaintiff does not allege the kind of motive that is recognized in
this circuit as supporting a strong inference of scienter on the
part of any of the Individual Defendants, namely, a concrete and
personal benefit from the fraud. In attempting to show that a
defendant had fraudulent intent, it is not sufficient to allege
goals that are possessed by virtually all corporate insiders, such
as the desire to sustain the appearance of corporate profitability
or the success of an investment, or the desire to maintain a high
stock price in order to increase executive compensation. And while
Plaintiff alleges that the Individual Defendants were personally
motivated to conceal the tax bribery scheme from the public in
order to avoid potential criminal liability, prosecution and
imprisonment, the Second Circuit has held that the avoidance of
personal liability motive is too speculative and conclusory to
support scienter. Such a motive, if accepted as sufficient to
allege a strong inference of scienter, would apply to every
defendant in every case, effectively rendering the scienter
requirement a nullity.
Accordingly, the Court considers, in turn, whether Plaintiff has
alleged that each defendant possessed scienter on the other
recognized bases.
Abreu
The Court concludes that Plaintiff has failed to allege a strong
inference of scienter as to Abreu with respect to the press
release, the only statement that he made within the meaning of
Janus. The amended complaint simply contains no allegation that
Abreu was involved in or knew of the alleged bribery scheme prior
to his attendance at the meeting, or that he had access to facts
about the alleged scheme before that time.
Plaintiff does not allege that Abreu made the statement with the
requisite state of mind to sustain a claim against him under
Section 10(b).
Angelotti
By contrast, Plaintiff unquestionably pleads a strong inference of
scienter as to Angelotti for all statements that he made.
Plaintiff adequately alleges with particularity that Angelotti was
knowingly involved in the scheme to bribe Leite and then to
influence CARF proceedings beginning on that date. That is all
that is needed to allege a strong inference of scienter.
Trabuco
The Court has considered the alternative inference that Defendants
ask the Court to adopt namely, that because Trabuco attended those
meetings only briefly, he was not aware of the illicit dealings
being discussed but the Court cannot conclude that the inference
that Trabuco was aware of the subject of the meetings is not at
least as plausible. To be sure, there could be alternate
explanations for those facts, but where, as here, the inculpatory
inference is at least as compelling as any plausible opposing
inferences, the tie goes to the plaintiff.
Bradesco
A plaintiff may adequately plead scienter as to a corporate
defendant "by pleading facts sufficient to create a strong
inference either (1) that someone whose intent could be imputed to
the corporation acted with the requisite scienter or (2) that the
statements would have been approved by corporate officials
sufficiently knowledgeable about the company to know that those
statements were misleading.
Plaintiff has not filled in that gap through the allegations in
the amended complaint. As a result, it is impossible for the Court
to impute any individual's scienter to Bradesco with respect to
that statement. Moreover, the Court cannot conclude that Plaintiff
has adequately alleged that the statement would have been approved
by a corporate official knowledgeable enough about the company to
know that the statement was misleading.
Plaintiff alleges nothing about Bradesco's internal processes for
making statements to the press. While it is certainly conceivable
that Trabuco, Angelotti, or Abreu (the only officials alleged to
have known about the bribery scheme at that time) approved, or
would have approved, the statement, mere possibility is
insufficient to give rise to a strong inference of scienter.
Accordingly, all claims relating to the December 4, 2015 comment
made by Bradesco in the O Estado article are dismissed.
A full-text copy of the District Court's September 29, 2017
Opinion and Order is available at http://tinyurl.com/y7w342h6from
Leagle.com.
Public Employees' Retirement System of Mississippi, Lead
Plaintiff, represented by Alfred Louis Fatale, III --
afatale@labaton.com -- Labaton & Sucharow LLP.
Public Employees' Retirement System of Mississippi, Lead
Plaintiff, represented by Michael Walter Stocker --
mstocker@labaton.com -- Labaton & Sucharow LLP, Andrew L. Zivitz -
- azivitz@ktmc.com -- Kessler Topaz Meltzer & Check, LLP,
Johnston de Forest Whitman, Jr. -- jwhitman@ktmc.com -- Kessler
Topaz Meltzer & Check, LLP, Margaret E. Onasc -- monasch@ktmc.com
-- Kessler Topaz Meltzer & Check, LLP & Richard A. Russo, Jr. --
rrusso@ktmc.com -- Kessler Topaz Meltzer & Check, LLP.
William Bryan, Plaintiff, represented by Phillip C. Kim --
pkim@rosenlegal.com -- The Rosen Law Firm P.A..
Louis Jean, Movant, represented by Phillip C. Kim, The Rosen Law
Firm P.A..
Public School Teachers Pension and Retirement Fund of Chicago,
Movant, represented by Robert Mark Roseman --
rroseman@srkattorneys.com -- Spector, Roseman & Kodroff Willis,
P.C..
Policemens Annuity and Benefit Fund of Chicago, Movant,
represented by Robert Mark Roseman, Spector, Roseman & Kodroff
Willis, P.C..
Banco Bradesco S.A., Defendant, represented by Richard C.
Pepperman, II -- peppermanr@sullcrom.com -- Sullivan and Cromwell,
LLP, Marc De Leeuw -- deleeuwm@sullcrom.com -- Sullivan and
Cromwell, LLP, Marina Miller -- millermar@sullcrom.com -- Sullivan
& Cromwell LLP & Owen Richard Wolfe -- owolfe@seyfarth.com --
Seyfarth Shaw LLP.
Luiz Carlos Trabuco Cappi, Defendant, represented by Marc De Leeuw
-- deleeuwm@sullcrom.com -- Sullivan and Cromwell, LLP, Marina
Miller -- Sullivan & Cromwell LLP & Richard C. Pepperman, II,
peppermanr@sullcrom.com -- Sullivan and Cromwell, LLP.
Luiz Carlos Angelotti, Defendant, represented by Marc De Leeuw,
Sullivan and Cromwell, LLP, Marina Miller, Sullivan & Cromwell LLP
& Richard C. Pepperman, II, Sullivan and Cromwell, LLP.
BARCLAYS BANK: Askelson Appeals Ruling in Securities Litigation
---------------------------------------------------------------
Dennis Askelson, one of the Plaintiffs in the consolidated lawsuit
styled In re Barclays Bank Plc Securities Litigation, Case No. 09-
cv-1989, in the U.S. District Court for the Southern District of
New York (New York City), filed an appeal from the District
Court's opinion & order dated September 13, 2017, and the District
Court's judgment dated September 14, 2017.
As previously reported in the Class Action Reporter, in early
2009, purchasers from the four offerings filed several class
action complaints alleging Defendants made material
misrepresentations in the offering materials that, when later
disclosed, resulted in the decline in the shares' value, in
violation of Sections 11, 12(a)(2) and 15 of the Securities Act.
One such suit, brought by Beverly Pellegrini on April 8, 2009,
dealt with the Series 5 offering. Pellegrini v. Barclays Bank
Plc, 09 cv 3608.
In December 2009, the Court consolidated the cases, including the
Pellegrini case, and appointed Marshall Freidus, Stewart Thompson
and Dora Mahboubi as lead plaintiffs.
The appellate case is captioned as In re Barclays Bank Plc
Securities Litigation, Case No. 17-3293, in the United States
Court of Appeals for the Second Circuit.[BN]
Plaintiff-Appellant Dennis Askelson is represented by:
Andrew J. Brown, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway
San Diego, CA 92101
Telephone: (619) 231-1058
E-mail: andrewb@rgrdlaw.com
Defendants-Appellees Barclays Bank PLC, Barclays PLC, John
Silverster Varley, Robert Edward Diamond, Jr., Richard Broadbent,
Richard Leigh Clifford, Sandra J.N Dawson, Andrew Likierman, Nigel
Rudd, Stephen George Russell, John Michael Sunderland, Marcus
Agius, Christopher Lucas, Gary A. Hoffman, Frederik Seegers, David
G. Booth, Fulvio Conti and Daniel Cronje are represented by:
David H. Braff, Esq.
SULLIVAN & CROMWELL LLP
125 Broad Street
New York, NY 10004
Telephone: (212) 558-4705
E-mail: braffd@sullcrom.com
Defendants-Appellees Barclays Capital Securities Limited,
Citigroup Global Markets, Inc., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Wachovia Capital Markets, LLC, Morgan Stanley
& Co. LLC, UBS Securities LLC, RBC Dain Rauscher, Inc. and Banc of
America Securities, LLC, are represented by:
Jay B. Kasner, Esq.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
4 Times Square
New York, NY 10036
Telephone: (212) 735-3000
E-mail: jay.kasner@skadden.com
BAYER & MERCK: Faces Class Action Over Copperstone SPF Claims
-------------------------------------------------------------
Courthouse News Service reported that a class claims in a federal
lawsuit that Bayer & Merck's Coppertone Sport High Performance
sunscreen spray does not have the advertised Sun Protection Factor
rating of 30+, as testing revealed an SPF rating of 30 or lower.
BLOOMBERG LP: Appeals Class Certification in "Roseman" Suit
-----------------------------------------------------------
Defendant Bloomberg L.P. filed an appeal from a court ruling
granting the Plaintiffs' motion for certification of a class
pursuant to the New York Labor Law in the lawsuit titled ERIC
MICHAEL ROSEMAN, ALEXANDER LEE, WILLIAM VAN VLEET, individually
and on behalf of others similarly situated v. BLOOMBERG L.P., Case
No. 1:14-cv-02657-DLC-KNF, in the U.S. District Court for the
Southern District of New York.
The NYLL class is defined as: "all representatives in the
Analytics department in New York who were not paid time and one-
half for hours over 40 worked in one or more weeks at any time
within the six years preceding the filing of this Complaint and
the date of final judgment in this matter."
The appellate case is captioned as ERIC MICHAEL ROSEMAN, ALEXANDER
LEE, WILLIAM VAN VLEET, individually and on behalf of others
similarly situated v. BLOOMBERG L.P., in the United States Court
of Appeals for the Second Circuit.
Bloomberg wants the Second Circuit to determine whether the
District Court's decision to certify these massive overtime class
actions was questionable in light of the materially different
duties performed by Bloomberg's Analytics Representatives and the
materially different ways in which they discharged those duties.
As previously reported in the Class Action Reporter on Oct. 13,
2017, Judge Denise Cote issued an opinion and order granting the
Motion. The Plaintiffs bring this collective and putative class
action against Bloomberg, asserting that it failed to compensate
Analytics Representatives for overtime work as required by federal
and state laws, including the NYLL.[BN]
The Plaintiffs are represented by:
Dan Getman, Esq.
Lesley Tse, Esq.
Artemio Guerra, Esq.
GETMAN SWEENEY, PLLC
9 Paradies Lane
New Paltz, NY 12561
Telephone: (845) 255-9370
Facsimile: (845) 255-8649
E-mail: dgetman@getmansweeney.com
ltse@getmansweeney.com
aguerra@getmansweeney.com
The Defendant is represented by:
Matthew W. Lampe, Esq.
Terri L. Chase, Esq.
Kristina A. Yost, Esq.
JONES DAY
250 Vesey Street
New York, NY 10281
Telephone: (212) 326-3939
E-mail: mwlampe@jonesday.com
kyost@jonesday.com
- and -
Shay Dvoretzky, Esq.
Jeffrey R. Johnson, Esq.
JONES DAY
51 Louisiana Avenue, N.W.
Washington, DC 20001
Telephone: (202) 879-3939
E-mail: sdvoretzky@jonesday.com
jeffreyjohnson@jonesday.com
BLUE CROSS: Second Circuit Appeal Filed in "Mahajan" Class Suit
---------------------------------------------------------------
Plaintiff Jacqueline Wyka Mahajan filed an appeal from the
District Court's memorandum and order entered on September 22,
2017, in the lawsuit entitled Mahajan v. Blue Cross Blue Shield
Association, Case No. 16-cv-6944, in the U.S. District Court for
the Southern District of New York (New York City).
The lawsuit arose from insurance-related issues.
As previously reported in the Class Action Reporter, the lawsuit
alleges that the Defendant's representations concerning the
availability of covered benefits under its Service Benefit Plan
were materially false.
The appellate case is captioned as Mahajan v. Blue Cross Blue
Shield Association, Case No. 17-3400, in the United States Court
of Appeals for the Second Circuit.[BN]
Plaintiff-Appellant Jacqueline Wyka Mahajan, individually and as
guardian ad litem for G.D. Mahajan for themselves and on behalf of
all others similarly situated, is represented by:
Damon McDougal, Esq.
LAW OFFICES OF DAMON MCDOUGAL, LLC
300 Winston Drive
Cliffside Park, NJ 07010
Telephone: (973) 536-5470
E-mail: mcdougallaw.dm@gmail.com
Defendant-Appellee Blue Cross Blue Shield Association is
represented by:
Adam P. Feinberg, Esq.
MILLER & CHEVALIER CHARTERED
900 16th Street, NW
Washington, DC 20006
Telephone: (202) 626-6087
Facsimile: (202) 626-5801
E-mail: afeinberg@milchev.com
BMW: Faces Class Action in Canada Over Defective N20 Engine
-----------------------------------------------------------
Strosberg Sasso Sutts LLP on Oct. 25 disclosed that a class action
was commenced against BMW. The Plaintiff, Patricia North, alleges
the 2.0L turbocharged N20 engine in certain BMW vehicles contains
dangerous defects that BMW has known about since at least 2013.
The Class Action was filed in the Ontario Superior Court of
Justice on behalf of all Canadians who purchased or leased a
model-year 2012-2015 BMW vehicle equipped with the N20 engine.
The Plaintiff alleges that the timing chain assemblies and the oil
pump chain assemblies installed on the N20 engine are prone to
premature failure and can cause catastrophic engine damage. BMW
has never issued a recall for the defective assemblies.
The lawsuit seeks $250 million in damages and an additional $25
million in punitive damages.
Vehicle owners wishing to obtain more information can visit
https://www.strosbergco.com/class-actions/bmw/.
Strosberg Sasso Sutts LLP -- http://www.strosbergco.com-- is one
of Canada's preeminent boutique litigation law firms. The firm
has recovered more than $2 billion dollars for its clients.
For further information: If you would like to speak to someone
about this lawsuit, please contact Strosberg Sasso Sutts LLP at 1-
519-561-6296. [GN]
BMW OF NORTH AMERICA: Somma Appeals Approval of "Catalano" Deal
---------------------------------------------------------------
Louis T. Somma filed an appeal from a District Court order
granting the Plaintiff's unopposed motion for final approval of
class action settlement entered on July 28, 2017, in the lawsuit
titled Catalano v. BMW of North America, LLC, et al., Case No. 15-
cv-4889, in the U.S. District Court for the Southern District of
New York (New York City).
As previously reported in the Class Action Reporter, Mr. Catalano
commenced the action in June 2015, on behalf of himself and all
others similarly situated, alleging that the Defendants
fraudulently concealed and failed to address alleged safety
defects present in certain BMW motor vehicle models.
The appellate case is captioned as Catalano v. BMW of North
America, LLC, et al., Case No. 17-3500, in the United States Court
of Appeals for the Second Circuit.
Appellant Louis T. Somma of Hamilton, Massachusetts, appears pro
se.[BN]
Plaintiff-Appellee George Catalano, On Behalf of Himself and All
Others Similarly Situated, is represented by:
Ian James Barlow, Esq.
KERSHAW COOK & TALLEY PC
401 Watt Avenue
Sacramento, CA 95864
Telephone: (916) 448-9800
E-mail: ian@kctlegal.com
Defendants-Appellees BMW of North America, LLC, A New Jersey
Limited Liability Company, and Bayerische Motoren Werke
Aktiengesellschaft are represented by:
Rosemary J. Bruno, Esq.
BUCHANAN INGERSOLL & ROONEY PC
550 Broad Street
Newark, NJ 07102
Telephone: (973) 424-5600
E-mail: rosemary.bruno@bipc.com
BOIRON INC: Ninth Circuit Appeal Filed in "Lewert" Class Suit
-------------------------------------------------------------
Plaintiff Christopher Lewert filed an appeal from a court ruling
in the lawsuit styled Christopher Lewert v. Boiron Inc., et al.,
Case No. 2:11-cv-10803-AB-JPR, in the U.S. District Court for the
Central District of California, Los Angeles.
As previously reported in the Class Action Reporter, the Plaintiff
alleges violations of the Consumer Legal Remedies Act, California
Civil Code section 1750, et seq., and the UCL, California Business
and Professions Code section 17200, et seq.
The Plaintiff's legal claim under the CLRA came before a jury
during a seven-day trial that began on June 7, 2016. The jury
returned a verdict in favor of the Defendants, finding the
Defendants' representations that its product, Oscillococcinum
("Oscillo"), relieves flu-like symptoms were not false.
The appellate case is captioned as Christopher Lewert v. Boiron
Inc., et al., Case No. 17-56607, in the United States Court of
Appeals for the Ninth Circuit.[BN]
The briefing schedule in the Appellate Case is set as follows:
-- Mediation Questionnaire was due October 30, 2017;
-- Transcript must be ordered by November 20, 2017;
-- Transcript is due on December 19, 2017;
-- Appellant Christopher Lewert's opening brief is due on
January 29, 2018;
-- Appellees Boiron Inc. and Boiron USA, Inc.'s answering
brief is due on February 27, 2018; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiff-Appellant CHRISTOPHER LEWERT, On Behalf of Himself and
All Others Similarly Situated, is represented by:
Nada Djordjevic, Esq.
Max A. Stein, Esq.
BOODELL & DOMANSKIS, LLC
1 N. Franklin Street, Suite 1200
Chicago, IL 60606
Telephone: (312) 938-1003
E-mail: ndjordjevic@boodlaw.com
mstein@boodlaw.com
- and -
Manfred P. Muecke, Esq.
Patricia N. Syverson, Esq.
BONNETT FAIRBOURN FRIEDMAN & BALINT PC
600 West Broadway, Suite 900
San Diego, CA 92101
Telephone: (619) 756-6978
E-mail: mmueck@bffb.com
psyverson@bffb.com
- and -
Elaine A. Ryan, Esq.
BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C.
2325 E. Camelback Road, Suite 300
Phoenix, AZ 85016
Telephone: (602) 274-1100
E-mail: eryan@bffb.com
- and -
Howard Sedran, Esq.
LEVIN, FISHBEIN, SEDRAN & BERMAN
510 Walnut Street
Philadelphia, PA 19106-3697
Telephone: (215) 592-1500
Facsimile: (215) 592-4663
E-mail: hsedran@lfsblaw.com
- and -
Stewart M. Weltman, Esq.
SIPRUT, PC
17 North State Street, Suite 1600
Chicago, IL 60602
Telephone: (312) 236-0000
E-mail: sweltman@siprut.com
- and -
Jeff S. Westerman, Esq.
WESTERMAN LAW CORP
1875 Century Park East, Suite 2200
Los Angeles, CA 90067
Telephone: (310) 698-7450
Facsimile: (310) 775-9777
E-mail: jwesterman@jswlegal.com
Defendants-Appellees BOIRON INC. and BOIRON USA, INC., are
represented by:
Nathan M. McClellan, Esq.
DECHERT LLP
633 West 5th Street, Suite 4900
Los Angeles, CA 90071
Telephone: (213) 808-5758
E-mail: nathan.mcclellan@dechert.com
- and -
Thomas S. McConville, Esq.
ORRICK, HERRINGTON & SUTCLIFFE, LLP
2050 Main Street, Suite 1100
Irvine, CA 92614-2558
Telephone: (949) 852-7747
E-mail: tmcconville@orrick.com
- and -
Christina Sarchio, Esq.
ORRICK, HERRINGTON & SUTCLIFFE LLP
1152 15th Street, N.W.
Washington, DC 20005-1706
Telephone: (202) 339-8400
E-mail: csarchio@orrick.com
BURLINGTON COUNTY, NJ: Szczpaniak Moves for Order Approving Deal
----------------------------------------------------------------
The Plaintiffs in the lawsuit entitled CONRAD SZCZPANIAK, and
TAMMY MARIE HAAS, Individually and on behalf of a Class of
Similarly Situated Individuals v. BURLINGTON COUNTY, BURLINGTON
COUNTY CORRECTIONAL FACILITY, RONALD COX, both in his individual
and representative capacity as Warden of the Burlington County
Jail, and JOHN DOES, fictitious names, Case No. 1:08-cv-01102-NLH-
JS (D.N.J.), move the Court for an order:
1. granting preliminary approval of the Settlement of a Class
Action; and
2. permitting Notice consistent with the Settlement Agreement.
A copy of the Notice of Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=PkaWLIPR
Plaintiff Konrad Szczpaniak is represented by:
William Riback, Esq.
WILLIAM RIBACK, LLC
132 Haddon Avenue
Haddonfield, NJ 08033
Telephone: (856) 857-0008
Facsimile: (856) 857-0028
E-mail: ribacklaw@aol.com
- and -
Carl D. Poplar, Esq.
CARL D. POPLAR, P.A.
1010 Kings Highway South, Building One
Cherry Hill, NJ 08034
Telephone: (856) 216-9979
Facsimile: (856) 216-9970
E-mail: cpoplar@poplarlaw.com
Plaintiff Tammy Haas is represented by:
David I. Novack, Esq.
Terence W. Camp, Esq.
BUDD LARNER, P.C.
150 JFK Parkway
Short Hills, NJ 07078
Telephone: (973) 315-4411
Facsimile: (973) 379-7734
E-mail: dnovack@buddlarner.com
tcamp@buddlarner.com
- and -
Susan Chana Lask, Esq.
LAW OFFICES OF SUSAN CHANA LASK
244 Fifth Avenue, #2369
New York, NY 10001
Telephone: (917) 300-1958
CALIFORNIA: Los Angeles County Appeals Ruling in "Ray" Suit
-----------------------------------------------------------
The County of Los Angeles filed an appeal from a court ruling in
the lawsuit entitled Trina Ray, individually, and on behalf of
others similarly situated v. California Department of Social
Services, and Los Angeles County Department of Public Social
Services, Case No. 2:17-cv-04239-PA-SK, in the U.S. District Court
for the Central District of California, Los Angeles.
As previously reported in the Class Action Reporter, the lawsuit
is brought pursuant to the Fair Labor Standards Act on behalf of
those employed by the Defendants as homecare workers, home care
providers, or in other similar job titles, through the In-Home
Supportive Services program and in the County of Los Angeles.
The appellate case is captioned as Trina Ray v. County of Los
Angeles, Case No. 17-56581, in the United States Court of Appeals
for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Appellant County of Los Angeles' opening brief is due on
December 18, 2017;
-- Appellee Trina Ray's answering brief is due on January 16,
2018; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiff-Appellee TRINA RAY, individually, and on behalf of
others similarly situated, is represented by:
Matthew C. Helland, Esq.
Daniel S. Brome, Esq.
NICHOLS KASTER, LLP
235 Montgomery Street, Suite 810
San Francisco, CA 94104
Telephone: (415) 277-7235
Facsimile: (415) 277-7238
E-mail: helland@nka.com
dbrome@nka.com
Defendant-Appellant COUNTY OF LOS ANGELES is represented by:
Jennifer Mira Hashmall, Esq.
MILLER BARONDESS, LLP
1999 Avenue of the Stars, Suite 1000
Los Angeles, CA 90067
Telephone: (310) 552-4400
Facsimile: (310) 552-8400
E-mail: mhashmall@millerbarondess.com
CARRINGTON TEA: Court Denies Bid to Dismiss "Zemola" Suit
---------------------------------------------------------
In the case captioned ELIZABETH ZEMOLA, et al., Plaintiffs, v.
CARRINGTON TEA COMPANY, LLC, Defendant, Case No. 17cv760-MMA (KSC)
(S.D. Cal.), Judge Michael M. Anello of the U.S. District Court
for the Southern District of California denied the Defendant's
motion to dismiss the Plaintiffs' claims in substantial part, and
denied the Defendant's motion to stay these proceedings.
The Plaintiffs allege that the Defendant misleadingly and
unlawfully markets its coconut oil products as inherently healthy.
According to them, they relied upon the Defendant's misleading
marketing and labeling to purchase the products, and suffered
damages as a result.
Based on these allegations, the Plaintiffs bring causes of action
against the Defendant for violations of California's consumer
protection laws, including the Consumer Legal Remedies Act, Unfair
Competition Law, and False Advertising Law. They further allege
that the Defendant breached express and implied warranties under
California law.
On Sept. 27, 2016, the United States Food and Drug Administration
("FDA") announced that it had initiated a public process to
redefine the "healthy" nutrient content claim for food labeling as
part of an overall plan to provide consumers with information and
tools to enable them to easily and quickly make food choices
consistent with public health recommendations and to encourage the
development of healthier foods by the industry.
The Defendant moves to dismiss the Plaintiffs' claims based on
lack of standing, failure to plead fraud with the requisite
particularity, and general implausibility under the standards set
forth in the Federal Rules of Civil Procedure.
As an initial matter, the Defendant argues that the Plaintiffs
lack standing to assert claims related to products they did not
purchase, as they cannot establish any injury with respect to
those products. In addition, it argues that the Plaintiffs lack
standing to sue for injunctive relief because they fail to allege
that they would purchase the coconut oil products in the future.
The Plaintiffs allege that at the time of purchase, they were
unaware that consuming coconut oil, such as Carrington's,
adversely affects blood cholesterol levels and increases risk of
CHD, stroke, and other morbidity. They claim that they are likely
to continue to be damaged by Carrington's deceptive trade
practices, because Carrington continues to disseminate misleading
information. However, the Plaintiffs do not allege that they
desire to purchase the coconut oil products in the future, and
claim that by consuming Carrington Farms Extra Virgin Coconut Oil,
they experienced detrimental effects to their blood cholesterol
levels and suffered impaired arterial endothelial function. As
such, the Judge Anello finds that even under the newly clarified
standards set forth in Davidson v. Kimberly-Clark Corp, the
Plaintiffs' allegations are insufficient to confer standing to
seek prospective injunctive relief.
With respect to the Defendant's request of dismissal of the
Plaintiff consumer protections claims as insufficiently pleaded
under Rules 12(b)(6) and (9)(b)., the Judge finds that the
Plaintiffs extensively allege that the Defendant's representations
are misleading and/or false, point to specific representations,
state why they believe the representations are misleading and
false, and claim they relied upon those representations when
choosing to purchase the product. The Defendant may disagree with
the Plaintiffs' allegations as a factual matter, but at this
juncture, he must accept those allegations as true.
Likewise, the Plaintiffs sufficiently plead that the Defendant has
engaged in unfair and unlawful business practice. The Plaintiffs
have also brought plausible warranty claims against the Defendant
based on the representations made by Defendant on its coconut oil
products. Based on these allegations, the Plaintiffs have
sufficiently pleaded that they suffered an injury and resulting
damages based on the purchase of the Defendant's product.
For these reasons, Judge Anello denied the Defendant's motion to
dismiss in substantial part. However, he finds that the
Plaintiffs fail to sufficiently allege standing to seek
prospective injunctive relief. The Plaintiffs may file an amended
complaint that cures this deficiency on or before Nov. 9, 2017.
As an alternative to dismissal, the Defendant moves to stay the
action under the primary jurisdiction doctrine pending the FDA's
reconsideration of the definition of the term "healthy" in the
labeling of food products. The Judge finds that while the FDA is
considering whether to redefine the term "healthy" as a nutrient
content claim, food manufacturers will continue to use the term
"healthy" on foods that meet the current regulatory definition.
Furthermore, the FDA has published guidance on the use of the term
"healthy" in food labeling, and announced that it would continue
to enforce existing regulations.
In the interim, it is not beyond the competency of the Court to
adjudicate the Plaintiffs' mislabeling claims as to the products
at issue. Based on the foregoing, Judge Anello denied the
Defendant's motion to stay these proceedings pending the FDA's
reconsideration of the definition of the term "healthy" in the
labeling of food products.
A full-text copy of the Court's Oct. 27, 2017 Order is available
at https://is.gd/dQ8awv from Leagle.com.
Elizabeth Zemola, Plaintiff, represented by Jack Fitzgerald --
jack@jackfitzgeraldlaw.com -- The Law Office of Jack Fitzgerald,
PC.
Elizabeth Zemola, Plaintiff, represented by Paul K. Joseph --
paul@pauljosephlaw.com -- The Law Office of Paul K. Joseph, PC.
Matthew Beaumont, Plaintiff, represented by Jack Fitzgerald, The
Law Office of Jack Fitzgerald, PC & Paul K. Joseph, The Law Office
of Paul K. Joseph, PC.
Carrington Tea Company, LLC, Defendant, represented by Ana
Tagvoryan -- ATagvoryan@BlankRome.com -- Blank Rome LLP & Safia G.
Hussain -- SHussain@BlankRome.com -- Blank Rome LLP.
CENTURYLINK INC: Bronstein, Gewirtz Files Class Action
------------------------------------------------------
Bronstein, Gewirtz & Grossman, LLC notifies investors that a class
action lawsuit has been filed against CenturyLink Inc.
("CenturyLink" or the "Company") (NYSE: CTL) and certain of its
officers, on behalf of a class who purchased CenturyLink's 7.60%
Senior Notes, Series P, due 2039 between March 1, 2013 through
June 19, 2017, both dates inclusive. Such investors are encouraged
to join this case by visiting the firm's site: www.bgandg.com/ctl.
This class action seeks to recover damages against Defendants for
alleged violations of the federal securities laws under the
Securities Exchange Act of 1934.
The Complaint alleges that throughout the class period,
CenturyLink and certain of its officers issued a series of
materially false or misleading representations to the market,
which had the effect of artificially inflating the market price
for the bonds.
A class action lawsuit has already been filed. If you wish to
review a copy of the Complaint you can visit the firm's site:
www.bgandg.com/ctl or you may contact Peretz Bronstein, Esq. or
his Investor Relations Analyst, Yael Hurwitz of Bronstein, Gewirtz
& Grossman, LLC at 212-697-6484. If you suffered a loss in
CenturyLink you have until December 26, 2017 to request that the
Court appoint you as lead plaintiff. Your ability to share in any
recovery doesn't require that you serve as a lead plaintiff.
Bronstein, Gewirtz & Grossman, LLC is a corporate litigation
boutique. Our primary expertise is the aggressive pursuit of
litigation claims on behalf of our clients. In addition to
representing institutions and other investor plaintiffs in class
action security litigation, the firm's expertise includes general
corporate and commercial litigation, as well as securities
arbitration.
Peretz Bronstein, Esq.
Yael Hurwitz, Esq.
Bronstein, Gewirtz & Grossman, LLC
Tel No. 212-697-6484
E-mail: peretz@bgandg.com [GN]
CENTURYLINK: Federman & Sherwood Files Securities Class Action
--------------------------------------------------------------
Federman & Sherwood disclosed that on October 25, 2017, it filed a
class action lawsuit in the United States District Court for the
Southern District of New York against CenturyLink (NYSE:CTL). The
class action was filed on behalf of purchasers of CenturyLink's
7.60% Senior Notes, Series P, due 2039. The complaint alleges
violations of federal securities laws, Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934 and Rule 10b-5, including
allegations that CenturyLink and certain of its officers issued a
series of materially false or misleading representations to the
market, which had the effect of artificially inflating the market
price for the bonds during the period March 1, 2013 through June
19, 2017, inclusive (the "Class Period").
Plaintiff seeks to recover damages on behalf of the purchasers of
CenturyLink's bonds or notes during the Class Period. If you
purchased CenturyLink's bonds or notes, you may be a member of the
Class, as described above. You may move the Court no later than
December 26, 2017 to serve as a lead plaintiff for the entire
Class. However, in order to do so, you must meet certain legal
requirements pursuant to the Private Securities Litigation Reform
Act of 1995.
If you purchased CenturyLink's bonds or notes and want to discuss
this action, obtain further information, or participate in this
litigation, please contact:
Robin K. Hester
FEDERMAN & SHERWOOD
10205 North Pennsylvania Avenue
Oklahoma City, OK 73120
Email to: rkh@federmanlaw.com
Or, visit the firm's website at www.federmanlaw.com [GN]
CHIPOTLE MEXICAN: Scott Appeals S.D.N.Y. Order to Second Circuit
----------------------------------------------------------------
Plaintiffs Jay Francis Ensor, Christina Jewel Gateley, Stacy
Higgs, Eufemia Jimenez, Matthew A. Medina, Krystal Parker and
Maxcimo Scott filed an appeal from a District Court order dated
September 25, 2017, issued in their lawsuit entitled Scott, et al.
v. Chipotle Mexican Grill, Inc., et al., Case No. 12-cv-8333, in
the U.S. District Court for the Southern District of New York (New
York City).
As previously reported in the Class Action Reporter, the
Plaintiffs have previously appealed the denial of their motion for
class certification.
Chipotle has previously defeated certification of separate classes
involving allegations that the job position of "Apprentice" was
misclassified as exempt for purposes of paying overtime wages.
The case was brought by seven individuals, who had worked as
Apprentices in various Chipotle stores.
The appellate case is captioned as Scott v. Chipotle Mexican
Grill, Inc., Case No. 17-3200, in the United States Court of
Appeals for the Second Circuit.[BN]
Plaintiffs-Petitioners Maxcimo Scott, Jay Francis Ensor, Matthew
A. Medina, Eufemia Jimenez, Krystal Parker, Stacy Higgs and
Christina Jewel Gateley, on behalf of themselves and all others
similarly situated, are represented by:
Justin M. Swartz, Esq.
OUTTEN & GOLDEN LLP
685 3rd Avenue
New York, NY 10017
Telephone: (212) 245-1000
E-mail: jms@outtengolden.com
Respondents Chipotle Mexican Grill, Inc., and Chipotle Services,
LLC, are represented by:
Brian Daniel Murphy, Esq.
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
30 Rockefeller Plaza
New York, NY 10112
Telephone: (212) 653-8700
E-mail: bmurphy@sheppardmullin.com
CIGNA CORP: Singh Appeals Judgment in "Patel" Suit to 2nd Circuit
-----------------------------------------------------------------
Plaintiff Minohor Singh filed an appeal from a District Court
judgment entered on October 2, 2017, in the lawsuit entitled
JYOTINDRA PATEL, Individually and On Behalf of All Others
Similarly Situated, v. CIGNA CORP., DAVID M. CORDANI, and THOMAS
A. MCCARTHY, Case 16-cv-182, in the U.S. District Court for the
District of Connecticut (New Haven).
As previously reported in the Class Action Reporter, the lawsuit
was filed on behalf of a class consisting of all persons other
than the Defendants, who purchased or otherwise acquired Cigna
securities between February 27, 2014, and January 21, 2016, both
dates inclusive, seeking to recover damages caused by the
Defendants' alleged violations of the federal securities laws and
to pursue remedies under Sections 10(b) and 20(a) of the
Securities Exchange Act.
The appellate case is captioned as Singh v. Cigna Corp., et al.,
Case No. 17-3484, in the United States Court of Appeals for the
Second Circuit.[BN]
Plaintiff-Appellant Minohor Singh is represented by:
James W. Johnson, Esq.
LABATON SUCHAROW LLP
140 Broadway
New York, NY 10005
Telephone: (212) 907-0700
Facsimile: (212) 883-7059
E-mail: jjohnson@labaton.com
Defendants-Appellees Cigna Corp, David Cordani, Thomas A.
McCarthy, Herbert Fritch and Richard Appel are represented by:
Andrew W. Stern, Esq.
SIDLEY AUSTIN LLP
787 7th Avenue
New York, NY 10019
Telephone: (212) 839-5300
Facsimile: (212) 839-5599
E-mail: astern@sidley.com
CMRE FINANCIAL: Court Won't Reconsider "Thomollari" Dismissal
-------------------------------------------------------------
Magistrate Judge Nancy Joseph of the U.S. District Court for the
Eastern District of Wisconsin denied the Plaintiff's motion for
reconsideration in the case captioned NESTI THOMOLLARI,
individually and on behalf of all others similarly situated,
Plaintiffs, v. CMRE FINANCIAL SERVICES, INC., Defendant, Case No.
17-CV-533 (E.D. Wis.).
Thomollari filed a class action complaint against CMRE, alleging
violations of the Fair Debt Collection Practices Act ("FDCPA")
based on actions taken by CMRE in the course of collecting a debt
allegedly owed to Great Lakes Anesthesia & Pain Spec. CMRE moved
to dismiss Thomollari's complaint pursuant to Fed. R. Civ. P.
12(b)(6) on the grounds that he failed to state a claim upon which
relief can be granted and the Magistrate Judge granted CMRE's
motion.
Presently before her is Thomollari's motion for reconsideration
pursuant to Fed. R. Civ. P. 59(e).
Magistrate Judge Joseph finds that Thomollari does not present
newly discovered evidence; rather, he argues that the decision and
order dismissing his complaint contains manifest errors of law.
Specifically, he argues that that the order (i) misapplied Seventh
Circuit precedent applicable in FDCPA actions; (ii) misconstrued
his arguments and drew inferences in favor of the moving party
when other reasonable inferences in the Plaintiff's favor existed;
and (iii) dismissed the complaint without giving Thomollari leave
to re-plead.
The Magistrate Judge also finds Thomollari's first argument as
simply a citation to Seventh Circuit authority cautioning courts
against dismissing FDCPA actions at the Rule 12(b)(6) stage. His
disagreement with her holding does not constitute a manifest error
of law.
Next, Thomollari argues that the order interpreted disputed facts
and drew reasonable inferences against the Plaintiff. In so
arguing, Thomollari raises for the first time on reconsideration
the argument that the unsophisticated consumer could interpret the
letter's statement that the consumer's written request "should
refer to the statement date" as effectively shortening the 30-day
validation period because the unsophisticated consumer would
understand the 30-day validation period as beginning with the
statement date rather than the date the consumer receives the
letter. However, Magistrate Judge Joseph says a motion for
reconsideration is an improper vehicle to introduce new legal
theories.
Finally, Thomollari argues that judgment should not have been
entered in the case. Rather, he should have been given the
opportunity to amend his complaint. Magistrate Judge Joseph says
this is one of those rare cases where amendment would be futile.
It is unclear what allowing Thomollari to re-plead would
accomplish. The dunning letter will not change. Nor will
Thomollari's assertion that the dunning letter violated 15 U.S.C.
Sections 1692g(a), 1692e and 1692e(10) of the FDCPA.
Because Thomollari has failed to meet his burden of showing a
manifest error of law or fact, Magistrate Judge Joseph denied his
motion for reconsideration.
A full-text copy of the Court's Oct. 27, 2017 Decision and Order
is available at https://is.gd/ShEUSa from Leagle.com.
Nesti Thomollari, Plaintiff, represented by Mark A. Eldridge --
meldridge@ademilaw.com -- Ademi & O'Reilly LLP.
Nesti Thomollari, Plaintiff, represented by Shpetim Ademi --
sademi@ademilaw.com -- Ademi & O'Reilly LLP & John D. Blythin --
jblythin@ademilaw.com -- Ademi & O'Reilly LLP.
CMRE Financial Services Inc, Defendant, represented by Alyssa A.
Johnson -- ajohnson@hinshawlaw.com -- Hinshaw & Culbertson LLP,
David J. Hanus -- dhanus@hinshawlaw.com -- Hinshaw & Culbertson
LLP & David M. Schultz -- dschultz@hinshawlaw.com -- Hinshaw &
Culbertson LLP.
COCA-COLA CO: Seeks 3rd Circuit Review of Order in "Enslin" Suit
----------------------------------------------------------------
Defendants Coca Cola Co., Coca Cola Enterprises Inc., Coca Cola
Refreshments USA Inc., Keystone Coca Cola Bottling Co., Keystone
Coca Cola Bottling Co. Inc., Keystone Coca Cola Bottling Corp. and
Keystone Coca Cola and Bottling and Distribution Corp. 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.
The appellate case is captioned as Shane Enslin v. Coca Cola Co.,
et al., Case No. 17-3256, in the United States Court of Appeals
for the Third Circuit.
As reported in the Class Action Reporter on Oct. 18, 2017,
Plaintiff Shane E. Enslin filed an appeal from a court ruling in
the lawsuit. That appellate case is entitled Shane Enslin v. Coca
Cola Co., et al., Case No. 17-3153.
Mr. Enslin filed the complaint November 12, 2014, seeking damages
under the Drivers Piracy Protection Act for negligence, fraud,
conspiracy and other claims. He 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 Mr. Enslin's
accounts, according to the complaint.[BN]
Plaintiff-Appellee 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, Esq.
FLAMM WALTON
4905 West Tilghman Street
Westfield Corporate Center, Suite 310
Allentown, PA 18104
Telephone: (610) 336-6800
E-mail: whplatt@flammlaw.com
Defendants-Appellants 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
Princeton Forrestal Village, Suite 250
Princeton, NJ 08540
Telephone: (609) 987-0050
E-mail: mmelodia@reedsmith.com
CODE 42 SOFTWARE: Wins Prelim. OK of $400K "Kissel" Settlement
--------------------------------------------------------------
The Hon. Josephine L. Staton entered an order in the lawsuit
titled JORDAN KISSEL, as an individual and on behalf of all others
similarly situated v. CODE 42 SOFTWARE, INC., a Delaware
corporation; and DOES 1 through 10, inclusive, Case No. 8:15-cv-
01936-JLS-KES (C.D. Cal.):
(1) conditionally certifying a class for settlement purposes
only;
(2) preliminarily approving the parties' class action
settlement;
(3) naming Jordan Kissel as Class Representative;
(4) naming Scott J. Ferrell, Esq., David W. Reid, Esq., and
Victoria C. Knowles, Esq., as Class Counsel;
(5) approving JND Legal Administration as the claims
administrator; and
(6) approving the form and method of class notice, subject to
certain changes.
The Court sets a final fairness hearing for February 9, 2018, at
2:30 p.m., to determine whether the settlement should be finally
approved as fair, reasonable, and adequate to Class Members. The
Plaintiff shall file her motion for final approval no later than
December 22, 2017. Class Counsel shall file any supplemental
brief in support of their application for fees and costs no later
than 15 days before the exclusion deadline. The Court reserves
the right to continue the date of the final fairness hearing
without further notice to class members.
The Settlement Agreement defines the class as "[a]ll 'Consumers' .
. . within the State of California who purchased any product or
service from Code42 as part of an 'Automatic Renewal' or
Continuous Service' plan or arrangement . . . between November 19,
2011 and November 19, 2015" and "were subsequently charged by and
paid Code42 one or more fees for the renewal of the product or
service beyond the original term prior to July 24, 2017."
The settlement provides for a full-distribution, non-reversionary
settlement fund of $400,000. After deducting attorneys' fees,
litigation costs, Plaintiff's service payments, and the costs of
administering the settlement fund, the net settlement amount,
anticipated to be $247,500, will be used to provide settlement
payments of approximately $7 to $7.50 to each class member.
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=8KFnsU2Q
CONVERSE INC: Ninth Circuit Appeal Filed in "Chavez" Class Suit
---------------------------------------------------------------
Plaintiff Eric Chavez filed an appeal from a court ruling in his
lawsuit entitled Eric Chavez v. Converse, Inc., Case No. 5:15-cv-
03746-NC, in the U.S. District Court for the Northern District of
California, San Jose.
As previously reported in the Class Action Reporter, Eric Chavez
is a former employee of Converse. He alleges that Converse
violated the California Labor Code by (1) failing to properly
calculate overtime pay; (2) not paying employees for time spent on
a mandatory bag check; and (3) failing to provide proper meal
breaks.
The appellate case is captioned as Eric Chavez v. Converse, Inc.,
Case No. 17-17070, in the United States Court of Appeals for the
Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Transcript must be ordered by November 13, 2017;
-- Transcript is due on December 12, 2017;
-- Appellant Eric Chavez's opening brief is due on January 22,
2018;
-- Appellee Converse, Inc.'s answering brief is due on
February 20, 2018; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiff-Appellant ERIC CHAVEZ, an individual and on behalf of
all others similarly situated, is represented by:
Larry W. Lee, Esq.
DIVERSITY LAW GROUP
515 South Figueroa, Suite 1250
Los Angeles, CA 90071
Telephone: (213) 488-6555
Facsimile: (213) 488-6554
E-mail: lwlee@diversitylaw.com
- and -
Dennis S. Hyun, Esq.
HYUN LEGAL APC
550 S. Hope St.
Los Angeles, CA 90071
Telephone: (213) 488-6555
Facsimile: (213) 488-6554
E-mail: dhyun@hyunlegal.com
- and -
William Lucas Marder, Esq.
POLARIS LAW GROUP, LLP
501 San Benito Street
Hollister, CA 95023
Telephone: (831) 531-4214
Facsimile: (831) 634-0333
E-mail: bill@polarislawgroup.com
Defendant-Appellee CONVERSE, INC., a Delaware corporation, is
represented by:
Michael Afar, Esq.
Jon D. Meer, Esq.
Sheryl L. Skibbe, Esq.
SEYFARTH SHAW, LLP
2029 Century Park East
Los Angeles, CA 90067-3021
Telephone: (310) 277-7200
E-mail: mafar@seyfarth.com
jmeer@seyfarth.com
sskibbe@seyfarth.com
DEJA VU CONSULTING: Bid to Amend Judgment in FLSA Suit Denied
-------------------------------------------------------------
In the case captioned JANE DOES 1-2, individually and on behalf of
all others similarly situated, Plaintiffs, v. DEJA VU CONSULTING,
INC., et al, Defendants, Case No. 2:16-cv-10877 (E.D. Mich.),
Judge Stephen J. Murphy, III, of the U.S. District Court for the
Eastern District of Michigan, Southern Division, granted in part
and denied in part the Defendants' motion for to amend the
judgment.
The Plaintiffs brought a class action alleging violations of
various employment laws, and the parties settled. They then filed
a motion for final approval, and the Court held a fairness
hearing. The Court ultimately granted the Plaintiffs' motion and
entered judgment. The Defendants now move to amend the judgment.
The Defendants' primary concern is that the Court's order granting
final approval and the corresponding judgment do not affirmatively
enjoin participants in the class action from pursuing remedies in
other courts. They argue that the judgment does not provide that
form of relief because the Plaintiffs' counsel neglected to
request it at the final fairness hearing as required by the
parties' settlement agreement.
To remedy the alleged error, the Defendants seek three amendments
to the judgment: (i) an incorporation of the terms of the parties'
settlement agreement; (ii) an extension of the previously entered
preliminary injunction until the settlement becomes "final" as
defined by the agreement; and (iii) an addition that the Court
retains jurisdiction to enforce the settlement agreement.
Judge Murphy explains that a motion to alter or amend judgment may
be granted if there is a clear error of law, newly discovered
evidence, an intervening change in controlling law, or to prevent
manifest injustice. The Defendants pursue relief to prevent a
manifest injustice, but only the third request would serve that
purpose. The Judge therefore will deny the Defendants' first two
requests and grant the third.
The Defendants' request to incorporate the terms of the settlement
agreement into the Court's judgment would not prevent a manifest
injustice because other remedies are available -- namely, seeking
to enforce the settlement agreement if appropriate. And if they
thought certain terms should have been included in the judgment,
then they should have raised the issue at a more appropriate time.
The Judge says the Defendants' request to extend the preliminary
injunction would not prevent a manifest injustice because the
request is incompatible with the purpose of a preliminary
injunction. When the Court entered judgment, there was a final
resolution -- and the preliminary injunction expired by definition
and under its own terms. Amending the judgment to extend the
preliminary injunction would therefore be an abuse of the Court's
power, regardless of the parties' definition of "final" in the
settlement agreement.
To avoid preventing the Defendants from attaining the benefits of
their bargain, Judge Murphy will amend the judgment to clarify
that the Court retains jurisdiction to enforce the settlement
agreement. The Court will not, however, entertain actions merely
intended to further delay the pending appeal here or litigation in
other courts -- especially if the question of a litigant's right
to bring action is more properly before the court adjudicating
that action.
Judge Murphy granted in part and denied in part the Defendants'
Motion to Amend. The judgment will be amended to clarify that the
Court retains jurisdiction to enforce the parties' settlement
agreement. He found the Defendants' Motion for Leave to File
Excess Pages moot.
A full-text copy of the Court's Oct. 27, 2017 Opinion and Order is
available at https://is.gd/oHYntE from Leagle.com.
Jane Doe 1, Plaintiff, represented by Jason J. Thompson --
jthompson@sommerspc.com -- Sommers Schwartz, P.C..
Jane Doe 1, Plaintiff, represented by Jesse L. Young --
jyoung@sommerspc.com -- Sommers Schwartz, Megan Bonanni, Pitt,
McGehee & Rachael Elizabeth Kohl, Pitt McGehee Palmer & Rivers PC.
Jane Doe 2, Plaintiff, represented by Jason J. Thompson, Sommers
Schwartz, P.C., Jesse L. Young, Sommers Schwartz, Megan Bonanni,
Pitt, McGehee & Rachael Elizabeth Kohl, Pitt McGehee Palmer &
Rivers PC.
Deja Vu Consulting, Inc, Defendant, represented by Bradley J.
Shafer, Shafer Assoc. & Matthew J. Hoffer, Shafer and Assoc.
DV Saginaw, LLC, Defendant, represented by Bradley J. Shafer,
Shafer Assoc. & Matthew J. Hoffer, Shafer and Assoc.
Deja Vu Showgirls, Defendant, represented by Bradley J. Shafer,
Shafer Assoc. & Matthew J. Hoffer, Shafer and Assoc.
Harry Mohney, Defendant, represented by Bradley J. Shafer, Shafer
Assoc. & Matthew J. Hoffer, Shafer and Assoc.
Deja Vu Services, Inc., formerly known as Deja Vu Consulting,
Inc., Defendant, represented by Bradley J. Shafer, Shafer Assoc. &
Matthew J. Hoffer, Shafer and Assoc.
The Deja Vu Affiliated Nightclubs, Defendant, represented by
Bradley J. Shafer, Shafer Assoc. & Matthew J. Hoffer, Shafer and
Assoc.
C.T., Objector, represented by Wallace Allen McDonald, Lacy, Price
and Wagner, P.C..
Eva Cabrera, Objector, represented by Guy T. Conti --
gconti@contilegal.com -- ContiLegal, Harold Lichten --
hlichten@llrlaw.com -- Lichten & Liss-Riordan PC, Matthew W.
Thomson -- mthomson@llrlaw.com -- Lichten & Liss-Riordan, P.C. &
Shannon E. Liss-Riordan -- sliss@llrlaw.com -- Lichten & Liss-
Riordan, P.C..
Brittney Halverson, Objector, represented by Guy T. Conti,
ContiLegal, Harold Lichten, Lichten & Liss-Riordan PC, Matthew W.
Thomson, Lichten & Liss-Riordan, P.C. & Shannon E. Liss-Riordan,
Lichten & Liss-Riordan, P.C..
B.D., Objector, represented by Daniel E. Arciniegas, Yezbak Law
Offices.
Merry B. Clark, Objector, Pro Se.
DETROIT, MI: Homeowners Ask Judge to Review Foreclosures
--------------------------------------------------------
Matt Reynolds, writing for Courthouse News Service, reported that
Detroit homeowners asked the Michigan Supreme Court to grant their
appeal of rulings that a tax tribunal rather than trial court
should hear claims of discriminatory and inflated property taxes
they say caused tens of thousands of people to lose their homes.
In July 2016, seven black Detroit homeowners and a coalition of
neighborhood associations brought a class-action lawsuit against
the city and Wayne County, claiming evictions arising from unpaid
property taxes overwhelmingly affect African-Americans, in
violation of the Fair Housing Act, or FHA.
Wayne County foreclosed homes for unpaid taxes even though Detroit
had failed to comply with a duty to assess property taxes every
year during Great Recession and in the years after, according to
the American Civil Liberties Union of Michigan, which is
representing the homeowners.
According to the Tax Foundation, the median annual property tax
for Wayne County from 2007 to 2009 was $2,304.
The tax foreclosure crisis was the worst in the state since the
Great Depression, the ACLU says. It claims the city overvalued
properties and failed to accurately assess property taxes based on
the fair market value of the homes. Homeowners should never have
paid the taxes in the first place, the group contends.
Wayne County Circuit Court Chief Judge Robert Colombo ruled that
the case belonged in the Michigan Tax Tribunal, rather than in his
court, despite finding that the plaintiffs had stated a claim for
race discrimination under fair-housing laws.
The homeowners challenged Colombo's ruling in the Michigan Court
of Appeals, but that court affirmed the judge's decision in
September in an unpublished, per curiam decision.
On Nov. 1, the ACLU and NAACP Legal Defense and Educational Fund
announced they asked the Michigan Supreme Court to hear their
appeal.
ACLU of Michigan Legal Director Michael Steinberg said Detroit's
tax foreclosure process is a "government-created catastrophe that
is destroying neighborhoods and undermining the city's economic
recovery."
"Nobody should lose their home for inability to pay taxes they
never should have had to pay in the first place," Steinberg said
in a statement.
Wayne County spokesman Bruce Babiarz declined to comment on the
ACLU's application for leave to appeal, as did Charles Raimi,
deputy corporation counsel of the Detroit Law Department.
In court papers, ACLU staff attorney Daniel Korobkin argued that
the trial court misinterpreted the FHA, which gives plaintiffs a
right to litigate civil claims in court rather than before an
administrative body. He said the court improperly ruled that
under Michigan law, the homeowners must present their FHA claim
before a tax tribunal.
Mr. Korobkin said that the issues in the case fall outside the
tribunal's "narrow expertise" and that an administrative agency
cannot decide them.
"Michigan courts have broad powers, including the power to hear
federal fair housing claims, and cannot shut the courthouse door
to plaintiffs' claim under the FHA simply because it relates to an
issue of taxation," according to the application for leave to
appeal.
The homeowners are asking the Michigan Supreme Court to hear their
case as soon as possible. The ACLU says that homeowners are
facing another round of foreclosures in February 2018.
In recent foreclosure auctions, Wayne Count sold thousands of
homes owned by people who were unable to pay their property tax
bills. Two of the named plaintiffs are facing eviction next year,
according to the ACLU.
Still pending in circuit court is the homeowners' claim that
Detroit has made it unduly burdensome for homeowners to get a
poverty exemption for the property taxes.
City officials denied homeowner Walter Hicks' exemption based on
the assumption that a property owner with the same name owned
another piece of property. Even after he proved that he did not
hold the asset, the city refused to exempt him, according to the
ACLU.
In addition to the ACLU and NAACP Legal Defense and Educational
Fund, the law firm of Covington & Burling also represents the
plaintiffs.
In their filings, the homeowners said that over the last decade
more than 130,000 parcels in Detroit had been forced into
foreclosure and that Wayne County had auctioned 78,000 parcels in
tax foreclosure actions.
The ACLU and the NAACP Legal Defense and Educational Fund did not
immediately respond to requests for comment on Nov. 2.
DFT INC: Ninth Cir. Appeal Filed in Copper Sands Homeowners Suit
----------------------------------------------------------------
Plaintiff Copper Sands Homeowners Association, Inc., filed an
appeal from a court ruling in its lawsuit entitled Copper Sands
Homeowners Association, Inc. v. DFT, Inc., Case No. 2:10-cv-00510-
GMN-NJK, in the U.S. District Court for the District of Nevada,
Las Vegas.
The nature of suit is stated as other real property actions.
The appellate case is captioned as Copper Sands Homeowners
Association, Inc. v. DFT, Inc., Case No. 17-17220, in the United
States Court of Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Mediation Questionnaire was due November 6, 2017;
-- Transcript must be ordered by November 27, 2017;
-- Transcript is due on December 27, 2017;
-- Appellant Copper Sands Homeowners Association, Inc.'s
opening brief is due on February 6, 2018;
-- Appellee DFT, Inc.'s answering brief is due on March 6,
2018; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiff-Appellant COPPER SANDS HOMEOWNERS ASSOCIATION, INC., a
Nevada non-profit corporation, on their own behalf and on behalf
of all others similarly situated, is represented by:
Terry L. Wike, Esq.
LAW OFFICES OF TERRY L. WIKE
10655 Park Run Drive, Suite 250
Las Vegas, NV 89144
Telephone: (702) 870-9898
Defendant-Appellee DFT, INC., a California corporation, DBA Cannon
Management Company, is represented by:
Robert C. Carlson, Esq.
Andrew C. Green, Esq.
KOELLER NEBEKER CARLSON & HALUCK LLP
400 S. 4th Street, Suite 600
Las Vegas, NV 89101
Telephone: (702) 853-5500
E-mail: carlson@knchlaw.com
Andrew.green@knchlaw.com
DOLGENCORP LLC: Seeks 6th Cir. Review of Ruling in "Hubbard" Suit
-----------------------------------------------------------------
Defendants Dolgencorp LLC, Dollar General Corporation and DG
Retail, LLC, filed an appeal from a court ruling in the lawsuit
styled Brandi Hubbard, et al. v. Dolgencorp LLC, et al., Case No.
1:17-cv-01133, in the U.S. District Court for the Western District
of Tennessee at Jackson.
As previously reported in the Class Action Reporter, the lawsuit
was transferred from the U.S. District for the Central District of
Illinois (Case No. 2:17-cv-02102) to the U.S. District Court for
the Western District of Tennessee (1:17-cv-01133-STA-egb).
The case alleges that Dollar General maintained a common pattern
and practice of allowing, inducing and incentivizing its store
managers to require, force, expect, encourage and/or suffer and
permit Plaintiffs and class members to work "off-the-clock"
before, during and after their scheduled shifts to avoid
compensating them for all straight time worked, to avoid
compensating them for all hours worked in excess of forty (40) per
week at the applicable FLSA overtime compensation rate of pay, to
enable it to "under-budget" its labor costs and to "under-staff"
its stores (but nonetheless meet the operational needs of its
store), all for the purpose and objective of staying within its
budgeted labor cost allotted to each of its stores.
The appellate case is captioned as Brandi Hubbard, et al. v.
Dolgencorp LLC, et al., Case No. 17-6293, in the United States
Court of Appeals for the Sixth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Appellant brief is due on December 11, 2017; and
-- Appellee brief is due on January 10, 2018.[BN]
Plaintiffs-Appellees BRANDI HUBBARD, individually and on behalf of
others similarly situated; SHERLYN HUFFMAN, individually and on
behalf of others similarly situated; REBECCA BEAVER, individually
and on behalf of others similarly situated; and HOLLY JIMENEZ,
individually and on behalf of others similarly situated, are
represented by:
Joseph Russ Bryant, Esq.
Gordon Ernest Jackson, Esq.
JACKSON, SHIELDS, YESIER & HOLT
262 German Oak Drive
Cordova, TN 38018
Telephone: (901) 754-8001
Facsimile: (901) 754-8524
E-mail: rbryant@jsyc.com
gjackson@jsyc.com
Defendants-Appellants DOLGENCORP LLC, DOLLAR GENERAL CORPORATION
and DG RETAIL LLC are represented by:
Joel S. Allen, Esq.
MCGUIREWOODS LLP
2000 McKinney Avenue, Suite 1400
Dallas, TX 75201
Telephone: (214) 932-6464
E-mail: jallen@mcguirewoods.com
- and -
Robert D. Meyers, Esq.
GLANKLER BROWN
6000 Poplar Avenue, Suite 400
Memphis, TN 38119
Telephone: (901) 685-1322
E-mail: rmeyers@glankler.com
DOMETIC CORP: Bid to Dismiss "Papasan" Suit Partly Granted
----------------------------------------------------------
Judge Haywood S. Gilliam, Jr., of the U.S. District Court for the
Northern District of California granted in part and denied in part
Dometic Corporation's motion to dismiss the case captioned
CATHERINE PAPASAN, et al., Plaintiffs, v. DOMETIC CORPORATION,
Defendant, Case No. 16-cv-02117-HSG (N.D. Cal.).
The original class action complaint was filed on April 21, 2016.
The Named Plaintiffs -- Papasan, Nelson Goehle, Andrew Young,
Christopher Johnston, Jimmy Byers, and Richard and Leah Vollberg -
- allege that Dometic has designed, manufactured, assembled, sold,
and otherwise placed into the stream of commerce a variety of
dangerously defective refrigerator models since at least 1997.
Dometic allegedly has had "actual knowledge" of the defects
inherent in its gas absorption refrigerator models for at least 15
years. The Plaintiffs contend that Dometic actively concealed, or
at the very least, failed to disclose the safety risk associated
with its gas absorption refrigerator models.
On behalf of a nationwide class, the Plaintiffs assert a claim for
violation of the Magnuson-Moss Warranty Act ("MMWA"). In
addition, they assert state law claims on behalf of the
California, Washington, Ohio, Texas, and Florida subclasses.
Dometic filed a motion to dismiss on June 17, 2016. Rather than
oppose the motion, the Named Plaintiffs filed their first amended
class action complaint on July 8, 2016. On Aug. 19, 2016, Dometic
filed the pending motion to dismiss all claims for lack of
standing.
Judge Gilliam finds Papasan has failed to plead a basis for
Article III standing at this stage of the proceedings but finds
that the other Plaintiffs have adequately established standing.
Moving to dismiss under Rule 12(b)(3), Dometic contends that the
Vollbergs have failed to establish that the Court has personal
jurisdiction over Dometic for purposes of their claims. The
Vollbergs argue that Dometic does not dispute that the Court has
personal jurisdiction over the company as to all claims asserted
by Papasan, and that the Court therefore can and should maintain
pendent personal jurisdiction over the Vollbergs' claims, because
those claims arise out of the same nucleus of facts as Papasan's
claims. But Papasan lacks Article III standing, which is fatal to
the Vollbergs' argument. Consequently, they have not met their
burden of establishing that the Court has personal jurisdiction
over Dometic for the purposes of their claims.
As to the remaining Plaintiffs -- Young (Ohio), Byers and Johnston
(both Texas), and Goehle (Washington) -- the Judge assesses
Dometic's argument that the statute of limitations for their
claims has run and no ground for tolling exists. He finds that it
is possible that the Plaintiffs may be able to prove some set of
facts that would establish the timeliness of their claims pursuant
to the fraudulent concealment doctrine under Texas, Ohio, and
Washington law. At this stage, that is sufficient.
Dometic argues that the claims asserted by Young and Goehle are
barred by the statute of repose under their state law. Judge
Gilliam finds that Young has plausibly alleged that the fraud
exception of section 2305.10(C)(2) applies, such that, at this
stage of the proceedings, his claims are not barred by Ohio's
statute of repose. Because he finds Goehle's fraud allegations
adequately pled, the Judge says Goehle's claims likewise survive
Dometic's motion to dismiss.
Under Rule 12(b)(6), Dometic contends that the Plaintiffs have
failed to state claims upon which relief can be granted. The
Judge addresses these arguments as they relate to the claims
asserted by Young (Ohio), Byers and Johnston (both Texas), and
Goehle (Washington). He finds that that Brown v. H & S Corp. did
not provide meaningful notice regarding the alleged deceptive acts
and practices in the case, such that the class notice requirement
of section 1345.09(B) is not satisfied. Therefore, dismissal of
Young's OCSPA claims is warranted. He also finds that the fraud
by concealment and DTPA claims asserted by Byers and Johnston may
proceed insofar as they are premised upon Dometic's alleged
omissions, but not insofar as they are premised upon alleged
misrepresentations in the RVIA sticker. Lastly, he finds Goehle's
allegations regarding Dometic's fraudulent acts and omissions
survive Dometic's dismissal motion.
Next, Dometic argues that the Plaintiffs fail to adequately plead
their state implied warranty claims. Judge Gilliam addresses this
argument as to the Ohio and Texas claims. He finds that Young has
not plausibly alleged that Dometic knew that it was manufacturing
his particular refrigerator for his ultimate use, that the
manufacturer of Young's RV only purchased the refrigerator after
knowing that Young would ultimately purchase the RV, that Young's
refrigerator was not mass produced, or that Dometic was aware of
Young's particular needs as the ultimate consumer. He finds Byers
and Johnston's allegations suffice to suggest that Dometic
designed and manufactured refrigerators with an inherent defect
rendering those refrigerators unfit for their basic purpose.
Thus, the Judge declines to dismiss Byers and Johnston's claims
for a breach of the implied warranty of merchantability.
Because the Judge dismisses under Ohio law Young's underlying
implied warranty claim, the MMWA claim asserted by Young likewise
fails. Byers and Johnston's MMWA claims, however, survive the
dismissal motion.
Dometic then argues that there is no independent cause of action
for unjust enrichment under Texas law. On the face of the
complaint, Byers and Johnston are seeking to assert unjust
enrichment as an independent cause of action. Judge Gilliam finds
dismissal of the claim is therefore warranted. In addition,
Dometic argues that both Young and Goehle fail to adequately plead
unjust enrichment under Ohio and Washington law, respectively.
The opposition does not respond to this argument, making no
mention of either Young or Goehle and citing no case law from
either state. Accordingly, the Judge finds that the dismissal of
Young and Goehle's unjust enrichment claims are warranted.
Finally, the Judge held that Dometic's argument that Young, Byers,
Johnston, and Goehle fail to adequately plead their strict
liability claims. He finds that Young, Byers, and Johnston have
plausibly alleged the existence of a safer and feasible
alternative design at the time that their allegedly defective
refrigerators left Dometic's control. Consequently, he finds that
dismissal of their strict liability claims under Ohio and Texas
law is not warranted at this stage of the proceedings. Because
the Plaintiffs' fail to include factual allegations regarding a
pre-2001 alternative product that could have prevented the harms
alleged, the Court dismisses Goehle's strict products liability
claim.
For the forgoing reasons, Judge Gilliam granted in part and denied
in part Dometic's motion to dismiss. He granted leave to amend as
to all claims that are dismissed, except for the standalone unjust
enrichment cause of action asserted by Byers and Johnston, which
is barred as a matter of law and therefore could not possibly be
cured by the allegation of other facts. The Plaintiffs must file
any amended complaint within 28 days of the date of the Order. In
addition to the "clean" version of the second amended complaint,
such a filing will also include a "redlined" version clearly
indicating all changes.
A full-text copy of the Court's Oct. 27, 2017 Order is available
at https://is.gd/hB9o60 from Leagle.com.
Catherine Papasan, Plaintiff, represented by Jeff D. Friedman --
jefff@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP.
Catherine Papasan, Plaintiff, represented by Terrence Allen Beard,
Law Offices of Terrence A. Beard, Ashley A. Bede --
ashleyb@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac
vice, Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol
Shapiro LLP, pro hac vice & Thomas Eric Loeser -- toml@hbsslaw.com
-- Hagens Berman Sobol Shapiro LLP.
Nelson Goehle, Plaintiff, represented by Jeff D. Friedman, Hagens
Berman Sobol Shapiro LLP, Terrence Allen Beard, Law Offices of
Terrence A. Beard, Ashley A. Bede, Hagens Berman Sobol Shapiro
LLP, pro hac vice, Steve W. Berman, Hagens Berman Sobol Shapiro
LLP, pro hac vice & Thomas Eric Loeser, Hagens Berman Sobol
Shapiro LLP.
Andrew Young, Plaintiff, represented by Jeff D. Friedman, Hagens
Berman Sobol Shapiro LLP, Terrence Allen Beard, Law Offices of
Terrence A. Beard, Ashley A. Bede, Hagens Berman Sobol Shapiro
LLP, pro hac vice, Steve W. Berman, Hagens Berman Sobol Shapiro
LLP, pro hac vice & Thomas Eric Loeser, Hagens Berman Sobol
Shapiro LLP.
Jimmy Byers, Plaintiff, represented by Jeff D. Friedman, Hagens
Berman Sobol Shapiro LLP, Terrence Allen Beard, Law Offices of
Terrence A. Beard, Ashley A. Bede, Hagens Berman Sobol Shapiro
LLP, pro hac vice, Steve W. Berman, Hagens Berman Sobol Shapiro
LLP, pro hac vice & Thomas Eric Loeser, Hagens Berman Sobol
Shapiro LLP.
Christopher Johnston, Plaintiff, represented by Jeff D. Friedman,
Hagens Berman Sobol Shapiro LLP, Terrence Allen Beard, Law Offices
of Terrence A. Beard, Ashley A. Bede, Hagens Berman Sobol Shapiro
LLP, pro hac vice, Steve W. Berman, Hagens Berman Sobol Shapiro
LLP, pro hac vice & Thomas Eric Loeser, Hagens Berman Sobol
Shapiro LLP.
Dometic Corporation, Defendant, represented by Peter Allen Wald --
peter.wald@lw.com -- Latham & Watkins LLP, Adam L. Rosenbloom --
adam.rosenbloom@lw.com -- Latham & Watkins LLP, Emily Rose Goebel,
Latham & Watkins LLP, Marcy Christina Priedeman --
marcy.priedeman@lw.com -- Latham & Watkins LLP & Robert Christian
Collins, III -- robert.collins@lw.com -- Latham and Watkins LLP,
pro hac vice.
DOVENMUEHLE MORTGAGE: Shipkovitz Appeals Order to Fourth Circuit
----------------------------------------------------------------
Plaintiff Samuel Shipkovitz filed an appeal from a court ruling in
his lawsuit entitled Samuel Shipkovitz v. Dovenmuehle Mortgage,
Incorporated, et al., 8:16-cv-00712-PX, in the U.S. District Court
for the District of Maryland at Greenbelt.
As previously reported in the Class Action Reporter, the Plaintiff
asserts claims for violation of the Truth in Lending Act.
Dovenmuehle Mortgage, Inc. operates a mortgage banking company
located in Lake Zurich, Illinois. Everhome Mortgage, Inc.,
operates a financial services company providing banking,
mortgages, and investing services.
The appellate case is captioned as Samuel Shipkovitz v.
Dovenmuehle Mortgage, Incorporated, et al., Case No. 17-2230, in
the United States Court of Appeals for the Fourth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Record requested from Clerk of Court was due November 3,
2017;
-- Fee or application to proceed as indigent is due on
November 20, 2017;
-- Informal Opening Brief is due on November 13, 2017; and
-- Informal response brief, if any, is due 14 days after
informal opening brief filed.
Plaintiff-Appellant Samuel Shipkovitz of Rockville, Maryland, And
Others Similarly Situated, appears pro se.[BN]
Defendant-Appellee DOVENMUEHLE MORTGAGE, INCORPORATED, is
represented by:
Michael Thomas Cantrell, Esq.
John Arron Welborn, Esq.
MCCABE WEISBERG & CONWAY, LLC
312 Marshall Avenue
Laurel, MD 20707
Telephone: (301) 490-3361
Facsimile: (301) 490-1568
E-mail: mcantrell@mwc-law.com
Defendant-Appellee RICHARD CORDRAY, Director U.S. Consumer
Financial Protection Bureau, is represented by:
Alex Gordon, Esq.
ASSISTANT GENERAL COUNSEL
WASHINGTON GAS LIGHT COMPANY
101 Constitution Avenue, NW
Washington, DC 20080-0000
Telephone: (202) 624-6708
- and -
Neil R. White, Esq.
ASSISTANT U. S. ATTORNEY
OFFICE OF THE UNITED STATES ATTORNEY
6406 Ivy Lane
Greenbelt, MD 20770
Telephone: (410) 209-4830
E-mail: neil.white@usdoj.gov
ELDORADO LOUNGE: Court Denies Bid for Surreply in "Braxton" Suit
----------------------------------------------------------------
In the case, MAURLANNA BRAXTON et al., Plaintiffs, v. ELDORADO
LOUNGE, INC. et al., Defendants, Civil Action No. ELH-15-3661 (D.
Md.), Judge Ellen Lipton Hollander of the U.S. District Court for
the District of Maryland granted in part and denied in part the
Plaintiffs' Motion for Partial Summary Judgment, granted the
Plaintiffs' Motion to Strike Response in Opposition to Motion for
Summary Judgment; denied the Defendants' Motion for Surreply;
denied the Plaintiffs' Motion to Strike Surreply, as moot; and
denied Defendant Kenneth Jackson's Motion for Sanctions.
In a Second Amended Complaint, the Plaintiffs filed a wage action
against two Baltimore nightclubs at which they previously worked:
Eldorado and Four One Four LLC, doing business as Kings &
Diamonds. They also sued Defendant Jackson, who owns El Dorado
and holds a one-half ownership interest in Kings & Diamonds.
In particular, the Plaintiffs allege violations of the Fair Labor
Standards Act ("FLSA"); the Maryland Wage and Hour Law ("MWHL"),
as amended, of the Labor and Employment Article; and the Maryland
Wage Payment and Collection Law ("MWPCL"). In support of their
claims, the Plaintiffs allege that they were employed by the
Defendants as exotic dancers, but were not paid a minimum wage.
Rather, they were paid by commission, receiving half the price of
the drinks that customers of the clubs bought for them.
Five motions are now pending. The Plaintiffs have filed a Motion
for Partial Summary Judgment as to the Defendants' liability and
with respect to their affirmative defenses, supported by a
memorandum and numerous exhibits. The Corporate Defendants
responded in opposition, and submitted numerous exhibits. Jackson
also opposes the Motion. The Corporate Defendants later amended
their opposition. The Plaintiffs replied.
In addition, the Plaintiffs filed their Motion to Strike
Affidavits, seeking to exclude from the Court's consideration the
affidavits of two former employees of the Defendants: Kimberly
Jones and Tenia Stuckey. Jackson and the Corporate Defendants
oppose the Motion to Strike Affidavits. The Plaintiffs replied.
The Corporate Defendants submitted a "Motion for Leave to File
Response to Plaintiff's Reply to Opposition for Motion for Partial
Summary Judgment," which Judge Hollander construes as a motion for
leave to file a surreply. The Plaintiffs oppose the Motion for
Surreply. Without leave of court, the Corporate Defendants
subsequently filed the Surreply. Thereafter, the Plaintiffs
submitted a Motion to Strike Defendants' Surreply, which the
Corporate Defendants oppose.
Jackson has filed his Motion for Sanctions, lodged against the
Plaintiffs' counsel. No response was filed.
Judge Hollander finds it is clear that the Plaintiffs suffered
surprise from the Defendants' nondisclosure of the two witnesses,
Jones and Stuckey, which they could not cure after the completion
of discovery, at the summary judgment stage. Although the case is
not yet at the trial stage, the Plaintiffs have not had an
opportunity to depose the witnesses for purposes of summary
judgment. Therefore, she granted the Plaintiffs' Motion to Strike
Affidavits of Stuckey and Jones. However, the defendants will not
be prevented from using those witnesses at trial, conditioned on
them making the witnesses available for deposition within 30 days
following the docketing of the Memorandum Opinion.
In their Motion for Surreply, the Corporate Defendants state no
legal basis for why a surreply is appropriate. Because she does
not view the Surreply as a response to a matter raised for the
first time in the Reply, Judge Hollander denied the Motion for
Surreply. As a result, she denied as moot, the Plaintiffs' Motion
to Strike Surreply.
The Plaintiffs seek summary judgment as to four issues: (i)
whether they were employees of the Defendants for purposes of the
FLSA, MWHL, and MWPCL; (ii) whether the Defendants violated the
FLSA, MWHL, and MWPCL by failing to pay the Plaintiffs a minimum
wage; (iii) whether the Plaintiffs are entitled to recover wage
damages equal to the minimum wage for each week while employed by
the Defendants; and (4) whether the Defendants' affirmative
defenses may be applied to mitigate or negate the award of wages
and damages. Judge Hollander granted in part and denied in part
the Motion.
Analysis of the undisputed facts and application of the six
factors of the economic realities test reveal no basis to depart
from the now well-beaten path on which other judges in this
District have travelled. She is satisfied that, as a matter of
law, the Plaintiffs were employees of the Defendants under the
FLSA, MWHL, and MWPCL.
The Judge denied the Motion as to the Defendants' violation of the
FLSA, because the Plaintiffs have not demonstrated as a matter of
law that they are entitled to the ruling, on summary judgment,
that the clubs are collectively an enterprise engaged in commerce.
Because she has denied summary judgment as to whether the
Defendants violated the FLSA, she denied summary judgment as to
any entitlement to recover wages. On the evidence presented, the
amount and type of any fees or fines is disputed, as is the nature
of the purse from which they were paid. Therefore, she also
denied deny summary judgment on the question of the Defendants'
alleged MWPCL violations.
Because the Defendants' answers to the Second Amended Complaint
contain no affirmative defenses, Judge Hollander denied as moot
the Plaintiffs' Motion as to the Defendants' affirmative defenses.
Finally, the Judge finds that the Plaintiffs' claims are not so
frivolous as to warrant sanctions, and demanding discovery and
refusing to settle is their prerogative. Therefore, she denied
Jackson's Motion for Sanctions.
A full-text copy of the Court's Oct. 27, 2017 Memorandum Opinion
is available at https://is.gd/RXqhRL from Leagle.com.
Maurlanna Braxton, Plaintiff, represented by Kenneth Christopher
Gauvey -- kgauvey@gauveylaw.com -- The Law Practice of Ken C.
Gauvey, LLC.
Brittany Scott, Plaintiff, represented by Kenneth Christopher
Gauvey, The Law Practice of Ken C. Gauvey, LLC.
Stephanie Gamble, Plaintiff, represented by Kenneth Christopher
Gauvey, The Law Practice of Ken C. Gauvey, LLC.
Brionna Williams, Plaintiff, represented by Kenneth Christopher
Gauvey, The Law Practice of Ken C. Gauvey, LLC.
Eldorado Lounge, Inc., Defendant, represented by Russell A.
Neverdon, Sr. -- ransr@neverdonlaw.com -- Law Office of Russell A.
Neverdon Sr. LLC.
Four One Four, LLC, Defendant, represented by Russell A. Neverdon,
Sr., Law Office of Russell A. Neverdon Sr. LLC.
Kenneth Jackson, Defendant, Pro Se.
ENCORE RECEIVABLE: Class Certification Sought in "Spilski" Suit
---------------------------------------------------------------
Joseph Spilski moves the Court to certify the class described in
the complaint of the lawsuit styled JOSEPH SPILSKI, on behalf of
himself and all others similarly situated v. ENCORE RECEIVABLE
MANAGEMENT, INC.; a Kansas Corporation; and, JOHN AND JANE DOES
NUMBERS 1 THROUGH 25, Case No. 1:17-cv-01249-WCG (E.D. Wisc.), and
further asks that the Court both stay the motion for class
certification and grant him (and the Defendant) relief from the
Local Rules setting automatic briefing schedules and requiring
briefs and supporting material to be filed with the Motion.
Dicta in the Supreme Court's decision in Campbell-Ewald Co. v.
Gomez, left open the possibility that a defendant facing a class
action complaint could moot a class representative's case by
depositing funds equal to or in excess of the maximum value of the
plaintiff's individual claim with the court and having the court
enter judgment in the plaintiff's favor prior to the filing of a
class certification motion, Mr. Spilski asserts, citing Campbell-
Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016).
To avoid the risk of a defendant mooting a putative class
representative's individual stake in the litigation, the Seventh
Circuit instructed plaintiffs to file a certification motion with
the complaint, along with a motion to stay briefing on the
certification motion. Damasco v. Clearwire Corp., 662 F.3d 891,
896 (7th Cir. 2011), overruled on other grounds, Chapman v. First
Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of
that motion [for class certification] protects a putative class
from attempts to buy off the named plaintiffs.").
While the Seventh Circuit has held the specific procedure
described in Campbell-Ewald cannot force the individual settlement
of a class representative's claims, the same decision cautions
that other methods may prevent a plaintiff from representing a
class, Mr. Spilski tells the Court, citing Fulton Dental, LLC v.
Bisco, Inc., 860 F.3d 541, 545 (7th Cir. 2017). He notes that one
defendant has attempted a similar tactic by sending a certified
check to the proposed class representative. Bonin v. CBS Radio,
Inc., No. 16-cv-674-CNC (E.D. Wis.); see also, Severns v. Eastern
Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016
U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016).
Mr. Spilski contends that he is obligated to move for class
certification to protect the interests of the putative class.
As the Motion to certify a class is a placeholder motion as
described in Damasco, the parties and the Court should not be
burdened with unnecessary paperwork and the resulting expense when
short motion to certify and stay should suffice until an amended
motion is filed, the Plaintiff asserts.
Mr. Spilski also asks the Court to appoint him as class
representative and to appoint Stern Thomasson LLP as class
counsel.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=ZsjCMmai
The Plaintiff is represented by:
Philip D. Stern, Esq.
Heather B. Jones, Esq.
Andrew T. Thomasson, Esq.
STERN THOMASSON LLP
150 Morris Avenue, 2nd Floor
Springfield, NJ 07081-1315
Telephone: (973) 379-7500
Facsimile: (973) 532-5868
E-mail: philip@sternthomasson.com
heather@sternthomasson.com
andrew@sternthomasson.com
EQUIFAX INC: May Not Need to Take Out Arbitration Language
----------------------------------------------------------
Colin Daileda, writing for Mashable, reports that Senate
Republicans do not want their constituents to be able to defend
themselves against banks and credit card companies.
The Senate split its vote down the middle on Oct. 24 over a new
rule that would have protected consumers' ability to sue financial
institutions via class-action lawsuits. Vice President Mike Pence
cast the deciding vote to revoke the rule, which had barely been
on the books for a month.
What this means, in short, is that anyone interested in suing
their bank is now less likely to do so -- and less likely to win.
The rule would have stopped companies from forcing consumers to
agree to mandatory arbitration clauses when they, for example,
sign up for a credit card or open an account with a bank.
This bears some explanation. Arbitration clauses force consumers
to settle any disputes they have with the company via a non-
partial third party -- in other words it happens outside the U.S.
court system. This takes time, energy, and money that your
average person either doesn't have or isn't willing to invest.
Even if a person did have all three, plenty of disputes between
consumers and companies boil down to an amount of money that, for
the consumer, is often best to just let go in the face of what it
would take to win via arbitration.
Arbitration prevents class-action lawsuits, in which people can
group together to challenge a company in a single lawsuit. This
makes it easier for people with little power to form a effective
challenge to big companies. It's hard to imagine constituents
aren't in favor of being able to sue these companies via class-
action lawsuits.
You may, of course, remember the name Equifax. In September, the
credit reporting company let the world know that hackers had
stolen personal data from Equifax that pertained to 143 million
United States consumers, a number that is, I think, reasonably
called "crazy huge" (and was later revised to 145.5 million).
After the company told the world about the hack, Equifax
reportedly tried to force consumers to revoke their right to sue
via class action if those consumers so much as checked to see if
they were part of the 145.5 million whose data had been stolen.
Equifax eventually took out the arbitration language, but the
Senate's vote may mean the company doesn't need that language to
be protected from class action lawsuits.
Equifax botched just about every aspect of their reaction to the
hack, but perhaps it doesn't matter how much Equifax has lost the
trust of consumers. Do big financial firms need a good share of
the public's trust if much of the public can't do anything to
those companies when they feel they've been wronged? [GN]
EQUIFAX INC: Faces Class-Action Lawsuit in Hawaii
-------------------------------------------------
Jenn Boneza, writing for KHON2, reports that a North Shore woman
is taking on Equifax as a part of a class-action lawsuit that
seeks to enforce the company to better protect your information.
KHON2 first learned about the Equifax data breach in July.
The company tasked with monitoring and protecting your information
was breached, exposing the sensitive information of more than 145
million people.
Equifax says the breach occurred between mid-May and July.
Terry Galpin's identity was stolen 11 years ago. On October 26,
she's one of the class representatives for the class-action
lawsuit against Equifax filed here in Hawaii.
"Your social security number is what identifies you for your
life," Galpin said. "So when you see things on the news like the
Equifax breach, you have to be proactive. You need to take it
seriously.
"If your information gets stolen, I'm telling you right now, the
anxiety that it's going to cause you and what you're going to have
to do to prove that you are who you are," she added.
KHON2 also met with Brandee Faria, the attorney who filed the
lawsuit, to find out what she hopes to accomplish.
"This is the largest breach in American history, maybe even the
world," Faria said. "When you sit here and think about tutu who,
her life savings in is a 401(k), it's a scary thought that
somebody would have access to that."
Faria says between 700,000 to 900,000 people in Hawaii could be
impacted by the breach. That's two out of every three adults.
The class-action lawsuit includes everyone, even if they haven't
been named. People will have the option to opt out.
"At the end of the day, to a certain extent, we want to change
policy," Faria said.
She is hopeful, but said it will take time.
"The amount of time a data breach of this sort is going to take to
be litigated is going to be years," Faria said.
KHON2 contacted Equifax to see what changes are being made. The
company said in a written statement: "We take seriously our
responsibility to protect the security of the information in our
possession. We have taken short-term remediation steps, and
continue to implement and accelerate long-term security
improvements."
Faria says she wants to hold Equifax accountable.
"If there's financial harm that has resulted, because for some
people there will be, Equifax should be required to make them
whole," Faria said.
The Hawaii Attorney General's office says it is not aware of any
cases of identity theft here in Hawaii so far that are directly
linked to the Equifax data breach.
The company has set up a website where people can check whether
their personal information potentially was affected by the breach.
[GN]
EROS INTERNATIONAL: 2nd Circuit Appeal Filed in Securities Suit
---------------------------------------------------------------
Fred Eisner and Strahinja Ivosevic, two of the Plaintiffs in the
consolidated lawsuit titled In re Eros International Securities
Litigation, Case No. 15-cv-8956, in the U.S. District Court for
the Southern District of New York (New York City), filed an appeal
from the District Court's memorandum & order issued on September
22, 2017.
As reported in the Class Action Reporter on Oct. 23, 2017, Judge
Alison J. Nathan dismissed with prejudice on September 22, 2017,
an amended consolidated putative class action complaint asserting
violations of the Securities Exchange Act of 1934 against Eros and
certain of its current and former executives. The complaint
alleged that Defendants deceived investors by touting growth in
the number of "registered users" of Eros's video streaming
service, many of whom could not actually use the service, and also
by overstating the number of annual releases in its video library.
In dismissing the action, the Court found that the Plaintiffs' own
definition of an otherwise undefined term could not make a
statement actionable when other definitions of those terms were
equally plausible.
The appellate case is captioned as In re Eros International
Securities Litigation, Case No. 17-3415, in the United States
Court of Appeals for the Second Circuit.[BN]
Plaintiffs-Appellant Fred Eisner and Strahinja Ivosevic are
represented by:
Michael W. Stocker, Esq.
LABATON SUCHAROW LLP
140 Broadway
New York, NY 10005
Telephone: (212) 907-0700
Facsimile: (212) 883-7082
E-mail: mstocker@labaton.com
Defendant-Appellee Eros International PLC is represented by:
Jefferson E. Bell, Esq.
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue
New York, NY 10166
Telephone: (212) 351-4000
Facsimile: (212) 351-4035
E-mail: jbell@gibsondunn.com
Defendants-Appellees Eros International PLC, Jyoti Deshpande,
Andrew Heffernan, Prem Parameswaran, Kishore Lulla, Vijay Ahuja,
Naresh Chandra, Dilip Thakkar, Sunil Lulla, Michael Kirkwood, Ken
Naz, Rishika Lulla and David Maisel are represented by:
Michael Bowe, Esq.
KASOWITZ, BENSON, TORRES & FRIEDMAN LLP
1633 Broadway
New York, NY 10019
Telephone: (212) 506-1700
Facsimile: (212) 506-1800
E-mail: mbowe@kasowitz.com
FCA US: Court Narrows Claims in "Mooradian" Warranty Suit
---------------------------------------------------------
Judge James S. Gwin of the U.S. District Court for the Northern
District of Ohio granted in part and denied in part the
Defendant's motion to dismiss the case, DONNA MOORADIAN, ET AL.
Plaintiffs, v. FCA US, LLC, Defendant, Case No. 1:17-cv-1132 (N.D.
Ohio).
The Plaintiffs make claims that allege a manufacturing defect in
2012-2017 Jeep Wranglers. They allege that during the engine-
production process, the Defendant does not sufficiently purge the
casting sand from the engine. As a result of excess sand in the
engine, the Jeeps' radiators and oil coolers fill with a sludge-
like residue that damages and ultimately destroys these and other
components of the class vehicles. The Plaintiffs further allege
that the Defendants' failure to adequately clean cylinder heads
created a manufacturing defect in 2012-2017 Jeep Wranglers.
The Plaintiffs bring claims under breach of express and implied
warranties by refusing to repair the defective cylinder heads,
breach of the Magnusson Moss Warranty Act, and breach of the Ohio
Consumer Sales Practices Ac ("OCSPA"). They seek to certify a
class of all model year 2012-2017 Jeep Wrangler owners in the
United States, as well as a subclass of Wrangler owners in Ohio.
The Defendant moves to dismiss Plaintiffs Donna and William
Mooradian's and Plaintiff Joseph White's complaint for failure to
state a claim.
Judge Gwin granted the Defendant's motion to dismiss the
Plaintiff's breach of express warranty claim for failure to state
a claim. The Judge finds that the Plaintiffs do not adequately
allege that Defendant FCA has had sufficient opportunity to cure.
No Plaintiff alleges that he took his vehicle to the Defendant or
its dealers complaining of the defective cylinder head and that
the Defendant refused the repair.
Judge Gwin also disagrees with the Plaintiffs' claim that even if
the Defendant has not explicitly breached its express warranties,
those warranties have failed their essential purposes or are
unconscionable. The Plaintiffs' minimal repair history does not
suggest a failure of these warranties' essential purposes.
Indeed, any repairs to parts covered under the Basic Limited
Warranty occurred after the 3 year/36,000 mile limitation on that
warranty, and the Plaintiffs have not sought a repair explicitly
under the Powertrain Limited Warranty.
The Judge granted the Defendant's motion to dismiss the
Plaintiffs' implied warranty claims in both contract and tort.
The Plaintiffs' allegations of intermittent heating and air
conditioning failure while certainly an annoyance, did not
interfere with their ability to drive their cars. For this
reason, he says the Plaintiffs make no sufficient merchantability
or fitness claim.
Recovery under the MMWA requires an underlying state law breach of
warranty. Because the Judge dismissed the Plaintiffs' express and
implied breach of warranty claims, he also granted the Defendant's
motion to dismiss Plaintiffs' MMWA claim.
As to the Defendant's argument that the Plaintiffs' negligence
claim fails because the Defendant had no duty to create a product
with a certain amount of longevity, and because the Plaintiff's
only damages are for economic loss, Judge Gwin concludes that the
Plaintiffs' negligence claim survives. The Defendant cites to
cases that either deal with commercial buyers, whom Ohio law does
not allow to obtain recovery for purely economic losses, or
involve strict liability instead of negligence.
Judge Gwin also granted the Defendant's motion to dismiss the
Plaintiffs' OCSPA claims as time-barred. The Plaintiffs allege
that Defendant FCA should have been aware of the defect's
pervasiveness by June 2012. Indeed, one of the internet
complaints included within the Plaintiffs' complaint is dated Jan.
1, 2015. At the latest then, they should have discovered the
defect by then. The statute of limitations therefore ran out no
later than Jan. 1, 2017. The Plaintiffs filed their complaint on
May 31, 2017. The discovery rule tolling does not save their
OCSPA claim.
The Judge denied the Defendant's motion to dismiss the Mooradians'
claim for diminished value. The Defendants provide no citation
suggesting that Ohio law does not recognize this type of damages
claim. Although the Plaintiffs do not bring a Lemon Law claim,
Ohio's recognition of a lessee's potential claim for diminished
value in that context provides evidence that Ohio courts would
also recognize a diminished value claim in the negligence and
breach of warranty contexts.
Finally, the Defendant makes several arguments relating to the
viability of the Plaintiff's complaint as a class action. Judge
Gwin says these arguments are more appropriate for class
certification proceedings, and so he declined to consider them in
the context of a motion to dismiss for failure to state a claim.
For these reasons, Judge Gwin granted the Defendant's motion to
dismiss the Plaintiff's breach of express warranty, breach of
implied warranty, Magnuson-Moss Warranty Act, and Ohio Consumer
Sales Practices Act claims. He denied the Defendant's motion to
dismiss the Plaintiff's negligence claims, diminished value
claims, and class certification-based claims.
A full-text copy of the Court's Oct. 27, 2017 Opinion and Order is
available at https://is.gd/6g46sx from Leagle.com.
Donna Mooradian, Plaintiff, represented by Adam A. Edwards --
adam@gregcolemanlaw.com -- Law Office of Greg Coleman, pro hac
vice.
Donna Mooradian, Plaintiff, represented by Daniel K. Bryson --
dan@wbmllp.com -- Whitfield Bryson & Mason, Drew T. Legando --
jack@lgmlegal.com -- Landskroner Grieco Merriman, Gregory F.
Coleman -- greg@gregcolemanlaw.com -- Law Office of Greg Coleman,
pro hac vice, J. Hunter Bryson -- hunter@wbmllp.com -- Whitfield
Bryson & Mason & Jack Landskroner -- jack@lgmlegal.com --
Landskroner Grieco Merriman.
William Mooradian, Plaintiff, represented by Adam A. Edwards, Law
Office of Greg Coleman, pro hac vice, Daniel K. Bryson, Whitfield
Bryson & Mason, Drew T. Legando, Landskroner Grieco Merriman,
Gregory F. Coleman, Law Office of Greg Coleman, pro hac vice, J.
Hunter Bryson, Whitfield Bryson & Mason & Jack Landskroner,
Landskroner Grieco Merriman.
Joseph White, Plaintiff, represented by Adam A. Edwards, Law
Office of Greg Coleman, pro hac vice, Daniel K. Bryson, Whitfield
Bryson & Mason, Drew T. Legando, Landskroner Grieco Merriman,
Gregory F. Coleman, Law Office of Greg Coleman, pro hac vice, J.
Hunter Bryson, Whitfield Bryson & Mason & Jack Landskroner,
Landskroner Grieco Merriman.
FCA US LLC, Defendant, represented by Denise A. Dickerson --
ddickerson@sutter-law.com -- Sutter O'Connell, Kathy A. Wisniewski
-- kwisniewski@thompsoncoburn.com -- Thompson Coburn, pro hac
vice, Kevin W. Kita -- kkita@sutter-law.com -- Sutter O'Connell,
Scott H. Morgan -- smorgan@thompsoncoburn.com -- Thompson Coburn,
Stephen A. D'Aunoy -- sdaunoy@thompsoncoburn.com -- Thompson
Coburn, pro hac vice & Thomas L. Azar, Jr. --
tazar@thompsoncoburn.com -- Thompson Coburn, pro hac vice.
FIRST STUDENT: Humes Appeals E.D. Calif. Ruling to Ninth Circuit
----------------------------------------------------------------
Plaintiffs Delores Humes and Diane Abella filed an appeal from the
District Court's July 14, 2017 order denying class action
certification in their lawsuit titled Delores Humes, et al. v.
First Student, Inc., Case No. 1:15-cv-01861-BAM, in the U.S.
District Court for the Eastern District of California, Fresno.
As previously reported in the Class Action Reporter, Plaintiff
Delores Humes had also filed an appeal in the lawsuit. That
appellate case is captioned as Delores Humes v. First Student,
Inc., Case No. 17-80150.
Ms. Humes was formerly employed by First Student as a bus driver
out of its Fresno Yard. She is currently employed by First
Student as a bus driver out of its Fresno Yard. She contends that
during her employment, First Student failed to pay its bus drivers
for all time worked, including all time that the drivers were
subject to First Student's control.
The appellate case is captioned as Delores Humes, et al. v. First
Student, Inc., Case No. 17-17072, in the United States Court of
Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Appellants Diane Abella and Delores Humes' opening brief is
due on December 12, 2017;
-- Appellee First Student, Inc.'s answering brief is due on
January 12, 2018; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiffs-Appellants DELORES HUMES and DIANE ABELLA, on behalf of
themselves and all others similarly situated, are represented by:
Michael Hagop Boyamian, Esq.
Thomas Falvey, Esq.
LAW OFFICES OF THOMAS W. FALVEY
301 N. Lake Avenue
Pasadena, CA 91101
Telephone: (626) 795-0205
Facsimile: (818) 500-9307
E-mail: thomaswfalvey@gmail.com
mike.falveylaw@gmail.com
- and -
Armand Raffi Kizirian, Esq.
LAW OFFICES OF THOMAS W. FALVEY
550 N. Brand Blvd., Suite 1500
Glendale, CA 91203
Telephone: (818) 547-5200
Facsimile: (818) 500-9307
E-mail: armand.falveylaw@gmail.com
Defendant-Appellee FIRST STUDENT, INC., is represented by:
David J. Dow, Esq.
O. Mishell P. Taylor, Esq.
LITTLER MENDELSON, P.C.
501 W. Broadway
San Diego, CA 92101-3577
Telephone: (619) 515-1802
Facsimile: (619) 232-4302
E-mail: ddow@littler.com
mtaylor@littler.com
- and -
Irene V. Fitzgerald, Esq.
LITTLER MENDELSON, P.C.
5200 North Palm Avenue
Fresno, CA 93704
Telephone: (559) 244-7500
E-mail: ifitzgerald@littler.com
FRANKLIN RESOURCES: Ninth Circuit Appeal Filed in "Cryer" Suit
--------------------------------------------------------------
Defendants Franklin Resources, Inc., and The Franklin Templeton
401(k) Retirement Plan Investment Committee filed an appeal from a
court ruling in the lawsuit styled Marlon Cryer v. Franklin
Resources, Inc., et al., Case No. 4:16-cv-04265-CW, in the U.S.
District Court for the Northern District of California, Oakland.
As reported in the Class Action Reporter on Oct. 24, 2017, Judge
Claudia Wilken denied the Defendant's motion for reconsideration
of the Court's order granting the Plaintiff's motion for class
certification.
Mr. Cryer is a former employee of FRI and a former member of FRI's
401(k) retirement plan. On Feb. 12, 2016, Mr. Cryer was
terminated from his employment with FRI. On Feb. 13, 2016, he
signed a document entitled "Confidential Agreement and General
Release," which contained a "general release" provision whereby
Cryer agreed to release all claims against FRI, including all
common law, contract, tort or other Claims the Employee might
have, as well as Claims the Employee might have under the Employee
Retirement Income Security Act of 1974.
On July 28, 2016, Mr. Cryer, individually and as representative of
a class of similarly situated persons, brought suit against FRI
pursuant to ERISA Section 502(a)(2), asserting FRI breached its
fiduciary duties to the Franklin Templeton 401(k) Retirement Plan.
He seeks restoration of all losses to the plan arising from FRI's
alleged breach of fiduciary duties.
The appellate case is captioned as Marlon Cryer v. Franklin
Resources, Inc., et al., Case No. 17-80213, in the United States
Court of Appeals for the Ninth Circuit.[BN]
Plaintiff-Respondent MARLON H. CRYER, individually and on behalf
of a class of all other persons similarly situated, and on behalf
of the Franklin Templeton 401(k) Retirement Plan, is represented
by:
Joseph Creitz, Esq.
CREITZ & SEREBIN LLP
100 Pine Street, Suite 1250
San Francisco, CA 94111
Telephone: (415) 269-3675
E-mail: joseph.creitz@gmail.com
- and -
Mark P. Kindall, Esq.
IZARD, KINDALL & RAABE, LLP
29 S. Main Street, Suite 305
West Hartford, CT 06107-2498
Telephone: (860) 493-6292
E-mail: mkindall@ikrlaw.com
Defendants-Petitioners FRANKLIN RESOURCES, INC., and THE FRANKLIN
TEMPLETON 401(K) RETIREMENT PLAN INVESTMENT COMMITTEE are
represented by:
Catalina Joos Vergara, Esq.
O'MELVENY & MYERS LLP
400 South Hope Street
Los Angeles, CA 90071
Telephone: (213) 430-6000
E-mail: cvergara@omm.com
- and -
Brian D. Boyle, Esq.
O'MELVENY & MYERS LLP
1625 Eye Street, N.W.
Washington, DC 20006
Telephone: (202) 383-5327
E-mail: bboyle@omm.com
- and -
Anton Metlitsky, Esq.
O'MELVENY & MYERS LLP
Times Square Tower
7 Times Square
New York, NY 10036
Telephone: (212) 326-2000
E-mail: ametlitsky@omm.com
GCA SERVICES: Court Denies Jama's Bid to Amend Minimum Wage Suit
----------------------------------------------------------------
In the case captioned ABDIKHADAR JAMA, et al., Plaintiffs, v. GCA
SERVICES GROUP, INC., AVIS BUDGET GROUP, INC., and AVIS RENT A CAR
SYSTEM, LLC, Defendants, Case No. C16-0331RSL (W.D. Wash.), Judge
Robert S. Lasnik of the U.S. District Court for the Western
District of Washington, Seattle, denied the Plaintiffs' Motion for
Leave to Amend Class Action Complaint and to Dismiss Defendants
Avis-Budget Group, Inc. and Avis Rent A Car System, LLC.
The Plaintiffs initially filed the suit against GCA Services,
alleging that GCA Services had failed to pay the minimum wage
required by SeaTac Municipal Code Section 7.45 and seeking back
pay. The Court found, however, that GCA Services does not fall
within the definition of "Transportation Employer" and was not
subject to the ordinance.
The Plaintiffs requested and were granted leave to amend their
complaint to add claims against Avis Budget Car Rental, LLC
("ABCR"), the entity with whom GCA Services contracted, on the
theory that ABCR was also their employer under the economic
realities test set forth in Becerra v. Expert Janitorial, LLC. On
Jan. 18, 2017, the Plaintiffs filed an amended complaint restating
their claims against GCA Services and adding two different
entities, Avis Budget Group, Inc., and Avis Rent a Car System, LLC
as Defendants. The claims against GCA Services were subsequently
dismissed by stipulation of the parties. The Defendants did not
file a motion to dismiss or otherwise seek a resolution of the
factual disputes regarding their potential liability as joint
employers.
The Plaintiffs filed a motion for class certification in May 2017.
The Avis-Budget Defendants opposed certification on a number of
grounds, including that the Plaintiffs had named the wrong Avis-
Budget entities as Defendants. The Court declined to resolve the
standing issue in the context of a class certification motion,
however, and certification was granted on Oct. 20, 2017.
In the interim, the Plaintiffs filed this motion to amend their
complaint. They seek permission to drop one of the Named
Plaintiffs, to dismiss the claims against the Avis-Budget
defendants without prejudice, and to add ABCR as the sole
Defendant.
Judge Lasnik finds that the Plaintiffs timely filed an amended
complaint, but inexplicably chose to sue two Avis entities that
had no contractual relationship with GCA Services and who had not
previously been mentioned in the parties' memoranda. Despite the
Court's clear instruction, the Plaintiffs did not sue ABCR. The
delay in bringing the motion is significant and unexplained.
The Judge also finds that the delay has also caused prejudice.
With regards to the named Defendants, it forced them to incur
unnecessary costs defending a lawsuit and a class certification
motion to which they should never have been parties. With regards
to ABCR, the delay deprived it of an opportunity to defend the
class certification motion. If, in the alternative, the class
certification order were vacated, the Plaintiffs' failure to
appropriately and timely amend will have wasted judicial resources
and upended the case management schedule.
For all of these reasons, Judge Lasnik concludes that the
interests of justice are not served by granting the Plaintiffs'
leave to amend. Therefore, he denied the motion and dismissed the
matter.
A full-text copy of the Court's Oct. 27, 2017 Order is available
at https://is.gd/TuSZRy from Leagle.com.
Abdikhadar Jama, Plaintiff, represented by Daniel R. Whitmore --
amber@whitmorelawfirm.com.
Abdikhadar Jama, Plaintiff, represented by Duncan Calvert Turner -
- dturner@badgleymullins.com -- BADGLEY MULLINS TURNER PLLC.
Aneb Abdinor Hirey, Plaintiff, represented by Daniel R. Whitmore &
Duncan Calvert Turner, BADGLEY MULLINS TURNER PLLC.
Rogiya Digale, Plaintiff, represented by Daniel R. Whitmore &
Duncan Calvert Turner, BADGLEY MULLINS TURNER PLLC.
Abdisalam Mohamed, Plaintiff, represented by Daniel R. Whitmore &
Duncan Calvert Turner, BADGLEY MULLINS TURNER PLLC.
Jashir Grewal, Plaintiff, represented by Daniel R. Whitmore &
Duncan Calvert Turner, BADGLEY MULLINS TURNER PLLC.
Udham Singh, Plaintiff, represented by Daniel R. Whitmore & Duncan
Calvert Turner, BADGLEY MULLINS TURNER PLLC.
Udham Singh, Plaintiff, represented by Duncan Calvert Turner,
BADGLEY MULLINS TURNER PLLC.
Sukdev Singh Basra, Plaintiff, represented by Daniel R. Whitmore &
Duncan Calvert Turner, BADGLEY MULLINS TURNER PLLC.
Khalif Mahamad, Plaintiff, represented by Daniel R. Whitmore &
Duncan Calvert Turner, BADGLEY MULLINS TURNER PLLC.
Avis Budget Group Inc, Defendant, represented by Elliot Watson,
K&L GATES LLP, Mark Stephen Filipini, K&L GATES LLP, Patrick M.
Madden, K&L GATES LLP, Ryan J. Groshong, K&L GATES LLP & Daniel P.
Hurley, K&L GATES LLP.
Avis Rent A Car System LLC, Defendant, represented by Elliot
Watson -- elliot.watson@klgates.com -- K&L GATES LLP & Mark
Stephen Filipini -- mark.filipini@klgates.com -- K&L GATES LLP.
Avis Rent A Car System LLC, Defendant, represented by Patrick M.
Madden -- patrick.madden@klgates.com -- K&L GATES LLP.
Avis Rent A Car System LLC, Defendant, represented by Ryan J.
Groshong -- ryan.groshong@klgates.com -- K&L GATES LLP & Daniel P.
Hurley -- daniel.hurley@klgates.com -- K&L GATES LLP.
GLOBAL TEL*LINK: Jacobs Appeals W.D. Arkansas Ruling to 8th Cir.
----------------------------------------------------------------
Plaintiffs Jacqueline Mills Jacobs, Lewis Brooks, Shondra
Caldwell, Walter Chruby, Stephen Orosz, Jr., Stephen Orosz, Sr.,
Earl Reese, Michael Veon and Stephanie Veon filed an appeal from a
court ruling in their lawsuit entitled Jacqueline Jacobs, et al.
v. Global Tel*Link Corporation, Case No. 5:15-cv-05136-TLB, in the
U.S. District Court for the Western District of Arkansas -
Fayetteville.
As reported in the Class Action Reporter on Oct. 24, 2017, the
District Court issued a Memorandum Opinion and Order denying both
Plaintiff's Motion for Class Certification, Appointment of Class
Representative and Class Counsel and Defendant's Motion to Compel
Arbitration and Stay the Proceedings.
The Plaintiffs have alleged that GTL obtained exclusive contracts
to provide telephone services to inmates at correctional
facilities throughout the United States in exchange for the
payment of kickbacks to those correctional facilities known as
site commissions. The Plaintiffs further allege that GTL charged
them excessive rates to cover the costs of site commissions it
paid to correctional facilities, and charged them deposit fees
that unreasonably exceeded the cost of processing deposits into
prepaid accounts.
The appellate case is captioned as Jacqueline Jacobs, et al. v.
Global Tel*Link Corporation, Case No. 17-8029, in the United
States Court of Appeals for the Eighth Circuit.[BN]
Plaintiffs-Petitioners Jacqueline Mills Jacobs, Shondra Caldwell,
Earl Reese, Walter Chruby, Stephen Orosz, Jr., Michael Veon,
Stephen Orosz, Sr., Stephanie Veon, and Lewis Brooks, individually
and on behalf of all others similarly situated, are represented
by:
Robert A. Braun, Esq.
Benjamin Brown, Esq.
COHEN MILSTEIN SELLERS TOLL PLLC
West Tower, Suite 500
1100 New York Avenue, N.W.
Washington, DC 20005-3934
Telephone: (202) 408-4600
E-mail: rbraun@cohenmilstein.com
bbrown@cohenmilstein.com
- and -
Edward W. Ciolko, Esq.
Monique Myatt Galloway, Esq.
Peter A. Muhic, Esq.
Amanda Trask, Esq.
KESSLER TOPAZ MELTZER CHECK LLP
280 King of Prussia Road
Radnor, PA 19087-0000
Telephone: (610) 667-7706
E-mail: eciolko@ktmc.com
mgalloway@ktmc.com
pmuhic@ktmc.com
ktrask@ktmc.com
- and -
Patrick Howard, Esq.
SALTZ MONGELUZZI BARRETT BENDESKY P.C.
1650 Market Street, 52nd Floor
Philadelphia, PA 19103
Telephone: (215) 496-8282
E-mail: phoward@smbb.com
- and -
Peter R. Kahana, Esq.
Yechiel Michael Twersky, Esq.
BERGER MONTAGUE P.C.
1622 Locust Street
Philadelphia, PA 19103-0000
Telephone: (215) 875-3000
Facsimile: (215) 875-4604
E-mail: pkahana@bm.net
mitwersky@bm.net
- and -
Amy C. Martin, Esq.
AMY C. MARTIN P.A.
P.O. Box 765
Fayetteville, AR 72702
Telephone: (479) 422-4611
E-mail: theamymartin@gmail.com
Defendant-Respondent Global Tel*Link Corporation is represented
by:
Robert J. Herrington, Esq.
GREENBERG TRAURIG LLP
1840 Century Park East, Suite 1900
Los Angeles, CA 90067
Telephone: (310) 586-7700
E-mail: herringtonr@gtlaw.com
- and -
Michael R. Sklaire, Esq.
GREENBERG TRAURIG LLP
1750 Tysons Boulevard, Suite 1000
McLean, VA 22102
Telephone: (703) 749-1308
E-mail: sklairem@gtlaw.com
- and -
Derek T. Ho, Esq.
KELLOGG HANSEN TODD FIGEL FREDERICK P.L.L.C.
1615 M Street, N.W., Suite 400
Washington, DC 20036-3209
Telephone: (202) 326-7900
E-mail: dho@kellogghansen.com
- and -
Marshall S. Ney, Esq.
FRIDAY, ELDREDGE & CLARK, LLP
3350 S. Pinnacle Hills Pkwy., Suite 301
Rogers, AR 72758
Telephone: (479) 644-6049
E-mail: mney@fridayfirm.com
GNC HOLDINGS: KBC Asset Appeals "Martin" Suit Ruling to 3rd Cir.
----------------------------------------------------------------
Lead Plaintiff KBC Asset Management NV filed an appeal from a
court ruling in the lawsuit entitled James Martin, et al. v. GNC
Holdings Inc., et al., Case No. 2-15-cv-01522, in the U.S.
District Court for the Western District of Pennsylvania.
As reported in the Class Action Reporter on Sept. 21, 2017, Judge
Mark R. Hornak dismissed the case, without prejudice.
In this securities class action litigation, Lead Plaintiff KBC
Asset Management NV alleges that it and other similarly situated
investors purchased GNC's stock between Nov. 16, 2011, and Oct.
28, 2015, and that GNC and the Individual Defendants have violated
the Securities and Exchange Act of 1934, as a result of various
claimed misrepresentations and omissions by the Defendants during
the Class Period. The Plaintiff also claims that the Individual
Defendants have violated Section 20(a) of the Exchange Act.
The appellate case is captioned as James Martin, et al. v. GNC
Holdings Inc., et al., Case No. 17-3303, in the United States
Court of Appeals for the Third Circuit.[BN]
Plaintiff-Appellee JAMES MARTIN, individually and on behalf of all
others similarly situated, is represented by:
William H. Narwold, Esq.
MOTLEY RICE
20 Church Street, 17th Floor
Hartford, CT 06103
Telephone: (860) 882-1676
E-mail: bnarwold@motleyrice.com
- and -
Gerald L. Rutledge, Esq.
MORROW & MORROW
304 Ross Street, Suite 703
Pittsburgh, PA 15219
Telephone: (412) 391-5164
- and -
Benjamin J. Sweet, Esq.
CARLSON LYNCH SWEET & KILPELA LLP
1133 Penn Avenue
5th Floor, Suite 210
Pittsburgh, PA 15222
Telephone: (412) 322-9243
Facsimile: (412) 231-0246
E-mail: bsweet@carlsonlynch.com
Plaintiff-Appellant KBC ASSET MANAGEMENT NV is represented by:
John C. Browne, Esq.
Jake Nachmani, Esq.
Katherine M. Sinderson, Esq.
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
1251 Avenue of the Americas, 44th Floor
New York, NY 10020
Telephone: (212) 554-1400
E-mail: johnb@blbglaw.com
jake.nachmani@blbglaw.com
katherinem@blbglaw.com
- and -
Gregg S. Levin, Esq.
Christopher F. Moriarty, Esq.
William S. Norton, Esq.
MOTLEY RICE
28 Bridgeside Boulevard
Mount Pleasant, SC 29464
Telephone: (843) 216-9512
E-mail: glevin@motleyrice.com
cmoriarty@motleyrice.com
bnorton@motleyrice.com
- and -
William H. Narwold, Esq.
MOTLEY RICE
20 Church Street, 17th Floor
Hartford, CT 06103
Telephone: (860) 882-1676
E-mail: bnarwold@motleyrice.com
- and -
Gary F. Lynch, Esq.
CARLSON LYNCH SWEET & KILPELA LLP
1133 Penn Avenue
5th Floor, Suite 210
Pittsburgh, PA 15222
Telephone: (412) 322-9243
Facsimile: (412) 231-0246
E-mail: glynch@carlsonlynch.com
Defendant-Appellee GNC HOLDINGS is represented by:
Koji F. Fukumura, Esq.
COOLEY GODWARD KRONISH
4401 Eastgate Mall
San Diego, CA 92121
Telephone: (858) 550-6000
E-mail: kfukumura@cooley.com
- and -
James L. Rockney, Jr., Esq.
REED SMITH LLP
225 Fifth Avenue, Suite 1200
Pittsburgh, PA 15222
Telephone: (412) 288-4046
E-mail: jrockney@reedsmith.com
GNS & ASSOCIATES: Oasis Appeals Ruling in "Marquez" to 11th Cir.
----------------------------------------------------------------
Defendant Oasis Legal Finance, LLC, filed an appeal from a court
ruling in the lawsuit titled James Marquez and Kennedy Dixon,
individually, and on behalf of himself and others similarly
situated, the Plaintiff, v. GNS & Associates, Inc.; Oasis Legal
Finance, LLC; and Oasis Financial, LLC, Case No. 1:17-cv-00060-CG-
N, in the U.S. District Court for the Southern District of
Alabama.
As previously reported in the Class Action Reporter, the purported
class action lawsuit was filed on February 1, 2017.
The appellate case is captioned as Oasis Legal Finance, LLC v.
James Marquez, et al., Case No. 17-90024, in the United States
Court of Appeals for the Eleventh Circuit.[BN]
Plaintiffs-Respondents JAMES MARQUEZ, Individually and on behalf
of himself and others similarly situated, and KENNEDY DIXON,
Individually and on behalf of himself and others similarly
situated, are represented by:
Katherine Browning DeKeyser, Esq.
Browning Law Firm, Esq.
258 State St.
Mobile, AL 36603
Telephone: (251) 304-0909
Facsimile: (251) 304-0499
E-mail: k.browning@browninglawoffice.com
- and -
Ian D. Rosenthal, Esq.
PARKS LAW OFFICE
202 S Royal St.
Mobile, AL 36602
Telephone: (251) 338-0949
E-mail: idr@rosenthalparks.com
- and -
Lucy Elizabeth Tufts, Esq.
CUNNINGHAM BOUNDS, LLC
1601 Dauphin St.
PO Box 66705
Mobile, AL 36604
Telephone: (251) 471-6191
Facsimile: (251) 479-1031
E-mail: sco@cunninghambounds.com
Defendant-Petitioner OASIS LEGAL FINANCE, LLC, is represented by:
Kenneth M. Gorenberg, Esq.
William M. McErlean, Esq.
BARNES & THORNBURG, LLP
1 N Wacker Dr., Suite 4400
Chicago, IL 60606-2833
Telephone: (312) 357-1313
E-mail: kgorenberg@btlaw.com
wmcerlean@btlaw.com
GOOD TECH: Bid to Enforce Term Sheet in Stockholder Suit Denied
---------------------------------------------------------------
In the case styled IN RE GOOD TECHNOLOGY CORPORATION STOCKHOLDER
LITIGATION, C.A. No. 11580-VCL (Del. Ch.), Judge J. Travis Laster
of the Court of Chancery of Delaware granted the Plaintiffs'
motion to dismiss any attempt to enforce the term sheet before the
Court, and denied without prejudice D&O Defendants' motion to
enforce.
The Plaintiffs sued an array of the Defendants that included
individuals and their affiliated entities. They and a subset of
the Defendants mediated with Robert A. Meyer, whom they engaged
through JAMS. They reached an agreement in principle on the terms
of a settlement, which they memorialized in a term sheet.
When they attempted to finalize a global settlement agreement,
disputes arose. The term sheet includes a dispute resolution
clause, which states that any disputes arising out of the Term
Sheet or the final memorialization of the settlement will be
referred to Robert A. Meyer, who will have the sole authority and
exclusive jurisdiction to resolve any such disputes.
The D&O Defendants contacted Meyer, informed him that a "dispute
has arisen" under the term sheet, and asked that he takes the
matter under consideration promptly. Meyer declined to a serve.
After receiving Meyer's response, the D&O Defendants moved to
enforce the term sheet in this Court. The D&O Defendants declined
Meyer's offer to appoint a successor neutral. They instead
pressed the court to resolve the dispute over the term sheet.
The Plaintiffs countered with a motion to dismiss the D&O
Defendants' application for lack of jurisdiction. According to
them, this Curt lacks jurisdiction to resolve disputes over the
term sheet because of the Dispute Resolution Clause. They believe
the Dispute Resolution Clause is a broad arbitration clause that
requires the parties to arbitrate any disputes arising out of the
Term Sheet. The D&O Defendants, by contrast, assert that they
only agreed to have Meyer serve as a mediator, not as an
arbitrator.
In his view, Judge Laster says the fact that Meyer has recused
himself from deciding the merits of the disputes under the term
sheet does not clear the way for this Court to resolve those
disputes itself. The question of whether an arbitrator who has
recused himself may select a successor arbitrator has been
described as a question of procedural arbitrability. Assuming,
for the sake of argument, that Meyer cannot appoint a successor,
that still would not mean that this Court would resolve the
underlying dispute. Instead, under the Federal Arbitration Act,
this Court's role would be limited to appointing a successor
arbitrator.
Judge Laster concludes that the Court lacks jurisdiction to
consider the dispute over the term sheet that the D&O Defendants
have tried to bring before it. He granted the Plaintiffs' motion
to dismiss any attempt to enforce the term sheet before this Court
and denied without prejudice the D&O Defendants' motion to
enforce.
A full-text copy of the Court's Oct. 27, 2017 Memorandum Opinion
is available at https://is.gd/kBk0DS from Leagle.com.
Joel Friedlander -- jfriedlander@friedlandergorris.co -- Jeffrey
M. Gorri -- jgorris@friedlandergorris.com, Christopher P. Quinn --
cquinn@friedlandergorris.com -- FRIEDLANDER & GORRIS, P.A.,
Wilmington, Delaware; Randall J. Baron -- randyb@rgrdlaw.com -- A.
Rick Atwood -- ricka@rgrdlaw.com -- Esther Lee -- elee@rgrdlaw.com
-- ROBBINS GELLER RUDMAN & DOWD LLP, San Diego, California;
Attorneys for Stockholder Plaintiffs.
Peter J. Walsh, Jr. -- pwalsh@potteranderson.com -- Frank R.
Martin -- fmartin@potteranderson.com -- Travis R. Dunkelberger --
tdunkelberger@potteranderson.com -- POTTER ANDERSON & CORROON LLP,
Wilmington, Delaware; Attorneys for Defendants Christy Wyatt,
Brandel L. Carano, John H.N. Fisher, Barry Schuler, Thomas
Unterman, and Christopher Varelas.
William M. Lafferty -- wlafferty@mnat.com -- Ryan D. Stottmann --
rstottmann@mnat.com -- Alexandra M. Cumings -- acumings@mnat.com -
- MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, Delaware;
Attorneys for Defendants Oak Management Corporation, Oak
Investment Partners X, LP, Oak X Affiliates Fund, LP, Draper
Associates, L.P., Draper Associates, Inc., Draper Fisher Jurvetson
ePlanet Partners, Ltd., Draper Fisher Jurvetson ePlanet Partners
Fund, LLC, Draper Fisher Jurvetson ePlanet Ventures GmbH & Co. KG,
Draper Fisher Jurvetson ePlanet Ventures L.P., Draper Fisher
Jurvetson Management, LLC, Draper Fisher Jurvetson Fund VI, L.P.,
Draper Fisher Jurvetson Partners VI, LLC, DFJ Growth Fund 2006,
Ltd., Draper Fisher Jurvetson Growth Fund 2006, L.P., Draper
Fisher Jurvetson Growth Fund 2006 Partners, L.P., Draper Fisher
Jurvetson Partners Growth Fund 2006, LLC, Draper Associates
Riskmasters Fund III, LLC, Saints Rustic Canyon LLC, Saints Rustic
Canyon, LP, Riverwood Capital Management, L.P., Riverwood Capital
L.P., Riverwood Capital Partners L.P., Riverwood Capital Partners
(Parallel-A) L.P. and Riverwood Capital Partners (Parallel-B) L.P.
Edward B. Micheletti -- edward.micheletti@skadden.com -- Alyssa S.
O'Connell -- alyssa.schwartz@skadden.com -- Sarah Runnells Martin
-- arah.martin@skadden.com -- Lauren N. Rosenello --
lauren.rosenello@skadden.com -- SKADDEN, ARPS, SLATE, MEAGHER &
FLOM LLP, Wilmington, Delaware; Attorneys for Defendant J.P.
Morgan Securities LLC.
HAMILTON COUNTY, TN: Sixth Circuit Appeal Filed in M.S. Suit
------------------------------------------------------------
Plaintiffs M.S., Sharonda Covington and Derek Stepp filed an
appeal from a court ruling in their lawsuit titled M.S., et al. v.
Hamilton County Department of Education, et al., Case No. 1:16-cv-
00501, in the U.S. District Court for the Eastern District of
Tennessee of Chattanooga.
As previously reported in the Class Action Reporter, the lawsuit
is brought against the Tennessee school district whose bus driver
crashed into a tree, killing six kids on board.
Sharonda Covington, individually and on behalf of her child M.S.,
and the boy's father Derek Stepp brought the class action against
the Hamilton County Department of Education in December 2016.
Durham School Services LP, which provided bus services to the
school district, and Benjamin Coulter, the district's supervisor
of transportation, are also named as defendants in the lawsuit
alleging civil rights violations, negligence, assault and battery.
Ms. Covington says her 10-year-old son was on a bus driven by
Johnthony Walker on November 21, 2016, when tragedy struck due to
Walker's "dangerously high rate of speed" on a twisting
residential street.
The appellate case is captioned as M.S., et al. v. Hamilton County
Department of Education, et al., Case No. 17-6241, in the United
States Court of Appeals for the Sixth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Appellant brief is due on December 4, 2017; and
-- Appellee brief is due on January 2, 2018.[BN]
Plaintiffs-Appellants M.S., a minor, by his parent and next
friend, Sharonda Covington; DEREK STEPP, Individually and on
behalf of all others similarly situated; and SHARONDA COVINGTON,
Individually and on behalf of all others similarly situated, are
represented by:
Nicholas Adam Szokoly, Esq.
MURPHY, FALCON & MURPHY, PA
1 South Street, Suite 2300
Baltimore, MD 21202
Telephone: (410) 539-6500
E-mail: nick.szokoly@murphyfalcon.com
Defendants-Appellees HAMILTON COUNTY DEPARTMENT OF EDUCATION and
BENJAMIN COULTER, Individually, are represented by:
Joseph Alan Jackson, II, Esq.
SPEARS, MOORE, REBMAN & WILLIAMS
801 Broad Street, Sixth Floor
Chattanooga, TN 37402
Telephone: (423) 756-7000
E-mail: JAJ@smrw.com
- and -
C. Eugene Shiles, Esq.
Joseph Ray White, Esq.
SPEARS, MOORE, REBMAN & WILLIAMS
P.O. Box 1749
Chattanooga, TN 37401
Telephone: (423) 756-7000
E-mail: ces@smrw.com
jrw@smrw.com
Defendant-Appellee DURHAM SCHOOL SERVICES, L.P., Individually, is
represented by:
James M. Burd, Esq.
WILSON ELSER
100 Mallard Creek Road, Suite 250
Louisville, KY 40207
Telephone: (502) 238-8500
E-mail: James.Burd@wilsonelser.com
- and -
Melissa A. Murphy-Petros, Esq.
WILSON ELSER
55 W. Monroe Street, Suite 3800
Chicago, IL 60603
Telephone: (312) 704-0550
E-mail: melissa.murphy-petros@wilsonelser.com
- and -
Michael R. Campbell, Esq.
Lauren Michelle Turner, Esq.
CAMPBELL & CAMPBELL
735 Broad Street
Suite 1200 James Building
Chattanooga, TN 37402
Telephone: (423) 266-1108
Facsimile: (423) 266-8222
HASAKI RESTAURANT: Seeks 2nd Circuit Review of Order in "Yu" Suit
-----------------------------------------------------------------
Defendants Hashimoto Gen, Hasaki Restaurant, Inc., Kunitsugu
Nakata and Shuji Yagi filed an appeal from a court ruling in the
lawsuit styled Yu v. Hasaki Restaurant, Inc., et al., Case No. 16-
cv-6094, in the U.S. District Court for the Southern District of
New York (New York City).
The appellate case is captioned as Yu v. Hasaki Restaurant, Inc.,
et al., Case No. 17-3388, in the United States Court of Appeals
for the Second Circuit.
As reported in the Class Action Reporter, the Defendants
previously filed an appeal from a District Court opinion dated
April 10, 2017. That appellate case is captioned as Yu v. Hasaki
Restaurant, Inc., Case No. 17-1067.
In the complaint, the Plaintiff seeks to recover damages for
unpaid overtime compensation for all hours worked over 40 each
workweek, as a result of the Defendants' alleged willful and
intentional violations of the Fair Labor Standards Act and the New
York Labor Law.[BN]
Plaintiff-Appellee Mei Xing Yu, individual, on behalf of all other
employees similarly situated, is represented by:
Keli Liu, Esq.
William M. Brown, Esq.
HANG AND ASSOCIATES, PLLC
136-18 39th Avenue
Flushing, NY 11354
Telephone: (718) 353-8588
Facsimile: (718) 353-6288
E-mail: kliu@hanglaw.com
wbrown@hanglaw.com
Defendants-Appellants Hasaki Restaurant, Inc., Shuji Yagi,
Kunitsugu Nakata and Hashimoto Gen are represented by:
Louis Pechman, Esq.
Lillian Marie Marquez, Esq.
Laura Rodriguez, Esq.
PECHMAN LAW GROUP PLLC
488 Madison Avenue
New York, NY 10022
Telephone: (212) 583-9500
Facsimile: (212) 308-8582
E-mail: pechman@pechmanlaw.com
marquez@pechmanlaw.com
rodriguez@pechmanlaw.com
HAWAII: Court Refuses to Strike Class Allegations in "Hyland"
-------------------------------------------------------------
The United States District Court for the District of Hawaii issued
an Order granting in part and denying in part Defendant's Motion
to Strike in the case captioned LANRIC HYLAND, Plaintiff, v.
OFFICE OF HOUSING & COMMUNITY DEVELOPMENT, ET AL., Defendants,
Civil No. 15-00504 LEK-RLP (D. Haw.).
Before the Court are: Defendant Ainakea Senior Residences LLLP's
motion to strike Hawaii Island Community Development Corporation
(HICDC) and Plaintiff's request for class certification from the
Second Amended Complaint and Defendant Office of Housing &
Community Development, County of Hawaii's (OHCD) Substantive
Joinder to the Motion to Strike (Joinder).
Substantive joinder means a joinder based on a memorandum
supplementing the motion joined in. Because the County did not
attach a memorandum to the Joinder, the Joinder is not a
substantive joinder. It is merely a joinder of simple agreement,
representing the County's agreement that Ainakea is entitled to
the relief requested in the Motion to Strike. To the extent the
Joinder seeks relief beyond that requested in the Motion to
Strike, the Joinder is denied.
Ainakea asks the Court to strike HICDC from the Second Amended
Complaint or dismiss all of Plaintiff's claims against HICDC; and
strike the Second Amended Complaint's request for class
certification. Ainakea argues that the Order did not grant
Plaintiff leave either to add HICDC as a defendant or to request
class certification.
Plaintiff points out that he does not describe HICDC as a
defendant in the Second Amended Complaint, and he does not assert
any claim against it. In light of Plaintiff's representations,
the Motion to Strike is granted insofar as the Court directs the
Clerk's Office to strike HICDC from the case caption. This ruling
has no effect on the pending Motion to Join HICDC.
Plaintiff's inclusion of the class allegations and the prayer for
class certification in the Second Amended Complaint did not
violate the 6/30/17 Order. The Motion to Strike is denied as to
Ainakea's request to strike the prayer for class certification.
Of course, Plaintiff must still file a motion seeking class
certification, the Court said.
A full-text copy of the District Court's September 29, 2017 Order
is available at http://tinyurl.com/yax9xylufrom Leagle.com.
Lanric Hyland, Plaintiff, represented by Margaret Dunham Wille --
margaretwille@mac.com -- Margaret Wille, Attorney at Law.
County of Hawaii, Defendant, represented by Devin K. Horowitz,
County of Hawaii Office of Corporation Counsel & Laureen L.
Martin, Office of the Corporation Counsel-Hawaii.
Office of Housing & Community Development, Defendant, represented
by Devin K. Horowitz, County of Hawaii Office of Corporation
Counsel & Laureen L. Martin, Office of the Corporation Counsel-
Hawaii.
Hawaii Affordable Properties, Defendant, represented by Daniel S.
Peters, Daniel S. Peters, Attorney at Law, 75-5875 Kahakai Rd
Kailua Kona, HI 96740-5310
Ainakea Senior Residences LLLP, Defendant, represented by David J.
Minkin, McCorriston Miller Mukai MacKinnon & Jordon Jun Kimura,
McCorriston Miller Mukai MacKinnon. Five Waterfront Plaza,
Honolulu, HI 96813
HEALTHCARE REVENUE: Levins Appeals Decision to Third Circuit
------------------------------------------------------------
Plaintiffs Elaine Levins and William Levins filed an appeal from a
court ruling in their lawsuit styled Elaine Levins, et al. v.
Healthcare Revenue Recovery Group LLC, Case No. 1-17-cv-00928, in
the U.S. District Court for the District of New Jersey.
As reported in the Class Action Reporter on Oct. 18, 2017, Judge
Robert B. Kugler dismissed the case.
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 appellate case is captioned as Elaine Levins, et al. v.
Healthcare Revenue Recovery Group LLC, Case No. 17-3330, in the
United States Court of Appeals for the Third Circuit.[BN]
The Plaintiffs-Appellants ELAINE LEVINS and WILLIAM LEVINS, on
behalf of themselves and others similarly situated, are
represented by:
Philip D. Stern, Esq.
Andrew T. Thomasson, Esq.
STERN THOMASSON LLP
150 Morris Avenue, 2nd Floor
Springfield, NJ 07081
Telephone: (973) 379-7500
Facsimile: (973) 532-0866
E-mail: philip@sternthomasson.com
andrew@sternthomasson.com
Defendant-Appellee HEALTHCARE REVENUE RECOVERY GROUP LLC, AKA ARS
Account Resolution Services, is represented by:
Christian M. Scheuerman, Esq.
MARKS, O'NEILL, O'BRIEN, DOHERTY & KELLY, P.C.
535 Route 38 East, Suite 501
Cherry Hill, NJ 08002
Telephone: (856) 663-4300
Facsimile: (856) 663-4439
E-mail: cscheuerman@moodklaw.com
HESO INC: Court Resolves Certification Issues in "Lopes"
--------------------------------------------------------
In the case captioned VALDINEI LOPES and EDISON NARANJO On Behalf
of Themselves and All Others Similarly Situated, Plaintiffs, v.
HESO, INC., HAVANA WIRING & ELECTRICAL CORP., QUALITY USED
ELECTRICAL EQUIPMENT INC., EMPIRE ELECTRICAL SOLUTION INC. and
HERNAN F. SOCARRAS a/k/a FRANK SOCARRAS, Defendants, Case No. 16
CV 6796 (MKB) (RML) (E.D. N.Y.), Magistrate Judge Robert M. Levy
of the U.S. District Court for the Eastern District of New York
entered his rulings on several points of disagreement in lieu of a
motion for conditional certification.
Lopes initiated the collective and class action under the Fair
Labor Standards Act ("FLSA") and the New York Labor Law ("NYLL")
on Dec. 8, 2016. Naranjo became an additional class
representative on June 7, 2017. The Plaintiffs allege that they
were employed by the Defendants as electricians and working
foremen, and were paid on an hourly basis. They seek to represent
themselves and all similarly situated current and former
electricians and working foremen who opt into the action, pursuant
to 29 U.S.C. Section 216(b), to remedy FLSA violations. They also
seek to represent an opt-out class, pursuant to Federal Rule of
Civil Procedure 23, to remedy NYLL violations.
Following a pre-motion conference on the Plaintiffs' proposed
Section 216(b) motion, the parties asked for rulings on several
issues in order to obviate the need for a formal motion for
conditional certification and allow them to finalize a stipulation
for preliminary certification without further Court intervention.
The issues requiring rulings are whether: (i) the recipients of
the court-approved notice should be determined based on a three or
six-year notice period; (ii) the proper date for calculating the
look back period is the date the complaint was filed or the date
notice is issued; (iii) the Defendants should be required to post
the notice in conspicuous areas in the workplace; and (iv) a
reminder notice may be sent.
Magistrate Judge Levy finds no jurisdictional or legal barriers to
authorizing a six-year notice period. Nonetheless, he takes these
pragmatic concerns seriously, and encourages the Plaintiffs to
craft their proposed notice carefully so as to minimize confusion
among the potential Plaintiffs. He also finds it appropriate to
use the date of the complaint's filing as the look-back date,
given how often equitable tolling issues emerge in FLSA cases.
The Judge allows notice to be mailed to all electricians and
working foremen who worked for the Defendants during the six years
prior to Dec. 8, 2016, the date of the filing of the complaint.
The Magistrate Judge further finds that the notice posting in
conspicuous areas in the workplace, including the corporate
office, is minimally burdensome and wholly appropriate, even if
only a small number of potential class members visit that office
and are informed of their rights to join the collective action.
Lastly, he adopts the Jennings v. Cellco P'ship compromise and
finds that a reminder notice is permissible, but should include an
up-front disclaimer that the Court neither encourages nor
discourages employees' participation in the lawsuit.
For the reasons he stated Magistrate Judge Levy concluded that (i)
a six-year notice period is permissible and in the best interests
of judicial economy, so long as notice is carefully crafted so as
to minimize confusion among potential class members; (ii) it is
permissible to calculate the look-back period from the date of
filing the Complaint, so as to ensure that the potential opt-in
Plaintiffs whose claims may be equitably tolled receive the
notice; (iii) the Defendants may indeed be required to post the
notice in conspicuous areas in the workplace, including the
corporate office; and (iv) a reminder notice may be sent, so long
as it contains a disclaimer stating that the court neither
encourages nor discourages participation in the action.
These rulings resolve all the issues on which the parties
requested rulings. The parties are therefore directed to finalize
their stipulation for preliminary certification within 14 days of
the Order.
A full-text copy of the Court's Oct. 27, 2017 Order is available
at https://is.gd/vsXndb from Leagle.com.
Valdinei Lopes, Plaintiff, represented by Amit Kumar, Law Offices
of William Cafaro.
Valdinei Lopes, Plaintiff, represented by Louis Moshe Leon, Law
Offices of William Cafaro & William Cafaro, Law Offices of William
Cafaro.
Edison Naranjo, Plaintiff, represented by Louis Moshe Leon, Law
Offices of William Cafaro & William Cafaro, Law Offices of William
Cafaro.
Heso, Inc., Defendant, represented by Johanna Sanchez --
johanna.sanchez@rivkin.com -- Rivkin Radler LLP & Scott R. Green -
- scott.green@rivkin.com -- Rivkin Radler LLP.
Havana Wiring & Electrical Corp., Defendant, represented by
Johanna Sanchez, Rivkin Radler LLP & Scott R. Green, Rivkin Radler
LLP.
Quality Used Electrical Equipment Inc., Defendant, represented by
Johanna Sanchez, Rivkin Radler LLP & Scott R. Green, Rivkin Radler
LLP.
Empire Electrical Solution Inc., Defendant, represented by Johanna
Sanchez, Rivkin Radler LLP & Scott R. Green, Rivkin Radler LLP.
Hernan F. Socarras, also known as Frank Socarras, Defendant,
represented by Johanna Sanchez, Rivkin Radler LLP.
Hernan F. Socarras, Defendant, represented by Scott R. Green,
Rivkin Radler LLP.
HEWLETT PACKARD: Ninth Circuit Appeal Filed in "Forsyth" Suit
-------------------------------------------------------------
Plaintiffs Donna J. Forsyth, Albert R. DeVere, Shafiq Rahman, Arun
Vatturi and Dan Weiland filed an appeal from a court ruling in
their lawsuit titled Donna Forsyth, et al. v. HP, et al., Case No.
5:16-cv-04775-EJD, in the U.S. District Court for the Northern
District of California, San Jose
As previously reported in the Class Action Reporter, the purported
class and collective action was filed on August 18, 2016, and an
amended complaint was filed on December 19, 2016. The lawsuit
alleges that the Defendants violated the Federal Age
Discrimination in Employment Act, the California Fair Employment
and Housing Act, California public policy and the California
Business and Professions Code by terminating older workers and
replacing them with younger workers.
The appellate case is captioned as Donna Forsyth, et al. v. HP, et
al., Case No. 17-17137, in the United States Court of Appeals for
the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Appellants Albert R. DeVere, Donna J. Forsyth, Shafiq
Rahman, Arun Vatturi and Dan Weiland's opening brief is due
on December 18, 2017;
-- Appellees HP Inc. and HewletPackEnter's answering brief is
due on January 17, 2018; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiffs-Appellants DONNA J. FORSYTH, ARUN VATTURI, SHAFIQ
RAHMAN, ALBERT R. DEVERE and DAN WEILAND, for and on behalf of
themselves and other person similarly situated, are represented
by:
Jennie Lee Anderson, Esq.
ANDRUS ANDERSON LLP
155 Montgomery Street
San Francisco, CA 94104
Telephone: (415) 986-1400
E-mail: jennie@andrusanderson.com
Defendants-Appellees HP INC. and HEWLETPACKENTER, Hewlett-Packard
Enterprise Company, are represented by:
Benjamin A. Emmert, Esq.
LITTLER MENDELSON, P.C.
50 W. San Fernando Street
San Jose, CA 95113
Telephone: (408) 795-3496
E-mail: bemmert@littler.com
- and -
Richard William Black, Esq.
LITTLER MENDELSON, P.C.
333 Bush Street
34th Floor
San Francisco, CA 94104
Telephone: (415) 433-1940
E-mail: rblack@littler.com
- and -
Lisa Ann Schreter, Esq.
LITTLER MENDELSON, P.C.
3344 Peachtree Road, NE
Atlanta, GA 30326
Telephone: (404) 233-0330
E-mail: lschreter@littler.com
HITACHI-MAXELL: Nov. 29 Settlement Claims Filing Deadline Set
-------------------------------------------------------------
KWCH reports that if you purchased an item that operated on a
lithium-ion battery in the 2000's, you could receive part of a $45
million dollar class action settlement.
The devices in question were sold between January 1, 2000, and May
31, 2011.
The list includes laptops, mobile phones, camcorders, and cordless
power tools.
The lawsuit claims major battery companies conspired to fix
battery prices for more than a decade.
You can find out if you qualify at Reverse the change website --
https://www.reversethecharge.com/
Make sure to apply before November 29. [GN]
HUMANADENTAL INSURANCE: Brodsky Appeals Decision to 7th Circuit
---------------------------------------------------------------
Plaintiff Lawrence S. Brodsky filed an appeal from a court ruling
in his lawsuit styled Lawrence Brodsky v. HumanaDental Insurance
Company, Case No. 1:10-cv-03233, in the U.S. District Court for
the Northern District of Illinois, Eastern Division.
The appellate case is captioned as Lawrence Brodsky v.
HumanaDental Insurance Company, Case No. 17-3067, in the U.S.
Court of Appeals for the Seventh Circuit.
As reported in the Class Action Reporter on Sept. 26, 2017, Mr.
Brodsky appealed a court ruling in the lawsuit. That appellate
case is titled as Lawrence Brodsky v. Humana Insurance Company,
Case No. 17-8019.
In his complaint, Mr. Brodsky alleges that the Defendant
improperly sent him two faxes in violation of the Telephone
Consumer Protection Act.
The Appellate Case's docket states that Appellant's brief is due
on or before November 14, 2017, for Lawrence S. Brodsky.[BN]
Plaintiff-Appellant LAWRENCE S. BRODSKY, individually and as the
representative of a class of similarly-situated persons, is
represented by:
Glenn L. Hara, Esq.
ANDERSON & WANCA
3701 Algonquin Road
Rolling Meadows, IL 60008-0000
Telephone: (847) 368-1500
E-mail: ghara@andersonwanca.com
Defendant-Appellee HUMANADENTAL INSURANCE COMPANY, doing business
as HUMANA SPECIALTY BENEFITS, is represented by:
David J. Novotny, Esq.
CHITTENDEN, MURDAY & NOVOTNY LLC
303 W. Madison Street
Chicago, IL 60606-0000
Telephone: (312) 281-3603
E-mail: dnovotny@cmn-law.com
INDIANA: Seeks 7th Circuit Review of Ruling in "Lacy" Suit
----------------------------------------------------------
Defendant Keith Butts filed an appeal from a court ruling in the
lawsuit styled Donald Lacy v. Keith Butts, Case No. 1:13-cv-00811-
RLY-DML, in the U.S. District Court for the Southern District of
Indiana, Indianapolis Division.
As reported in the Class Action Reporter on Nov. 1, 2017, a
federal judge has ruled that Indiana's mandated sex offender
classes for prisoners, who oppose them, violates the
constitutional right to be free from self-incrimination.
The Sept. 28 ruling in the class-action lawsuit will affect all
convicted, incarcerated sex offenders, who opt out of the Indiana
Sex Offender Monitoring and Management, or SOMM, program. Three
of the plaintiffs will be eligible for release from prison.
The appellate case is captioned as Donald Lacy v. Keith Butts,
Case No. 17-3256, in the U.S. Court of Appeals for the Seventh
Circuit.
The briefing schedule in the Appellate Case states that the
Appellant's brief is due on or before December 11, 2017, for Keith
Butts.[BN]
Plaintiff-Appellee DONALD LACY, on behalf of himself and all
others similarly situated, is represented by:
Sara J. Varner, Esq.
INDIANA FEDERAL COMMUNITY DEFENDERS, INC.
111 Monument Circle
Indianapolis, IN 46204-0000
Telephone: (317) 383-3520
E-mail: sara.varner@fd.org
Defendant-Appellant KEITH BUTTS, in his official capacity as
Warden of the New Castle Correctional Facility, is represented by:
Jonathan P. Nagy, Esq.
OFFICE OF THE ATTORNEY GENERAL
302 W. Washington Street
Indiana Government Center South
Indianapolis, IN 46204-2770
Telephone: (317) 233-8296
E-mail: jonathan.nagy@atg.in.gov
INTERCEPT PHARMA: Klein Law Firm Files Class Action Lawsuit
-----------------------------------------------------------
The Klein Law Firm disclosed a class action complaint has been
filed on behalf of shareholders of Intercept Pharmaceuticals, Inc.
(NASDAQ:ICPT) who purchased shares between May 31, 2016 and
September 20, 2017. The action, which was filed in the United
States District Court for the Southern District of New York,
alleges that the Company violated federal securities laws.
In particular, the complaint alleges that throughout the Class
Period, defendants made materially false and/or misleading
statements and/or failed to disclose that (i) the Company's lead
product candidate, Ocaliva, entailed undisclosed safety risks,
including death, to patients suffering from primary biliary
cholangitis; and (ii) as a result of the foregoing, Intercept's
public statements were materially false and misleading at all
relevant times. On September 12, 2017, Intercept issued a letter
warning physicians against overdosing patients with Ocaliva,
advising them that the drug has been tied to liver injuries and
death among patients suffering from PBC. On September 21, 2017,
the FDA issued a safety announcement warning doctors after reports
of multiple deaths linked to the drug.
Shareholders have until November 27, 2017 to petition the court
for lead plaintiff status. Your ability to share in any recovery
does not require that you serve as lead plaintiff. You may choose
to be an absent class member.
If you suffered a loss during the class period and wish to obtain
additional information, please contact Joseph Klein, Esq. by
telephone at 212-616-4899 or visit
http://www.kleinstocklaw.com/pslra-sb/intercept-pharmaceuticals-
inc?wire=3.
Joseph Klein, Esq. is an experienced attorney and has also
practiced as a Certified Public Accountant. Mr. Klein represents
investors and participates in securities litigations involving
financial fraud throughout the nation. Attorney advertising. Prior
results do not guarantee similar outcomes. [GN]
J. JILL INC: Pomerantz LLP Files Class Action Lawsuit
-----------------------------------------------------
Pomerantz LLP disclosed that a class action lawsuit has been filed
against J. Jill, Inc. ("J. Jill" or the "Company") (NYSE:JILL) and
certain of its officers. The class action, filed in United Stated
States District Court for the District of Massachusetts, and
docketed under 17-cv-12098, is on behalf of a class consisting of
investors who purchased or otherwise acquired J. Jill securities
pursuant and/or traceable to J. Jill's false and misleading
Registration Statement and Prospectus, issued in connection with
the Company's initial public offering on or about March 9, 2017
(the "IPO" or the "Offering), seeking to recover damages caused by
Defendants' violations of the Securities Act of 1933 (the
"Securities Act").
If you are a shareholder who purchased J. Jill securities pursuant
and/or traceable to the Company's IPO, you have until December 12,
2017, to ask the Court to appoint you as Lead Plaintiff for the
class. A copy of the Complaint can be obtained at
www.pomerantzlaw.com. To discuss this action, contact Robert S.
Willoughby at -- rswilloughby@pomlaw.com -- or 888.476.6529 (or
888.4-POMLAW), toll-free, Ext. 9980. Those who inquire by e-mail
are encouraged to include their mailing address, telephone number,
and the number of shares purchased.
J. Jill is a specialty apparel brand focused on affluent women in
the 40-to-65 age segments. It employs an "omni-channel" sale and
marketing platform, whereby it sells its products through a
variety of sales channels, including brick-and-mortar retail
stores, a sales catalog and the Company's website.
In connection with the IPO, Defendants marketed J. Jill as
insulated from adverse trends impacting the larger retail sector.
For example, the Registration Statement, which incorporated the
Prospectus, for the Company's IPO (the "Registration Statement")
stated that the Company's "customer-focused strategy, foundational
investments and data insights have resulted in consistent,
profitable growth" and would "continue to drive profitable sales
growth over time."
The Registration Statement was negligently prepared and as a
result contained untrue statements of material fact, omitted
material facts necessary to make the statements contained therein
not misleading, and failed to make adequate disclosures required
under the rules and regulations governing its preparation.
The Complaint alleges that Defendants made materially false and
misleading statements regarding the Company's business,
operational and compliance policies. Specifically, Defendants made
false and/or misleading statements and/or failed to disclose that:
(i) J. Jill's purportedly unique and superior sales and marketing
approach had not insulated the Company from adverse trends
affecting the overall retail industry; (ii) J. Jill's historic
gross margin growth was not sustainable and would not continue, as
it relied on revenues from shipping fees, increased promotional
efforts and other short-term boosts to revenues; (iii) the Company
was carrying increasing amounts of slow moving inventory and would
need to significantly markdown sales items and increase
promotional efforts in an attempt to continue its sales growth;
(iv) the Company's brick-and-mortar stores were failing, as they
were experiencing difficulty attracting customers and maintaining
profitability, which would result in the Company shuttering up to
eight stores in fiscal 2017, with the rate of store closures
accelerating; (v) J. Jill's business, prospects and ability to
service its long-term debt had been materially impaired; and (vi)
as a result of the foregoing, J. Jill's public statements were
materially false and misleading at all relevant times.
On October 11, 2017, J. Jill disclosed a downgraded guidance for
Q3 2017 relating to total company comparable sales and gross
margin.
Following this news, J. Jill stock closed at $4.86 per share. This
price represented a greater than 62% decline from the price at
which J. Jill stock had been sold to the investing public only
seven months earlier.
The Pomerantz Firm, with offices in New York, Chicago, Los
Angeles, and Paris, is acknowledged as one of the premier firms in
the areas of corporate, securities, and antitrust class
litigation. Founded by the late Abraham L. Pomerantz, known as the
dean of the class action bar, the Pomerantz Firm pioneered the
field of securities class actions. Today, more than 80 years
later, the Pomerantz Firm continues in the tradition he
established, fighting for the rights of the victims of securities
fraud, breaches of fiduciary duty, and corporate misconduct. The
Firm has recovered numerous multimillion-dollar damages awards on
behalf of class members. [GN]
JAHM J NAJAFI: McCauley Appeals D. Ariz. Ruling to Ninth Circuit
----------------------------------------------------------------
Plaintiffs Edward D. Kendler and Bill McCauley filed an appeal
from a court ruling in their lawsuit entitled Edward Kendler, et
al. v. Jahm Najafi, et al., Case No. 2:16-cv-03461-SPL, in the
U.S. District Court for the District of Arizona, Phoenix.
As previously reported in the Class Action Reporter, the class
action lawsuit was filed in the Maricopa County Superior Court
(Case No. CV2016-013272), and was removed to the District Court.
The Plaintiffs brought the action on behalf of a nationwide class
that purchased Xhibit Corporation stock between May 16, 2013, and
September 10, 2014.
The appellate case is captioned as Edward Kendler, et al. v. Jahm
Najafi, et al., Case No. 17-17196, in the United States Court of
Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Mediation Questionnaire was due November 2, 2017;
-- Appellants Edward D. Kendler and Bill McCauley's opening
brief is due on December 26, 2017;
-- Appellees David P. Franke, Stephanie M. Rankin Franke,
Cheryl Najafi, Jahm J. Najafi, James D. Staudohar, Kathleen
M. Staudohar, Elizabeth S. Weiss, Kevin M. Weiss, Gail E.
Wiley and Scott Wiley's answering brief is due on
January 24, 2018; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiffs-Appellants EDWARD D. KENDLER, individually and on
behalf of all others similarly situated; sole trustee of Kendler
Family Trust, and BILL MCCAULEY, individually and on behalf of all
others similarly situation; sole trustee of Kendler Family Trust,
are represented by:
Andrew S. Friedman, Esq.
BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C.
2325 E. Camelback Road, Suite 300
Phoenix, AZ 85016
Telephone: (602) 274-1100
Facsimile: (602) 274-1199
E-mail: afriedman@bffb.com
Defendants-Appellees JAHM J. NAJAFI, husband; CHERYL NAJAFI, wife;
KEVIN M. WEISS, husband; ELIZABETH S. WEISS, wife; DAVID P.
FRANKE, husband; STEPHANIE M. RANKIN FRANKE, wife; JAMES D.
STAUDOHAR, husband; KATHLEEN M. STAUDOHAR, wife; SCOTT WILEY,
husband; and GAIL E. WILEY, wife, are represented by:
John Maston O'Neal, Esq.
QUARLES & BRADY LLP
One Renaissance Square
Two North Central Avenue
Phoenix, AZ 85004
Telephone: (602) 229-5200
Facsimile: (602) 229-5690
E-mail: John.Oneal@quarles.com
JAMAICA PUBLIC SERVICE: Privy Council Dismisses Class Action Suit
-----------------------------------------------------------------
Jerome Reynolds, writing for The Gleaner, reports that Jamaica's
final court has dismissed the appeal of the class action suit
brought against the government for granting an all-island
exclusive licence to Jamaica Public Service Company Limited (JPS).
The United Kingdom-based Privy Council handed down its judgment on
October 19 after hearing submissions in July.
Dennis Meadows and other interest groups went to the Privy Council
to have it quash a Court of Appeal ruling made in 2015 that
overturned a Supreme Court decision.
In 2011, Supreme Court judge Justice Bryan Sykes ruled that while
the Energy Minister had the power to grant a licence for the whole
of Jamaica, he had no power to grant an exclusive licence to JPS.
The licence was rendered null and void.
The matter went to the Court of Appeal where the court set aside
the Supreme Court decision.
At the Privy Council, the appellants argued, among other things,
that the Energy Minister does not have the power under the
Electric Lighting Act 1890 to grant the JPS an executive all-
island license.
They contended that the granting of such a licence is contrary to
the policy of the 1890 Act as it created a monopoly rather than
promoting competition.
They wanted the Privy Council to rule that the minister acted
illegally and that JPS licence is invalid and null and void.
However, the final appellate court disagreed with the submissions
and dismissed the appeal.
The court also ruled that subject to any submissions from the
appellants, which should be filed within 14 days of the delivery
of the judgment, the appellants should pay the costs of both
respondents.
The JPS and the Attorney General are the respondents in the case.
[GN]
KING'S CORNER: Court OKs $40K Settlement in "Redden" Wage Suit
--------------------------------------------------------------
In the case, TURHAN REDDEN, v. THE KING'S CORNER PUB, LLC, et al,
Civil Action No. 16-6152 (E.D. Pa.), Judge R. Barclay Surrick of
the U.S. District Court for the Eastern District of Pennsylvania
granted the parties' Joint Motion For An Order Approving
Settlement.
Redden filed the action against the Defendants, alleging that the
Defendants failed to pay him and similarly situated employees
overtime compensation, in violation of the Fair Labor Standards
Act ("FLSA"), the Pennsylvania Minimum Wage Act, and the
Pennsylvania Wage Payment and Collection Law.
In addition, the Plaintiff alleged, on his own behalf, a claim
against Defendant King's Corner for violation of the Americans
with Disabilities Act ("ADA"), and claims against both the
Defendants for violation of the Family and Medical Leave Act
("FMLA"), and for wrongful discharge under Pennsylvania common
law. In his individual claims, the Plaintiff alleged that the
Defendants failed to engage in an interactive process to determine
a reasonable accommodation for his disability resulting from a
hernia injury, terminated him on account of his disability,
interfered with his rights under the FMLA, and retaliated against
him for attempting to exercise his rights under the ADA, FMLA, and
Pennsylvania worker's compensation law.
The Plaintiff and the Defendants have settled their dispute and
seek approval of the proposed Settlement Agreement resolving all
of Redden's individual claims against the Defendants.
Judge Surrick finds that the Settlement Agreement terms are fair
and reasonable to the Plaintiff. The Defendants have agreed to
pay the Plaintiff a total of $25,594, with $12,797 of that sum
being paid as wages, and $12,797 representing additional non-wage
compensation. The parties have represented, consistently with the
Complaint's allegations, that Plaintiff's maximum possible
recovery for his FLSA unpaid overtime claim would be $8,865,
inclusive of liquidated damages. Therefore, the portion of the
settlement payment designated as wages alone represents 144% of
the Plaintiff's maximum possible recovery for his alleged FLSA
claims. And, as noted, the Plaintiff will receive an additional
$12,797 in non-wage compensation. In addition to the $25,594
payment to the Plaintiff, the Defendants have agreed to pay
$14,406 in attorneys' fees.
Having found that the Settlement Agreement is fair and reasonable,
Judge Surrick granted the parties' Joint Motion For An Order
Approving Settlement.
A full-text copy of the Court's Oct. 27, 2017 Memorandum is
available at https://is.gd/qOaUIZ from Leagle.com.
TURHAN REDDEN, Plaintiff, represented by MICHAEL PATRICK MURPHY,
JR. -- MURPHY@PHILLYEMPLOYMENTLAWYER.COM -- MURPHY LAW GROUP LLC.
TURHAN REDDEN, Plaintiff, represented by DANIEL S. ORLOW, MURPHY
LAW GROUP LLC.
THE KING'S CORNER PUB, LLC, Defendant, represented by GREG GREUBEL
-- ggreubel@littler.com -- LITTLER MENDELSON & NINA MARKEY --
nmarkey@littler.com -- LITTLER MENDELSON, PC.
THE DRAKE TAVERN, LLC, Defendant, represented by GREG GREUBEL,
LITTLER MENDELSON & NINA MARKEY, LITTLER MENDELSON, PC.
KOODO SUSHI: Gamero Appeals S.D.N.Y. Judgment to Second Circuit
---------------------------------------------------------------
Plaintiffs Israel Gamero, Norberto Mastranzo and Oscar Sanchez
filed an appeal from a District Court judgment dated September 29,
2017, issued in their lawsuit styled Gamero, et al. v. Koodo Sushi
Corp., et al., Case No. 15-cv-2697, in the U.S. District Court for
the Southern District of New York (New York City).
As previously reported in the Class Action Reporter, the case is
brought against the Defendants pursuant to the Fair Labor
Standards Act for alleged failure to pay overtime wages for work
in excess of 40 hours in a week.
The Defendants own and operate a Japanese restaurant located in
New York City.
The appellate case is captioned as Gamero, et al. v. Koodo Sushi
Corp., et al., Case No. 17-3356, in the United States Court of
Appeals for the Second Circuit.[BN]
Plaintiffs-Appellants Israel Gamero, Norberto Mastranzo and Oscar
Sanchez, Individually, on behalf of others similarly situated, are
represented by:
Shawn Raymond Clark, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street
New York, NY 10165
Telephone: (212) 317-1200
E-mail: sclark@faillacelaw.com
Defendants-Appellees Koodo Sushi Corp., DBA Koodo Sushi, Michelle
Koo and Raymond Koo are represented by:
Richard D. Owens, Esq.
LATHAM & WATKINS LLP
885 3rd Avenue
New York, NY 10022
Telephone: (212) 906-1396
E-mail: Erichard.owens@lw.com
LOUISIANA: 350 Filipino Teachers to Get Class Action Payout
-----------------------------------------------------------
Nick Wooten, writing for The Shreveport Times, reports that some
350 Filipino teachers in Louisiana who alleged worker abuse
against a placement agency each will receive about $2,200 from a
class-action lawsuit after years of litigation.
"This is the bittersweet ending to a sad story of exploitation,"
said Louisiana Federation of Teachers President Larry Carter, in a
release. "While these teachers can never be properly compensated
for their suffering, we have at least validated the rule of law
and sent a strong message to those who would profit from such
human trafficking."
The money is the result of a 2010 ruling by the Louisiana
Workforce Commission that ordered Universal Placement
International and its principal executive, Lourdes Navarro, to
repay Filipino teachers an estimated $1.8 million in illegally
charged placement fees, a $500 fine and $7,500 in attorney fees,
according to the release.
The original complaint to the commission accused Navarro of
conducting a "psychologically coercive and financially ruinous
trafficking scheme that subjected the teachers to exorbitant debt
and forced labor," according to the release.
The teachers were hired in Caddo Parish, East Baton Rouge Parish,
Jefferson Parish and the State Recovery School District in New
Orleans.
The case began in 2009. The teachers were represented by the
Louisiana Federation of Teachers, the American Federation of
Teachers and the Southern Poverty Law Center.
Each teacher paid Navarro $5,000 to get a job and then signed a
contract promising 10 percent of their second year's salary to the
company. Those who couldn't afford to pay the fees were directed
to loan companies and charged high interest rates.
Navarro confiscated passports and visas to ensure that fees would
be paid. Those fees were more than a teacher's annual salary in
the Philippines, according to the report.
Navarro was also paid $47,500 by the State Department of Education
to recruit teachers for the Recovery School District in New
Orleans, according to the release.
Some teachers who arrived in the U.S. learned that their promised
jobs weren't available. They were required to live in roach-
infested apartments and were threatened if they complained.
The commission's decision was affirmed on appeal. Navarro's assets
then were seized and distributed to the teachers.
Mary Wood, spokesperson for Caddo Parish schools, said Caddo
completed all payments in 2011 to Filipino teachers it employed.
She said the district was not named in the Navarro suit.
Nevertheless, she said, the district "determined early after the
arrival of our Filipino teachers that they were due additional
compensation from what they were promised from Ms. Navarro and her
organization."
More legal action involving Filipino teachers may come. At least
12 Filipino teachers filed discrimination complaints in September
with the Louisiana Commission on Human Rights and the Equal
Employment Opportunity Commission against the Caddo Parish School
Board, according to EEOC documents. The complaints allege
discrimination based on national origin.
The teachers allege that a school board policy that requires
teaching experience outside the U.S. be in a school accredited by
an agency recognized by the United States is unfair.
Wood declined to comment on the EEOC complaints because the
district was unaware of them. [GN]
M&T BANK: 2nd Amended "Jaroslawicz" Suit Dismissed w/o Prejudice
----------------------------------------------------------------
In the case, DAVID JAROSLAWICZ., Individually and on behalf of all
others similarly situated, Plaintiffs, v. M&T BANK CORPORATION,
HUDSON CITY BANCORP, INC., ROBERT G. WILMERS, RENê F. JONES, MARK
J. CZARNECKI, BRENT D. BAIRD, C. ANGELA BONTEMPO, ROBERT T. BRADY,
T. JEFFERSON CUNNINGHAM III, GARY N. GEISEL, JOHN D. HAWKE, JR.,
PATRICK W.E. HODGSON, RICHARD G. KING, JORGE G. PEREIRA, MELINDA
R. RICH, ROBERT E. SADLER, JR., HERBERT L. WASHINGTON, DENIS J.
SALAMONE, MICHAEL W. AZZARA, VICTORIA H. BRUNI, DONALD O. QUEST,
JOSEPH G. SPONHOLZ, CORNELIUS E. GOLDING, WILLIAM G. BARDEL, and
SCOTT A. BELAIR, Defendants, Civ. No. 15-897-RGA (D. Del.), Judge
Richard G. Andrews of the U.S. District Court for the District of
Delaware granted the Defendants' motion to dismiss the Plaintiffs'
second amended class action complaint, and dismissed without
prejudice the complaint.
The Plaintiffs are former stockholders of Hudson City Bancorp
before it merged with M&T. The Defendants are Hudson City, M&T,
and their directors and officers at the time of the merger.
On Aug. 27, 2012, the Defendants executed a merger agreement
pursuant to which M&T would acquire Hudson City, and Hudson City
stockholders could elect to receive either shares of M&T stock or
cash having a roughly equivalent value. Hudson City filed a
preliminary Proxy with the SEC on Oct. 15, 2012 that became
effective on Feb. 22, 2013.
At the time the Proxy became effective, the Defendants expected
the merger to close in the second quarter of 2013. On April 12,
2013, they issued a press release announcing delays in closing the
merger due to additional time needed to obtain regulatory approval
from the Federal Reserve Board. On April 18, 2013, Hudson City
stockholders voted to approve the merger. Over a year later, on
Oct. 9, 2014, the Consumer Financial Protection Bureau ("CFPB")
announced that it had taken action against M&T for violating
consumer disclosure laws by offering free checking, but then
switching customers to accounts which carried fees. On Sept. 30,
2015, the Federal Reserve approved the merger. The merger closed
on Nov. 1, 2015.
Pending before the Court is the Defendants' motion to dismiss the
Plaintiffs' second amended class action complaint. The complaint
alleges that the Defendants violated Section 14(a) of the
Securities Exchange Act of 1934 by failing to make mandatory
disclosures and making misleading disclosures in the proxy
statement issued in connection with the merger. It alleges that
the Federal Reserve delayed its approval due to M&T's non-
compliance with the Bank Secrecy Act and anti-money-laundering
regulations ("BSA/AML Regulations") and violations of the consumer
disclosure laws addressed by the CFPB.
The Plaintiffs argue that the motion to dismiss is procedurally
improper in various ways. Judge Andrews finds that the Plaintiffs
run afoul of the requirements of Rule 12(g)(2), because the
defenses raised on the motion were neither "available" nor
"omitted" from the previous motion. Some of the defenses
challenge the sufficiency of new allegations in the amended
complaint, so those defenses were not previously available. Other
defenses reiterate defenses raised in the previous motion, so they
were not previously omitted. Accordingly, he does not find the
Defendants' motion to dismiss to be procedurally improper.
Next, the Plaintiffs argue that the Defendants violated Section
14(a) by omitting from the Proxy significant risk factors required
under Item 503(c). The Judge finds that other sections of the
Proxy provided more detail around the risks related to the Federal
Reserve's review of M&T's compliance with BSA/AML in particular.
There was no discussion in the Proxy of risks related to the CFPB
or the Consumer Violations in particular. But the Plaintiffs have
not plausibly alleged that either posed a significant risk at the
time the Proxy issued. Instead, they ask the Court to infer from
the CFPB action taken in October 2014 that those risks existed in
February 2013.
Then the Plaintiffs allege that the Proxy was materially
misleading or incomplete when it stated that (i) M&T had approved
policies and procedures that are believed to be compliant with the
USA Patriot Act; and (ii) the Defendants "currently believe they
should be able to obtain all required regulatory approvals" and
complete the merger "in a timely manner." According to Judge
Andrews, these statements are opinions and, therefore, not
actionable unless the Plaintiffs' claims satisfy the standards set
forth by the U.S. Supreme Court in Omnicare, Inc. v. Laborers
District Council Construction Industry Pension Fund. The
complaint does not plead, as required by Omnicare, particular
facts about what the Defendants did or did not do in forming the
compliance opinion.
Lastly, the Plaintiffs argue in their brief that that the April
disclosures were materially misleading and untimely, in violation
of Section 14(a). The Judge concludes he will not address the
substance of the parties' argument on this claim, except to
briefly address the Plaintiffs' authorities regarding timing. If
the Plaintiffs want to pursue a claim based on the timing of the
April Disclosures, they need to present authorities showing that
securities law offers a post-closing remedy for this claim.
For the foregoing reasons, Judge Andrews granted the Defendants'
motion to dismiss. Accordingly, the second amended class action
complaint is dismissed without prejudice. The Judge granted the
Plaintiffs leave to amend. An appropriate order will be entered.
A full-text copy of the Court's Oct. 27, 2017 Memorandum Opinion
is available at https://is.gd/taTTwO from Leagle.com.
David Jaroslawicz, Plaintiff, represented by Francis J. Murphy,
Jr. -- fmurphy@msllaw.com -- Murphy, Spadaro & Landon.
David Jaroslawicz, Plaintiff, represented by Deborah R. Gross --
debbie@bernardmgross.com -- Kaufman, Coren & Ress, P.C., pro hac
vice & Jonathan L. Parshall -- jonp@msllaw.com -- Murphy, Spadaro
& Landon.
M&T Bank Corporation, Defendant, represented by Adam D. Gold --
agold@ramllp.com -- Wachtell, Lipton, Rosen & Katz, pro hac vice,
George T. Conway, III -- GTConway@wlrk.com -- Wachtell, Lipton,
Rosen & Katz, pro hac vice, John C. Cordrey --
jcordrey@reedsmith.com -- Reed Smith LLP & Jordan L. Pietzsch --
JLPietzsch@wlrk.com -- Wachtell, Lipton, Rosen & Katz, pro hac
vice.
Hudson City Bancorp Inc., Defendant, represented by John C.
Cordrey -- cordrey@reedsmith.com -- Reed Smith LLP & Kevin R.
Shannon -- kshannon@potteranderson.com -- Potter Anderson &
Corroon, LLP.
Robert G. Wilmers, Defendant, represented by John C. Cordrey, Reed
Smith LLP.
Rene F. Jones, Defendant, represented by John C. Cordrey, Reed
Smith LLP.
Mark J. Czarnecki, Defendant, represented by John C. Cordrey, Reed
Smith LLP.
Brent D. Baird, Defendant, represented by John C. Cordrey, Reed
Smith LLP.
Angela C. Bontempo, Defendant, represented by John C. Cordrey,
Reed Smith LLP.
Robert T. Brady, Defendant, represented by John C. Cordrey, Reed
Smith LLP.
T. Jefferson Cunningham, III, Defendant, represented by John C.
Cordrey, Reed Smith LLP.
Gary N. Geisel, Defendant, represented by John C. Cordrey, Reed
Smith LLP.
MARATHON PETROLEUM: Court Rules Class-Action Suit Can Continue
--------------------------------------------------------------
Michael Gerstein, writing for The Detroit News, reports that
residents living near the Marathon Petroleum Company's oil
refinery in southwest Detroit can take their case forward after a
federal appeals court ruled that the case can't be dismissed "on
statute-of-limitations grounds."
The U.S. 6th Circuit Court of Appeals unanimously ruled that a
district court was wrong when it determined that plaintiffs'
claims of injury due to harmful air pollution from the oil giant
fell past a statute of limitations because the harm occurred three
years before they first filed suit.
A three-judge panel argued that the company is continuously
pumping out harmful pollution and that residents' complaints
include "both past and present wrongful conduct."
Residents filed a class-action suit in February 2016, alleging
that the refinery's pollution "contaminated their property and
constituted a private nuisance," according to federal court
opinion signed by Judges Deborah Cook, Raymond Kethledge and
Bernice Donald.
Cook and Kethledge were both appointed by former President George
W. Bush. Donald was appointed former President Bill Clinton.
Plaintiffs in the case argued that the refinery resulted in "the
generation, creation, release, emission and discharge of refinery
contaminants, hazardous substances, noise, odors, vapors, soot,
dirt and fumes," the opinion continued.
A Marathon spokesman declined comment.
Southwest Detroit residents have long complained of foul air
quality. The state has documented that Detroit has a higher
overall asthma rate than the rest of the state, according to the
Michigan Department of Health and Human Services.
But Marathon argued that the complaint fell outside of a three-
year statute of limitations because the injuries in question were
incurred more than three years before the plaintiffs sued the
company. They also said the plaintiffs did not have enough facts
to support their claims.
The court ruled that "each discharge is a violation giving rise to
a separate claim," noting that Marathon continuously discharges
pollutants into the air.
A lower district court previously ruled that because plaintiffs
did not specify when their alleged injuries first occurred, the
court can't know whether they were less than three years ago and
fell within the statute of limitations.
But the federal appeals court rejected that reasoning.
"Any claims for alleged discharges occurring prior to February 22,
2013, are timely," the opinion said. "The district court therefore
erred in dismissing the complaint as time-barred."
Meanwhile, the state moved to reduce emissions at the refinery in
2016 by approving two new air permits that cut the amount of
sulfer dioxide that can be released. The changes were required
under new U.S. Environmental Protection Agency standards.
The company vowed that year to spend $10 million to cut back on
pollution. [GN]
MARS INC: Vigil Appeals N.D. California Ruling to Ninth Circuit
---------------------------------------------------------------
Plaintiff Melissa L. Vigil filed an appeal from a court ruling in
her lawsuit titled Melissa Vigil v. Mars, Inc., et al., Case No.
3:16-cv-03818-VC, in the U.S. District Court for the Northern
District of California, San Francisco.
As previously reported in the Class Action Reporter, Ms. Vigil
seeks restitution, injunctive, declaratory, and other equitable
relief as may be deemed proper by the Court relating to the
Defendants' alleged misrepresentations regarding the amount of
rice contained in each packet of their Uncle Ben's Ready Rice
products, in violation of the California False Advertising Law,
the California Consumer Legal Remedies Act, and the California
Unfair Competition Law.
The allegations of this class action can be summarized simply:
Defendants' Uncle Ben's Ready Rice products do not contain the
amount of rice advertised, Ms. Vigil alleges. California
consumers are, therefore, paying for an amount of rice that they
do not receive, she contends.
The appellate case is captioned as Melissa Vigil v. Mars, Inc., et
al., Case No. 17-17207, in the United States Court of Appeals for
the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Mediation Questionnaire was due November 3, 2017;
-- Appellant Melissa L. Vigil's opening brief is due on
December 26, 2017;
-- Appellees Mars Food US, LLC and Mars, Inc.'s answering
brief is due on January 25, 2018; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiff-Appellant MELISSA L. VIGIL, individually and on behalf
of herself and all others similarly situated, is represented by:
Jeffrey R. Krinsk, Esq.
Trenton R. Kashima, Esq.
FINKELSTEIN & KRINSK LLP
550 West C Street, Suite 1760
San Diego, CA 92101
Telephone: (619) 238-1333
Facsimile: (619) 238-5425
E-mail: jrk@classactionlaw.com
trk@classactionlaw.com
Defendants-Appellees MARS, INC., a Delaware corporation, and MARS
FOOD US, LLC, a Delaware corporation, are represented by:
Mara Walker Murphy, Esq.
Eli S. Schlam, Esq.
WILLIAMS & CONNOLLY LLP
725 Twelfth Street, NW
Washington, DC 20005
Telephone: (202) 434-5395
E-mail: mmurphy@wc.com
eschlam@wc.com
- and -
Jeffrey Faucette, Esq.
SKAGGS FAUCETTE LLP
One Embarcadero Center
San Francisco, CA 94111
Telephone: (415) 315-1669
E-mail: jeff@skaggsfaucette.com
MARVELL TECHNOLOGY: Court Certifies Class in "Luna"
---------------------------------------------------
In the case, DANIEL LUNA, individually and on behalf of all others
similarly situated, Plaintiff, v. MARVELL TECHNOLOGY GROUP, LTD.,
and SEHAT SUTARDJA, Defendants, No. C 15-05447 WHA (N.D. Cal.),
Judge William Alsup of the U.S. District Court for the Northern
District of California granted the Plaintiff's motion for class
certification.
Defendant Marvell was and remains a publicly-traded company
holding stakes in subsidiaries that produced and sold various
semiconductor products. Defendant Sutardja served as the chief
executive officer of Marvell throughout the class period (Feb. 19,
2015 through Dec. 7, 2015).
Marvell's fiscal years ended on January 31, so fiscal year 2015
ended on Jan. 31, 2015, and fiscal year 2016 began on Feb. 1,
2015. In a press release on September 11, 2015 (soon after the
second quarter of fiscal year 2016 closed), Marvell disclosed that
its audit committee had begun an independent investigation of
certain accounting and internal control matters, and that its
quarterly report for the second quarter of 2016 would be delayed.
One of the concerns that led to the investigation was an
accounting practice engaged in by Marvell of pulling forward sales
that would have otherwise been consummated in a future quarter to
the end of the current quarter -- so-called "pull-in"
transactions. The Lead Plaintiff, Plumbers and Pipefitters
National Pension Fund, alleges that Marvell falsely inflated its
revenue numbers and in turn its stock prices.
Following the September 11 disclosure regarding this allegedly
improper sales and accounting practice, Marvell's share price
declined by over 18%. That same day, Luna commenced the action.
According to the complaint, the Defendants allegedly made false
and/or misleading statements, as well as failed to disclose
material adverse facts about the Company's business, operations,
and prospects.
In February 2016, Plumbers and Pipefitters National Pension Fund
was appointed the Lead Plaintiff in the action, and Robbins Geller
Rudman & Dowd LLP was appointed the Lead Counsel. In October
2016, an order dismissed all of the Lead Plaintiff's claims,
though it granted the Lead Plaintiff leave to amend its claims
related to pull-in transactions. The Lead Plaintiff subsequently
amended its complaint and, following a second motion to dismiss,
was permitted to proceed with its claims against the Defendants
only as they relate to Marvell's allegedly fraudulent pull-in
transactions.
The Lead Plaintiff now seeks to certify the class of all persons
and entities who purchased or otherwise acquired the common stock
of Marvell during the period from Nov. 20, 2014 through Dec. 7,
2015, inclusive, and were damaged thereby. Excluded from the
Class are Defendants, present or former executive officers of
Marvell and their immediate family members.
The Defendants oppose the certification, contesting typicality and
predominance, and in the event that a class is certified, seek to
narrow the class definition.
Judge Alsup finds that the Lead Plaintiff has satisfied the
requirements of Rule 23(a) and (b), and has therefore shown that
class certification is appropriate. With respect to the parties'
dispute over the appropriate start and end date for the class
period, the Judge concludes that the class period will be limited
to a start date of Feb. 19, 2015, when the fourth quarter 2015
revenues were made public, and accepts the Lead Plaintiff's Dec.
7, 2015 end date, the day on which concerns over fourth quarter
2015 and first quarter 2016 revenue recognition practices came to
light.
Finally, Judge Alsup finds the Defendants' request to limit the
class definition to exclude any purchasers who sold all of their
allegedly fraud-inflated shares prior to Sept. 11, 2015, when the
first corrective disclosure was made a sensible limitation.
Therefore, he modified the class definition to exclude any
investors who sold all of their shares prior to Sept. 11, 2015.
The class is defined as all persons and entities who purchased or
otherwise acquired the common stock of Marvell during the period
from Feb. 19, 2015 through Dec. 7, 2015, inclusive, and were
damaged thereby. Excluded from the Class are investors who sold
all of their shares prior to Sept. 11, 2015, and the Defendants,
present or former executive officers of Marvell and their
immediate family members.
For these reasons, Judge Alsup granted the Plaintiff's motion for
class certification. Plumbers and Pipefitters National Pension
Fund is appointed as the Lead Plaintiff, and the firm of Robbins
Geller Rudman & Dowd LLP is appointed the Lead Counsel. The class
is certified. The Judge directed that within 21 days of the date
of entry of the Order, the parties will submit jointly an agreed-
upon form of notice, a joint proposal for dissemination of the
notice, and the timeline for opting out of the action. The
Plaintiff must bear the costs of the notice, which will include
mailing by first-class mail.
A full-text copy of the Court's Oct. 27, 2017 Order is available
at https://is.gd/Pg6BXs from Leagle.com.
Daniel Luna, Plaintiff, represented by Lesley Frank Portnoy --
lportnoy@glancylaw.com -- Glancy Prongay & Murray LLP.
Daniel Luna, Plaintiff, represented by Casey Edwards Sadler --
csadler@glancylaw.com -- Glancy Prongay & Murray LLP, Lionel Zevi
Glancy -- lglancy@glancylaw.com -- Glancy Prongayn & Murrary LLP &
Robert Vincent Prongay, Glancy Prongay & Murray LLP.
Philip Limbacher, Consol Plaintiff, represented by Jeremy Alan
Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP, Joseph
Alexander Hood, II, Pomerantz LLP, Jennifer Pafiti --
jpafiti@pomlaw.com -- Pomerantz LLP & Patrick V. Dahlstrom --
pdahlstrom@pomlaw.com -- Pomerantz LLP.
Jim Farno, Consol Plaintiff, represented by Jeremy Alan Lieberman,
Pomerantz LLP, Joseph Alexander Hood, II -- ahood@pomlaw.com --
Pomerantz LLP & Patrick V. Dahlstrom, Pomerantz LLP.
Marvell Technology Group LTD, Defendant, represented by Diane M.
Doolittle -- dianedoolittle@quinnemanuel.com -- Quinn Emanuel
Urquhart & Sullivan, LLP, Harry Arthur Olivar, Jr. --
harryolivar@quinnemanuel.com -- Quinn Emanuel Urquhart & Sullivan,
LLP, Alyssa L. Greenberg -- alygreenberg@quinnemanuel.com -- Quinn
Emanuel Urquhart Sullivan LLP, Jason Frank Lake --
jasonlake@quinnemanuel.com -- Quinn Emanuel Urquhart and Sullivan
& Valerie Suzanne Roddy -- valerieroddy@quinnemanuel.com -- Quinn
Emanuel Urquhart and Sullivan, LLP.
Sehat Sutardja, Defendant, represented by Jason David Russell --
jason.russell@skadden.com -- Skadden, Arps, Slate, Meagher & Flom
LLP.
Michael Rashkin, Defendant, represented by Joshua Garrett Hamilton
-- joshua.hamilton@lw.com -- Latham & Watkins LLP & James Hyeoun
Ju Moon -- james.moon@lw.com -- Latham and Watkins LLP.
Sukhi Nagesh, Defendant, represented by Bahram Seyedin-Noor --
bahram@altolit.com -- Alto Litigation, PC, Bryan Jacob Ketroser,
Wilson Sonsini Goodrich & Rosati & Ian Edward Browning, Alto
Litigation, PC.
Employees Pension Plan Of The City Of Clearwater, Movant,
represented by Curtis Victor Trinko -- ctrinko@trinko.com -- Law
Offices of Curtis V. Trinko, LLP.
Plumbers and Pipefitters National Pension Fund, Movant,
represented by Carissa Jasmine Dolan -- cdolan@rgrdlaw.com --
Robbins Geller Rudman and Dowd LLP, David Avi Rosenfeld --
DRosenfeld@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Jonah
Goldstein -- jonahg@rgrdlaw.com -- Robbins Geller Rudman & Dowd
LLP, Matthew Isaac Alpert -- malpert@rgrdlaw.com -- Robbins Geller
Rudman Dowd LLP, Nadim Gamal Hegazi -- nhegazi@rgrdlaw.com --
Robbins Geller Rudman & Dowd LLP, Scott H. Saham --
scotts@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP & Shawn A.
Williams -- shawnw@rgrdlaw.com -- Robbins Geller Rudman & Dowd
LLP.
Cambridge Retirement System, Movant, represented by Gerald H. Silk
-- jerry@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP
& Avi Josefson -- avi@blbglaw.com -- Bernstein Litowitz Berger &
Grossmann LLP.
Oakland County Employees' Retirement System, Movant, represented
by Gerald H. Silk, Bernstein Litowitz Berger & Grossmann LLP & Avi
Josefson, Bernstein Litowitz Berger & Grossmann LLP.
Hui Qian, Movant, represented by Lesley Frank Portnoy, Pomerantz
LLP.
The Audit Committee of the Board of Directors of Marvell
Technology Group, Ltd., Miscellaneous, represented by John P.
Stigi, III -- jstigi@sheppardmullin.com -- Sheppard, Mullin,
Richter & Hampton LLP.
MASTERCARD INC: Judicial Review Sought in GBP14BB Class Suit
------------------------------------------------------------
Belfast Digital reports that a proposed GBP14 billion class action
lawsuit against Mastercard has been revived after lawyers launched
a judicial review to appeal against a ruling that prevented the
case from heading to trial.
Lawyers for former financial ombudsman Walter Merricks have made
applications with both the Court of Appeal and the Administrative
Court of the High Court, the latter by way of judicial review.
Mr Merrick's claim was lodged on behalf of nearly 46 million
consumers and alleged that Mastercard's interchange fees forced
consumers to pay higher prices to businesses that accept
Mastercard over a 16-year period, therefore breaching EU
competition law.
The damages being sought are more than GBP14 billion.
But the Competition Appeal Tribunal (CAT) in July ruled that the
case could not proceed through a so-called collective action,
saying that even if losses had been suffered and could be
estimated across the whole class, there was no way of ensuring
that an individual would receive an amount compensating for any
loss suffered.
But Mr Merricks's legal team said on October 27 that there are
"very significant public policy" issues at stake in the case.
Mr Merricks said: "I am determined to pursue this claim for two
main reasons. First, Mastercard was found guilty of setting
transaction fees at an unlawful and excessive level for 16 years,
a practice that inevitably led to consumers paying higher prices
than we should have done because retailers would have passed on
these costs.
"Since that time Mastercard has done nothing to make recompense to
consumers for its wrong-doing.
"The second reason I am determined to fight on is because this
collective action regime was brought into being by Parliament to
help access to redress where proven wrongdoers like Mastercard
have inflicted damage on a wide class of consumers."
To address the CAT's reasons for refusing to allow the collective
action to proceed, lawyers have put forward a supplemental expert
report penned by economists and forensic accountants to support
the case.
Mastercard has previously maintained that claim is "completely
unsuitable to be brought under the collective actions regime", and
that an appeal against the CAT's decision would be "without
merit". [GN]
MBF INSPECTION: Court Certifies Class in "Ganci" Wage Suit
----------------------------------------------------------
In the case, THOMAS GANCI, Plaintiff, v. MBF INSPECTION SERVICES,
INC., Defendant, Case No. 2:15-cv-2959 (S.D. Ohio), Judge George
C. Smith of the U.S. District Court for the Southern District of
Ohio, Eastern Division, granted Ganci's Motion for Class
Certification.
The Plaintiff worked for MBF as a welding inspector from
approximately June 2015 to October 2015. On Oct. 30, 2015, he
filed the present action seeking class relief under both the Fair
Labor Standards Act ("FLSA"), and the Ohio Minimum Fair Wage
Standards Act ("Fair Wage Act"). On Nov. 24, 2015, MBF filed its
Answer asserting as affirmative defenses that MBF inspectors like
the Plaintiff were exempt from federal and state overtime laws
under the executive, administrative, professional, and highly
compensated exemptions.
The Court previously conditionally certified a collective action
under the FLSA encompassing the class of all inspection personnel
and those similarly situated who were paid a day rate and who
worked for Defendant at any time since three years prior to the
Court's order granting conditional certification.
MBF did not contest the conditional certification of the
collective action. The Plaintiff then distributed Court-approved
notice of the FLSA collective action to potential members of the
collective action class. The FLSA notice period has closed, and a
total of 56 inspectors who worked for MBF around the country have
filed consent forms to join the FLSA collective action.
The Plaintiff now seeks to certify as a class action under Federal
Rules of Civil Procedure 23(a) and (b)(3) the class of individuals
who allegedly have claims against MBF under Ohio's Fair Wage Act:
All inspection personnel, other than chief inspectors and lead
inspectors, who were paid a day rate and who worked for Defendant
under a Spectra contract at any time since three years prior to
filing of the Complaint.
During discovery, MBF produced a list of inspection personnel who
worked in Ohio during the proposed class period. The list
identifies 671 personnel falling within the Plaintiff's proposed
Rule 23 class definition. Of those 67 individuals, five consented
to join the FLSA collective action.
Judge Smith finds that the class definition proposed by the
Plaintiff does not on its face limit the class to those inspectors
who worked in Ohio. However, the Plaintiff seeks to certify the
class only for his Ohio Fair Wage Act claims, and the Complaint
specifies that the Plaintiff brings the putative Rule 23 class
action on behalf of all similarly situated individuals within the
State of Ohio.
Moreover, both parties in their briefing refer to the proposed
class as comprising only those inspectors who worked in Ohio. The
Judge therefore construes the Plaintiff's motion to seek
certification of the following amended class definition: All
inspection personnel, other than chief inspectors and lead
inspectors, who were paid a day rate and who worked for the
Defendant in Ohio under a Spectra contract at any time since three
years prior to filing of the Complaint.
Judge Smith concludes that the Plaintiff has satisfied the
numerosity, commonality, typicality, and adequacy requirements of
Rule 23(a) and the predominance and superiority requirements of
Rule 23(b)(3). He therefore granted the Plaintiff's Motion for
Class Certification and certified Plaintiff's Fair Wage Act claims
for the following class: All inspection personnel, other than
chief inspectors and lead inspectors, who were paid a day rate and
who worked for the Defendant in Ohio under a Spectra contract at
any time since three years prior to filing of the Complaint. He
directed the Clerk to remove Document 60 from the Court's pending
motions list.
A full-text copy of the Court's Oct. 27, 2017 Opinion and Order is
available at https://is.gd/0uRF52 from Leagle.com.
Thomas Ganci, Plaintiff, represented by Robert E. DeRose, II --
bderose@barkanmeizlish.com -- Barkan Meizlish Handelman Goodin
DeRose Wentz, LLP.
Thomas Ganci, Plaintiff, represented by Alexander M. Baggio --
abaggio@nka.com -- Nichols Kaster, PLLP, pro hac vice, Brittany B.
Skemp -- bbachmanskemp@nka.com -- pro hac vice, Matthew C. Helland
-- helland@nka.com -- Nichols Kaster, LLP, pro hac vice & Paul J.
Lukas -- lukas@nka.com -- Nichols Kaster, PLLP, pro hac vice.
MBF Inspection Services, Inc., Defendant, represented by Joseph
Anthony Gerling -- jgerling@lanealton.com -- Lane Alton & Horst,
Christopher R. Pettit -- cpettit@lanealton.com -- Lane Alton &
Horst, Christopher Wesierski -- cwesierski@wzllp.com -- One
Corporate Park, pro hac vice & Eric S. Bravo --
ebravo@lanealton.com -- Baird Law Offices LLC.
MCDONALD'S: Settles Debit Card Fee Class Action for Nearly $1MM
---------------------------------------------------------------
The Associated Press reports that the owners of 16 local
McDonald's restaurants are paying nearly $1 million to settle a
four-year dispute about paying hourly employees with debit cards
that carried steep fees.
A state appellate court last year upheld a lower court finding
that the payroll cards were not "lawful money" or a "check," as
required under Pennsylvania wage law. That decision paved the way
for the settlement with franchise owners Albert and Carol Mueller
of Clarks Summit.
Attorney Michael Cefalo told the Times Leader in early September
that many of the nearly 2,400 plaintiffs he was representing in
the class-action lawsuit were younger employees.
"The kids won, and McDonald's lost," said Mr. Cefalo, West
Pittston.
The eight employees named in the suit, or the lead plaintiffs,
will receive $1,250 each plus the debit-card fees they paid,
according to WNEP. All others -- only a few hundred of the
roughly 2,400 signed paperwork to collect -- will get $100 plus
fee reimbursement.
Meanwhile, a judge's order shows the plaintiffs' attorneys will
receive $858,000 in fees and court costs.
Mr. Cefalo said in September a settlement was reached and Luzerne
County Judge Thomas F. Burke Jr. gave it preliminary approval. At
a hearing, Judge Burke finalized the compensation.
The lawsuit against the Muellers began when the plaintiffs alleged
that high fees on the debit cards they were paid with took a chunk
out of their hourly earnings.
The suit attracted national attention when it was first filed in
2013. It was initiated by Natalie Gunshannon, who worked at the
McDonald's in Shavertown.
Ms. Gunshannon, a single mother who lived in Dallas Township at
the time, complained she was receiving less than minimum wage if
she used the payroll card issued by J.P. Morgan Chase and incurred
the fees. [GN]
MDL 2420: Court Awards $4.5MM Partial Attys' Fees
-------------------------------------------------
In the case, IN RE: LITHIUM ION BATTERIES ANTITRUST LITIGATION.
This Order Relates to: ALL INDIRECT PURCHASER ACTIONS, Case No.
13-MD-2420 YGR (DMR), MDL No. 2420 (N.D. Cal.), Judge Yvonne
Gonzalez Rogers of the U.S. District Court for the Northern
District of California granted in part and denied in part Indirect
Purchaser Plaintiffs ("IPPs")' motion for attorneys' fees, a
portion of their litigation expenses, and service awards for the
named class representatives.
In connection with their motion for final approval of the class
action settlement between IPPs) and Defendants Hitachi, NEC, and
LG Chem, IPPs moved the Court for attorneys' fees, a portion of
their litigation expenses, and service awards for the named class
representatives as follows: (a) award 25% of the total $44,950,000
settlement to attorneys' fees in the amount of $11,240,000; (b)
reimbursement of a portion of litigation expenses incurred in the
amount of $4,159,515.28; and (c) service awards totaling $34,500
($1,500 each for each Class Representative).
The litigation in the action continues between IPPs and the
remaining Defendants. The total settlement amounts to date
approach the characteristics of a so-called "megafund" case, in
which a fee amount approaching the 25% benchmark may result in a
windfall. Further, the settlement with the Sony defendants has
been approved, but no amount of attorneys' fees was determined in
connection with that approval yet. Given these facts, Judge
Rogers is not prepared to make a full award of attorneys' fees at
this time. However, IPPs' counsel has litigated this action for
several years, on a contingency basis and at significant expense.
IPPs are unquestionably entitled to some amount of attorneys' fees
based upon the settlement agreements entered with Hitachi, NEC,
and LG Chem.
Thus, Judge Rogers granted in part and denied in part IPPs'
motion. He granted a partial attorney fee payment of $4,495,000,
i.e., 10% of the settlement fund from Hitachi, NEC, and LG Chem,
to be offset from the final attorneys' fee award to IPPs' counsel.
He denied the request for an award of attorneys' fees equal to 25%
of the common fund without prejudice to a further motion for
additional attorneys' fees.
Judge Rogers granted in part and denied in part without prejudice
the request for payment of certain categories of litigation
expenses incurred. He awarded the requested reimbursement of
expenses for document repository/hosting services and document
translation services, in the total amount of $860,188.50. The
Judge does not reach the question of the propriety of the amounts
or categories of the other expenses sought to be paid out of the
common fund at this time. However, he reminded IPPs that they
must offer sufficient evidence and authority for awarding such
expenses in connection with any renewed motion.
Finally, the Judge granted the request for payment of service
awards to the named class representatives in the total amount of
$34,500 ($1,500 each for each Class Representative).
A full-text copy of the Court's Oct. 27, 2017 Order is available
at https://is.gd/HUWT5T from Leagle.com.
Kevin Young, Plaintiff, represented by Jeff D. Friedman --
jefff@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP.
Kevin Young, Plaintiff, represented by George W. Sampson, Hagens
Berman Sobol Shapiro LLP, Jason Allen Zweig -- jasonz@hbsslaw.com
-- Hagens Berman Sobol Shapiro LLP, Shana E. Scarlett --
shanas@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP & Steve W.
Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP,
pro hac vice.
Bradley Seldin, Plaintiff, represented by Jeff D. Friedman, Hagens
Berman Sobol Shapiro LLP, George W. Sampson, Hagens Berman Sobol
Shapiro LLP, Jason Allen Zweig, Hagens Berman Sobol Shapiro LLP,
Shana E. Scarlett, Hagens Berman Sobol Shapiro LLP & Steve W.
Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice.
Bruce Sterman, Plaintiff, represented by Jeff D. Friedman, Hagens
Berman Sobol Shapiro LLP & Steve W. Berman, Hagens Berman Sobol
Shapiro LLP, pro hac vice.
Charles Carte, Plaintiff, represented by Guido Saveri --
guido@saveri.com -- Saveri & Saveri, Inc., Brian P. Murray --
bmurray@glancylaw.com -- Glancy Prongay & Murray LLP, Cadio R.
Zirpoli -- cadio@saveri.com -- Saveri & Saveri, Inc., David Yau-
Tian Hwu -- dhwu@saveri.com -- Saveri and Saveri Inc., Geoffrey
Conrad Rushing -- mheaphy@saveri.com -- Saveri & Saveri Inc.,
Gregory Bradley Linkh -- glinkh@glancylaw.com -- Glancy Prongay &
Murray LLP, Lee Albert -- lalbert@glancylaw.com -- Glancy Prongay
& Murray LLP, Lisa Maria Saveri -- lisa@saveri.com -- Saveri &
Saveri Inc., Richard Alexander Saveri -- rick@saveri.com -- Saveri
and Saveri Inc, Richard Alexander Saveri, Saveri & Saveri, Inc.,
Susan Gilah Kupfer -- skupfer@glancylaw.com -- Glancy Prongay &
Murray LLP & Todd Anthony Seaver, Berman Tabacco.
Brian Hanlon, Plaintiff, represented by Brent W. Johnson --
bjohnson@cohenmilstein.com -- Cohen Milstein Sellers and Toll
PLLC, Jeff D. Friedman, Hagens Berman Sobol Shapiro LLP, Kit A.
Pierson -- kpierson@cohenmilstein.com -- Cohen Milstein Sellers
and Toll PLLC & Laura M. Alexander -- lalexander@cohenmilstein.com
-- Cohen Milstein Sellers and Toll.
Nichole M. Gray, Plaintiff, represented by Guido Saveri, Saveri &
Saveri, Inc., Aaron James Broussard, Broussard and Hart LLC, David
Yau-Tian Hwu, Saveri and Saveri Inc., Douglas A. Millen --
dmillen@fklmlaw.com -- Freed Kanner London & Millen LLC, Lisa
Maria Saveri, Saveri & Saveri Inc., Richard Alexander Saveri,
Saveri and Saveri Inc, Richard Kirchner, Bonsignore & Brewer,
Richard Alexander Saveri, Saveri & Saveri, Inc., Robert J.
Bonsignore -- rbonsignore@class-actions.us ---, Bonsignore Trial
Lawyers, PLLC & Todd Anthony Seaver -- tseaver@bermantabacco.com -
- Berman Tabacco.
Woodrow Clark, II, Plaintiff, represented by Brian Joseph Barry --
bribarry1@yahoo.com -- Law Offices of Brian Barry, James E.
Cecchi, Carella Byrne, Lindsey H. Taylor --
LTaylor@carellabyrne.com -- Carella Byrne & Todd Anthony Seaver,
Berman Tabacco.
Rebecca Cervenak, Plaintiff, represented by William James Doyle,
II -- bill@doylelowther.com -- Doyle Lowther LLP.
John Russo, Plaintiff, represented by William James Doyle, II --
jim@doylelowther.com -- Doyle Lowther LLP, James Robert Hail,
Doyle Lowther & Katherine S. DiDonato, Shustak Reynolds &
Partners, P.C..
LG Chem Ltd., Defendant, represented by Benjamin Edward Waldin --
bwaldin@eimerstahl.com -- Eimer Stahl LLP, Brian Yanlang Chang --
bchang@eimerstahl.com -- Eimer Stahl LLP, Jungmin Lee --
jlee@eimerstahl.com -- Eimer Stahl LLP, Nathan P. Eimer --
neimer@eimerstahl.com -- Eimer Stahl LLP & Vanessa Greenwood
Jacobsen -- vjacobsen@eimerstahl.com -- Eimer Stahl LLP.
LG Chem America, Inc, Defendant, represented by Benjamin Edward
Waldin, Eimer Stahl LLP, Brian Yanlang Chang, Eimer Stahl LLP,
Jungmin Lee, Eimer Stahl LLP, Nathan P. Eimer, Eimer Stahl LLP &
Vanessa Greenwood Jacobsen, Eimer Stahl LLP.
Samsung SDI America Inc, Defendant, represented by John Roberti --
john.roberti@allenovery.com -- Allen & Overy LLP, Bradley Pensyl -
- bradley.pensyl@allenovery.com -- Allen and Overy LLP, Jacob S.
Pultman -- jacob.pultman@allenovery.com -- Allen Overy LLP,
Matthew R. Boucher -- matthew.boucher@allenovery.com -- Allen and
Overy LLP, Michael S. Feldberg -- michael.feldberg@allenovery.com
-- Allen and Overy LLP & Nneka Ukpai -- Nneka.Ukpai@AllenOvery.com
-- Allen and Overy LLP.
Hitachi Ltd., Defendant, represented by Craig P. Seebald --
cseebald@velaw.com -- Vinson & Elkins LLP, Elliott J. Joh --
elliott.joh@squirepb.com -- Vinson and Elkins LLP & Matthew J.
Jacobs -- mjacobs@velaw.com -- Vinson & Elkins LLP.
Hitachi Maxell, Ltd, Defendant, represented by Christopher Walter
James -- cjames@velaw.com -- Vinson and Elkins LLP, Craig P.
Seebald, Vinson & Elkins LLP, Elliott J. Joh, Vinson and Elkins
LLP, Jason Alan Levine -- jlevine@velaw.com -- Vinson Elkins LLP,
Jeremy C. Keeney -- jkeeney@velaw.com -- Vinson and Elkins L.L.P.,
Lindsey Robinson Vaala -- lvaala@velaw.com -- Matthew J. Jacobs,
Vinson & Elkins LLP & Thomas William Bohnett -- tbohnett@velaw.com
-- Vinson and Elkins L.L.P..
Maxell Corporation of America, Defendant, represented by
Christopher Walter James, Vinson and Elkins LLP, Craig P. Seebald,
Vinson & Elkins LLP, Elliott J. Joh, Vinson and Elkins LLP, Jason
Alan Levine, Vinson Elkins LLP, Jeremy C. Keeney, Vinson and
Elkins L.L.P., Lindsey Robinson Vaala, Matthew J. Jacobs, Vinson &
Elkins LLP & Thomas William Bohnett, Vinson and Elkins L.L.P..
Samsung SDI Co Ltd, Defendant, represented by John Roberti, Allen
& Overy LLP, Bradley Pensyl, Allen and Overy LLP, Jacob S.
Pultman, Allen Overy LLP, Matthew R. Boucher, Allen and Overy LLP,
Michael S. Feldberg, Allen and Overy LLP & Nneka Ukpai, Allen and
Overy LLP.
Maxwell Corporation of America, Defendant, represented by Thomas
William Bohnett, Vinson and Elkins L.L.P..
Hitachi Maxell Corporation of America, Defendant, represented by
Lindsey Robinson Vaala.
Toshiba America Electronic Components Inc, Defendant, represented
by Christopher M. Curran -- ccurran@whitecase.com -- White & Case
& J. Frank Hogue -- fhogue@whitecase.com -- White Case LLP.
MDL 2420: Court Dismisses IPP Claims Against Hitachi, et al.
------------------------------------------------------------
In the case captioned IN RE: LITHIUM ION BATTERIES ANTITRUST
LITIGATION. This Order Relates to: ALL INDIRECT PURCHASER ACTIONS,
Case No. 13-MD-2420 YGR (DMR), MDL No. 2420 (N.D. Cal.), Judge
Yvonne Gonzalez Rogers of the U.S. District Court for the Northern
District of California dismissed with prejudice Indirect Purchaser
Plaintiffs ("IPPs")' claims against Hitachi Maxell, Ltd. and
Maxell Corp. of America, NEC Corp., and LG Chem, Ltd. and LG Chem
America.
Having granted final approval of the Class Action Settlements with
Hitachi Maxell, NEC, and LG Chem Defendants, Judge Rogers finds
that that there is no just reason for delay of the entry of Final
Judgment. Accordingly, she directed the entry of the Final
Judgment, which will constitute a final adjudication of the case
on the merits as to the parties to the Settlements.
The Judge dismissed on the merits and with prejudice IPPs' claims
against Hitachi, NEC, and LG Chem, with each party to bear their
own costs and attorneys' fees, except as provided in the
Settlements. The Hitachi, NEC, and LG Chem Releasees are hereby
and forever released from all Released Claims as defined in the
Settlements. She approved a pro rata plan of distribution, the
specifics of which the Court will approve at a later date.
Judge Rogers finds, pursuant to FRCP Rules 54(a) and (b), that
Final Judgment should be entered, and further finds that there is
no just reason for delay in the entry of Final Judgment, as to the
parties to the Settlements. Accordingly, she directed the clerk
directed to enter Final Judgment forthwith for Hitachi, NEC, and
LG Chem.
A full-text copy of the Court's Oct. 27, 2017 Order is available
at https://is.gd/9Zrlqf from Leagle.com.
Kevin Young, Plaintiff, represented by Jeff D. Friedman --
jefff@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP.
Kevin Young, Plaintiff, represented by George W. Sampson, Hagens
Berman Sobol Shapiro LLP, Jason Allen Zweig -- jasonz@hbsslaw.com
-- Hagens Berman Sobol Shapiro LLP, Shana E. Scarlett --
shanas@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP & Steve W.
Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP,
pro hac vice.
Bradley Seldin, Plaintiff, represented by Jeff D. Friedman, Hagens
Berman Sobol Shapiro LLP, George W. Sampson, Hagens Berman Sobol
Shapiro LLP, Jason Allen Zweig, Hagens Berman Sobol Shapiro LLP,
Shana E. Scarlett, Hagens Berman Sobol Shapiro LLP & Steve W.
Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice.
Bruce Sterman, Plaintiff, represented by Jeff D. Friedman, Hagens
Berman Sobol Shapiro LLP & Steve W. Berman, Hagens Berman Sobol
Shapiro LLP, pro hac vice.
Charles Carte, Plaintiff, represented by Guido Saveri --
guido@saveri.com -- Saveri & Saveri, Inc., Brian P. Murray --
bmurray@glancylaw.com -- Glancy Prongay & Murray LLP, Cadio R.
Zirpoli -- cadio@saveri.com -- Saveri & Saveri, Inc., David Yau-
Tian Hwu -- dhwu@saveri.com -- Saveri and Saveri Inc., Geoffrey
Conrad Rushing -- mheaphy@saveri.com -- Saveri & Saveri Inc.,
Gregory Bradley Linkh -- glinkh@glancylaw.com -- Glancy Prongay &
Murray LLP, Lee Albert -- lalbert@glancylaw.com -- Glancy Prongay
& Murray LLP, Lisa Maria Saveri -- lisa@saveri.com -- Saveri &
Saveri Inc., Richard Alexander Saveri -- rick@saveri.com -- Saveri
and Saveri Inc, Richard Alexander Saveri, Saveri & Saveri, Inc.,
Susan Gilah Kupfer -- skupfer@glancylaw.com -- Glancy Prongay &
Murray LLP & Todd Anthony Seaver, Berman Tabacco.
Brian Hanlon, Plaintiff, represented by Brent W. Johnson --
bjohnson@cohenmilstein.com -- Cohen Milstein Sellers and Toll
PLLC, Jeff D. Friedman, Hagens Berman Sobol Shapiro LLP, Kit A.
Pierson -- kpierson@cohenmilstein.com -- Cohen Milstein Sellers
and Toll PLLC & Laura M. Alexander -- lalexander@cohenmilstein.com
-- Cohen Milstein Sellers and Toll.
Nichole M. Gray, Plaintiff, represented by Guido Saveri, Saveri &
Saveri, Inc., Aaron James Broussard, Broussard and Hart LLC, David
Yau-Tian Hwu, Saveri and Saveri Inc., Douglas A. Millen --
dmillen@fklmlaw.com -- Freed Kanner London & Millen LLC, Lisa
Maria Saveri, Saveri & Saveri Inc., Richard Alexander Saveri,
Saveri and Saveri Inc, Richard Kirchner, Bonsignore & Brewer,
Richard Alexander Saveri, Saveri & Saveri, Inc., Robert J.
Bonsignore -- rbonsignore@class-actions.us ---, Bonsignore Trial
Lawyers, PLLC & Todd Anthony Seaver -- tseaver@bermantabacco.com -
- Berman Tabacco.
Woodrow Clark, II, Plaintiff, represented by Brian Joseph Barry --
bribarry1@yahoo.com -- Law Offices of Brian Barry, James E.
Cecchi, Carella Byrne, Lindsey H. Taylor --
LTaylor@carellabyrne.com -- Carella Byrne & Todd Anthony Seaver,
Berman Tabacco.
Rebecca Cervenak, Plaintiff, represented by William James Doyle,
II -- bill@doylelowther.com -- Doyle Lowther LLP.
John Russo, Plaintiff, represented by William James Doyle, II --
jim@doylelowther.com -- Doyle Lowther LLP, James Robert Hail,
Doyle Lowther & Katherine S. DiDonato, Shustak Reynolds &
Partners, P.C..
LG Chem Ltd., Defendant, represented by Benjamin Edward Waldin --
bwaldin@eimerstahl.com -- Eimer Stahl LLP, Brian Yanlang Chang --
bchang@eimerstahl.com -- Eimer Stahl LLP, Jungmin Lee --
jlee@eimerstahl.com -- Eimer Stahl LLP, Nathan P. Eimer --
neimer@eimerstahl.com -- Eimer Stahl LLP & Vanessa Greenwood
Jacobsen -- vjacobsen@eimerstahl.com -- Eimer Stahl LLP.
LG Chem America, Inc, Defendant, represented by Benjamin Edward
Waldin, Eimer Stahl LLP, Brian Yanlang Chang, Eimer Stahl LLP,
Jungmin Lee, Eimer Stahl LLP, Nathan P. Eimer, Eimer Stahl LLP &
Vanessa Greenwood Jacobsen, Eimer Stahl LLP.
Samsung SDI America Inc, Defendant, represented by John Roberti --
john.roberti@allenovery.com -- Allen & Overy LLP, Bradley Pensyl -
- bradley.pensyl@allenovery.com -- Allen and Overy LLP, Jacob S.
Pultman -- jacob.pultman@allenovery.com -- Allen Overy LLP,
Matthew R. Boucher -- matthew.boucher@allenovery.com -- Allen and
Overy LLP, Michael S. Feldberg -- michael.feldberg@allenovery.com
-- Allen and Overy LLP & Nneka Ukpai -- Nneka.Ukpai@AllenOvery.com
-- Allen and Overy LLP.
Hitachi Ltd., Defendant, represented by Craig P. Seebald --
cseebald@velaw.com -- Vinson & Elkins LLP, Elliott J. Joh --
elliott.joh@squirepb.com -- Vinson and Elkins LLP & Matthew J.
Jacobs -- mjacobs@velaw.com -- Vinson & Elkins LLP.
Hitachi Maxell, Ltd, Defendant, represented by Christopher Walter
James -- cjames@velaw.com -- Vinson and Elkins LLP, Craig P.
Seebald, Vinson & Elkins LLP, Elliott J. Joh, Vinson and Elkins
LLP, Jason Alan Levine -- jlevine@velaw.com -- Vinson Elkins LLP,
Jeremy C. Keeney -- jkeeney@velaw.com -- Vinson and Elkins L.L.P.,
Lindsey Robinson Vaala -- lvaala@velaw.com -- Matthew J. Jacobs,
Vinson & Elkins LLP & Thomas William Bohnett -- tbohnett@velaw.com
-- Vinson and Elkins L.L.P..
Maxell Corporation of America, Defendant, represented by
Christopher Walter James, Vinson and Elkins LLP, Craig P. Seebald,
Vinson & Elkins LLP, Elliott J. Joh, Vinson and Elkins LLP, Jason
Alan Levine, Vinson Elkins LLP, Jeremy C. Keeney, Vinson and
Elkins L.L.P., Lindsey Robinson Vaala, Matthew J. Jacobs, Vinson &
Elkins LLP & Thomas William Bohnett, Vinson and Elkins L.L.P..
Samsung SDI Co Ltd, Defendant, represented by John Roberti, Allen
& Overy LLP, Bradley Pensyl, Allen and Overy LLP, Jacob S.
Pultman, Allen Overy LLP, Matthew R. Boucher, Allen and Overy LLP,
Michael S. Feldberg, Allen and Overy LLP & Nneka Ukpai, Allen and
Overy LLP.
Maxwell Corporation of America, Defendant, represented by Thomas
William Bohnett, Vinson and Elkins L.L.P..
Hitachi Maxell Corporation of America, Defendant, represented by
Lindsey Robinson Vaala.
Toshiba America Electronic Components Inc, Defendant, represented
by Christopher M. Curran -- ccurran@whitecase.com -- White & Case
& J. Frank Hogue -- fhogue@whitecase.com -- White Case LLP.
MDL 2420: Settlement in Batteries Antitrust Suit Has Final OK
-------------------------------------------------------------
In the case captioned IN RE: LITHIUM ION BATTERIES ANTITRUST
LITIGATION. This Order Relates to: ALL INDIRECT PURCHASER ACTIONS,
Case No. 13-MD-2420 YGR (DMR), MDL No. 2420 (N.D. Cal.), Judge
Yvonne Gonzalez Rogers of the U.S. District Court for the Northern
District of California granted Indirect Purchaser Plaintiffs
("IPPs")' Motion for Final Approval of Class Action Settlement
with Hitachi Maxell, Ltd. and Maxell Corp. of America, NEC Corp.,
and LG Chem, Ltd. and LG Chem America; and denied Frederick Banks'
motion to intervene.
Pursuant to FRCP Rule 23(g), Judge Rogers also appointed as the
counsel for the Settlement Class the Interim Co-Lead Counsel
previously appointed by the Court -- Cotchett, Pitre & McCarthy,
LLP, Hagens Berman Sobol Shapiro LLP, and Lieff Cabraser Heimann &
Bernstein, LLP.
Pursuant to FRCP 23, the Judge certified the Settlement Class of
all persons and entities who, as residents of the United States
and during the period from Jan. 1, 2000 through May 31, 2011,
indirectly purchased new for their own use and not for resale one
of the following products which contained a lithium-ion
cylindrical battery manufactured by one or more defendants or
their coconspirators: (i) a portable computer; (ii) a power tool;
(iii) a camcorder; or (iv) a replacement battery for any of these
products.
The Judge designated Christopher Hunt, Piya Robert Rojanasathit,
Steve Bugge, Tom Pham, Bradley Seldin, Patrick McGuiness, John
Kopp, Drew Fennelly, Jason Ames, William Cabral, Donna Shawn,
Joseph O'Daniel, Cindy Booze, Matthew Ence, David Tolchin, Matt
Bryant, Sheri Harmon, Christopher Bessette, Caleb Batey, Linda
Lincoln, Bradley Van Patten, the City of Palo Alto, and the City
of Richmond as the class representatives for the Settlement Class.
Judge Rogers granted final approval of the Settlements, and finds
the Settlements are, in all respects, fair, reasonable and
adequate to the Settlement Class pursuant to FRCP Rule 23. She
dismissed IPPs' claims against Hitachi, NEC, and LG Chem with
prejudice, with each party to bear their own costs and attorneys'
fees, except as provided in the Settlements. She also approved
the pro rata plan of distribution.
Without affecting the finality of the order and Judgment in any
way, she ordered that IPPs submit a proposed distribution plan at
the close of the claims period and that it submit quarterly
reports directly to the Court on the progress and status of the
claims program. The proposed distribution plan and first
quarterly claims report will be lodged with the Court no later
than 14 days prior to the close of the claims period. The
Hitachi, NEC, and LG Chem Releasees are and forever released from
all Released Claims as defined in the Settlements.
Judge Rogers finds, pursuant to FRCP Rule 54(a) and (b), that
Final Judgment should be entered as to the parties to the
Settlements, and further finds that there is no just reason for
delay in the entry of the Judgment. Accordingly, she directed the
Clerk to enter judgment forthwith for Hitachi, NEC, and LG Chem as
to IPPs.
A full-text copy of the Court's Oct. 27, 2017 Order is available
at https://is.gd/KTvv4s from Leagle.com.
Kevin Young, Plaintiff, represented by Jeff D. Friedman --
jefff@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP.
Kevin Young, Plaintiff, represented by George W. Sampson, Hagens
Berman Sobol Shapiro LLP, Jason Allen Zweig -- jasonz@hbsslaw.com
-- Hagens Berman Sobol Shapiro LLP, Shana E. Scarlett --
shanas@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP & Steve W.
Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP,
pro hac vice.
Bradley Seldin, Plaintiff, represented by Jeff D. Friedman, Hagens
Berman Sobol Shapiro LLP, George W. Sampson, Hagens Berman Sobol
Shapiro LLP, Jason Allen Zweig, Hagens Berman Sobol Shapiro LLP,
Shana E. Scarlett, Hagens Berman Sobol Shapiro LLP & Steve W.
Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice.
Bruce Sterman, Plaintiff, represented by Jeff D. Friedman, Hagens
Berman Sobol Shapiro LLP & Steve W. Berman, Hagens Berman Sobol
Shapiro LLP, pro hac vice.
Charles Carte, Plaintiff, represented by Guido Saveri --
guido@saveri.com -- Saveri & Saveri, Inc., Brian P. Murray --
bmurray@glancylaw.com -- Glancy Prongay & Murray LLP, Cadio R.
Zirpoli -- cadio@saveri.com -- Saveri & Saveri, Inc., David Yau-
Tian Hwu -- dhwu@saveri.com -- Saveri and Saveri Inc., Geoffrey
Conrad Rushing -- mheaphy@saveri.com -- Saveri & Saveri Inc.,
Gregory Bradley Linkh -- glinkh@glancylaw.com -- Glancy Prongay &
Murray LLP, Lee Albert -- lalbert@glancylaw.com -- Glancy Prongay
& Murray LLP, Lisa Maria Saveri -- lisa@saveri.com -- Saveri &
Saveri Inc., Richard Alexander Saveri -- rick@saveri.com -- Saveri
and Saveri Inc, Richard Alexander Saveri, Saveri & Saveri, Inc.,
Susan Gilah Kupfer -- skupfer@glancylaw.com -- Glancy Prongay &
Murray LLP & Todd Anthony Seaver, Berman Tabacco.
Brian Hanlon, Plaintiff, represented by Brent W. Johnson --
bjohnson@cohenmilstein.com -- Cohen Milstein Sellers and Toll
PLLC, Jeff D. Friedman, Hagens Berman Sobol Shapiro LLP, Kit A.
Pierson -- kpierson@cohenmilstein.com -- Cohen Milstein Sellers
and Toll PLLC & Laura M. Alexander -- lalexander@cohenmilstein.com
-- Cohen Milstein Sellers and Toll.
Nichole M. Gray, Plaintiff, represented by Guido Saveri, Saveri &
Saveri, Inc., Aaron James Broussard, Broussard and Hart LLC, David
Yau-Tian Hwu, Saveri and Saveri Inc., Douglas A. Millen --
dmillen@fklmlaw.com -- Freed Kanner London & Millen LLC, Lisa
Maria Saveri, Saveri & Saveri Inc., Richard Alexander Saveri,
Saveri and Saveri Inc, Richard Kirchner, Bonsignore & Brewer,
Richard Alexander Saveri, Saveri & Saveri, Inc., Robert J.
Bonsignore -- rbonsignore@class-actions.us ---, Bonsignore Trial
Lawyers, PLLC & Todd Anthony Seaver -- tseaver@bermantabacco.com -
- Berman Tabacco.
Woodrow Clark, II, Plaintiff, represented by Brian Joseph Barry --
bribarry1@yahoo.com -- Law Offices of Brian Barry, James E.
Cecchi, Carella Byrne, Lindsey H. Taylor --
LTaylor@carellabyrne.com -- Carella Byrne & Todd Anthony Seaver,
Berman Tabacco.
Rebecca Cervenak, Plaintiff, represented by William James Doyle,
II -- bill@doylelowther.com -- Doyle Lowther LLP.
John Russo, Plaintiff, represented by William James Doyle, II --
jim@doylelowther.com -- Doyle Lowther LLP, James Robert Hail,
Doyle Lowther & Katherine S. DiDonato, Shustak Reynolds &
Partners, P.C..
LG Chem Ltd., Defendant, represented by Benjamin Edward Waldin --
bwaldin@eimerstahl.com -- Eimer Stahl LLP, Brian Yanlang Chang --
bchang@eimerstahl.com -- Eimer Stahl LLP, Jungmin Lee --
jlee@eimerstahl.com -- Eimer Stahl LLP, Nathan P. Eimer --
neimer@eimerstahl.com -- Eimer Stahl LLP & Vanessa Greenwood
Jacobsen -- vjacobsen@eimerstahl.com -- Eimer Stahl LLP.
LG Chem America, Inc, Defendant, represented by Benjamin Edward
Waldin, Eimer Stahl LLP, Brian Yanlang Chang, Eimer Stahl LLP,
Jungmin Lee, Eimer Stahl LLP, Nathan P. Eimer, Eimer Stahl LLP &
Vanessa Greenwood Jacobsen, Eimer Stahl LLP.
Samsung SDI America Inc, Defendant, represented by John Roberti --
john.roberti@allenovery.com -- Allen & Overy LLP, Bradley Pensyl -
- bradley.pensyl@allenovery.com -- Allen and Overy LLP, Jacob S.
Pultman -- jacob.pultman@allenovery.com -- Allen Overy LLP,
Matthew R. Boucher -- matthew.boucher@allenovery.com -- Allen and
Overy LLP, Michael S. Feldberg -- michael.feldberg@allenovery.com
-- Allen and Overy LLP & Nneka Ukpai -- Nneka.Ukpai@AllenOvery.com
-- Allen and Overy LLP.
Hitachi Ltd., Defendant, represented by Craig P. Seebald --
cseebald@velaw.com -- Vinson & Elkins LLP, Elliott J. Joh --
elliott.joh@squirepb.com -- Vinson and Elkins LLP & Matthew J.
Jacobs -- mjacobs@velaw.com -- Vinson & Elkins LLP.
Hitachi Maxell, Ltd, Defendant, represented by Christopher Walter
James -- cjames@velaw.com -- Vinson and Elkins LLP, Craig P.
Seebald, Vinson & Elkins LLP, Elliott J. Joh, Vinson and Elkins
LLP, Jason Alan Levine -- jlevine@velaw.com -- Vinson Elkins LLP,
Jeremy C. Keeney -- jkeeney@velaw.com -- Vinson and Elkins L.L.P.,
Lindsey Robinson Vaala -- lvaala@velaw.com -- Matthew J. Jacobs,
Vinson & Elkins LLP & Thomas William Bohnett -- tbohnett@velaw.com
-- Vinson and Elkins L.L.P..
Maxell Corporation of America, Defendant, represented by
Christopher Walter James, Vinson and Elkins LLP, Craig P. Seebald,
Vinson & Elkins LLP, Elliott J. Joh, Vinson and Elkins LLP, Jason
Alan Levine, Vinson Elkins LLP, Jeremy C. Keeney, Vinson and
Elkins L.L.P., Lindsey Robinson Vaala, Matthew J. Jacobs, Vinson &
Elkins LLP & Thomas William Bohnett, Vinson and Elkins L.L.P..
Samsung SDI Co Ltd, Defendant, represented by John Roberti, Allen
& Overy LLP, Bradley Pensyl, Allen and Overy LLP, Jacob S.
Pultman, Allen Overy LLP, Matthew R. Boucher, Allen and Overy LLP,
Michael S. Feldberg, Allen and Overy LLP & Nneka Ukpai, Allen and
Overy LLP.
Maxwell Corporation of America, Defendant, represented by Thomas
William Bohnett, Vinson and Elkins L.L.P..
Hitachi Maxell Corporation of America, Defendant, represented by
Lindsey Robinson Vaala.
Toshiba America Electronic Components Inc, Defendant, represented
by Christopher M. Curran -- ccurran@whitecase.com -- White & Case
& J. Frank Hogue -- fhogue@whitecase.com -- White Case LLP.
MDL 2633: Premera Must Produce Docs in Data Breach Suit
-------------------------------------------------------
In the case, IN RE: PREMERA BLUE CROSS CUSTOMER DATA SECURITY
BREACH LITIGATION. This Document Relates to All Actions, Case No.
3:15-md-2633-SI (D. Or.), Judge Michael H. Simon of the U.S.
District Court for the District of Oregon granted in part and
denied in part the Plaintiffs' motion to compel Premera to produce
documents that Premera has withheld based on assertions of
attorney-client privilege or protection under the attorney work-
product doctrine.
The Plaintiffs bring the putative class action against Premera, a
healthcare benefits servicer and provider. On March 17, 2015,
Premera publicly disclosed that its computer network had been
breached. The Plaintiffs allege that this breach compromised the
confidential information of approximately 11 million current and
former members, affiliated members, and employees of Premera. The
compromised confidential information includes names, dates of
birth, Social Security Numbers, member identification numbers,
mailing addresses, telephone numbers, email addresses, medical
claims information, financial information, and other protected
health information.
According to the Plaintiffs, the breach began in May 2014 and went
undetected for nearly a year. They allege that after discovering
the breach, Premera unreasonably delayed in notifying all affected
individuals. Based on these allegations, among others, the
Plaintiffs bring various state common law claims and state
statutory claims.
The Plaintiffs move to compel production of four categories of
documents. They seek: (i) documents that Premera asserts
incorporate the advice of counsel, but were not prepared by or
sent to counsel; (ii) documents that Premera asserts were prepared
at the request of counsel, but were not prepared by or sent to
counsel and appear to be business documents not prepared because
of litigation; (iii) documents that relate to third-party vendor
work on the data breach investigation and remediation, including
Mandiant's work for Premera and other third-party vendors working
on technical and public relations aspects of the investigation and
analysis; and (iv) documents that Premera is withholding, despite
being sent to third-parties, based on what the Plaintiffs contend
is an improper assertion of the joint defense or common interest
exception to waiver of privilege.
The Plaintiffs also argue that Premera is required to produce
certain documents based on the fiduciary exception to the
attorney-client privilege because Premera admits that some of the
plans involved are governed by the Employee Retirement Income
Security Act of 1974 ("ERISA").
Judge Simon finds that the documents in Category 1 were drafted by
persons who are not attorneys and were sent to and from persons
who are not attorneys. Although these documents contain or
reference business, technical, or public relations information,
Premera argues that they are properly withheld as privileged
because they are "drafts" that incorporate the advice of counsel.
Some of these documents include edits or "redlines" from counsel.
The Judge says the fact that Premera planned eventually to have an
attorney review those documents or that attorneys may have
provided initial guidance as to how Premera should draft internal
business documents does not make every internal draft and every
internal communication relating to those documents privileged and
immune from discovery.
There may be some documents, however, that contain protected
attorney-client communications, such as drafts that include edits
or redlines by an attorney communicating legal advice. If
underlying edited or redlined documents contain legal advice from
counsel, those documents (or at least the edits or redlines) are
entitled to protection.
As with the Category 1 documents, the Judge finds that the primary
purpose of many of the documents in Category 2 was not to
communicate with counsel or obtain legal advice, but instead to
perform a business function. The documents in Category 2 include
those prepared by Premera employees and third-party vendors who
are not attorneys. Premera argues that the documents are properly
withheld as both privileged and protected under the work-product
doctrine. It asserts that these are documents that were prepared
primarily in anticipation of litigation and for the purpose of
facilitating legal advice.
Judge Simon says having outside counsel hire a public relations
firm is insufficient to cloak that business function with the
attorney-client. If Premera can show that a particular document
was prepared specifically in anticipation of litigation, contains
the mental impressions of counsel, and would not have been
prepared in substantially the same form but for the prospect of
litigation, then Premera may assert work-product protection for
that specific document.
The analysis for these Category 3 documents is the same as for the
documents in Categories 1 and 2. These are the documents created
by the third-party vendors hired by outside counsel. Many of
these documents appear to be related to business functions
delegated to counsel. There appear to be some documents, however,
that are or may be related to legal functions and are thus
properly protected by the attorney-client privilege or work-
product doctrine. The Judge finds Premera's attempt to label all
communications on these subjects as necessary investigative steps
required to give information to Premera's counsel in connection
with legal advice is not persuasive.
The documents described in Category 4 involve Premera's assertion
of a common interest or joint defense exception to waiver of
privilege for other entities, such as Blue Cross Blue Shield,
CareFirst, and Anthem entities, all of which have suffered data
breaches and are facing similar litigation. The purported common
interest is that the Defendants are defending different cases and
government investigations throughout the country with common
issues.
Judge Simon finds that because Premera believed in good faith that
it and these entities were subject to the common interest
exception to waiver, under the unique circumstances of the case,
fairness requires that the waiver of privilege extend only to the
communications actually shared among the entities and not to all
documents relating to the same subject matter that was addressed
in the communications that were shared. Moreover, in light of the
fact that he finds most of the claim of common interest not to be
valid and that he has reviewed the agreements and finds them not
to contain privileged information, the Judge directs that the
agreements themselves be produced.
Judge Simon notes that Premera represents that some email chains
contain no more than "FYI" or the like for the nonprivileged
portion and that it would be burdensome to redact the entire
privileged portion to only produce a document containing "FYI."
He agrees. But that was done before he issued the Opinion and
Order, in which many of Premera's privilege assertions have been
rejected. Going forward, if there is an email string and the only
nonprivileged portion is something without substance such as
"FYI," Premera needs only identify it as such on the privilege log
and need not redact and produce the meaningless nonprivileged
portion.
Finally, the Judge says he needs not reach the issue of the scope
of Premera's fiduciary obligations under ERISA or whether the so-
called fiduciary exception applies in Washington. He has already
ordered to be produced documents that could be considered related
to benefitting plan members (where the "client" could be ERISA-
covered Plaintiffs) and not as constituting legal advice for the
trustees.
For the reasons he stated, Judge Simon granted in part and denied
in part the Plaintiffs' Motion to Compel.
A full-text copy of the Court's Oct. 27, 2017 Opinion and Order is
available at https://is.gd/WrfJzs from Leagle.com.
In re Premera Blue Cross, represented by Daniel R. Warren --
dwarren@bakerlaw.com -- Baker & Hostetler LLP, pro hac vice.
In re Premera Blue Cross, represented by Darin M. Sands --
sands@lanepowell.com -- Lane Powell, PC, James A. Sherer --
jsherer@bakerlaw.com -- Baker & Hostetler LLP & Paul G. Karlsgodt
-- pkarlsgodt@bakerlaw.com -- Baker & Hostetler LLP.
All Plaintiffs, et al. are represented by Chase C. Alvord, Esq. --
calvord@tousley.com -- Christopher I. Brain, Esq. --
cbrain@tousley.com -- Jason T. Dennett, Esq. --
jdennett@tousley.com -- and -- Kim D. Stephens, Esq. -- TOUSLEY
BRAIN STEPHENS PLLC -- Keith S. Dubanevich, Esq. --
kdubanevich@stollberne.com -- and -- Steve D. Larson, Esq. --
slarson@stollberne.com -- STOLL STOLL BERNE LOKTING & SHLACHTER
P.C.
MENARD INC: Court Dismisses All Claims in "Fuchs" ICFA Suit
-----------------------------------------------------------
The United States District Court for the Northern District of
Illinois, Eastern Division, issued a Memorandum Opinion and Order
granting Defendant's Motion to Dismiss the case captioned MICHAEL
FUCHS AND VLADISLAV KRASILNIKOV, individually and on behalf of a
class of similarly situated individuals, Plaintiffs, v. MENARD,
INC., Defendant, No. 17-cv-01752 (N.D. Ill.).
Plaintiffs Michael Fuchs and Vladislav Krasilnikov allege that
hardware-store chain Menards inaccurately labels the size of its
lumber products with dimensions that are really smaller than what
the labels say. Fuchs and Krasilnikov claim that Menards's failure
to include the actual size of the lumber on labels violates the
Illinois Consumer Fraud and Deceptive Business Practices Act
(ICFA), breaches express and implied warranties, and unjustly
enriches Menards.
Menards moves to dismiss all of these claims under Federal Rules
of Civil Procedure 12(b)(1) (no subject matter jurisdiction due to
a lack of standing), 12(b)(2) (lack of personal jurisdiction as to
non-Illinois claims), and 12(b)(6) (failure to state a claim).
The first issue is whether Fuchs and Krasilnikov have alleged a
particularized injury-in-fact, which is a requirement for Article
III standing. Here, the Plaintiffs allege that they would not
have bought the lumber had they not been misled by the labels.
That argument might have persuasive force when deciding the merits
of the claims in this case. But for Article III injury purposes,
there is no requirement that a product be functionally deficient
in order for a financial injury to arise out of its purchase.
Rather, Plaintiffs assert that they would not have spent the money
on the lumber or would have insisted on paying less for it, and
that sort of financial injury meets the Article III injury
threshold for standing purposes.
Count One: ICFA Claim
Deceptive Representation
To bring a claim under ICFA, Fuchs and Krasilnikov must allege
with particularity: (1) a deceptive act or practice by Menards,
(2) Menards's intent that Plaintiffs rely on the deception, (3)
the occurrence of the deception in the course of conduct involving
trade or commerce, and (4) actual damage to them (5) proximately
caused by the deception.
It is true that the Institute's lumber guidelines state that, if
the seller is going to use the nominal dimension to label the size
of lumber, then that nominal size should be represented with the
term nominal or nom and the actual or minimum dressed sizes should
be prominently displayed to the customer by means of a table of
label. As far as the amended complaint alleges, Menards fell short
on both conditions: Menards did not uniformly use the term nominal
or nom, nor did it always prominently display the actual or
minimum dressed sizes.
But the important question is not whether the labels conform to
each condition under the Institute's guidelines; instead the
question is whether the labels are deceptive under the Illinois
Consumer Fraud Act. Without a literally untrue statement, combined
with the government-recognized distinction between nominal sizes
and actual sizes, no reasonable consumer would think that the
labels showed the exact dimensions of the lumber.
Plaintiffs see labels that do not have dimensional-size markings,
based on a published distinction recognized by the Institute, and
the Plaintiffs have direct and complete access to the information
needed to determine the height and width of the lumber. It would
be one thing if packaging prevented access to the height and
width, or if the disputed characteristic of the product was not
readily accessible, like the R value of insulation or the
percentage of biodiesel in a fuel container.
It is another thing where the Plaintiffs can readily see if there
is a mismatch between what they perceive as the size on the label
and the height and width of the lumber. In light of the literal
accuracy of the label, the government-sponsored distinction in
sizing, and the availability of the height-and-width information,
Menards's labels were not deceptive under ICFA.
Count Two: Breach of Express Warranty
Fuchs and Krasilnikov further claim that Menards's various
signage, labeling, and advertising using nominal size language
created an express warranty that Menards breached when its
lumber's dimensions did not match its labels.
To state a claim for breach of an express warranty, the complaint
must allege (1) the terms of the warranty; (2) a breach or failure
of the warranty; (3) a demand upon the defendant to perform under
the terms of the warranty; (4) a failure by the defendant to do
so; (5) compliance with the terms of the warranty by the
plaintiff; and (6) damages measured by the terms of the warranty.
The alleged breach here is that the size of the lumber does not
match the label. By its own admission, Menards knows that that
lumber with the 4 x 4 label in its stores actually is 3-1/2 inches
by 3-1/2 inches. So Menards admits that it knows of the alleged
breach; of course, Menards does not believe it is a breach (and
Menards is right), but there is no need for notice when the seller
has actual knowledge. The lack of pre-litigation notice is not
fatal to the warranty claims.
Still, however, the express-warranty claim must be dismissed. The
lumber's labels are the only place where an express warranty could
arise from. But a claim of breach of express warranty requires an
allegation of an affirmation of fact or promise. As this Opinion
explained in dismissing the ICFA claim, the labels and
advertisements at issue do not make any misleading statements
about the size of the lumber, and there are no other statements
amounting to Menards' making an assertion that could act as an
express warranty.
The express-warranty claim is dismissed.
Count Three: Breach of Implied Warranty
Fuchs and Krasilnikov allege a claim for breach of implied
warranty of merchantability, in that Menards's lumber products
were not fit for sale because the labeled dimensions differed from
the actual dimensions.
To state a claim for breach of the implied warranty of
merchantability under Illinois law, a plaintiff must allege that
(1) the defendant sold goods that were not merchantable at the
time of sale; (2) the plaintiff suffered damages as a result of
the defective goods; and (3) the plaintiff gave the defendant
notice of the defect.
The same rationale that dictated dismissal of the express-warranty
claim applies to the implied-warranty claim: Menards made no
actionable affirmation of fact or promise on the dimensional
lumber labels. As discussed in connection with the ICFA claim,
the lumber itself was merchantable, because it would pass without
objection in the trade and there was no misleading statement, so
it was adequately contained, packaged, and labeled.
The implied-warranty claim is also dismissed.
Count Four: Unjust Enrichment
In their final claim, the Plaintiffs allege that Menards is
unjustly enriched by the revenues received from sales of its
inaccurately labeled dimensional lumber products.
Plaintiffs' particular allegations of unjust enrichment rely on
the allegedly fraudulent labeling. When an unjust enrichment claim
is specifically premised on the allegedly fraudulent nature of a
representation, but the representation is not fraudulent, then the
unjust enrichment claim must fail too.
Menards's motion to dismiss is granted across the board.
A full-text copy of the District Court's September 29, 2017
Memorandum Opinion and Order is available at
http://tinyurl.com/yavu3r7rfrom Leagle.com.
Michael Fuchs, Plaintiff, represented by Evan M. Meyers --
emeyers@mcgpc.com -- McGuire Law, P.C.
Michael Fuchs, Plaintiff, represented by David Louis Gerbie,
Mcguire Law, P.c., 55 W. Wacker Drive, 9th Floor Chicago, IL 60601
& Yevgeniy Y. Turin -- eturin@mcgpc.com -- Mcguire Law, P.C..
Vladislav Krasilnikov, Plaintiff, represented by Evan M. Meyers,
McGuire Law, P.C., David Louis Gerbie, Mcguire Law, P.c. &
Yevgeniy Y. Turin, Mcguire Law, P.C.
Menard, Inc., Defendant, represented by Daniel J. Delaney --
daniel.delaney@dbr.com -- Drinker Biddle & Reath LLP, Matthew
Joseph Fedor -- matthew.fedor@dbr.com -- Drinker Biddle & Reath,
pro hac vice & Matthew M. Morrissey -- matthew.morrissey@dbr.com -
- Drinker Biddle & Reath LLP.
METHUEN, MA: Sued Over Incorrect Spanish Breathanalyzer Test Form
-----------------------------------------------------------------
Alysha Palumbo, writing for NECN, reports that attorneys for 23-
year-old Patricia Pimentel of Lawrence, Massachusetts have filed a
class action lawsuit against the City of Methuen and Methuen's
police chief after Ms. Pimentel was charged with OUI in October
2014.
Howard Cooper -- hcooper@toddweld.com -- a partner with Todd and
Weld said, "She actually operated a vehicle fleeing an abusive
boyfriend and crashed into two cars after a night where she had
been out with friends."
Ms. Pimentel's attorneys argue she was coerced into submitting to
a breathalyzer test because of a form. It's the Spanish
translation of the Breathalyzer Advice of Rights form -- and
attorneys say there are serious factual inaccuracies.
Mr. Cooper said, "It misinforms the person arrested that a jury
will hear about a breathalyzer test and a refusal to take it."
He says it incorrectly states that the legal blood alcohol content
limit is .10.
It's actually .08.
"The problem appears to have been recognized in May 2013 and it's
expressly stated that the form is wrong, it violates the accused'
rights," said Mr. Cooper.
The letter shows it was the Essex County District Attorney's
office that recognized the mistake back in 2013, and they alerted
Methuen police.
Joseph Cacace -- jcacace@toddweld.com -- an attorney with Todd and
Weld, said, "There's been no evidence provided at all by the city
of Methuen that anything was done to correct it in fact the
evidence is the opposite."
A judge has allowed Ms. Pimental's motion for a new trial, but
attorneys believe there may be dozens more affected.
City Solicitor Richard J. D'Agostino said in a statement, "The
City of Methuen has received Ms. Pimentel's civil Complaint. We
are reviewing and preparing a legal response to her various
allegations. The allegations and claims made by Ms. Pimental's
attorneys are merely that: allegations and claims. The City
intends to provide a vigorous defense against those claims in
Court."
The district attorney's office says it is pulling cases with the
outdated form so they can be reviewed further. [GN]
MINNESOTA: Eighth Circuit Appeal Filed in "Murphy" Suit
-------------------------------------------------------
Emily Johnson Piper, in her capacity as Commissioner of the
Minnesota Department of Human Services, filed an appeal from a
court ruling in the lawsuit styled Tenner Murphy, et al. v. Emily
Johnson Piper, Case No. 0:16-cv-02623-DWF, in the U.S. District
Court for the District of Minnesota - Minneapolis.
As previously reported in the Class Action Reporter, the lawsuit
alleges violation of the integration mandate in Title II of the
Americans with Disabilities Act by denying Plaintiffs the choice
where to live through its discriminatory residential service
system.
The appellate case is captioned as Tenner Murphy, et al. v. Emily
Johnson Piper, Case No. 17-8028, in the United States Court of
Appeals for the Eighth Circuit.[BN]
Plaintiffs-Respondents Tenner Murphy, by his Guardians Kay and
Richard Murphy, Marrie Bottelson and Dionne Swanson, and on behalf
of others similarly situated, are represented by:
Joseph William Anthony, Esq.
Steven Matthew Pincus, Esq.
ANTHONY OSTLUND BAER & LOUWAGIE P.A.
Wells Fargo Center
90 S. Seventh Street
Minneapolis, MN 55402-0000
Telephone: (612) 349-6969
E-mail: janthony@anthonyostlund.com
spincus@anthonyostlund.com
- and -
Sean B. Burke, Esq.
Justin Harley Perl, Esq.
MID-MINNESOTA LEGAL ASSISTANCE
300 Kickernick Building
430 First Avenue, N.
Minneapolis, MN 55401-1780
Telephone: (612) 332-1441
E-mail: jperl@mylegalaid.org
sburke@mylegalaid.org
Petitioner Emily Johnson Piper, in her capacity as Commissioner of
the Minnesota Department of Human Services, is represented by:
Scott Hiromi Ikeda, Esq.
Janine Kimble, Esq.
Aaron Edward Winter
ATTORNEY GENERAL'S OFFICE
Bremer Tower
445 Minnesota Street
Saint Paul, MN 55101-2127
Telephone: (651) 296-9412
E-mail: scott.ikeda@ag.state.mn.us
janine.kimble@ag.state.mn.us
aaron.winter@ag.state.mn.us
MONAVIE INC: "Pontrelli" Consumer Fraud Suit Moved to Utah
----------------------------------------------------------
Magistrate Judge Mark Falk of the U.S. District Court for the New
Jersey granted the Plaintiff's motion to transfer the case
captioned LISA PONTRELLI, in her individual capacity and on behalf
of all others similarly situated, Plaintiff, v. MONAVIE, INC. a
Utah Corporation, MONAVIE, LLC, a Delaware Limited Liability
Company, and DOES 1-10, inclusive, Defendants, Civil Action No.
13-4649 (WJM) (D. N.J.).
The Plaintiff commenced the class action on Aug. 1, 2013. She
filed an Amended Complaint on Dec. 9, 2013, on behalf of herself
and all other similarly situated purchasers of MonaVie Products.
The three-count Amended Complaint asserts claims for violation of
the New Jersey Consumer Fraud Act, common law fraud, and unjust
enrichment. The Plaintiff principally alleges that the Defendants
falsely advertised MonaVie Products' health benefits with the
intent that consumers would rely upon such misrepresentations.
Following dispositive motion practice, and prior to the close of
discovery and class certification briefing, the Court entered a
consent order on Jan. 22, 2016, staying the case pending
settlement negotiations in a companion action involving MonaVie's
marketing of its juice products, Harbut v. MonaVie, Inc., then
pending in the Central District of California. On Feb. 21, 2017,
Pontrelli and the plaintiff in Harbut moved before the U.S.
Judicial Panel on Multidistrict Litigation ("MDL Panel") to
authorize an MDL in the District of Utah where an important
declaratory judgment action, Starr Indem. & Liab. Co. v. MonaVie,
Inc. Inc., is pending. The MDL Panel denied the motion on May 31,
2017.
On June 16, 2017, the Court entered an Order directing that all
fact discovery proceed on an expedited basis, closing discovery on
Aug. 21, 2017, and providing that any motion to transfer be filed
by June 23, 2017. On June 21, 2017, the Plaintiff moved to
transfer venue to the District of Utah. Subsequent to the filing
of the instant motion, the Central District of California
transferred Harbut to the District of Utah.
The Plaintiff moved to transfer the case to the District of Utah
arguing that transfer is in the interests of justice and
contending that changed circumstances -- MonaVie's now defunct
status and the repercussions from it -- have radically altered the
litigation and make the District of Utah the only logical place to
continue the case.
Magistrate Judge Falk finds that the interests of justice would be
better served by transfer of the case to the District of Utah
given that any remnants of MonaVie are in Utah. In light of the
factually similar Harbut action recently having been transferred
to Utah, and given that Starr is also pending in Utah, transfer
will likely promote judicial efficiency, conserve judicial
resources, and eliminate expense if all three matters are
litigated there. Moreover, changed circumstances which have
arisen since this lawsuit was instituted -- specifically MonaVie
going out of business and a foreclosure of its assets -- favors
transfer, not to mention the fact that MonaVie's former employees
are in Utah. To permit this litigation to continue here would be
the precise wastefulness that section 1404(a) was designed to
prevent.
In sum, upon consideration of the totality of the circumstances,
Magistrate Judge Falk concludes that the District of Utah is the
most appropriate forum for litigation of the case. For the
reasons he stated, he granted the Plaintiff's motion to transfer
venue to the U.S. District Court for the District of Utah. A
separate Order accompanies the Opinion.
A full-text copy of the Court's Oct. 27, 2017 Opinion is available
at https://is.gd/ViDtFh from Leagle.com.
LISA PONTRELLI, Plaintiff, represented by BRUCE DANIEL GREENBERG -
- bgreenberg@litedepalma.com -- LITE DEPALMA GREENBERG, LLC.
MONA VIE, INC., Defendant, represented by KURT H. DZUGAY --
Kurt.Dzugay@lewisbrisbois.com -- LEWIS BRISBOIS BISGAARD & SMITH
LLP & THOMAS FRANCIS MORAN -- Thomas.Wolf@lewisbrisbois.com --
LEWIS BRISBOIS BISGAARD & SMITH LLP.
MONA VIE, LLC, Defendant, represented by KURT H. DZUGAY, LEWIS
BRISBOIS BISGAARD & SMITH LLP & THOMAS FRANCIS MORAN, LEWIS
BRISBOIS BISGAARD & SMITH LLP.
MORGAN PROPERTIES: Court Narrows Claims in "Zehm" Suit
------------------------------------------------------
In the case captioned AVA ZEHM, individually and on behalf of
others similarly situated, Plaintiff, v. MORGAN PROPERTIES,
MOORESTOWNE WOODS APARTMENT ASSOCIATES, LLC d/b/a MOORESTOWNE
WOODS APARTMENT ASSOCIATES, LP, and NWP SERVICES CORPORATION,
Defendants, Case No. 1:17-cv-1758 (NLH/KMW) (D. N.J.), Judge Noel
L. Hillman of the U.S. District Court for the District of New
Jersey (i) denied the Morgan Defendants' motion for partial
abstention; (ii) granted the Morgan Defendants' motion for partial
dismissal of the complaint; (iii) granted NWP's motion to dismiss;
and (iv) denied the Plaintiff's motion for leave to amend the
complaint.
The Plaintiff lived in an apartment in Moorestown owned by MWAA.
The complex consisted of approximately 172 residential units and
was managed by Morgan Properties. The Plaintiff executed her
first lease with MWAA in 2014 for the rental of an apartment. She
renewed her lease in 2015. As part of her leases, Plaintiff
signed a utility addendum, which provided that charges for water
would be based on the number of bedrooms in each resident's
apartment unit. NWP was the third-party billing service provider
for this utility.
The Morgan Defendants filed a complaint in January 2016 against
the Plaintiff for rent due. The complaint declared $873.85 due
and owing: $331.65 for rent due, a $142.20 late charge, and $400
in attorneys' fees.
Following that litigation, the Plaintiff filed a class action
complaint against the Defendants, which was removed to federal
court on March 15, 2017. The complaint alleged: (i) Count One:
violation of the New Jersey Truth in Renting Act ("TRA") based on
the attorneys' fees provision (against Morgan Defendants); (ii)
Count Two: violation of the TRA based on the utility addendum
(against Morgan Defendants); (iii) Count Three: violation of the
New Jersey Consumer Fraud Act ("CFA") based on the attorneys' fees
provision (against Morgan Defendants); (iv) Count Four: civil
conspiracy based on the attorneys' fees provision (against Morgan
Defendants); (v) Count Five: violation of the CFA based on the
utility addendum (against all Defendants); (vi) Count Six: civil
conspiracy based on the utility addendum (against all Defendants);
(vii) Count Seven: declaratory judgment (against all Defendants);
and (viii) Count Eight: violation of the CFA (against Morgan
Defendants).
The purported class action predominantly concerns two allegedly
illegal provisions of a residential lease: an attorneys' fees
provision and a utility addendum regarding the allocation of water
charges. The Plaintiff contends these provisions violate the CFA
and the TRA.
The Morgan Defendants filed an April 5, 2017 motion for partial
abstention and partial dismissal of the complaint. NWP then filed
an April 26, 2017 motion to dismiss.
The Morgan Defendants ask the Court to stay Counts One, Three,
Four, and, in part, Count Seven of the action under the Colorado
River abstention doctrine, arguing there is similar litigation
pending in state court. Judge Hillman does not find the putative
classes are substantially similar. This leads him to conclude
that the cases are not parallel, and that Colorado River
abstention is inapplicable.
The Morgan Defendants also ask the Court to dismiss with prejudice
Counts Two, Five, Six, and, in part, Seven of the complaint. The
Plaintiff brings these counts based on the allegedly illegal
utility addendum. Much of the Plaintiff's argument regarding a
violation of the CFA rests on the New Jersey Board of Public
Utilities ("BPU") purportedly having prohibited ratio utility
billing system ("RUBS").
The Judge finds that finds that the Morgan Defendants are not
subject to the jurisdiction of the BPU. As the Morgan Defendants
are not subject to BPU regulation, the Plaintiff's allegations
that the BPU has prohibited RUBS are not applicable and the Judge
does not address that argument nor make any ruling as to whether
RUBS is in fact prohibited by the BPU.
Judge Hillman also finds that the "unlawful purpose" alleged was
the allegedly unlawful utility addendum. Having found there was
nothing unlawful about the utility addendum, he dismisses the
civil conspiracy count as it relates to the utility addendum. As
he finds the utility addendum does not violate these facets of New
Jersey law, he dismisses Count Seven as it relates to the utility
addendum.
The Judge further finds that amendment of the complaint would be
futile, as additional pleading will not show that the Defendants'
use of RUBS violates New Jersey law. Thus, he declines to grant
leave to amend.
For the same reasons discussed with regard to the Morgan
Defendants, Judge Hillman will grant NWP's motion to dismiss, as
the Plaintiff has failed to plead a violation of the CFA or TRA
with regard to the utility addendum. As with the Morgan
Defendants, NWP is similarly not subject to regulation by the BPU.
The Judge does not reach NWP's arguments regarding whether the
Plaintiff's complaint was sufficiently pled under Federal Rule of
Civil Procedure 9(b).
In conclusion, Judge Hillman dismissed Counts Two, Five, and Six
in their entirety. Count Seven is dismissed to the extent it
seeks a declaratory judgment against the Defendants based on the
utility addendum. Counts One, Three, Four, Seven, and Eight will
otherwise proceed through litigation against the Morgan
Defendants. An appropriate Order will be entered.
A full-text copy of the Court's Oct. 27, 2017 Opinion is available
at https://is.gd/YHna4x from Leagle.com.
AVA ZEHM, Plaintiff, represented by LEWIS G. ADLER --
lewisadler@verizon.net -- LAW OFFICE OF LEWIS ADLER.
MORGAN PROPERTIES, Defendant, represented by RACHEL C. HEINRICH --
rheinrich@wilentz.com -- WILENTZ GOLDMAN & SPITZER, P.A..
MOORESTOWNE WOODS APARTMENT ASSOCIATES, LLC, Defendant,
represented by RACHEL C. HEINRICH, WILENTZ GOLDMAN & SPITZER,
P.A..
NEW YORK: Second Circuit Appeal Filed in "Doe" Suit vs. PSC
-----------------------------------------------------------
Plaintiff Jane Doe filed an appeal from a District Court decision
and order dated October 17, 2017, issued in her lawsuit styled Doe
v. Rhodes, et al., Case No. 17-cv-936, in the U.S. District Court
for the Northern District of New York (Syracuse).
As previously reported in the Class Action Reporter, the lawsuit
was filed on August 23, 2017, against John B. Rhodes and others.
Mr. Rhodes is the Chairman of New York's Public Service Commission
and chief executive officer of the Department of Public Service.
The New York Public Service Commission is the public utilities
commission of the New York state government that regulates and
oversees the electric, gas, water, and telecommunication
industries in New York as part of the Department of Public
Service.
The lawsuit arises over civil rights-related issues.
The appellate case is captioned as Doe v. Rhodes, et al., Case No.
17-3361, in the United States Court of Appeals for the Second
Circuit.[BN]
Plaintiff-Appellant Jane Doe, a fictitious name, on behalf of
herself and all others similarly situated, is represented by:
William J. Dreyer, Esq.
James R. Peluso, Esq.
DREYER BOYAJIAN LLP
75 Columbia Street
Albany, NY 12210
Telephone: (518) 463-7784
E-mail: wdreyer@dreyerboyajian.com
Defendants-Appellees John B. Rhodes, Gregg C. Sayre, Diane X.
Burman, James S. Alesi and New York State Public Service
Commission are represented by:
Jonathan D. Feinberg, Esq.
NEW YORK STATE DEPARTMENT OF PUBLIC SERVICE
3 Empire State Plaza
Albany, NY 12223
Telephone: (518) 474-5597
E-mail: Jonathan.Feinberg@dps.ny.gov
- and -
Barbara D. Underwood, Esq.
NEW YORK STATE OFFICE OF THE ATTORNEY GENERAL
120 Broadway
New York, NY 10271
Telephone: (212) 416-8000
E-mail: barbara.underwood@ag.ny.gov
NIMBLE STORAGE: Arkansas Teachers Appeal Order in Securities Suit
-----------------------------------------------------------------
Lead Plaintiff Arkansas Teacher Retirement System filed an appeal
from a court ruling in the lawsuit titled In re: NIMBLE STORAGE,
INC. SECURITIES LITIGATION, Case No. 4:15-cv-05803-YGR, in the
U.S. District Court for the Northern District of California,
Oakland.
As reported in the Class Action Reporter on Oct. 24, 2017, Judge
Yvonne Gonzalez Rogers dismissed with prejudice the putative
securities fraud class action against Nimble, a flash storage
technology company, and several of its officers.
The Court found that Nimble's statements about growth were not
misleading because they were accompanied by sales and profit data,
which accurately reported the Company's condition to the public.
In dismissing the Plaintiffs' third amended complaint with
prejudice, the Court held that the Defendants' general statements
in quarterly reports concerning the strength of Nimble's
enterprise segment were neither false nor misleading. The Court
found that the general statements of growth were not actionable
because they were accompanied by accurate sales and market data
that Defendants disclosed to the public about the enterprise
segment's strength.
In their complaint, the Plaintiffs in the litigation alleged that
the Defendants misrepresented Nimble's prospects and financial
condition in violation of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder.
The appellate case is captioned as Arkansas Teacher Retirement
System v. Nimble Storage, Inc., et al., Case No. 17-17232, in the
United States Court of Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Transcript must be ordered by November 29, 2017;
-- Transcript is due on December 29, 2017;
-- Appellant Arkansas Teacher Retirement System's opening
brief is due on February 7, 2018;
-- Appellees Daniel Leary, Varun Mehta, Nimble Storage, Inc.,
Anup V. Singh and Suresh Vasudevan's answering brief is due
on March 9, 2018; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiff-Appellant ARKANSAS TEACHER RETIREMENT SYSTEM, Lead
Plaintiff; Individually and On Behalf of a Class of Similarly
Situated Persons and Entities, is represented by:
Jonathan Gardner, Esq.
Carol C. Villegas, Esq.
LABATON SUCHAROW LLP
140 Broadway
New York, NY 10005-1108
Telephone: (212) 907-0700
Facsimile: (212) 818-0477
E-mail: jgardner@labaton.com
cvillegas@labaton.com
- and -
Nicole Lavallee, Esq.
Aidan Chowning Poppler, Esq.
BERMAN TABACCO
44 Montgomery Street, Suite 650
San Francisco, CA 94104
Telephone: (415) 433-3200
Facsimile: (415) 433-6382
E-mail: nlavallee@bermandevalerio.com
cpoppler@bermandevalerio.com
- and -
Christopher Mooney, Esq.
PAUL HASTINGS LLP
101 California Street, 48th Floor
San Francisco, CA 94111
Telephone: (415) 856-7000
E-mail: christopherross@paulhastings.com
- and -
Matthew David Pearson, Esq.
PEARSON & PEARSON, APC
225 30th St.
Sacramento, CA 95816
Telephone: (916) 760-7027
Facsimile: (916) 560-7394
E-mail: Matthew@EastSacLaw.com
Defendants-Appellees NIMBLE STORAGE, INC., SURESH VASUDEVAN, ANUP
V. SINGH, DANIEL LEARY and VARUN MEHTA are represented by:
Felix Lee, Esq.
FENWICK & WEST LLP
801 California Street
Mountain View, CA 94041
Telephone: (650) 335-7123
Facsimile: (650) 938-5200
E-mail: flee@fenwick.com
- and -
Susan S. Muck, Esq.
FENWICK & WEST LLP
555 California Street
San Francisco, CA 94104
Telephone: (415) 875-2300
Facsimile: (415) 281-1350
E-mail: smuck@fenwick.com
NORTHERN MARIANAS: Betty Johnson Case Closed
--------------------------------------------
Bryan Manabat, writing for Marianas Variety, reports that
District Court for the NMI designated Judge Frances M. Tydinco-
Gatewood said the Betty Johnson's class action against the NMI
Retirement Fund and the CNMI government "is hereby closed."
In her Oct. 24, 2017 order, the judge instructed the Commonwealth
Ports Authority and other autonomous agencies to "withdraw their
motions and request for any relief in the Johnson action and any
other actions against the CNMI Fund."
The final judgment and order was issued after the Office of the
Attorney General, CPA and the Settlement Fund trustee agreed that
all issues in the case, including the motion for writ of mandamus,
have been resolved
In 2009, retiree Betty Johnson sued the CNMI government for its
failure to pay the amounts that it was required by law to pay to
the Retirement Fund since 2005.
As a result, she said, the Fund would run out of money by June
2014 and would no longer be able to pay retirement benefits.
In Sept. 2013, the parties agreed to settle the lawsuit and the
U.S. court approved a $779 million consent judgment in case the
government does not meet its obligations to the Settlement Fund.
Under the settlement agreement, retirees are entitled to 75
percent of their pension benefits.
With the opening of the Saipan casino and the rise in tourist
arrivals, the CNMI government has been making timely payments to
the Settlement Fund and is also voluntarily appropriating funds to
restore the retirees' 25 percent pension cut. [GN]
PHENIX CITY, AL: Worthy Appeals M.D. Ala. Decision to 11th Cir.
---------------------------------------------------------------
Plaintiffs Thomas F. Worthy, James D. Adams, Willcox-Lumpkin Co.,
Inc., filed an appeal from a court ruling entered in their lawsuit
entitled Thomas Worthy, et al. v. Phenix City, Alabama, et al.,
Case No. 3:17-cv-00073-JZ-GMB, in the U.S. District Court for the
Middle District of Alabama.
As reported in the Class Action Reporter on Oct. 25, 2017, Judge
Jack Zhouhary granted the Defendants' motion to dismiss the case.
In 2012, Phenix City adopted Ordinance No. 2012-21, as part of its
"Red Light Safety Program." The Ordinance established an
automated system for issuing red-light citations using cameras
installed at various intersections throughout the City. Subject
to a handful of affirmative defenses, the owner of a vehicle
photographed running a red light in the City is liable for a $100
"civil penalty." A notice of violation issued under the Ordinance
must provide, among other things, information about the owner's
right to contest the civil penalty in an administrative
adjudication.
Each of the Named Plaintiffs received a notification of violation
under the Ordinance, and each disputes liability. Nevertheless,
Plaintiffs Willcox-Lumpkin Co., Inc. and James D. Adams did not
request an administrative hearing or otherwise participate in the
statutory process for contesting liability. Plaintiff Worthy
received an administrative hearing (at which he was found liable),
but he elected not to pursue an appeal to the Circuit Court.
The Plaintiffs instead filed the proposed class action, alleging
that the Defendants violated their constitutional rights and
unjustly enriched themselves by imposing criminal fines without
providing constitutionally required protections. More
specifically, they contend -- among other things -- that the
burden of proof should be beyond a reasonable doubt, that they
should be allowed to confront their accusers and cross-examine
witnesses, and that they should receive greater protections
against self-incrimination. They further argue that the City
deprived them of both due process and the right to petition the
courts. They seek damages, attorney fees, and a declaratory
judgment stating that the Ordinance is unconstitutional.
The appellate case is captioned as Thomas Worthy, et al. v. Phenix
City, Alabama, et al., Case No. 17-14718, in the United States
Court of Appeals for the Eleventh Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Appellant's Certificate of Interested Persons was due on or
before November 7, 2017, as to Appellant James D. Adams;
-- Appellee's Certificate of Interested Persons is due on or
before November 21, 2017, as to Appellees Phenix City,
Alabama and Redflex Traffic Systems, Inc.[BN]
Plaintiffs-Appellants THOMAS F. WORTHY, individually and on behalf
of those similarly situated, and JAMES D. ADAMS, individually and
on behalf of those similarly situated, are represented by:
J. Benjamin Finley, Esq.
THE FINLEY FIRM, P.C.
3535 Piedmont Rd., Bldg. 14, Suite 230
Atlanta, GA 30305
Telephone: (404) 320-9979
E-mail: bfinley@thefinleyfirm.com
- and -
Robert Walker Garrett, Esq.
Travis Carlisle Hargrove, Esq.
THE FINLEY FIRM, P.C.
200 13th St.
Columbus, GA 31901
Telephone: (706) 322-6226
Facsimile: (706) 322-6221
E-mail: WGarrett@TheFinleyFirm.com
thargrove@thefinleyfirm.com
- and -
George Walton Walker, III, Esq.
PAGE SCRANTOM SPROUSE TUCKER & FORD, PC
1111 Bay Avenue, Suite 300
PO Box 1199
Columbus, GA 31902-1199
Telephone: (706) 324-0050
E-mail: wallywalker@pmkm.com
Defendant-Appellee PHENIX CITY, ALABAMA, is represented by:
Glenn Channing Gamble, Esq.
James Robert McKoon, Jr., Esq.
MCKOON & GAMBLE
925 Broad Street
Phenix City, AL 36867
Telephone: (334) 297-2300
E-mail: chan@mckoonandgamble.com
jrmckoon@aol.com
- and -
James P. Graham, Jr., Esq.
THE GRAHAM LEGAL FIRM
712 13th Street
Phenix City, AL 36868
Telephone: (334) 291-0315
E-mail: manager@grahamlegal.org
Defendant-Appellee REDFLEX TRAFFIC SYSTEMS, INC., is represented
by:
Stewart Alvis, Esq.
Kacey Leigh Weddle, Esq.
Huey Thomas Wells, Jr., Esq.
MAYNARD COOPER & GALE, PC
1901 6th Avenue N, Suite 2400
Birmingham, AL 35203
Telephone: (205) 254-1000
E-mail: salvis@maynardcooper.com
kweddle@maynardcooper.com
twells@maynardcooper.com
PTTEP AUSTRALASIA: Hope For People Involved in Oil Spill Suit
-------------------------------------------------------------
Melissa Coade, writing for Lawyers Weekly, reports that the 2009
Montara oil spill has been dubbed by some as Australia's worst
spill-related environmental disaster, impacting the lives of over
15,000 Indonesian seaweed farmers from the province of East Nusa
Tengara.
To this day, seaweed farmers in one of Indonesia's poorest regions
continue to feel the devastating impact of the oil and gas spill
from more than eight years ago. The episode has seen millions of
litres of oil and gas enter the waters of the East Timor sea for
74 days.
Laura Neil, president of the Australian Lawyers Alliance, has
spoken of the plight of those effected by the disaster and praised
the involvement of two Australians who are helping victims of the
spill.
Freya Mulvey and Thomas Neal worked tirelessly to sign up victims
to a $200 million class action being brought against the company
responsible, PTTEP Australasia.
"The oil company behind the spill ignored them, while the
Australian government claimed its hands were tied as the victims
of the spill were in Indonesia," Mrs Neil said.
"The villagers had nowhere to turn for justice. However, Freya and
Thomas gave these people hope by signing up 15,483 impoverished
victims to the Montara class action," she said.
In August, initial proceedings for the class action came before
the Federal Court of Australia.
Lawyers for the farmers argued that following the Montara spill,
the rigour of the scientific inquiry into the accident was lack-
lustre and fell below the standard one might expect of the spill
had affected Australian nationals.
The claimants also said that in the aftermath of the spill, oil
had turned the seaweed white and weak and the crops were
subsequently washed away with the current. It is contended the
spill also killed local fish.
"Local economies in Nusa Tenggara Timur have reported losses
totalling billions of Australian dollars, with communities also
reporting widespread sickness and health conditions they claim are
caused by the oil spill," Ms Neil said.
"The oil company behind the spill ignored them, while the
Australian government claimed its hands were tied as the victims
of the spill were in Indonesia," she said.
PTTEP Australasia contends that 94 kilometres from the coastline
is the closest recorded evidence of oil in Indonesian waters.
The company also defended the integrity of its scientific methods,
citing a "comprehensive" four-year program that it said was
undertaken by leading experts in their field.
The parent company of Perth-based PTTEP Australasia is a Thai
state-owned oil company named PTTEP.
Mrs Neil from the ALA said that the efforts of the two Australians
who persisted through difficult conditions to reach the would-be
claimants so that they could sign up to the class action were to
be commended.
"Freya and Tom were at the pointy end of the operation, travelling
across the affected Indonesian province to seek justice for
victims of the oil spill," Mrs Neil said.
"They had to overcome everything from the hot and harsh tropical
climate, mosquitoes, regular illnesses, terrible roads, sometimes
dubious food quality and poor to non-existent telephone and
internet communications and electricity.
"Tom even contracted Dengue Fever during the project."
The ALA have recognised the efforts of the duo by naming them as
the recipients of this year's Civil Justice Award.
Mr Neal, a journalist, and Ms Mulvey, who works as an associate at
the Darwin office of Squire Patton Boggs, were presented with the
award at the annual ALA conference in Darwin.
"It was not about the prospect of winning damages, but that they
came to share the villagers' problems and to fight for them. They
had not been forgotten," Mrs Neil said.
"Freya and Tom have already made a great difference to the lives
of thousands of people and have put them in a position where
justice finally becomes a least a real possibility." [GN]
PURDUE PHARMA: Coryell County Joining Opioid Class Suit
-------------------------------------------------------
Britanny Fholer, writing for Cove Leader Press, reports that
Coryell County is joining more than a dozen other Texas counties
being represented in class-action lawsuits against various
pharmaceutical companies that produce and distribute opioids,
after the Commissioners' Court meeting held October 23 morning.
The commissioners approved Coryell County Resolution No. 2017-14
which gave approval for bringing a class-action suit on behalf of
Coryell County against various drug manufacturers, developers,
suppliers and others of pharmaceutical drugs known as opioids and
approval of a professional services agreement for special counsel.
The county will be represented by major litigators Simon
Greenstone Panatier Bartlett, based in Dallas, who will be working
with lawyers from Cappolino, Dodd and Krebbs of Cameron and
Temple, on a contingency fee structure basis, with no additional
cost to the county.
The companies which the claims will be made against include but
are not limited to Purdue Pharma, Endo Pharmaceuticals, Pfizer,
Janssen Pharmaceuticals, Ortho-McNeil-Janssen Pharmaceuticals,
Teva Pharmaceuticals, and Johnson & Johnson.
Craig Brown and Valerie Farwell, with Cappolino, Dodd and Krebbs,
shared information on the problem of opioids and what the lawsuit
will do.
"These drugs have been around for a long time," Brown said. "What
changed wasn't the drug. What changed was the way they're
marketed and prescribed."
There was a shift from prescribing certain opioids for acute,
post-surgical or end of life scenarios to chronic pain scenarios,
many of which had never been used for chronic pain before, due to
people hired by the companies to market the drugs this way to
doctors, Brown said.
"There were 289 million scripts written for opioids last year, so
enough for all of us to have a bottle. Clearly the math just
doesn't work out on how much is being prescribed," Brown said. "So
what we're trying to do is somewhat similar to the tobacco
litigation and by that I mean, we're trying to recoup costs for
law enforcement."
The opioid abuse problem leads to a drain on public finances in
dealing with the problem through law enforcement, child protective
services and indigent health services, among others, Brown said.
The lead counsel firm, Simon Greenstone Panatier Bartlett, have
won more than $296 million in verdicts since 2006, according to
Farwell.
"They are excellent when they go to trial. They have no problem
taking on the big guys, doesn't phase them one bit," Farwell said.
Coryell County attorney Brandon Belt, Esq. -- brandon@swmwlaw.com
-- said he had looked over the agreement and found nothing amiss.
Belt stressed that it would take a big firm, such as SGPB, to
tackle the big pharmaceutical companies.
"You sue the big pharmaceutical company, they will be parachuting
lawyers in to fight you because they're making millions of dollars
peddling these pills all over the United States," Belt said.
The number of prescriptions compared to the number of people in
the country doesn't add up, Belt said. The companies have created
a problem of people overdosing on the pills or selling them, and
many people with a prescription don't even use them, they just
sell them, Belt added.
"It's definitely something that needs to be addressed and folks
like their firm are the only ones that are capable of addressing
it," Belt said. "It takes a big firm with lots of resources and
lots of lawyers to deal with these things." [GN]
RENZENBERGER INC: Seeks 9th Cir. Review of Order in "Wright" Suit
-----------------------------------------------------------------
Defendant Renzenberger, Inc., filed an appeal from a court ruling
in the lawsuit entitled Roderick Wright, et al. v. Renzenberger,
Inc., Case No. 2:13-cv-06642-FMO-AGR, in the U.S. District Court
for the Central District of California, Los Angeles.
As previously reported in the Class Action Reporter, the lawsuit
is brought on behalf of yard drivers and road drivers employed by
Renzenberger in California.
The appellate case is captioned as Roderick Wright, et al. v.
Renzenberger, Inc., Case No. 17-80210, in the United States Court
of Appeals for the Ninth Circuit.[BN]
Plaintiffs-Respondents RODERICK WRIGHT, individuals on behalf of
themselves and others similarly situated, FERNANDO OLIVAREZ and
MARCUS HAYNES, Jr., are represented by:
Kye D. Pawlenko, Esq.
Matthew Bryan Hayes, Esq.
HAYES PAWLENKO LLP
595 East Colorado Boulevard
Pasadena, CA 91101
Telephone: (626) 808-4357
Facsimile: (626) 921-4932
E-mail: kpawlenko@helpcounsel.com
mhayes@helpcounsel.com
Defendant-Petitioner RENZENBERGER, INC., a Kansas corporation, is
represented by:
William V. Whelan, Esq.
Leah Suzanne Strickland, Esq.
SOLOMON WARD SEIDENWURM & SMITH LLP
401 B Street
San Diego, CA 92101
Telephone: (619) 238-4828
E-mail: wwhelan@swsslaw.com
lstrickland@swsslaw.com
RIO TINTO: Hagens Berman Files Securities Class Action
------------------------------------------------------
Hagens Berman Sobol Shapiro LLP alerts purchasers of Rio Tinto PLC
(NYSE:RIO) U.S. traded securities to the firm's filing of a
securities class action against the Rio Tinto and certain former
senior executives related to the SEC's allegations that they
publicly overstated the value of Rio Tinto Coal Mozambique
("RTCM") by billions of dollars. The lawsuit is pending in the
U.S. District Court for the Southern District of New York.
Investors may have damages even if they sold their shares years
ago.
The Lead Plaintiff deadline is December 22, 2017. If you
purchased or otherwise acquired securities in the United States,
including bonds (1.625% due 2017, 2.875% due 2022, 4.125% due
2042), of Rio Tinto between October 23, 2012 and February 15, 2013
contact Hagens Berman Sobol Shapiro LLP to discuss your options by
visiting:
https://www.hbsslaw.com/cases/RioTinto
You may also contact Reed Kathrein, who is leading the firm's
prosecution of this action, by calling 510-725-3000 or emailing
RioTinto@hbsslaw.com.
The complaint and the SEC charge on October 17, 2017 that Rio
Tinto, its former Chief Executive Officer (Thomas Albanese), and
its former Chief Financial Officer (Guy Robert Elliott), were
fully aware the RTCM's business was essentially worthless but they
continued to fraudulently tout its value in the billions of
dollars.
According to the complaint and the SEC, as early as August 2012 an
executive in charge of Rio Tinto's Technology & Innovation ("TI")
division informed CFO Elliott that RTCM was worth between negative
$4.9 billion to $300 million but Elliott did not inform Rio
Tinto's board or its investors during meetings with them in
October and November 2012.
The complaint and the SEC allege that the TI executive brought
RTCM's enormous overvaluation directly to the attention of Rio
Tinto's board of directors and, on January 15, 2013, the board
determined that an 80 percent write-down of RTCM's value to $611
million should be recorded. The Company reported this write-down
in its financial statements filed with the SEC on February 15,
2013.
Both CEO Ablanese and Elliott departed from their positions
shortly after the board's decision. Rio Tinto ultimately sold
RTCM for a mere $50 million after recording an additional $470
million RTCM write-down.
"The SEC complaint revealed facts long hidden from investors
indicating that the investors paid an inflated price for Rio
Tinto's U.S. traded ADRs and other securities. By filing this
complaint, at least a portion of the investors, who purchased
during the Class Period, may still be able to recover those
damages," said Hagens Berman partner Reed Kathrein. "We continue
to investigate this and other matters hidden from investors."
About Hagens Berman
Hagens Berman is a national investor-rights law firm headquartered
in Seattle, Washington with 70+ attorneys in 11 offices across the
country. The firm represents investors, whistleblowers, workers
and consumers in complex litigation.
Reed Kathrein, Esq.
Hagens Berman Sobol Shapiro LLP
Tel No. 510-725-3000
E-mail: reed@hbsslaw.com [GN]
SALSAS AND BEER: Fourth Circuit Appeal Filed in "Velasquez" Suit
----------------------------------------------------------------
Plaintiff Cristian Velasquez filed an appeal from a court ruling
in his lawsuit titled Cristian Velasquez v. Salsas and Beer
Restaurant, Inc., et al., Case No. 5:15-cv-00146-D, in the U.S.
District Court for the Eastern District of North Carolina at
Raleigh.
The lawsuit is brought over alleged violations of the Fair Labor
Standards Act.
The appellate case is captioned as Cristian Velasquez v. Salsas
and Beer Restaurant, Inc., et al., Case No. 17-2219, in the United
States Court of Appeals for the Fourth Circuit.[BN]
Plaintiff-Appellant CRISTIAN VELASQUEZ, on behalf of himself and
all others similarly situated, is represented by:
Michael Bernard Cohen, Esq.
Gilda Adriana Hernandez, Esq.
LAW OFFICES OF GILDA A. HERNANDEZ
1020 Southhill Drive
Cary, NC 27513
Telephone: (919) 741-8693
Facsimile: (919) 869-1853
E-mail: mcohen@gildahernandezlaw.com
ghernandez@gildahernandezlaw.com
Defendants-Appellee SALSAS AND BEER RESTAURANT, INC., NOE PATINO,
PATRICIA PATINO, DIONISIO PATINO and ISMAEL PATINO are represented
by:
Grant Stephen Mitchell, Esq.
THE MITCHELL LAW GROUP
P. O. Box 2917
Fayetteville, NC 28301
Telephone: (910) 678-7100
SAN DIEGO, CA: Morrow Appeals S.D. Calif. Ruling to Ninth Circuit
-----------------------------------------------------------------
Plaintiffs Floyd L. Morrow and Marlene Morrow filed an appeal from
a court ruling in their lawsuit entitled Floyd Morrow, et al. v.
City of San Diego, et al., Case No. 3:11-cv-01497-BAS-KSC, in the
U.S. District Court for the Southern District of California, San
Diego.
The lawsuit arose from civil rights-related issues.
The appellate case is captioned as Floyd Morrow, et al. v. City of
San Diego, et al., Case No. 17-56642, in the United States Court
of Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Mediation Questionnaire was due November 6, 2017;
-- Transcript must be ordered by November 27, 2017;
-- Transcript is due on December 27, 2017;
-- Appellants Floyd L. Morrow and Marlene Morrow's opening
brief is due on February 6, 2018;
-- Appellee City of San Diego's answering brief is due on
March 6, 2018; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiff-Appellant FLOYD L. MORROW and MARLENE MORROW,
individually, as taxpayers of the City of San Diego, State of
California, and on behalf of those similarly situated, are
represented by:
Malinda R. Dickenson, Esq.
LAW OFFICE OF MALINDA R. DICKENSON
402 W. Broadway
San Diego, CA 92101
Telephone: (858) 521-8492
E-mail: malinda@lawmrd.com
Defendant-Appellee CITY OF SAN DIEGO, a charter city, is
represented by:
Carmen Anne Brock, Esq.
Michael Travis Phelps, Esq.
SAN DIEGO CITY ATTORNEY'S OFFICE
1200 Third Avenue
San Diego, CA 92101
Telephone: (619) 236-7726
E-mail: cbrock@sandiego.gov
mphelps@sandiego.gov
SANOFI PASTEUR: Third Circuit Appeal Filed in "Weitzner" Suit
-------------------------------------------------------------
Plaintiffs Ari Weitzner and Ari Weitzner MD PC filed an appeal
from a court ruling in their lawsuit entitled Ari Weitzner, et al.
v. Sanofi Pasteur Inc., et al., Case No. 3-11-cv-02198, in the
U.S. District Court for the Middle District of Pennsylvania.
As reported in the Class Action Reporter on Sept. 18, 2017, Judge
A. Richard Caputo (i) denied the Defendants' Motion to Strike the
November 29, 2016 Declaration of Ari Weitzner, M.D.; (ii) granted
in part and denied in part the Defendants' Motion to Strike
Plaintiffs' Answer to Defendants' Statement of Facts; (iii)
granted the Defendants' Motion for Summary Judgment; and (iv)
denied as moot the Plaintiffs' Motion for Class Certification.
The appellate case is captioned as Ari Weitzner, et al. v. Sanofi
Pasteur Inc., et al., Case No. 17-3188, in the United States Court
of Appeals for the Third Circuit.[BN]
Plaintiffs-Appellants ARI WEITZNER and ARI WEITZNER MD PC,
Individually and on behalf of all other similarly situated, are
represented by:
Todd C. Bank, Esq.
LAW OFFICE OF TODD C. BANK
119-40 Union Turnpike
Kew Gardens, NY 11415
Telephone: (718) 520-7125
E-mail: tbank@toddbanklaw.com
- and -
P. Timothy Kelly, Esq.
MATTISE & KELLY
108 North Washington Avenue, Suite 400
Scranton, PA 18503
Telephone: (570) 504-3200
- and -
Daniel A. Osborn, Esq.
OSBORN LAW
295 Madison Avenue, 39th Floor
New York, NY 10017
Telephone: (212) 725-9800
Facsimile: (212) 725-9808
E-mail: dosborn@osbornlawpc.com
Defendants-Appellees SANOFI PASTEUR INC, formerly known as Aventis
Pasteur Inc., and VAXSERVE INC, formerly known as Vaccess America,
Inc., are represented by:
Carl J. Greco, Esq.
Jennifer Menichini, Esq.
CARL J. GRECO, P.C.
327 North Washington Avenue
Professional Arts Building
Scranton, PA 18503
Telephone: (570) 346-4434
E-mail: cjgreco@cjgrecolaw.com
jmenichini@cjgrecolaw.com
SEATTLE, WA: Ninth Circuit Appeal Filed in "Hooper" Class Suit
--------------------------------------------------------------
Plaintiffs Real Change, The Episcopal Diocese of Olympia and
Trinity Parish of Seattle filed an appeal from a court ruling in
the lawsuit titled LISA HOOPER, et al. v. CITY OF SEATTLE, et al.,
Case No. 2:17-cv-00077-RSM, in the U.S. District Court for the
Western District of Washington, Seattle.
As reported in the Class Action Reporter on Oct. 24, 2017, Judge
Ricardo S. Martinez denied the Plaintiffs' Motion for Class
Certification and their Motion for Preliminary Injunction.
The Plaintiffs' suit stems from the Defendants' enforcement of
rules and guidelines that authorize the removal of unauthorized
encampments from City-owned and Washington State-owned property.
In 2008, the City enacted rules, the Multi-Departmental
Administrative Rules 08-01 ("MDAR 08-01"), to establish, in part,
standard procedures for the removal of unauthorized encampments,
camping equipment, and personal property left on City-owned
property.
That same year, Washington State Department of Transportation
("WSDOT") also adopted guidelines, entitled WSDOT's Guidelines to
Address Illegal Encampments within State Right of Way,
establishing similar removal procedures for unauthorized
encampments.
The appellate case is captioned as Kayla Willis, et al. v. City of
Seattle, et al., Case No. 17-80214, in the United States Court of
Appeals for the Ninth Circuit.[BN]
Plaintiffs-Petitioners KAYLA WILLIS, individually and on behalf of
a class of similarly situated individuals; REAVY WASHINGTON,
individually and on behalf of a class of similarly situated
individuals; LISA HOOPER, individually and on behalf of a class of
similarly situated individuals; BRANDIE OSBORNE, individually and
on behalf of a class of similarly situated individuals; THE
EPISCOPAL DIOCESE OF OLYMPIA; TRINITY PARISH OF SEATTLE and REAL
CHANGE are represented by:
Breanne Schuster, Esq.
Emily Chiang, Esq.
Nancy Lynn Talner, Esq.
ACLU OF WASHINGTON
901 5th Avenue, Suite 630
Seattle, WA 98164
Telephone: (206) 624-2184
E-mail: bschuster@aclu-wa.org
echiang@aclu-wa.org
talner@aclu-wa.org
- and -
Eric A. Lindberg, Esq.
Todd Tyler Williams, Esq.
CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 4th Avenue, Suite 3900
Seattle, WA 98154-1051
Telephone: (206) 625-8600
E-mail: elindberg@corrcronin.com
twilliams@corrcronin.com
Defendant-Respondent CITY OF SEATTLE is represented by:
Andrew Myerberg, Esq.
Patrick Downs, Esq.
Gregory Colin Narver, Esq.
Gary Theodore Smith, Esq.
SEATTLE CITY ATTORNEY'S OFFICE
701 Fifth Avenue, Suite 2050
Seattle, WA 98104-7097
Telephone: (206) 684-8200
E-mail: andrew.myerberg@seattle.gov
patrick.downs@seattle.gov
gregory.narver@seattle.gov
gary.smith@seattle.gov
- and -
Carlton W. Seu, Esq.
SEATTLE CITY ATTORNEY'S OFFICE
P.O. Box 94769
Seattle, WA 98124-4769
Telephone: (206) 684-8200
E-mail: carlton.seu@seattle.gov
- and -
Taki V. Flevaris, Esq.
Matthew J. Segal, Esq.
Gregory J. Wong, Esq.
PACIFICA LAW GROUP
1191 Second Avenue
Seattle, WA 98101
Telephone: (206) 245-1700
E-mail: taki.flevaris@pacificalawgroup.com
matthew.segal@pacificalawgroup.com
greg.wong@pacificalawgroup.com
Defendants-Respondents WASHINGTON STATE DEPARTMENT OF
TRANSPORTATION and ROGAR MILLAR, Secretary of Transportation for
WSDOT, in his official capacity, are represented by:
Alicia Orlena Young, Esq.
ASSISTANT ATTORNEY GENERAL
AGWA - OFFICE OF THE WASHINGTON
ATTORNEY GENERAL (OLYMPIA)
P.O. Box 40126
Olympia, WA 98504-0126
Telephone: (360) 586-6398
E-mail: AliciaO@atg.wa.gov
SETERUS INC: Court Narrows Claims in "Cawood"
---------------------------------------------
The United States Bankruptcy Court for the Eastern District of
Tennessee, Southern Division, issued a Memorandum Opinion denying
Defendant Seterus Inc.'s Motion to Dismiss in the case captioned
JOSEPH C. CAWOOD, Plaintiff, v. SETERUS, INC., SUNTRUST MORTGAGE,
INC., RCO LEGAL P.C., FKA RCO LEGAL P.S., PRIORITY TRUSTEE
SERVICES OF TN, LLC, AND FEDERAL NATIONAL MORTGAGE ASSOCIATION,
Defendants, Adversary Proceeding Case No. 1:15-AP-1116-SDR (E.D.
Tenn.).
Plaintiff amended his complaint to seek class action relief
against Seterus and FNMA for willfully and systematically failing
to implement and use appropriate business and accounting practices
relating to Chapter 13 debtors after those individuals
successfully completed their respective Chapter 13 cases and who
have home mortgages owned by Fannie Mae and serviced by Seterus.
Plaintiff's Amended Complaint contains six claims for relief: (1)
an objection to the claim filed by Seterus in the amount of
$72,455.06 and a request pursuant to Federal Rule of Bankruptcy
Procedure 7001(2) to determine the validity and amount of the
lien; (2) breach of contract; (3) intentional and/or negligent
misrepresentation; (4) negligence; (5) failure to credit payments
upon receipt in violation of 15 U.S.C. Section 1639f; and (6)
violation of the Fair Debt Collections Practices Act (FDCPA).
Plaintiff seeks to have the court order FNMA to amend its claim to
reflect an accurate accounting of the amount due and seeks to
recover actual, statutory, and punitive damages as well as
attorney's fees and expenses.
Were the acts of Seterus and FNMA efforts to recover a discharged
debt?
11 U.S.C. Section 524 provides that: (a) A discharge in a case
under this title (2) Operates as an injunction against the
commencement or continuation of an action, the employment of
process or an act, to collect, recover or offset any such
discharged debt as a personal liability of the debtor, whether or
not discharge of such debt is waived.
Seterus contends that, although the phrase discharge injunction'
is conspicuously absent from the Amended Complaint, all of
Plaintiff's claims are premised on the alleged violation of the
Texas bankruptcy court's discharge injunction.
The court finds that this case does not involve a discharge
injunction violation. The home mortgage loan was not discharged in
Plaintiff's prior bankruptcy. Accordingly, the court finds the
case law cited by the Defendants requiring enforcement of the
discharge injunction in the court that issued the injunction to be
inapplicable. Whatever claims Plaintiff may have, they are not for
violation of the discharge injunction under section 524(a)(2),
and, therefore, FNMA's and Seterus' objections to the court's
jurisdiction on that basis are without merit.
Does the court have jurisdiction over Plaintiff's claims?
A claim is related to a bankruptcy case if the outcome of that
claim could conceivably have any effect on the estate being
administered in bankruptcy. Each of Stone's claims will have an
effect on his estate here. His disallowance claims challenge the
validity of debts that Waldman has sought to enforce in
bankruptcy. And a damages award on Stone's affirmative claims
would provide assets for his other creditors. Thus, the federal
courts have jurisdiction over all of Stone's claims
notwithstanding their state-law basis. The same logic would apply
to the claims asserted by Plaintiff in this case.
Under this definition, Plaintiff's claims will have an effect on
what must be paid on Seterus' claim because they are in the nature
of counterclaims. If Plaintiff is successful, the damages will
augment his bankruptcy estate and a determination of whether he is
in default will affect his rights in bankruptcy.
The Defendants argue that a damages award will not affect the
administration of the estate because there is only one other
relatively small creditor. They cite no authority requiring a
minimum number or size of debts for related to jurisdiction. Even
if Plaintiff is likely to be the primary beneficiary of any award,
providing a 100% payment to the other creditor and a reduction in
Plaintiff's mortgage debt can certainly qualify as having an
effect on his bankruptcy estate. The Sixth Circuit's test is not
whether the proceeding has a significant effect on the
administration of the estate but whether it has any effect on the
administration of the estate. The court finds that Counts 2
through 6 are related to Plaintiff's bankruptcy case, and the
court, therefore, has subject matter jurisdiction to hear them.
Does this court have jurisdiction to enter a final determination
on the merits of these claims?
The court will require Seterus and FNMA to file with the court a
statement in compliance with Rule 7012(b) within fourteen days of
entry of this memorandum opinion. If the Defendants consent to
entry of a final order by this court, then the court's order will
become final fourteen days after its original entry unless an
appeal or motion to reconsider is timely filed. If the Defendants
do not consent to entry of a final order by this court, this
opinion may be treated as proposed findings of fact and
conclusions of law under 28 U.S.C. Section 157(c)(1) and
procedurally dealt with pursuant to Federal Rule of Bankruptcy
Procedure 9033. The court will expressly extend the deadline in
Rule 9033(b) for fourteen days to allow time for the Rule 7012(b)
statements to be filed and for the parties thereafter to determine
whether they wish to file objections.
Count 1 as to Seterus
Defendant Seterus argues that Plaintiff's Count 1 does not state a
discrete legal claim.
The court has found that Plaintiff's causes of action, including
his claim for an accounting, are not based on a claim of violation
of the discharge injunction. Consequently, the bankruptcy scheme
in place to address violations of the section 524 injunction is
inapplicable and Pereira v. First North Am. Nat'l Bank, 223 B.R.
28, 31-32, is distinguishable. The court has found that
Plaintiff's causes of action accrued prepetition in this case and
are property of the estate. His pursuit of an accounting as a
state court remedy is permissible, and the pre-emption analysis of
Pereira does not apply.
The Defendants' motion to dismiss the claim for an accounting on
pre-emption grounds is denied.
Count 1 as to FNMA
FNMA argues that the Amended Complaint does not include any
factual allegations of unlawful conduct by Fannie Mae, but rather
alleges actions taken by only Seterus.
Construing these allegations in the light most favorable to
Plaintiff, the court finds that Plaintiff has sufficiently alleged
the existence of an agency relationship which would implicate FNMA
as being vicariously liable for the actions of Seterus. Plaintiff
has alleged that Seterus held itself out to him and to this court
as an authorized servicer of a loan owned by FNMA. If such an
agency relationship in fact existed between Seterus and FNMA,
barring some other defense, the latter could be held vicariously
liable for the actions of the former.
Accordingly, FNMA's motion to dismiss on the basis that the
complaint alleges only unlawful actions taken by its agent Seterus
is denied.
Count 2 Breach of Contract, Count 3 Intentional and Negligent
Misrepresentation, Count 4 Negligence
Counts 2-4 as to Seterus
Seterus contends that Plaintiff's claims for breach of contract,
intentional and negligent misrepresentation, and negligence are
all part of Plaintiff's claims arising from violation of the
discharge order entered in the Texas Case and, as such, all are
pre-empted by the Bankruptcy Code and should be dismissed.
Because the court has concluded that Plaintiff is not seeking
relief for violation of the discharge injunction, his claims do
not presuppose a violation of the Bankruptcy Code. Plaintiff's
causes of action for breach of contract, intentional and negligent
misrepresentation, and negligence are not pre-empted by the
Bankruptcy Code and are not subject to dismissal on that ground.
Counts 2-4 as to FNMA
The court finds that Plaintiff has sufficiently alleged that
Seterus was acting as FNMA's agent. As such, its acts on behalf of
FNMA may be attributed to FNMA. Because the court has found that
Plaintiff's state law claims in Counts 2-4 are not pre-empted as
to its agent, the court will deny FNMA's motion to dismiss these
counts as well.
Count 5 - Failure to Credit Payments
Count 5 as to Seterus
Seterus contends that Count 5 should be dismissed due to an
absence of any factual allegations of unlawfully credited
payments. From these alleged delays by Seterus in returning the
checks and the changes in the amounts demanded by Seterus,
Plaintiff infers that Seterus made additional charges to his
account. Because the court finds that these allegations
sufficiently state a claim for failure to credit payments on the
date that they were received and charges were made to the account,
the court will deny the motion to dismiss as to Seterus.
Count 5 as to FNMA
FNMA argues that Count 5 is alleged only against Seterus and
SunTrust. FNMA argues that Count 5 is alleged only against
Seterus and SunTrust. Indeed, in the Amended Complaint, Plaintiff
only refers to SunTrust and Seterus by name although he does also
use the term Defendants, which is defined to include FNMA earlier
in the Amended Complaint. In his response, Plaintiff asserts that
he opposes the motion to dismiss and intended to assert a claim
under TILA against FNMA. Based on this apparent confusion, the
court will allow Plaintiff leave to amend his complaint to clarify
his intention with respect to Count 5 against FNMA. Plaintiff
shall file his amended complaint within fourteen days of entry of
this memorandum opinion. The court will provide FNMA with fourteen
days to respond by supplementing its motion to dismiss, and
Plaintiff may have fourteen days in which to file a reply if
necessary.
Count 6 - Fair Debt Collections Practices Act
Count 6 as to Seterus
The court has determined that there is not a claim for a violation
of the discharge injunction in this case. Therefore, In re
Marshall, which involved a discharge injunction violation in which
the court declined to exercise related to jurisdiction over the
plaintiff's FDCPA claims, is distinguishable. Marshall, 491 B.R.
at 228-230, 234. The court has also determined that it has related
to jurisdiction over Plaintiff's FDCPA claim.
Plaintiff's claims, including his FDCPA claim, will have an effect
on his bankruptcy estate. Because the court has previously
determined that it has jurisdiction to hear Plaintiff's FDCPA
claim and because Seterus raises no other non-jurisdictional
grounds for dismissal of Count 6, the court will allow Count 6 to
proceed against Seterus.
Count 6 as to FNMA
FNMA argues the Amended Complaint does not include any factual
allegations of unlawful conduct by FNMA, and specifically argues
that it is not included among the defendant debt collectors in
Count 6. In Plaintiff's response and memorandum to FNMA's motion
to dismiss, he concedes that Count 6 is not brought against FNMA.
Accordingly, the court hereby GRANTS FNMA's motion to dismiss
Count 6.
Nationwide Class Action
In addition to damages caused to him by the Defendants' actions,
Mr. Cawood also seeks to have the court certify two classes of
plaintiffs pursuant to Federal Rule of Bankruptcy Procedure
7023(b)(2) and (b)(3).
The court denies Seterus' and FNMA's request to dismiss
Plaintiff's request for nationwide class certification on the two
bases cited in their motion. The court will not take the next step
and conclude that it has jurisdiction over a nationwide class. The
cases cited by Plaintiff are not determinative of that issue as
these cases involved certification of classes limited to the
district in which the debtor had filed.
In Sims, 278 B.R. 457, the court certified a nationwide class to
address debtors' claims involving a substantive bankruptcy right,
rather than state law or non-bankruptcy federal law. Whether
Plaintiff can demonstrate that the issues presented in this case
are a nationwide problem that implicates a substantive bankruptcy
right remains to be seen. The court concludes that a final
determination of Plaintiff's ability to bring such an action would
be more appropriately made in the context of a motion for class
certification at which time Plaintiff would be required to show
whether the alleged accounting failure is a singular or widespread
problem.
The court will deny the motion to dismiss filed by Seterus. The
court will grant in part and deny in part the motion to dismiss
filed by FNMA to the extent that it will dismiss Count 6 of the
Amended Complaint against FNMA.
A full-text copy of the Bankruptcy Court's September 29, 2017
Memorandum Opinion is available at http://tinyurl.com/ybycq588
from Leagle.com.
Joseph C. Cawood, Debtor, represented by Richard L. Banks, Richard
Banks & Associates, P.C., 393 Broad Street Northwest, Cleveland,
TN 37364
SFBSC MANAGEMENT: Murphy Appeals Ruling in Exotic Dancers Suit
--------------------------------------------------------------
Objectors Sarah Murphy, Devon Locke and Poohrawn Mehraban filed an
appeal from a court ruling in the lawsuit styled Jane Roes, et al.
v. SFBSC Management, LLC, Case No. 3:14-cv-03616-LB, in the U.S.
District Court for the Northern District of California, San
Francisco.
As reported in the Class Action Reporter on Oct. 2, 2017, the
District Court granted the Plaintiff's Motion for Approval of
Class Settlement in the case, which is brought under the Fair
Labor Standards Act. The Plaintiffs are or were exotic dancers
suing the Defendant that managed the nightclubs where they worked.
The settlement consideration includes Cash Payments, Dance Fee
Payments, Residual Dance Fee Payments, and changes to the
defendants' business practices that will confer a direct financial
benefit on class members. The Gross Settlement Value is $5
million, broken into tiers: (1) First Tier Cash Pool: $2 million;
(2) Second Tier Cash Pool: up to $1 million; (3) Dance Fee
Payments and Residual Dance Fee Payments: $1 million; and (4)
changes to the defendants' business practices (estimated to confer
benefits to class members in excess of $1 million).
The appellate case is captioned as Jane Roes, et al. v. SFBSC
Management, LLC, 17-17079, in the United States Court of Appeals
for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Transcript must be ordered by November 13, 2017;
-- Transcript is due on December 11, 2017;
-- Appellants Devon Locke, Poohrawn Mehraban and Sarah
Murphy's opening brief is due on January 22, 2018;
-- Appellees Jane Roes and SFBSC Management, LLC's answering
brief is due on February 22, 2018; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiffs-Appellees JANE ROES, 1-2, on behalf of themselves and
all others similarly situated, are represented by:
F. Paul Bland, Jr., Esq.
Karla Gilbride, Esq.
PUBLIC JUSTICE, P.C.
1620 L Street, N.W., Suite 630
Washington, DC 20036
Telephone: (202) 797-8600
E-mail: pbland@publicjustice.net
kgilbride@publicjustice.net
- and -
Steven G. Tidrick, Esq.
Joel B. Young, Esq.
THE TIDRICK LAW FIRM
2039 Shattuck Avenue
Berkeley, CA 94704
Telephone: (510) 788-5100
E-mail: sgt@tidricklaw.com
jby@tidricklaw.com
Objectors-Appellants SARAH MURPHY, POOHRAWN MEHRABAN and DEVON
LOCKE are represented by:
Matthew David Carlson, Esq.
LICHTEN & LISS-RIORDAN, P.C.
466 Geary Street, Suite 201
San Francisco, CA 94102
Telephone: (617) 994-5800
E-mail: mcarlson@llrlaw.com
- and -
Shannon Liss-Riordan, Esq.
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston Street
Boston, MA 02116
Telephone: (617) 994-5800
E-mail: sliss@llrlaw.com
Defendant-Appellee SFBSC MANAGEMENT, LLC, is represented by:
Shane M. Cahill, Esq.
Douglas James Melton, Esq.
LONG & LEVIT, LLP
465 California Street
San Francisco, CA 94104
Telephone: (415) 397-2222
E-mail: scahill@longlevit.com
dmelton@longlevit.com
- and -
Noah S. Rosenthal, Esq.
FENWICK & WEST LLP
555 California Street
San Francisco, CA 94104
Telephone: (415) 875-2300
E-mail: nrosenthal@fenwick.com
SMARTPAY LEASING: Seeks 9th Cir. Review of Ruling in "Esparza"
--------------------------------------------------------------
Defendant Smartpay Leasing, Inc., filed an appeal from a court
ruling in the lawsuit titled Shawn Esparza v. Smartpay Leasing,
Inc., Case No. 3:17-cv-03421-WHA, in the U.S. District Court for
the Northern District of California, San Francisco.
As reported in the Class Action Reporter on Oct. 23, 2017, Judge
William Alsup denied the Defendant's motion to compel arbitration
in the case.
The Plaintiff leased a cell phone from the Defendant in December
2015. To lease the phone, Esparza first had to open an account on
SmartPay's website, which required her to consent to SmartPay's
general Terms of Use Agreement. After entering into the Terms of
Use Agreement, Esparza then consented to a separate set of terms
and conditions when she completed the paperwork required to lease
a cell phone -- the Agreement Terms and Conditions.
The appellate case is captioned as Shawn Esparza v. Smartpay
Leasing, Inc., Case No. 17-17175, in the United States Court of
Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Mediation Questionnaire was due October 31, 2017;
-- Transcript must be ordered by November 24, 2017;
-- Transcript is due on December 26, 2017;
-- Appellant Smartpay Leasing, Inc.'s opening brief is due on
February 1, 2018;
-- Appellee Shawn Esparza's answering brief is due on March 5,
2018; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiff-Appellee SHAWN ESPARZA, on behalf of herself, and all
others similarly situated, is represented by:
Ronald A. Marron, Esq.
Kas Gallucci, Esq.
Alexis M. Wood, Esq.
LAW OFFICES OF RONALD A. MARRON
651 Arroyo Drive
San Diego, CA 92103
Telephone: (619) 696-9006
E-mail: ron@consumersadvocates.com
kas@consumersadvocates.com
alexis@consumersadvocates.com
Defendant-Appellant SMARTPAY LEASING, INC., is represented by:
Jeffrey Topor, Esq.
SIMMONDS & NARITA, LLP
44 Montgomery St.
San Francisco, CA 94104
Telephone: (415) 283-1000
E-mail: jtopor@snllp.com
SOULCYCLE INC: Sweeney Appeals Decision in "Cody" Class Suit
------------------------------------------------------------
Objector Kerry Ann Sweeney filed an appeal from a court ruling in
the lawsuit entitled Rachel Cody, et al. v. SoulCycle, Inc., Case
No. 2:15-cv-06457-MWF-JEM, in the U.S. District Court for the
Central District of California, Los Angeles.
As reported in the Class Action Reporter on Oct 23, 2017, Judge
Michael W. Fitzgerald granted (i) the Parties' Motion for Final
Approval of the Settlement pursuant to Rule 23(e) of the Federal
Rules of Civil Procedure; and (ii) the Class Counsel's Motion for
Attorneys' Fees and Expenses and for the incentive award for the
class representative.
Based on the number of members of the Settlement Class on the
Class List and the number of timely and valid Opt-Out Forms
submitted, the Settlement Amount is $6.9 million to $9.2 million.
The Plaintiff's Motion for Attorneys' Fees and Expenses and an
Incentive Award is granted and the Judge awarded the Class Counsel
attorneys' fees and costs in the amount of $1,790,000, which is to
be paid separate and apart from the Settlement Amount. An
incentive award in the amount of $5,000 each is approved for the
two class representatives, Plaintiffs Cody and Knowles.
The appellate case is captioned as Rachel Cody, et al. v.
SoulCycle, Inc., Case No. 17-56608, in the United States Court of
Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Transcript must be ordered by November 20, 2017;
-- Transcript is due on December 19, 2017;
-- Appellant Kerry Ann Sweeney's opening brief is due on
January 29, 2018;
-- Appellees Rachel Cody and SoulCycle, Inc.'s answering brief
is due on February 27, 2018; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.
Objector-Appellant KERRY ANN SWEENEY of Santa Monica, California,
appears pro se.[BN]
Plaintiff-Appellee RACHEL CODY, individually and on behalf of all
others similarly situated, is represented by:
Dorian S. Berger, Esq.
Daniel Paul Hipskind, Esq.
BERGER & HIPSKIND LLP
1880 Century Park East, Suite 815
Los Angeles, CA 90067
Telephone: (323) 886-3431
E-mail: dsb@bergerhipskind.com
dph@bergerhipskind.com
- and -
Nicholas R. Diamand, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
250 Hudson Street
New York, NY 10013
Telephone: (212) 355-9500
Facsimile: (212) 355-9592
E-mail: ndiamand@lchb.com
- and -
Katherine C. Lubin, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN LLP
275 Battery Street
San Francisco, CA 94111
Telephone: (415) 956-1000
E-mail: kbenson@lchb.com
Defendant-Appellee SOULCYCLE, INC., is represented by:
Grant P. Alexander, Esq.
DLA PIPER LLP (US)
2000 Avenue of the Stars
Suite 400 North Tower
Los Angeles, CA 90067-4704
Telephone: (310) 595-3000
E-mail: grant.alexander@dlapiper.com
- and -
Keara M. Gordon, Esq.
DLA PIPER US, LLP
1251 Avenue of the Americas
New York, NY 10020-1104
Telephone: (212) 335-4500
E-mail: keara.gordon@dlapiper.com
- and -
Shirli Fabbri Weiss, Esq.
DLA PIPER LLP (US)
401 B Street
San Diego, CA 92101-4297
Telephone: (619) 699-2700
E-mail: shirli.weiss@dlapiper.com
SPARK NETWORKS: Monteverde & Associates Files Class Action Lawsuit
------------------------------------------------------------------
Notice is hereby given that Monteverde & Associates PC has filed a
class action lawsuit in the United States District Court for The
Central District of California, case no. 2:17-cv-07603, on behalf
of stockholders of Spark Networks, Inc. ("Spark" or the "Company")
(NYSE: LOV) who held Spark securities and have been harmed by
Spark and its board of directors' (the "Board") for alleged
violations of Sections 14(a), and 20(a) of the Securities Exchange
Act of 1934 (the "Exchange Act") in connection with the merger of
the Company to Affinitas GmbH.
Under the terms of the agreement Spark stockholders will be
entitled to receive, for each share of Spark common stock, a
number of depositary shares ("New Spark ADSs") equal to the
Adjustment Ratio 1, with each New Spark ADS representing 0.1
ordinary shares of new Spark. Consequently, current Spark
stockholders will collectively own approximately 25% of New Spark,
while Affinitas stockholders will collectively own approximately
75% of New Spark. The complaint alleges that this offer is
inadequate and alleges that the Registration Statement in Form S-4
(the "Proxy") provides materially incomplete and misleading
information about the Company's financials and the transaction, in
violation of Sections 14(a), and 20(a) of the Exchange Act.
If you wish to serve as lead plaintiff, you must move the Court no
later than 60 days from today. Any member of the putative class
may move the Court to serve as lead plaintiff through counsel of
their choice, or may choose to do nothing and remain an absent
class member. If you wish to discuss this action, or have any
questions concerning this notice or your rights or interests,
please contact:
Monteverde & Associates PC is a boutique class action securities
and consumer litigation law firm committed that has recovered
millions of dollars and is committed to protecting shareholders
and consumers from corporate wrongdoing. Monteverde & Associates
PC lawyers have significant experience litigating Mergers &
Acquisitions and Securities Class Actions, whereby they protect
investors by recovering money and remedying corporate misconduct.
Mr. Monteverde, who leads the legal team at the firm, has been
recognized by Super Lawyers as a Rising Star in Securities
Litigation in 2013 and 2017, an award given to less than 2.5% of
attorneys in a particular field.
Juan E. Monteverde, Esq.
Monteverde & Associates PC
Tel No.: (212) 971-1341
E-mail: jmonteverde@monteverdelaw.com [GN]
SPEEDYPC SOFTWARE: Appeals Ruling in "Beaton" Suit to 7th Circuit
-----------------------------------------------------------------
Defendant SpeedyPC Software filed an appeal from a court ruling in
the lawsuit titled Archie Beaton v. SpeedyPC Software, Case No.
1:13-cv-08389, in the U.S. District Court for the Northern
District of Illinois, Eastern Division.
As reported in the Class Action Reporter on Oct. 11, 2017, the
District Court granted in part the Plaintiff's motion for class
certification. The Court grants Plaintiff's motion to certify a
class to bring contractual warranty claims for breaches of the
implied warranties of fitness for a particular purpose and
merchantability.
With respect to the proposed subclass, the Court revised the
subclass definition to include all Class members, who reside in
Illinois in order to bring claims for fraudulent misrepresentation
under the Illinois Consumer Fraud Act.
The Defendant's motion to supplement response to the Plaintiff's
motion for class certification and for sanctions is granted as to
the request to supplement the response and denied as to sanctions.
The appellate case is captioned as SpeedyPC Software v. Archie
Beaton, Case No. 17-8021, in the U.S. Court of Appeals for the
Seventh Circuit.[BN]
Plaintiff-Respondent ARCHIE BEATON, individually and on behalf of
all others similarly situated, is represented by:
Benjamin Harris Richman, Esq.
EDELSON P.C.
350 N. LaSalle Street
Chicago, IL 60654
Telephone: (312) 589-6370
Facsimile: (312) 589-6378
E-mail: brichman@edelson.com
Defendant-Petitioner SPEEDYPC SOFTWARE, a British Columbia
company, is represented by:
James K. Borcia, Esq.
TRESSLER LLP
233 S. Wacker Drive
Chicago, IL 60606
Telephone: (312) 627-4000
E-mail: jborcia@tresslerllp.com
SPX CORPORATION: Di Biase Appeals Ruling to Fourth Circuit
----------------------------------------------------------
Plaintiffs Joseph Di Biase, Ron Beegle, David Bobcock, David
Brass, International Union, United Automobile and Agricultural
Implement Workers of America, John Prodorutti and Carl Van Loon
filed an appeal from a court ruling in their lawsuit titled Joseph
Di Biase, et al. v. SPX Corporation, Case No. 3:14-cv-00656-RJC-
DSC, in the U.S. District Court for the Western District of North
Carolina at Charlotte.
As previously reported in the Class Action Reporter, the lawsuit
arises out of the alleged breach of promises made in collective
bargaining agreements between the International Union United
Automobile, Aerospace and Agricultural Implement Workers Of
America and SPX Corporation, specifically by failing to provide
certain retired employees, spouses and dependents their lifetime
post-retirement health care benefits.
The appellate case is captioned as Joseph Di Biase, et al. v. SPX
Corporation, Case No. 17-405, in the United States Court of
Appeals for the Fourth Circuit.[BN]
Plaintiffs-Petitioners JOSEPH DI BIASE, Individually and on behalf
of similarly situated persons; JOHN PRODORUTTI, Individually and
on behalf of similarly situated persons; DAVID BRASS, Individually
and on behalf of similarly situated persons; RON BEEGLE,
Individually and on behalf of similarly situated persons; DAVID
BOBCOCK, Individually and on behalf of similarly situated persons;
CARL VAN LOON, Individually and on behalf of similarly situated
persons; and INTERNATIONAL UNION, UNITED AUTOMOBILE AND
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, are represented by:
Michael L. Fayette, Esq.
PINSKY, SMITH, FAYETTE & KENNEDY, LLP
146 Monroe Center Street, NW
Grand Rapids, MI 49503
Telephone: (616) 451-8496
E-mail: mlfayette@sbcglobal.net
- and -
Narendra K. Ghosh, Esq.
PATTERSON HARKAVY, LLP
100 Europa Drive
Chapel Hill, NC 27517
Telephone: (919) 942-5200
E-mail: nghosh@pathlaw.com
Defendant-Respondent SPX CORPORATION is represented by:
Cary Baxter Davis, Esq.
Mark Hiller, Esq.
Amanda Rae Pickens, Esq.
David Calep Wright, III, Esq.
ROBINSON BRADSHAW & HINSON, PA
101 North Tryon Street
Charlotte, NC 28246
Telephone: (704) 377-8336
E-mail: cdavis@robinsonbradshaw.com
mhiller@robinsonbradshaw.com
apickens@robinsonbradshaw.com
dwright@robinsonbradshaw.com
STATE FARM: Seeks Sixth Circuit Review of Ruling in "Bailey" Suit
-----------------------------------------------------------------
Defendant State Farm Fire & Casualty Company filed an appeal from
a court ruling in the lawsuit styled JEFFREY BAILEY and SUSAN
HICKS, individually and on behalf of others similarly situated v.
STATE FARM FIRE AND CASUALTY COMPANY, Case No. 0:14-cv-00053, in
the U.S. District Court for the Eastern District of Kentucky at
Ashland.
As previously reported in the Class Action Reporter, the action
was filed by the Plaintiffs challenging State Farm's methodology
in calculating the "actual cash value" of the damaged portion of
an insured structure upon the occurrence of loss.
The appellate case is captioned as In re: State Farm Fire &
Casualty Co., Case No. 17-513, in the United States Court of
Appeals for the Sixth Circuit.[BN]
Plaintiffs-Respondents SUSAN HICKS, individually and on behalf of
all others similarly situated, and DON WILLIAMS, individually and
on behalf of all others similarly situated, are represented by:
Bartley Kemble Hagerman, Esq.
MEHR, FAIRBANKS & PETERSON TRIAL LAWYERS, PLLC
201 W. Short Street, Suite 800
Lexington, KY 40507
Telephone: (859) 225-3731
Facsimile: (859) 225-3830
E-mail: bkh@austinmehr.com
Plaintiff-Respondent SUSAN HICKS, individually and on behalf of
all others similarly situated, is represented by:
Paula Richardson, Esq.
RICHARDSON, BARBER & WILLIAMSON
86 West Main Street
P.O. Box 1169
Owingsville, KY 40360
Telephone: (606) 674-6337
E-mail: paula_richardson04@yahoo.com
- and -
Jessica Morgan Smith, Esq.
RICHARD & SMITH
P.O. Box 1040
Owingsville, KY 40360-1040
Telephone: (606) 674-8111
Facsimile: (606) 674-6893
Defendant-Petitioner State Farm Fire & Casualty Company is
represented by:
Heidi Dalenberg, Esq.
RILEY, SAFER, HOLMES & CANCILA
70 W. Madison Street, Suite 2900
Chicago, IL 60602
Telephone: (312) 471-8730
E-mail: hdalenberg@rshc-law.com
- and -
David T. Klapheke, Esq.
BOEHL, STOPHER & GRAVES
400 W. Market Street, Suite 2300
Louisville, KY 40202
Telephone: (502) 589-5980
Facsimile: (502) 561-9400
E-mail: dklapheke@bsg-law.com
STERICYCLE INC: Court Preliminarily Approves $295MM Settlement
--------------------------------------------------------------
A $295 million settlement has been reached on behalf of a
nationwide class of Stericycle customers, following a class-action
lawsuit accusing Stericycle of engaging in a price-increasing
scheme that automatically inflated customers' bills up to 18
percent biannually, according to Hagens Berman. Today, the court
granted preliminary approval, pushing the settlement closer to
final approval and implementation.
The court praised the settlement and Hagens Berman's
representation of the class, stating the comprehensive settlement
submissions were "reflecting professionalism of the highest
order," and added that they have demonstrated "the type of high
quality work product this Court anticipated when it designated
Hagens Berman and its lead partner Steve Berman as Class Counsel."
Under the settlement agreement, Stericycle will also discontinue
the pricing practices at the core of the lawsuit within 60 days of
preliminary approval by the court. Stericycle's compliance with
the settlement terms will be monitored for three years by a
retired federal district judge.
"For years, Stericycle got away with a pricing scheme that boosted
the bills of its customers, violating contracts and threatening
the existence of small businesses paying for Stericycle's
services," said Steve Berman, managing partner of Hagens Berman.
"We're incredibly pleased to bring both immediate financial relief
and an end to this fraudulent billing practice to Stericycle's
customers who have been plagued by inflated bills for so long."
In its preliminary approval order, the court also stated, "in
every instance the Settlement Agreement is clearly entitled to
preliminary approval, with all relevant considerations having been
anticipated by the parties and dealt with in totally responsible
fashion."
The settlement agreement affects Stericycle customers that had
flat-fee "Steri-Safe" or variable "transactional" medical waste
disposal contracts with Stericycle and were subjected to the
disputed price increases, which the lawsuit states were as much as
18 percent, twice per year. These small businesses affected by the
price increases were identified by Stericycle as "Small Quantity"
or "SQ" customers. When these SQ customers called to complain
about the price increases, the lawsuit says, they were given false
reasons for the price increases by Stericycle's customer service
representatives. According to the suit, those accounts made up 97
percent of Stericycle's customers worldwide.
"Our firm received countless calls and emails from frantic
Stericycle customers who had nowhere else to turn to after
Stericycle stiff-armed their complaints -- dentists, veterinarians
and accountants who were shocked over seemingly endless increasing
charges," added Garth Wojtanowicz, who, with Berman, led the case
against Stericycle for Hagens Berman.
In 2013, an investigation of Stericycle's billing software found
Steri-Safe customers' price increases were programmed to occur
regularly as often as every six months, which plaintiffs alleged
was contrary to contract terms that Stericycle had agreed to.
The contracts state that increases can occur only when
"operational changes" are implemented "to comply with documented
changes in the law" or to "address cost escalation." According to
the complaint, Stericycle's billing software automatically boosted
customers' rates, regardless of any actual increases in
Stericycle's costs.
The parties will now seek the court's approval of the settlement
agreement. The fairness hearing for final approval is scheduled
for Feb. 21, 2018.
About Hagens Berman
Hagens Berman Sobol Shapiro LLP is a consumer-rights class-action
law firm with 11 offices across the country.
Ashley Klann, Esq.
Hagens Berman Sobol Shapiro LLP
Tel No: 206-268-9363
ashleyk@hbsslaw.com [GN]
TESLA INC: Owners File Suit Over Musk's Self-Driving Claims
-----------------------------------------------------------
Tom Randall, writing for Australian Financial Review, reports that
a year ago, Tesla set up a hastily organised conference call
between Elon Musk and reporters. Tesla had something big to
announce -- big enough for the chief executive to open the floor
to questions. That doesn't happen very often.
What followed wasn't so much the unveiling of a new product as a
plan for a product. Tesla's driver-assistance platform,
Autopilot, was about to begin a transformation to fully autonomous
driving. Every Tesla would come with eight cameras, radar, 12
ultrasonic sensors, and an Nvidia supercomputer. Once testing and
regulatory approval were complete, Mr. Musk said, the car would be
able to drive entirely by itself.
"The foundation is laid," Mr. Musk proclaimed. Tesla was so
confident, in fact, that it started selling its "Full Self
Driving" feature for an additional $US8000 ($10,380) on any new
Model X or Model S. Tesla's timeline was, as is so often the
case, years ahead of what most believed possible. Barclays
analyst Brian Johnson called it an "overly hyped product update"
and Tesla stock dropped 2.2 per cent the next day. Still, to
start charging for the feature surely implied Tesla was very far
along -- right?
Maybe not. What followed were months of setbacks, delays, and in-
house turmoil. A year later, there's still no sign of Full Self
Driving, and even the less ambitious "Enhanced Autopilot" hasn't
quite reached parity with an earlier, discontinued version. The
head of Tesla's Autopilot division left in January, and six months
later his successor did, too. Meanwhile, Tesla owners who paid
thousands of dollars for the options filed a class action lawsuit,
alleging they were tricked into buying a feature that doesn't
exist and -- in some cases -- an unsafe car. Tesla has yet to
formally respond to those disgruntled drivers who want refunds and
punitive damages, and the case is currently in mediation.
When Mr. Musk, 46, was asked in January at what point Full Self
Driving features would noticeably depart from Enhanced Autopilot
features, he replied, via Twitter, "3 months maybe, 6 months
definitely". Nine months later, it has yet to happen. A Tesla
spokesperson said that "while it's taken longer than we originally
expected to roll out all Enhanced Autopilot features, the feature
already provides significant assistance to drivers" and added that
the company is making "rapid progress" on new updates.
But no matter when Full Self Driving becomes a reality or how the
litigation ends, the legacy of over-promising and under-delivering
has already besmirched the company's success as an electric car
maker and assisted-driving innovator.
Meanwhile, as Tesla tries to fulfil its promises, rivals haven't
been sitting still. General Motors, Volkswagen, Volvo, Daimler
and a Renault-Nissan-Mitsubishi alliance are all promising 2018
vehicles with the features that once set Tesla apart. "Tesla had
an early start," said Salim Morsy, an analyst at Bloomberg New
Energy Finance, "but there's a huge amount" of money being pumped
into autonomous electric vehicles now. "The releases we're
expecting from the Volkswagen Group or Volvo or Daimler in the
next two years will have a big impact on Tesla," he said.
Musk, well known for setting wildly aggressive deadlines and then
missing them, averages being more than four months late on his
predictions when it comes to Tesla. This "Musk Doctrine" of
pushing the industry forward, while never setting a deadline he's
likely to meet, has worked in the past. Now, however, Tesla's
habit of falling far behind on promises is colliding with its
first mass-market vehicle.
The Model 3, widely seen as central to the company's survival, is
already slipping from its schedule. Tesla took half-a-million
reservations but has produced just 260 vehicles in its first
quarter of production -- far short of Musk's projection of more
than 1500. Though it's early days in the ramp-up of the Model 3,
this is an especially dangerous time for Tesla to be testing the
boundaries of consumer trust. Autopilot's failure to launch as
advertised hasn't helped.
At a private event for Tesla owners in Amsterdam, this frustration
felt by devotees broke into the open. "We'd just like to know:
When is our Autopilot 2 going to be up to par?" called a voice
from the balcony to Jon McNeill, Tesla's president of sales and
service, referring to Enhanced Autopilot. "Because that's really
what we need."
"We've been behind, so I don't want to make pure promises,"
McNeill answered. "Safe to say, you will -- I think -- be pleased
where we are over the coming weeks and months."
How did Tesla end up here? It started with a bad breakup.
A year ago, Tesla was caught up in an ugly public spat with
Mobileye, its partner on the original Autopilot. Mr. Musk had
accused the supplier of trying to block Tesla's efforts to develop
its own capabilities for autonomous driving. Mobileye swiftly cut
ties with Tesla and said it told Musk about "safety concerns
regarding the use of Autopilot hands free".
There was a very real question whether Tesla's Autopilot could
move forward without Mobileye. Those concerns were put to rest
when Musk promised to bring out Full Self Driving mode. Tesla
promptly replaced Mobileye's tech with his own Enhanced Autopilot
option, based on new technology the company dubbed Tesla Vision.
It cost $US5000, twice as much as the previous version, but
promised a higher level of autonomy for highway driving.
While Tesla warned there would be a "calibration period," it told
customers the feature would likely deploy via an over-the-air
update to onboard Tesla computers in December last year, two
months after the big announcement. After that, owners were told
to anticipate frequent updates until the car could handle
virtually all highway driving autonomously, including lane
changes.
The December deadline came and went. Key safety features that
relied on the new hardware were delayed for months, including
crucial components such as Automatic Emergency Braking, a life-
saving technology that comes standard in all Teslas and helped
establish them as the safest brand on the road. Auto braking
wasn't fully deployed until June.
'It changed the way I feel about the company'
Worse than the missing features, in many eyes, was that the new
Autopilot experience itself was flawed, marked by cars ping-
ponging within lanes and sudden, dangerous swerves. While some
aspects of Autopilot had improved by the time Bloomberg test-drove
a Tesla in July, the overall experience still wasn't as good as
the original with Mobileye. Improvements have since brought it
closer, but not all the way. It's still missing some features
from the original version, including automatic windshield wipers
and the ability to read speed limit signs.
"We had a bit of a dip, obviously, because of the unexpectedly
rapid transition away from Mobileye," Mr. Musk told a meeting of
shareholders in June. "We had to basically recreate all the
Mobileye functionality in about six months, which we did."
When Tesla began offering Enhanced Autopilot last northern autumn,
it also began taking orders for something more. For an additional
$US3000, you could get the promise of Full Self Driving. The
company released a video, which starts with a dramatic caption:
"The person in the driver's seat is only there for legal reasons.
He is not doing anything. The car is driving itself."
The meaning was clear: Full Self Driving is coming. A subsequent
report from California regulators, however, showed Tesla had only
just begun testing full autonomy in the state around the time the
video was made, with drivers often taking control of the car.
(It's unclear whether the feature has been tested in other states
with less stringent reporting requirements.)
"I felt the whole Full Self Driving video they posted was a big
deception," said Tom Milone, one of the class-action plaintiffs,
in an interview. Like the other plaintiffs, he paid more than
$US100,000 for a Model S 90D in December and said that, based on
the lack of progress with Enhanced Autopilot, he has no confidence
Full Self Driving will ever be safely deployed.
"They are still selling the option to users that have no idea if
and when it might ever become a reality," Mr. Milone said. "It
changed the way I feel about the company."
When purchasing Full Self Driving, customers must check a box
acknowledging that "self driving functionality is dependent upon
extensive software validation and regulatory approval." It's a
fair warning that this option is not yet available. But in the
software industry, "validation" means testing a product that, from
an engineering perspective, is almost ready or exists in a strong
prototype form. Tesla's implication in using this term is that at
least some of these features should be on the verge of rolling
out.
But so far there's little indication that a true validation period
-- which in the case of Full Self Driving could require years and
hundreds of test vehicles -- has truly begun.
All of this figures prominently in the lawsuit. Hagens Berman,
one of the preeminent class action firms in the US, is leading the
charge for Tesla owners. Partner Steve Berman represented a dozen
states in the $US206 billion settlement with Big Tobacco, as well
as victims of fraud by Enron and Bernard Madoff. The 72-page
amended complaint filed in San Jose federal court alleges fraud in
the sale of Autopilot features, with lead plaintiffs from
California, Colorado, New Jersey, and Florida describing similar
experiences of expectation, expenditure -- and disappointment.
"Many owners report the Autopilot is essentially unusable and
demonstrably dangerous," the complaint states, referring to the
versions rolled out at the beginning of 2017. The plaintiffs
contend that rather than acknowledge problems, Tesla regularly
posted optimistic notices of coming updates. The lawsuit refers
to the self-driving technology as "vaporware", tech jargon for
software that doesn't exist.
Dean Sheikh, one of the lead plaintiffs, was first introduced to
Tesla when his wife was searching for a replacement for her 2006
BMW X3. In early 2017, an over-the-air update was sent to
Mr. Sheikh's brand new Tesla, allowing him to engage the Enhanced
Autopilot. "The system operated in an unpredictable manner,
sometimes veering out of lanes, lurching, slamming on the brakes
for no reason, and failing to slow or stop when approaching other
vehicles and obstacles," Mr. Sheikh alleged. A second update
didn't significantly improve matters.
Tesla puts "safety at the core of everything we do and every
decision we make", the company wrote in a statement. By all
accounts, the software is now much improved over when the lawsuit
was first filed in April.
Almost a year earlier, in May 2016, a Tesla Model S crash in
Florida killed the driver. The accident was blamed, in part, on
the old Autopilot's failure to see a semi trailer crossing its
path. Tesla responded over the next few months with updates
requiring more driver awareness and a radar upgrade that would
have prevented the crash. This year, Edmunds again ranked Tesla
vehicles by far the safest based on available active safety
features.
'It is certainly possible that I will have egg on my face'
During last year's unveiling of Autopilot, Musk announced a
planned demonstration drive from California to New York, with no
driver interaction -- not even to charge the battery. That's
supposed to take place before the end of this year. So far,
Mr. Musk is sticking with that forecast, mostly.
"It is certainly possible that I will have egg on my face," he
said on an earnings call in August. "If it's not at the end of
the year, it will be very close."
Meanwhile, the competition is closer than it appears in his
rearview mirror. GM is rolling out its impressive Super Cruise
hands-free highway driving with the 2018 Cadillac CT6, as well as
deploying a fleet of fully autonomous test vehicles in multiple
states. The company recently became the first car maker
authorised to test an autonomous fleet in New York.
GM will be ready to deploy driver-free cars "within quarters, not
years", analyst Rod Lache told clients in a note on September 24,
putting it "potentially years ahead of competitors". In the past
six weeks, GM's stock jumped 25 per cent, adding almost $US15
billion in market value.
Palo Alto, California-based Tesla may still have the best driver-
assistance program, outperforming such rivals as GM and Nissan in
most driving conditions, but any lead it has in the quest for
autonomy is probably measured by months rather than years. Before
Tesla can move forward -- let alone fully reclaim its self-driving
crown -- it must first catch up with its own promises. [GN]
TEXAS, USA: Fifth Circuit Appeal Filed in "Malone" Class Suit
-------------------------------------------------------------
Plaintiff Edward A. Malone filed an appeal from a court ruling in
the lawsuit titled Edward Malone v. James Dutton, Case No. 1:16-
CV-1183, in the U.S. District Court for the Western District of
Texas, Austin.
The lawsuit arose from issues relating to civil rights.
The appellate case is captioned as Edward Malone v. James Dutton,
Case No. 17-50961, in the U.S. Court of Appeals for the Fifth
Circuit. [BN]
Plaintiff-Appellant EDWARD A. MALONE, Individually and on Behalf
of Those Similarly Situated, of San Augustine, Texas, appears pro
se.
Defendant-Appellee JAMES KEVIN DUTTON, Individually and in His
Official Capacity as a District Attorney for the 1st Judicial
District of Texas, is represented by:
Larry James Simmons, Jr., Esq.
GERMER, P.L.L.C.
550 Fannin Street
Beaumont, TX 77701-0000
Telephone: (409) 654-6700
Facsimile: (409) 835-2115
E-mail: ljsimmons@germer.com
THERANOS INC: Court Narrows Claims in Medical Battery Suit
----------------------------------------------------------
The United States District Court for the District of Arizona
issued an order granting in part and denying in part Plaintiff's
Motion for Reconsideration in the case captioned In re Arizona
THERANOS, INC., Litigation. No. 2:16-cv-2138-HRH WO, Consolidated
with No. 2:16-cv-2373-HRH, No. 2:16-cv-2660-HRH., 2:16-cv-2775-
HRH, 2:16-cv-3599-HRH (D. Ariz.).
The sole issue here is whether the court committed clear or
manifest error by making a premature factual determination in
connection with plaintiffs' battery and medical battery claims.
Manifest error is an error that is plain and indisputable, and
that amounts to a complete disregard of the controlling law or the
credible evidence in the record.
The court dismissed plaintiffs' battery and medical battery claims
because plaintiffs' contention that they were not aware of the
character of the conduct to which they consented is implausible,
even if, as plaintiffs allege, defendants were using plaintiffs'
blood samples and test results for research and development
purposes. The court found it implausible that plaintiffs were not
aware of the nature of the invasion to which they consented and
that any use by defendants of plaintiffs' blood samples or test
results to evaluate the Edison device or for other research and
development purposes was collateral to the blood testing for which
plaintiffs plainly gave their consent. The court dismissed the
battery and medical battery claims with prejudice because
amendment would be futile in light of the consent that was given
by plaintiffs.
Plaintiffs argue that the court made a premature factual
determination that research and development was not the essential
purpose for the blood draws to which they consented, but rather
was a collateral purpose. Plaintiffs argue that their allegations
that the essential purpose of the blood draws was research and
development are plausible.
Plaintiffs have alleged sufficient facts to exclude the
possibility that reliable test results were the essential purpose
for the finger-stick blood draws. Plaintiffs have repeatedly
alleged in their first amended complaint that the Edison device
was not ready for market and thus it is plausible that the
essential purpose of the finger-stick blood draws was research and
development related to the Edison device. Because these claims are
plausible, it was clear error for the court to dismiss them with
prejudice.
Plaintiffs' motion for reconsideration is granted as to the
battery and medical battery claims involving finger-stick blood
draws. Upon reconsideration, the court concludes that the battery
and medical battery claims involving finger-stick blood draws
should be dismissed without prejudice. Although these claims are
plausible, plaintiffs have not pled these claims with the
particularity required by Rule 9(b). Rule 9(b) applies to the
battery and medical battery claims because they are grounded in
fraud To satisfy Rule 9(b), a pleading must identify the who,
what, when, where, and how of the misconduct charged.
Plaintiffs have not adequately alleged the who, what, when, where,
and how as to the battery and medical battery claims involving
finger-stick blood draws. For example, plaintiffs have not alleged
which defendant actually performed the blood draws at issue.
Instead plaintiffs generally allege that defendants performed
blood draws. This type of allegation does not meet the
requirements of Rule 9(b). Rule 9(b) does not allow a complaint to
merely lump multiple defendants together. Rather, a complaint must
'inform each defendant separately of the allegations surrounding
his alleged participation in the fraud.
Plaintiffs' motion for reconsideration is granted in part and
denied in part. It is granted as to plaintiffs' battery and
medical battery claims involving finger-stick blood draws. It is
otherwise denied. Plaintiffs' battery and medical battery claims
involving finger-stick blood draws are dismissed without
prejudice.
A full-text copy of the District Court's September 29, 2017 Order
is available at http://tinyurl.com/ybj6byqtfrom Leagle.com.
R.C., Consol Plaintiff, represented by Gretchen Freeman Cappio --
acappio@kellerrohrback.com -- Keller Rohrback LLP.
R.C., Consol Plaintiff, represented by Lynn Lincoln Sarko --
lsarko@kellerrohrback.com -- Keller Rohrback LLP, pro hac vice,
Mark D. Samson -- msamson@kellerrohrback.com -- Keller Rohrback
LLP, Ron Kilgard -- rkilgard@kellerrohrback.com -- Keller Rohrback
LLP, T. David Copley -- dcopley@kellerrohrback.com -- Keller
Rohrback LLP, Geoffrey A. Munroe --
gam@classlawgroup.com -- Girard Gibbs LLP, Melissa A. Gardner --
mgardner@lchb.com -- Lieff Cabraser Heimann & Bernstein LLP &
Steven A. Lopez -- sal@classlawgroup.com -- Girard Gibbs LLP.
B.P., Consol Plaintiff, represented by Mark D. Samson, Keller
Rohrback LLP, Michael Walter Sobol, Lieff Cabraser Heimann &
Bernstein LLP, Roger N. Heller, Lieff Cabraser Heimann & Bernstein
LLP, T. David Copley, Keller Rohrback LLP, Geoffrey A. Munroe,
Girard Gibbs LLP, Melissa A. Gardner, Lieff Cabraser Heimann &
Bernstein LLP & Steven A. Lopez, Girard Gibbs LLP.
D.L., Consol Plaintiff, represented by Mark D. Samson, Keller
Rohrback LLP, Michael Walter Sobol, Lieff Cabraser Heimann &
Bernstein LLP, Roger N. Heller, Lieff Cabraser Heimann & Bernstein
LLP, T. David Copley, Keller Rohrback LLP, Geoffrey A. Munroe,
Girard Gibbs LLP, Melissa A. Gardner, Lieff Cabraser Heimann &
Bernstein LLP & Steven A. Lopez, Girard Gibbs LLP.
M.P., Consol Plaintiff, represented by Melissa A. Gardner, Lieff
Cabraser Heimann & Bernstein LLP & T. David Copley, Keller
Rohrback LLP.
R.G., Consol Plaintiff, represented by Melissa A. Gardner, Lieff
Cabraser Heimann & Bernstein LLP & T. David Copley, Keller
Rohrback LLP.
L.M., Consol Plaintiff, represented by Melissa A. Gardner, Lieff
Cabraser Heimann & Bernstein LLP & T. David Copley, Keller
Rohrback LLP.
S.J., Consol Plaintiff, represented by Melissa A. Gardner, Lieff
Cabraser Heimann & Bernstein LLP & T. David Copley, Keller
Rohrback LLP.
A.R., Consol Plaintiff, represented by Melissa A. Gardner, Lieff
Cabraser Heimann & Bernstein LLP & T. David Copley, Keller
Rohrback LLP.
S.L., Consol Plaintiff, represented by Hart Lawrence Robinovitch -
- hart.robinovitch@zimmreed.com -- Zimmerman Reed PLLP, Laurence
D. King -- lking@kaplanfox.com -- Kaplan Fox & Kilsheimer LLP,
Linda M. Fong -- fong@kaplanfox.com -- Kaplan Fox & Kilsheimer
LLP, Melissa A. Gardner, Lieff Cabraser Heimann & Bernstein LLP &
T. David Copley, Keller Rohrback LLP.
Bobbie Brown, Consol Plaintiff, represented by Laurence D. King,
Kaplan Fox & Kilsheimer LLP, Linda M. Fong, Kaplan Fox &
Kilsheimer LLP, Melissa A. Gardner, Lieff Cabraser Heimann &
Bernstein LLP & T. David Copley, Keller Rohrback LLP.
Theranos Incorporated, Defendant, represented by Christopher
Thomas Casamassima -- chris.casamassima@wilmerhale.com -- Wilmer
Cutler Pickering Hale & Dorr LLP, Dan W. Goldfine -- -
dgoldfine@lrrc.com -Lewis Roca Rothgerber Christie LLP, Katie
Moran -- katie.moran@wilmerhale.com -- Wilmer Cutler Pickering
Hale & Dorr LLP, Matthew Benedetto --
matthew.benedetto@wilmerhale.com -- Wilmer Cutler Pickering Hale &
Dorr LLP, Michael Mugmon -- michael.mugmon@wilmerhale.com --
Wilmer Cutler Pickering Hale & Dorr LLP & Lindsey Christine Herzog
-- lherzog@lrrc.com -- Lewis Roca Rothgerber Christie LLP.
Walgreens Boots Alliance Incorporated, Defendant, represented by
Dan W. Goldfine, Lewis Roca Rothgerber Christie LLP & Lindsey
Christine Herzog, Lewis Roca Rothgerber Christie LLP.
Elizabeth Holmes, Defendant, represented by Allison Suzanne
Davidson -- adavidson@cooley.com -- Cooley LLP, Jacqueline B. Kort
-- jkort@cooley.com -- Cooley LLP, John Charles Dwyer --
dwyerjc@cooley.com -- Cooley LLP, Patrick Edward Gibbs --
pgibbs@cooley.com -- Cooley LLP, Stephen C. Neal --
nealsc@cooley.com -- Cooley LLP, Kathleen H. Goodhart --
kgoodhart@cooley.com -- Cooley LLP & Sean Eskovitz --
seskovitz@wilkinsonwalsh.com -- Wilkinson Walsh & Eskovitz LLP.
Ramesh Balwani, Defendant, represented by Benjamin J. Byer --
benbyer.dwt.com -- Davis Wright Tremaine LLP, Stephen M. Rummage -
- steve.rummage@dwt.com -- Davis Wright Tremaine LLP & Sean
Eskovitz, Wilkinson Walsh & Eskovitz LLP.
Walgreen Arizona Drug Company, Defendant, represented by Dan W.
Goldfine, Lewis Roca Rothgerber Christie LLP & Lindsey Christine
Herzog, Lewis Roca Rothgerber Christie LLP.
UBER TECHNOLOGIES: Judge Likely to Toss Data Hack Class Action
--------------------------------------------------------------
Helen Christophi, writing for Courthouse News Service, reports
that a federal judge indicated Nov. 2 she would toss a nearly
three-year-old class action accusing Uber of failing to protect
drivers' private information, but encouraged the parties to
reinitiate settlement negotiations.
U.S. Magistrate Judge Laurel Beeler seemed to tentatively grant
Uber's motion to dismiss the case for lack of standing, because
the plaintiffs had not shown their social security numbers were
disclosed in a 2014 hack of Uber's database containing driver
information.
"It's not there. It's just not what you think it is," Judge
Beeler said during a hearing in downtown San Francisco. "It
really isn't enough to allege a case."
Former Uber driver Sasha Antman sued the ride-hailing company in
March 2015, claiming it failed to secure his personal information
in the attack and took too long to notify drivers their
information had been stolen. The attack led to an attempted theft
of his identity when someone applied for a Capital One credit card
in his name, he claims.
Gustave Link, a second ex-driver added to the lawsuit this past
July, claims the Internal Revenue Service rejected his 2014 tax
return because someone used his stolen information to file a
fraudulent return in his name and to collect his tax refund.
The May 2014 data breach gave an unknown entity access to the
personal information of roughly 50,000 drivers, according to a
statement issued by Uber almost a year later. Gibson, Dunn &
Crutcher attorney Michael Wong, representing Uber, said in court
on Nov. 2 the company believes a competitor hacked its database,
not an identity thief. He declined to name the competitor, but
Uber has in the past blamed Lyft for the breach.
Judge Beeler dismissed Mr. Antman's first amended complaint in
December 2015 for lack of standing, because Mr. Antman had only
claimed the theft of driver names and license numbers. The judge
concluded that without a hack of higher-stakes information such as
social security numbers, there was no "obvious, credible risk" of
identity theft that risked "real, immediate injury."
Mr. Wong repeated that finding on Nov. 2, arguing the plaintiffs
had not shown harm in their second amended complaint.
Mr. Antman had again failed to show his social security number had
been stolen, Wong said, or that the information the hacker did get
was used to apply for the credit card -- which would have required
Antman's social security number. And Mr. Link had not shown his
information was even in the hacked database, Uber added in a
brief.
"Although we have conceded that there was a small number of other
drivers' social security numbers in the database, there are no
allegations that these drivers' numbers were in it," Mr. Wong
said.
Messrs. Antman and Gustave had their identities stolen using their
social security numbers, and neither has been notified that the
numbers were stolen in any other data breach, according to the
complaint.
Theodore Maya, an attorney with Ahdoot & Wolfson who represents
the plaintiffs, countered that his clients had in fact shown
direct harm. He noted Uber acknowledged after Judge Beeler
dismissed the complaint that drivers' social security numbers had
been taken -- after initially announcing that the database
contained only names and license numbers -- and that Uber had
refused to tell Antman whether his social security number was one
of them.
"What they said to Mr. Antman was, 'Your banking information was
disclosed.' What does that mean? I use my social security number
in connection with banking," Maya said.
Mr. Maya asked Judge Beeler for permission to examine Uber's
database to determine what banking information was stolen. But
Judge Beeler said she did not believe the plaintiffs would find
anything more than what Uber had already told them, and instead
suggested the parties revisit settlement discussions over the next
two weeks.
"I don't want to let Uber off the hook entirely," Judge Beeler
said in pushing for settlement. "You do have some responsibility
to your drivers. I know you engaged in the settlement process in
good faith, and it's just sort of a shame that you're here."
UNITED RECOVERY: Seeks 3rd Cir. Review of Ruling in "Pacanowski"
----------------------------------------------------------------
Alltran Financial, LP, formerly known as United Recovery Systems,
L.P., filed an appeal from a court ruling in the lawsuit titled
Francis Pacanowski v. United Recovery Systems, LP, Case No. 3-16-
cv-01778, in the U.S. District Court for the Middle District of
Pennsylvania.
As previously reported in the Class Action Reporter, the lawsuit
seeks to stop the Defendant's alleged unfair and unconscionable
means to collect a debt.
United Recovery Systems, LP provides accounts receivable
management services to issuers in credit card, retail, commercial,
and deficiency loan industries.
The appellate case is captioned as Francis Pacanowski v. Alltran
Financial LP, Case No. 17-3307, in the United States Court of
Appeals for the Third Circuit.[BN]
Plaintiff-Appellee FRANCIS PACANOWSKI, individually and on behalf
of all other similarly situated, is represented by:
Brett M. Freeman, Esq.
Carlo Sabatini, Esq.
SABATINI LAW FIRM
216 North Blakely Street
Dunmore, PA 18512
Telephone: (570) 341-9000
E-mail: bfecf@bankruptcypa.com
ecf@bankruptcypa.com
Defendant-Appellant ALLTRAN FINANCIAL LP is represented by:
Erin S. Gold, Esq.
George J. Lavin, III, Esq.
GEORGE J. LAVIN III & ASSOCIATES
920 West Chester Pike
Havertown, PA 19083
Telephone: (610) 449-1565
E-mail: egold@lavin3law.com
glavin@lavin3law.com
UNITED STATES: Court Certifies "Nio" Selected Reserve Class
-----------------------------------------------------------
In the case captioned KUSUMA NIO, et al., Plaintiffs, v. UNITED
STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants, Civil
Action No. 17-998 (ESH) (D. D.C.), Judge Ellen Segal Huvelle of
the U.S. District Court for the District of Columbia granted the
Plaintiffs' amended motion for class certification with a modified
class definition.
The Plaintiffs are non-citizens serving in the United States
Army's Selected Reserve of the Ready Reserve who enlisted under
the United States Department of Defense's Military Accessions
Vital to the National Interest ("MAVNI") program and who have
applied for naturalization pursuant to 8 U.S.C. Section 1440,
which provides an expedited path to citizenship for soldiers who
serve during specified periods of hostilities. They brought the
action against (i) the United States Department of Homeland
Security ("DHS") and its Acting Secretary, Elaine C. Duke, the
United States Citizen and Immigration Service ("USCIS") and its
Acting Director, James McCament; and (ii) the United States
Department of Defense ("DOD") and its Secretary, James Mattis.
The Plaintiffs bring multiple claims under the Constitution and
the Administrative Procedure Act ("APA"), seeking mandamus,
declaratory relief, and injunctive relief. They challenge (i)
DHS's/USCIS's decision to await DOD's completion of the enhanced
security screening of MAVNI enlistees prior to their shipment to
basic training or active-duty service ("DHS/USCIS Security
Screening Requirement"), and (ii) DOD's October 13th Guidance that
required the recall and de-certification of USCIS Form N-426,
which is a form necessary for a MAVNI's naturalization application
under 8 U.S.C. Section 1440.
They seek to certify a class, under Federal Rule of Civil
Procedure 23(b)(1) or (2), consisting of all persons who (i)
enlisted in the Selected Reserve, (ii) have served honorably in
the military through participation in at least one Selected
Reserve drill period or in an active-duty status, (iii) have
received a Form N-426 certifying their honorable service, (iv)
have submitted N-400 Applications for Naturalization to USCIS, and
(iv) are being subjected to the DHS/USCIS Security Screening
Requirement and Section III of DOD's Oct. 13, 2017 Guidance
regarding N-426s.
Judge Huvelle finds that the proposed class, at a minimum,
consists of between 400 and 500 MAVNI soldiers. Because DOD's
October 13th Guidance applies different standards to MAVNI
enlistees who enlisted before Oct. 13, 2017, she will limit the
class to those who enlisted before Oct. 13, 2017. The Judge also
finds that the Plaintiffs have satisfied the Rule 23(a) and (b)
requirements.
For the reasons she stated, Judge Huvelle granted the Plaintiffs'
amended motion for class certification and appointment of class
counsel with a modified class definition and as further detailed
in the Court's accompanying Order.
A full-text copy of the Court's Oct. 27, 2017 Memorandum Opinion
is available at https://is.gd/10yqza from Leagle.com.
KUSUMA NIO, Plaintiff, represented by Douglas W. Baruch --
douglas.baruch@friedfrank.com -- FRIED, FRANK, HARRIS, SHRIVER &
JACOBSON LLP.
KUSUMA NIO, Plaintiff, represented by Jennifer M. Wollenberg --
jennifer.wollenberg@friedfrank.com -- FRIED, FRANK, HARRIS,
SHRIVER & JACOBSON, LLP & Joseph J. LoBue --
joseph.lobue@friedfrank.com -- FRIED, FRANK, HARRIS, SHRIVER &
JACOBSON LLP.
WANJING LI, Plaintiff, represented by Douglas W. Baruch, FRIED,
FRANK, HARRIS, SHRIVER & JACOBSON LLP, Jennifer M. Wollenberg,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON, LLP & Joseph J. LoBue,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP.
JAE SEONG PARK, Plaintiff, represented by Douglas W. Baruch,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP, Jennifer M.
Wollenberg, FRIED, FRANK, HARRIS, SHRIVER & JACOBSON, LLP & Joseph
J. LoBue, FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP.
HAENDEL CRIST CALISTO ALVES DE ALMEIDA, Plaintiff, represented by
Douglas W. Baruch, FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP,
Jennifer M. Wollenberg, FRIED, FRANK, HARRIS, SHRIVER & JACOBSON,
LLP & Joseph J. LoBue, FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
LLP.
PRASHANTH BATCHU, Plaintiff, represented by Douglas W. Baruch,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP, Jennifer M.
Wollenberg, FRIED, FRANK, HARRIS, SHRIVER & JACOBSON, LLP & Joseph
J. LoBue, FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP.
LUCAS CALIXTO, Plaintiff, represented by Douglas W. Baruch, FRIED,
FRANK, HARRIS, SHRIVER & JACOBSON LLP, Jennifer M. Wollenberg,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON, LLP & Joseph J. LoBue,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP.
SHU CHENG, Plaintiff, represented by Douglas W. Baruch, FRIED,
FRANK, HARRIS, SHRIVER & JACOBSON LLP, Jennifer M. Wollenberg,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON, LLP & Joseph J. LoBue,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP.
SEUNG JOO HONG, Plaintiff, represented by Douglas W. Baruch,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP, Jennifer M.
Wollenberg, FRIED, FRANK, HARRIS, SHRIVER & JACOBSON, LLP & Joseph
J. LoBue, FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP.
YE LIU, Plaintiff, represented by Douglas W. Baruch, FRIED, FRANK,
HARRIS, SHRIVER & JACOBSON LLP, Jennifer M. Wollenberg, FRIED,
FRANK, HARRIS, SHRIVER & JACOBSON, LLP & Joseph J. LoBue, FRIED,
FRANK, HARRIS, SHRIVER & JACOBSON LLP.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant,
represented by Elianis N. Perez, U.S. DEPARTMENT OF JUSTICE,
Kenneth A. Adebonojo, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF
COLUMBIA, Colin Abbott Kisor, UNITED STATES DEPARTMENT OF JUSTICE
& Sarah Lake Vuong, U.S. DEPARTMENT OF JUSTICE.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant,
represented by Elianis N. Perez, U.S. DEPARTMENT OF JUSTICE,
Kenneth A. Adebonojo, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF
COLUMBIA, Colin Abbott Kisor, UNITED STATES DEPARTMENT OF JUSTICE
& Sarah Lake Vuong, U.S. DEPARTMENT OF JUSTICE.
UNITED STATES DEPARTMENT OF DEFENSE, Defendant, represented by
Elianis N. Perez, U.S. DEPARTMENT OF JUSTICE, Kenneth A.
Adebonojo, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA,
Colin Abbott Kisor, UNITED STATES DEPARTMENT OF JUSTICE & Sarah
Lake Vuong, U.S. DEPARTMENT OF JUSTICE.
JAMES MATTIS, Defendant, represented by Elianis N. Perez, U.S.
DEPARTMENT OF JUSTICE, Kenneth A. Adebonojo, U.S. ATTORNEY'S
OFFICE FOR THE DISTRICT OF COLUMBIA, Colin Abbott Kisor, UNITED
STATES DEPARTMENT OF JUSTICE & Sarah Lake Vuong, U.S. DEPARTMENT
OF JUSTICE.
ELAINE DUKE, Defendant, represented by Colin Abbott Kisor, UNITED
STATES DEPARTMENT OF JUSTICE & Elianis N. Perez, U.S. DEPARTMENT
OF JUSTICE.
L. FRANCIS CISSNA, Defendant, represented by Colin Abbott Kisor,
UNITED STATES DEPARTMENT OF JUSTICE & Elianis N. Perez, U.S.
DEPARTMENT OF JUSTICE.
UNITED STATES: Ruling Fuels Suit Against HHS Abortion Policy
------------------------------------------------------------
Marcia Coyle, writing for The National Law Journal, reports that
the weeks-long court fight over the Trump administration's refusal
to allow a detained immigrant teenager from seeking an abortion
ended soon after a federal appeals panel ruled for her October 24.
The court's decision to allow the 17-year-old girl to travel to an
abortion facility in Texas now could benefit a wider challenge
that is unfolding in Washington's federal trial court.
The American Civil Liberties Union on Oct. 18 sought class
certification on behalf of female immigrants similarly situated to
the "Jane Doe" teenager who prevailed in the U.S. Court of Appeals
for the D.C. Circuit. The full court overturned a panel decision
that blocked the girl from immediately being able to leave federal
custody to have an abortion.
The lawyers who brought the case, Garza v. Hargan, Esq., said they
expected the D.C. Circuit decision will have wider implications
for the benefit of the purported class of unaccompanied pregnant
minors who are or will be in federal detention. They are
challenging revised policy that they claim erected barriers to
undocumented minors who want to have an abortion.
"We'll try to get the government policy blocked for all immigrant
minors," said Brigitte Amiri, Esq., senior staff attorney at the
ACLU's Reproductive Freedom Project. The challengers said in court
papers that government records suggest that every year "there are
hundreds" of pregnant immigrant minors in federal custody.
But it's an open question just how far-reaching the D.C. Circuit's
ruling will be either to the underlying purported class action or
to immigration litigation at large.
D.C. Circuit Judge Brett Kavanaugh, who voted against allowing the
girl immediate access to an abortion facility, teed up his doubts
in a footnote that questioned any precedential value of the
ruling. The majority on the court, he noted, said only that it
"substantially" agreed with Judge Patricia Millett, who voted
against the government's effort to delay or otherwise deny the
girl access to an abortion center.
"The majority's decision rules against the government
'substantially for the reasons set forth in' the panel dissent.
Given this ambiguity, the precedential value of this order for
future cases will be debated," Kavanaugh wrote. "But for present
purposes, we have no choice but to assume that the majority agrees
with and adopts the main reasoning for the panel dissent."
The D.C. Circuit's unsigned order October 24 rejected a divided
panel ruling that would have delayed the teen's abortion until
Oct. 31 in order to give the government time to find a sponsor for
her. A sponsor, according to the government, would have allowed
the teen to leave detention and presumably assist her in having an
abortion.
Writing in her dissent, Millett said the Supreme Court's decisions
in Planned Parenthood of Southeastern Pennsylvania v. Casey and
Whole Woman's Health v. Hellerstedt made clear that the government
could not stand in the way of the teenage girl's effort to have an
abortion.
In her concurring opinion October 24, Millett skewered "big
government" for interfering with the minor's rights. "The
government's mere hope that an unaccompanied, abused child would
make the problem go away for it by either (i) surrendering all of
her legal rights and leaving the United States, or (ii) finding a
sponsor the government itself could never find is not a remotely
constitutionally sufficient reason for depriving J.D. of any
control over this most intimate and life-altering decision," she
wrote.
Millett wrote: "Surely the mere act of entry into the United
States without documentation does not mean that an immigrant's
body is no longer her or his own. Nor can the sanction for
unlawful entry be forcing a child to have a baby. The bedrock
protections of the Fifth Amendment's due process clause cannot be
that shallow."
The D.C. Circuit's 6-3 decision is binding precedent in the D.C.
Circuit. Other federal appellate courts may look to the order when
facing similar issues, but the ruling does not dictate how other
cases outside the D.C. Circuit should be resolved.
"I think those in the majority will treat it that way," Erwin
Chemerinsky, dean of the University of California Berkeley School
of Law, said. "The government may not give up, but I think the
D.C. Circuit will adhere to this position unless the Supreme Court
decides otherwise."
Steven Aden, Esq., chief legal officer and general counsel to
Americans United for Life, predicted the D.C. Circuit ruling will
have "minimal" precedential value.
"I do believe this is an issue that needs to be settled by the
Supreme Court and I hope it will be," Aden said. "The question is
whether public funds and public officials are required to
facilitate the elective abortion of a person in their custody."
The lawyers representing the class action, Aden said, now have a
"basic read" on how a majority of the D.C. Circuit would rule on
that issue. "But I think the issue will continue to come up in
other courts and, in an appropriate case, we'll find out if the
Supreme Court is interested," he said. [GN]
The appeals case is ROCHELLE GARZA, AS GUARDIAN AD LITEM TO
UNACCOMPANIED MINOR J.D., ON BEHALF OF HERSELF AND OTHERS
SIMILARLY SITUATED, APPELLEE v. ERIC D. HARGAN, ACTING SECRETARY,
HEALTH AND HUMAN SERVICES, ET AL., APPELLANTS, No. 17-5236 (D.C.
Cir.).
A full-text copy of the Opinion is available at
https://is.gd/b0rrpl
UNITED STATES: Wants Emergency Stay of TRO in "Garza" Class Suit
----------------------------------------------------------------
The U.S. Government filed an appeal from a court ruling in the
lawsuit titled ROCHELLE GARZA, as guardian ad litem to
unaccompanied minor J.D. v. ERIC HARGAN, Acting Secretary of
Health and Human Services, et al., Case No. 1:17-cv-02122-TSC, in
the U.S. District Court for the District of Columbia.
As reported in the Class Action Reporter on Oct. 25, 2017, the
purported class action was filed on October 13, 2017, against Eric
Hargan, Acting Secretary of Health and Human Services; Stephen
Wagner, Acting Assistant Secretary for Administration for Children
and Families; and Scott Lloyd, Director of Office of Refugee
Resettlement.
The appellate case is captioned as ROCHELLE GARZA, as guardian ad
litem to unaccompanied minor J.D. v. ERIC HARGAN, Acting Secretary
of Health and Human Services, et al., Case No. 17-5236, in the
United States Court of Appeals for the District of Columbia
Circuit.
Ms. Doe entered the United States illegally in September 2017, as
an unaccompanied minor. Pursuant to federal statute, minors like
Ms. Doe are initially placed into HHS's custody after
apprehension, though they can be released quickly under various
circumstances -- including if they elect to voluntarily return to
their home countries, or if they find a suitable sponsor in the
U.S. who is willing to take temporary custody of them. Ms. Doe --
who has not elected voluntary departure or been released to a
qualified sponsor -- is currently subject to this HHS policy.
Government Wants Emergency Stay
The Government seeks an emergency stay pending appeal of the
District Court's October 18, 2017 temporary restraining order,
which requires the Department of Health and Human Services (HHS)
to take various steps to enable Jane Doe to have an abortion as
early as the morning of October 20, 2017. The District Court
abused its discretion in granting such so-called temporary relief,
because Ms. Doe did not meet the demanding standard for the
effectively permanent relief that she sought: a mandate that the
Government facilitate an unaccompanied minor, who entered the
United States illegally and who is in its custody in a shelter in
Texas to obtain an irreversible elective abortion, the Government
argues.
It is undisputed that Ms. Doe still has a number of weeks in which
she could legally and safely obtain an abortion, the Government
asserts. Accordingly, the Government asks the Appellate Court to
issue a stay, and maintain the status quo, to permit a more
complete adjudication of Ms. Doe's novel Fifth Amendment claim
before her preliminary relief functionally becomes permanent. In
addition, the Government requests that the Appellate Court enter a
temporary administrative stay while the Appellate Court considers
this motion.[BN]
The Plaintiff-Appellee is represented by:
Arthur B. Spitzer, Esq.
Scott Michelman, Esq.
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
OF THE DISTRICT OF COLUMBIA
4301 Connecticut Avenue NW, Suite 434
Washington, DC 20008
Telephone: (202) 457-0800
Facsimile: (202) 457-0805
E-mail: aspitzer@acludc.org
smichelman@acludc.org
- and -
Brigitte Amiri, Esq.
Meagan Burrows, Esq.
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
125 Broad Street, 18th Floor
New York, NY 10004
Telephone: (212) 549-2633
Facsimile: (212) 549-2652
E-mail: bamiri@aclu.org
mburrows@aclu.org
- and -
Daniel Mach, Esq.
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
915 15th Street NW
Washington, DC 20005
Telephone: (202) 675-2330
E-mail: dmach@aclu.org
- and -
Jennifer L. Chou, Esq.
Mishan R. Wroe, Esq.
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF
NORTHERN CALIFORNIA, INC.
39 Drumm Street
San Francisco, CA 94111
Telephone: (415) 621-2493
Facsimile: (415) 255-8437
E-mail: jchou@aclunc.org
mwroe@aclunc.org
- and -
Melissa Goodman, Esq.
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF
SOUTHERN CALIFORNIA
1313 West 8th Street
Los Angeles, CA 90017
Telephone: (213) 977-9500
Facsimile: (213) 977-5299
E-mail: mgoodman@aclusocal.org
Defendants-Appellants are represented by:
Chad A. Readler, Esq.
Hashim M. Mooppan, Esq.
Catherine H. Dorsey, Esq.
U.S. DEPARTMENT OF JUSTICE
950 Pennsylvania Ave., NW, Room 7236
Washington, DC 20530
Telephone: (202) 305-8902
Facsimile: (202) 616-8460
E-mail: Chad.A.Readler@usdoj.gov
catherine.dorsey@usdoj.gov
UNITED STATES: Second Circuit Stays Discovery in "Vidal" Suit
-------------------------------------------------------------
The Hon. Jose A. Cabranes granted the Government's emergency
motion for a stay of discovery and record supplementation in the
appellate case entitled Elaine C. Duke, Acting Secretary of
Homeland Security, Jefferson B. Sessions III, United States
Attorney General, Donald J. Trump, President of the United States,
United States Citizenship and Immigration Services, United States
Immigration and Customs Enforcement, United States of America,
Petitioners v. Martin Jonathan Batall Vidal, Make the Road New
York, Antonio Alarcon, Eliana Fernandez, Carlos Vargas, Mariano
Mondragon, Carolina Fung Feng, on behalf of themselves and all
other similarly situated individuals, State of New York, State of
Massachusetts, State of Washington, State of Connecticut, State of
Delaware, District of Columbia, State of Hawaii, State of
Illinois, State of Iowa, State of New Mexico, State of North
Carolina, State of Oregon, State of Pennsylvania, State of Rhode
Island, State of Vermont, State of Virginia, State of Colorado,
Respondents, Case No. 17-3345, in the United States Court of
Appeals for the Second Circuit.
"The Government's emergency motion for a stay of discovery and
record supplementation in the proceedings before the district
court is GRANTED pending its consideration by a regular three-
judge panel of the Court, it being understood that during the
pendency of this emergency motion and the stay hereby granted no
rights or claims of rights of any of the parties shall have been
waived or forfeited," according to the Order. "The stay is
contingent upon the Government filing the 'full petition for a
writ of mandamus', as described in its papers, on October 23, 2017
by 3:00 p.m. EST.[BN]
UNITED STATES: Ninth Cir. Appeal Filed in "Marroquin-Perez" Suit
----------------------------------------------------------------
Defendants Michael J. Donahue, John F. Kelly, Juan Osuna,
Jefferson B. Sessions III, Attorney General, Unknown Party and
Michael Zackowski filed an appeal from a court ruling in the
lawsuit entitled Monica Marroquin-Perez v. John Kelly, et al.,
Case No. 2:17-cv-00366-JJT, in the U.S. District Court for the
District of Arizona, Phoenix.
As previously reported in the Class Action Reporter, the lawsuit
was filed on February 5, 2017, and assigned to Hon. Judge John J
Tuchi.
The nature of suit is stated as Habeas Corpus (Alien Detainees).
The appellate case is captioned as Monica Marroquin-Perez v. John
Kelly, et al., Case No. 17-17014, in the United States Court of
Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Appellants Michael J. Donahue, John F. Kelly, Juan Osuna,
Jefferson B. Sessions III, Attorney General, Unknown Party
and Michael Zackowski's opening brief is due on
November 28, 2017;
-- Appellee Monica Marroquin-Perez's answering brief is due on
December 28, 2017; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiff-Petitioner-Appellee MONICA MARROQUIN-PEREZ, A 208-746-
557, On Behalf of Herself and Those Similarly Situated, is
represented by:
Joseph LaCome, Esq.
LACOME LAW FIRM
36 Summit Ave.
San Rafael, CA 94901
Telephone: (415) 847-1944
E-mail: lacomelaw@gmail.com
Defendants-Respondents-Appellants JOHN F. KELLY, Secretary,
Department of Homeland Security; JUAN OSUNA, Acting Director,
EOIR; MICHAEL ZACKOWSKI, Assistant ICE Field Office Director,
Arizona District; MICHAEL J. DONAHUE, Warden, Eloy Detention
Facility; JEFFERSON B. SESSIONS III, Attorney General; and UNKNOWN
PARTY, named as John Doe 1, Officer-in-Charge, Eloy Detention
Facility, are represented by:
Paul A. Bullis, Esq.
ASSISTANT U.S. ATTORNEY
USPX - OFFICE OF THE US ATTORNEY
40 N. Central Ave.
Phoenix, AZ 85004-4408
Telephone: (602) 514-7500
Facsimile: (602) 514-7450
E-mail: paul.bullis@usdoj.gov
- and -
William Charles Silvis, Esq.
ASSISTANT DIRECTOR
DOJ - U.S. DEPARTMENT OF JUSTICE
P.O. Box 868
Ben Franklin Station
Washington, DC 20044
Telephone: (202) 307-4693
Facsimile: (202) 305-7000
E-mail: william.silvis@usdoj.gov
VERIFONE SYSTEMS: Stelmachers Appeals Decision to Ninth Circuit
---------------------------------------------------------------
Plaintiff Paul M. Stelmachers filed an appeal from a court ruling
in his lawsuit styled Paul Stelmachers v. VeriFone Systems, Inc.,
Case No. 5:14-cv-04912-EJD, in the U.S. District Court for the
Northern District of California, San Jose.
As reported in the Class Action Reporter on Sept. 20, 2017, the
District Court granted the Defendant's Motion to Dismiss the
Second Amended Complaint.
Mr. Stelmachers alleges that he received a computer-generated
receipt for a taxi cab ride in Las Vegas that violated the Fair
and Accurate Credit Transactions Act, and seeks to represent a
class of individuals, who received electronically printed receipts
from Verifone, which displayed more than the last five digits of
the purchaser's credit or debit card number.
The appellate case is captioned as Paul Stelmachers v. VeriFone
Systems, Inc., Case No. 17-17010, in the United States Court of
Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Appellant Paul M. Stelmachers' opening brief is due on
December 4, 2017;
-- Appellee VeriFone Systems, Inc.'s answering brief is due on
January 4, 2018; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiff-Appellant PAUL M. STELMACHERS, individually and on
behalf of a class of similarly-situated persons, is represented
by:
Phillip A. Bock, Esq.
BOCK, HATCH, LEWIS & OPPENHEIM, LLC
134 N. LaSalle Street
Chicago, IL 60602
Telephone: (312) 658-5500
E-mail: phil@classlawyers.com
- and -
Charles David Marshall, Esq.
GREEN & NOBLIN, P.C.
2200 Larkspur Landing Circle, Suite 101
Larkspur, CA 94939
Telephone: (415) 477-6700
Defendant-Appellee VERIFONE SYSTEMS, INC., is represented by:
John George Papianou, Esq.
MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP
123 S. Broad Street
Philadelphia, PA 19109
Telephone: (215) 772-7389
E-mail: jpapianou@mmwr.com
VERMONT: Judge Hears Class Action Over Homeless People Encampment
-----------------------------------------------------------------
Wilson Ring, writing for The Associated Press, reports that a
federal judge said on Oct. 25 that three homeless men will be
allowed to stay at their camp in the woods in Burlington while he
considers a lawsuit seeking to prevent the city from dismantling
the encampment without first offering alternative housing.
U.S. District Court Judge Geoffrey Crawford announced the decision
while hearing arguments about whether Burlington officials are
violating the rights of the city's homeless community by
threatening to close down a tent encampment on a bluff overlooking
Lake Champlain but not relocating them first.
City officials said the encampment is in an environmentally
sensitive area and the people staying there can go to homeless
shelters or other areas in the city where homeless encampments
currently exist. They also said there are social services programs
that help the homeless to find permanent housing.
The ACLU has filed a class action lawsuit on behalf of three
people living at the encampment off the city's North Avenue and
other unnamed homeless people in the city.
"The plaintiffs are some of the city of Burlington's most
vulnerable, unsheltered homeless folks living in tents," Jared
Carter, an attorney for the Vermont chapter of the American Civil
Liberties Union, said during the hearing in federal court in
Rutland.
City officials testified that most encampments on city land are
allowed to operate unless certain criteria, such as violations of
the law or health and safety issues, are met that require
officials to remove them. They said services are available to
help the homeless find shelter. The number of homeless people,
however, exceeds the number of available beds in shelters and
other programs.
"The city is trying to have a balance for its citizens, including
the homeless," said City Attorney Eileen Blackwood.
The encampment in question is on about 12 acres of city-owned land
just north of downtown Burlington. There are an estimated 10 to
12 other encampments in the city where the city isn't moving the
people who live there, different officials said.
Judge Crawford said at the close of the day-long hearing that the
city appeared to be using a "don't-ask, don't-tell" policy of
allowing the encampments. "They only close them down if they make
trouble," he said.
Judge Crawford issued an emergency order blocking the city from
removing the North Avenue encampment where a handful of people
have been living in tents. The order remains in effect until he
issues his decision.
The city recently dismantled a separate homeless encampment in the
south end of the city. Some residents of that camp have found a
new location near the closed site.
According to Burlington Police Chief Brandon del Pozo, the
homeless camp was closed because of reports of domestic violence,
a disturbance involving a gun and other reported activity.
The people who are staying on the North Avenue property say they
have looked for permanent homes, but have been unable to find any.
"I have nowhere to go. All the shelters are full," said
Brian Croteau, one of the people bringing the lawsuit. [GN]
WAL-MART STORES: District Court Refuses to Remand "Hamilton"
------------------------------------------------------------
The United States District Court for the Central District of
California issued an Order denying Plaintiff's Motion to Remand
the case captioned CHELSEA HAMILTON, individually and on behalf of
all others similarly situated, Plaintiff, v. WAL-MART STORES,
INC., a corporation, WAL-MART ASSOCIATES, INC., a corporation, and
DOES 1 through 50, inclusive, Defendants, Case No. ED CV 17-01415-
AB (KKx) (C.D. Cal.).
Plaintiff alleged Defendants: (1) failed to pay minimum and
overtime wages earned in violation of Labor Code sections 1194 and
510 ); (2) failed to provide second meal periods in violation of
Labor Code sections 226.7 and 512; (3) failed to pay wages upon
discharging employees in violation of Labor Code section 203; (4)
failed to provide accurate wage statements in violation of Labor
Code section 226; and (5) violated California's Unfair Competition
Law under Business and Professions Code section 17200.
The Class Action Fairness Act allows federal courts to exercise
jurisdiction over state law class actions when (1) the matter in
controversy exceeds the sum or value of $5,000,000, exclusive of
interest and costs, (2) any member of a class of plaintiffs is a
citizen of a State different from any defendant, and (3) the
plaintiff's putative classes include at least 100 total members.
As in all removal cases, the burden of establishing removal
jurisdiction remains on the proponent of federal jurisdiction.
A removing defendant must make this showing by the preponderance
of the evidence, which a removing defendant may establish by
providing summary-judgment-type evidence indicating that the
aggregate amount in controversy exceeds $5,000,000.
David Alvarado, a Senior Director of Human Resources at Wal-Mart,
testifies the average wage in 2017 for non-exempt associates was
$15.10, the average hours worked per two-week pay period at the
Facility for periods of time when the facility opened in 2015
through July 23, 2017 was 64.72 hours and that 40,925 wage
statements were issued to non-exempt employees from the time the
facility opened in 2015 until July 23, 2017.
Defendants do not assume a 100% violation rate, (2) Plaintiff's
pleadings contain allegations of regular, systemic, and otherwise
wide-ranging policy, practice, and pattern, (3) Plaintiff's
allegations do not allege a more precise calculation of violation
frequency, and, (4) Plaintiff fails to offer any other evidence of
the frequency with which the alleged violations occurred, the
Court finds Defendants' reliance upon an assumption of a weekly
violation rate to be reasonable under the circumstances.
First Cause of Action: Unpaid Overtime Wages
Plaintiff asserts that as a pattern and practice Defendants failed
to compensate Plaintiff and the Class and Subclasses for all
minimum and overtime wages earned, including, but not limited to
all overtime hours in excess of eight (8) hours worked each day,
and all minimum and overtime wages for the off-the-clock time
spent passing through security checks following each shift. The
putative class worked approximately 81,850 weeks between the time
the facility opened in 2015 until July 23, 2017. The average
hourly rate of pay for the putative class is $15.10. Therefore,
the Complaint provides sufficient support for Defendants' proposed
rate. Based on this claim, the Court finds Defendants have placed
$1,853,902.50 in controversy.
Second Cause of Action: Failure to Pay Meal Period Premiums
Because Plaintiff claims that the violations occurred regularly,
as a pattern and practice, The Court finds Defendants' estimation
of one violation per work week reasonable and conservative.
Accordingly, the Court finds Defendants have placed $1,235,935 in
controversy for this claim.
Third Cause of Action: Failure to Timely Pay Wages at Termination
Instead of assuming that each class member was entitled to the
full thirty day maximum, Defendants presented evidence that of the
686 associates who were terminated, 68 would be entitled to
penalties for only twenty as opposed to thirty days based on their
termination date. Defendants then multiplied 618 employees, by 30
days, by 6.472 hours, by $15.10, for a total of $1,811,862.29.
Defendants then repeated the same calculation, substituting 68
employees and 20 hours, for a total of $132,908.99. Adding these
two figures, Defendants propose $1,944,771.28 as the amount in
controversy for this claim.
Thus, the Court finds that Defendants have placed $1,944,771.28 in
controversy for this claim.
Fourth Cause of Action: Wage Statement Penalties
Defendants calculate penalties for the entire period the facility
has been in operation, during which time they issued 40,925 wage
statements. Defendants contend this is the appropriate calculation
because Plaintiff has alleged that a 3-year statute of limitations
applies to this claim. Defendants' argument is unpersuasive.
Under the statute, Plaintiff is entitled to actual damages for the
alleged period or penalties. Since Defendants calculation for this
claim focuses exclusively on the possible penalties, the one year
statute of limitations is applicable. Regardless, the Court does
not analyze the potential amount in controversy for this claim
because the total amount raised by the prior claims already equals
$5,034,608.78.
Attorneys' Fees
Lastly, Defendants contend attorneys' fees are properly included
when calculating the amount in controversy under CAFA and assume a
benchmark rate of 25% of potential damages.
Since Defendant has established by a preponderance of the evidence
an amount in controversy of at least $5,034,608.78 ($1,853,902.50
for Plaintiff's first cause of action for overtime wages +
$1,235,935 for Plaintiff's second cause of action for meal period
premiums + $1,944,771.28 under Plaintiff's third cause of action
for alleged violations of Labor Code section 203), the Court
includes an additional $1,258,652.19 (25% of $5,034,608.78) for
attorneys' fees.
Total Amount in Controversy
Based on Plaintiff's Complaint and the evidence provided by
Defendants, the Court calculates an amount in controversy of at
least $6,293,260.97. Since this exceeds CAFA's $5,000,000 minimum,
the Court concludes jurisdiction is proper.
Accordingly, the Court denies Plaintiff's Motion to Remand.
A full-text copy of the District Court's September 29, 2017 Order
is available at http://tinyurl.com/y7tg4gfgfrom Leagle.com.
Chelsea Hamilton, Plaintiff, represented by Brian G. Lee --
blee@yoonlaw.com -- Yoon Law APC.
Chelsea Hamilton, Plaintiff, represented by George Samuel Cleaver,
G Samuel Cleaver Law Offices, 5670 Wilshire Blvd 18th Fl
Los Angeles, CA 90036, Kenneth H. Yoon, Kenneth H Yoon Law
Offices, 1 Wilshire Blvd # 2200. Los Angeles, CA 90017 & Stephanie
Emi Yasuda -- syasuda@yoonlaw.com -- Yoon Law APC..
Wal-Mart Stores, Inc., Defendant, represented by Paul W. Sweeney -
- paul.sweeney@klgates.com -- Jr., K&L Gates LLP, Patrick M.
Madden -- Patrick.madden@klgates.com -- K&L Gates LLP, pro hac
vice & Roman D. Hernandez -- roman.hernandez@klgates.com -- K&L
Gates LLP, pro hac vice.
Wal-Mart Associates, Inc., Defendant, represented by Paul W.
Sweeney, Jr., K&L Gates LLP, Patrick M. Madden, K&L Gates LLP, pro
hac vice & Roman D. Hernandez, K&L Gates LLP, pro hac vice.
WELLS FARGO: Seeks 9th Circuit Review of Ruling in "Nguyen" Suit
----------------------------------------------------------------
Defendant Wells Fargo Bank, N.A., filed an appeal from a court
ruling in the lawsuit styled Huy Nguyen v. Wells Fargo Bank, N.A.,
Case No. 3:15-cv-05239-JCS, in the U.S. District Court for the
Northern District of California, San Francisco.
The appellate case is captioned as Huy Nguyen v. Wells Fargo Bank,
N.A., Case No. 17-80200, in the United States Court of Appeals for
the Ninth Circuit.
As reported in the Class Action Reporter on Oct. 19, 2017, the
Hon. Joseph C. Spero has certified these class and subclasses:
Class:
All persons who are or have been employed, at any time from
August 25, 2011 through December 31, 2016, by Wells Fargo
Bank, National Association in California under the job
titles Home Mortgage Consultant, Home Mortgage Consultant
Jr. and Private Mortgage Banker (collectively "HMCS");
Expense Reimbursement Sub-Class:
All persons who are or have been employed as HMCs, at any
time from August 25, 2011 through December 31, 2015, by
Wells Fargo Bank, National Association in California and who
participated in either Wells Fargo' s individual HMC website
program or FASTMail program;
Commission Pay Sub-Class:
All persons who are or have been employed as HMCs, at any
time from August 25, 2011 through December 31, 2016, by
Wells Fargo Bank, National Association in California;
Waiting Time Penalties Sub-Class:
All persons who have been employed as HMCs and separated
from employment (either by involuntary termination or
resignation), at any time from August 25, 2011 through
December 31, 2016, by Wells Fargo Bank, National Association
in California and who did not timely receive all of their
wages at time of separation.
A Further Case Management Conference was set for November 3, 2017,
at 2:00 p.m. The parties were instructed to meet and confer and
submit a joint Case Management Conference Statement that includes
a proposed schedule for the remainder of the case last October 27,
2017.[BN]
Plaintiff-Respondent HUY NGUYEN, individually and on behalf of all
others similarly situated, is represented by:
Edward Wynne, Esq.
WYNNE LAW FIRM
80 E. Sir Francis Drake Boulevard, Suite 3G
Larkspur, CA 94939
Telephone: (415) 461-6400
Facsimile: (415) 461-3900
E-mail: EWynne@wynnelawfirm.com
Defendant-Petitioner WELLS FARGO BANK, N.A., is represented by:
Thomas Roy Kaufman, Esq.
Paul Berkowitz, Esq.
SHEPPARD MULLIN RICHTER & HAMPTON LLP
1901 Avenue of the Stars
Los Angeles, CA 90067-6001
Telephone: (310) 228-3748
Facsimile: (310) 228-3701
E-mail: tkaufman@sheppardmullin.com
pberkowitz@sheppardmullin.com
WILMINGTON TRUST: Brundle Appeals Decision to Fourth Circuit
------------------------------------------------------------
Plaintiff Tim P. Brundle filed an appeal from a court ruling in
his lawsuit entitled Tim Brundle v. Wilmington Trust, N.A., Case
No. 1:15-cv-01494-LMB-IDD, in the U.S. District Court for the
Eastern District of Virginia at Alexandria.
The appellate case is captioned as Tim Brundle v. Wilmington
Trust, N.A., Case No. 17-2224, in the United States Court of
Appeals for the Fourth Circuit.
As previously reported in the Class Action Reporter, the lawsuit
alleges violations of the Employee Retirement Income Security Act.
Wilmington Trust previously filed an appeal from a court ruling in
the lawsuit. That appellate case is captioned as Tim Brundle v.
Wilmington Trust, N.A., Case No. 17-1873.
The briefing schedule in the Appellate Case states that initial
forms are due within 14 days.[BN]
Plaintiff-Appellant TIM P. BRUNDLE, on behalf of the Constellis
Employee Stock Ownership Plan, is represented by:
Tillman J. Breckenridge, Esq.
Ryan T. Jenny, Esq.
Gregory Y. Porter, Esq.
BAILEY & GLASSER LLP
1054 31st Street, NW
Washington, DC 20007
Telephone: (202) 463-2101
Facsimile: (202) 463-2103
E-mail: tbreckenridge@baileyglasser.com
rjenny@baileyglasser.com
gporter@baileyglasser.com
Defendant-Appellee WILMINGTON TRUST, N.A., as successor to
Wilmington Trust Retirement and Institutional Services Company, is
represented by:
James Patrick McElligott, Jr., Esq.
Summer Speight, Esq.
MCGUIREWOODS, LLP
800 East Canal Street
P. O. Box 3916
Richmond, VA 23219
Telephone: (804) 775-4329
Facsimile: (804) 698-2111
E-mail: jmcelligott@mcguirewoods.com
sspeight@mcguirewoods.com
- and -
Stephen William Robinson, Esq.
MCGUIREWOODS, LLP
1750 Tysons Boulevard
Tysons Corner, VA 22102-3915
Telephone: (703) 712-5469
Facsimile: (703) 712-5258
E-mail: srobinson@mcguirewoods.com
* Senate Voted Against CFPB's New Mandatory Arbitration Rule
------------------------------------------------------------
Scott Neuman and Chris Arnold, writing for NPR, report that the
Senate has voted to get rid of a banking rule that allows
consumers to bring class-action lawsuits against banks and credit
card companies to resolve financial disputes. Critics say
Republicans and the Trump administration are siding with Wall
Street over Main Street and that the shift will block consumers
from joining together against the likes of Wells Fargo and
Equifax.
"This bill is a giant wet kiss to Wall Street," Sen. Elizabeth
Warren, D-Mass., said on the Senate floor. "Bank lobbyists are
crawling all over this place begging Congress to vote and make it
easier for them to cheat their customers."
With Vice President Pence casting the tie-breaking vote, the
rollback of the Consumer Financial Protection Bureau rule banning
restrictive mandatory arbitration clauses found in the fine print
of credit card and checking account agreements passed 51-50, with
Sens. Lindsey Graham, R-S.C., and John Kennedy, R-La., voting
against repeal.
The Republican-controlled House had already voted to rescind the
rule and President Trump is expected to quickly sign the measure,
which also bars similar rules in the future.
The consumer agency's rule, released in July, was aimed at giving
consumers more power. Prior to the rule, the bureau said
companies could "sidestep the court system" by "forcing consumers
to give up or go it alone."
This allowed companies to "avoid big refunds, and continue harmful
practices," the bureau wrote in July in announcing the changes.
The agency said it was redressing a situation in which consumers
were forced "to give up or go it alone -- usually over small
amounts," while companies were able to "sidestep the court system,
avoid big refunds, and continue harmful practices."
In a statement released shortly after the vote, bureau Director
Richard Cordray said it represented "a giant setback for every
consumer in this country. Wall Street won and ordinary people
lost."
In July, The Washington Post wrote that the rule "came about
because of the 2010 Dodd-Frank financial reform legislation, which
the Trump administration and Republicans have been trying to
dismantle. The legislation required the CFPB to study the use of
arbitration agreements and report back to Congress. The rule is a
result of that report."
The move is part of a larger push by Republicans to roll back
regulations that they believe hurt the free market.
White House press secretary Sarah Huckabee Sanders said Trump
supported the move because "the rule would harm our community
banks and credit unions by opening the door to frivolous lawsuits
by special interest trial lawyers."
Democrats argue that such rules give consumers more power to stop
abusive practices.
"It looks like Equifax and Wall Street and Wells Fargo will win
again," said Sen. Sherrod Brown, D-Ohio. "This vote will make the
rich richer; it will make the more powerful more powerful."
Republicans said class-action lawsuits give a lot of money to
trial lawyers and don't do that much to help consumers. "You have
to ask the question: Whose benefit is that for? Is it really for
the consumer or is it for the lawyers? And I think the answer is
pretty clear ? it's not for the consumer," Republican Sen. John
Cornyn of Texas said.
Consumer Watchdog Proposes New Rules On Payday Lenders
But a report by the consumer agency showed that class actions paid
out about 1,000 times more money to consumers overall than
consumers got through arbitration.
Dennis Kelleher, the president of the consumer group Better
Markets, says that at issue is what's buried in the fine print
when you sign up for a credit card or many other products.
"They're usually 10-50 pages long of teeny-weeny print, and in the
middle of it says you're giving up your right to sue when the bank
or the financial institution rips you off," Mr. Kelleher says.
The Senate's action means that "millions of Americans won't get
their day in court," says Lauren Saunders, associate director at
the National Consumer Law Center. "To me, I'm just really
disappointed about the lack of faith in our constitutional system
of justice." [GN]
* Rejection of Class-Action Rule a Win for Consumers
----------------------------------------------------
Ken Sweet, writing for Arkansas Online, reports that President
Donald Trump and Republicans in Congress handed Wall Street banks
a big victory October 24 by effectively killing off a politically
popular rule that would have allowed consumers to band together to
sue their banks.
The 51-50 vote in the Senate, with Vice President Mike Pence
casting the deciding vote, means bank customers will still be
subject to what are known as mandatory arbitration clauses. These
clauses are buried in the fine print of nearly every checking
account, credit card, payday loan, auto loan or other financial
services contract and require customers to use arbitration to
resolve any dispute with their banks. They effectively waive the
customers' right to sue.
The banking industry lobbied hard to roll back a proposed
regulation from the Consumer Financial Protection Bureau that
would have largely restricted mandatory arbitration clauses by
2019. Consumers would have been allowed to sue their bank as a
group in a class-action lawsuit. Individual consumers with
individual complaints would still have to use arbitration under
the rules.
Trump is expected to sign the Senate resolution into law,
overturning yet another initiative enacted under President Barack
Obama's administration.
The overturn marks a significant victory for Wall Street. After
the financial crisis, Congress and the Obama administration put
substantial new regulations on how banks operated and fined them
tens of billions of dollars for the damage they caused to the
housing market. But since Trump's victory last year, banking
lobbyists have felt emboldened to get some of the rules repealed
or replaced altogether. High on the list was the Consumer
Financial Protection Bureau's arbitration rules.
"[The] vote is a giant setback for every consumer in this country.
Wall Street won and ordinary people lost. This vote means the
courtroom doors will remain closed for groups of people seeking
justice and relief when they are wronged by a company," said
Consumer Financial Protection Bureau Director Richard Cordray, who
was appointed by Obama, in a statement.
The big banks and their lobbyist groups are calling this a victory
for U.S. consumers, saying that arbitration is faster and the
rules would have been an economic stimulus package for class-
action trial lawyers. They also cite statistics from the Consumer
Financial Protection Bureau's own 2015 study that show that the
average award from a class-action lawsuit is roughly $32 while an
award from arbitration is $5,389.
But reality is more complicated.
The reason why the award for most class-action suits is small is
because people don't typically sue individually his or her bank
over a small sum of money, such as an overdraft charge or account
service fee, because it's not worth the financial effort to
recover a $10, $25, or $35 fee. Arbitration cases are less common
and usually involve more substantial disputes, hence the larger
awards. And the majority of consumers resolve their dispute with
their banks in person, typically at a branch or over the phone.
[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
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Information contained herein is obtained from sources believed to
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