/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/171227.mbx C L A S S A C T I O N R E P O R T E R Wednesday, December 27, 2017, Vol. 19, No. 256 Headlines 360 DIGITAL: Sends Spam Text Messages, "Hormozdi" Suit Claims ABERCROMBIE & FITCH: "Brown" Suit Moved to S.D. Ohio Court ACCREDITED DEBT: Terrado et al. Sue over Commission-Only Pay ADVANCED CALL: Parsons Sues over Debt Collection Practices AEROTEK INC: Court Junks "Abdul-Hasib" FLSA Suit w/o Prejudice AFL: John Platten Joins Concussion Class Action ALCON LABORATORIES: America's Health Suit Moved to N.D. Ill. ALLEGIANT AIR: Must Reply to "Doliboa" Suit by Jan. 12 ALLERGAN INC: Faces Antitrust Class Action Over Restasis Price ALLERGAN INC: Sergeants Fund Sues over Monopoly of Restatis Drops ASKARI SECURITY: Nkanteen Seeks Minimum Pay, OT under Labor Code AVEO: Levitt Robertson Seeks Customers to Join Class Action AVIS BUDGET CAR: Settles FCRA Class Action for $2.7 Million BADGER DAYLIGHTINING: Fails to Pay All Wages, "Shaw" Suit Says BANCO SANTANDER: "Gonzalez" Shareholder Remains in Federal Court BANGLA TIMES: Alam Seeks Unpaid OT, Minimum Wage under Labor Law BAODING CFC: "Liu" Class Suit Seeks to Recover Unpaid Wages BARKLEY COURT: Cal. App. Flips Statutory Rates Ruling in "Burd" BARNES & NOBLE: "Hartpence" Suit Moved to E.D. Pennsylvania BAYER HEALTHCARE: "Johnson" Remanded to Missouri State Court BERNARD L. MADOFF: Shulman Trustees File Fraud Class Action BIG PHARMA: Steuben County to Join Opioid Crisis Class Action BOFI HOLDING: Judgment on Pleadings Bid in Securities Suit OK'd BUCKEYE TRANSPLANT: "Nguyen" Suit Seeks Unpaid Wages under FLSA CANADA: Settles LGBP Purge Class Action for $145 Million CEDARHURST: Sued for Storing Employee's Biometric Information CENTRA TECH: Rensel Sues over Sale of Cryptocurrency Securities CKE RESTAURANTS: Aguilar Seeks Minimum Wage, OT under Labor Code CITIGROUP INC: Employees in 401(k) Suit Get Class Certification CONN APPLIANCES: Williams Sues over Telemarketing Calls CVS HEALTH: "Prescott" Suit Transferred to Dist. of New Jersey CYAN INC: 1998 Securities Reform Statute "Gibberish", Court Says DEL TACO: Jaffey Has Until Jan. 5 to Reply to Stay/Dismissal Bids DR REDDY'S: Faces Securities Class Action in New Jersey DYNAMIC LEDGER: MacDonald Sues over Sale of Cryptocurrencies ELECTRONIC TRANSACTION: Dismissal of Olde Gulf Club Suit Affirmed EQUIFAX INC: ICBA Files Class Action Over July 2017 Data Breach EXACTECH INC: "Pappalardo" Suit Challenges Osteon Merger FCA US: "Canfield" Suit Moved to District of Delaware FIRST CHOICE: "Vincent" Suit Seeks OT Compensation under FLSA FLEXI HOLIDAY: Responds to Class Action Over Timeshare Agreements FORCE FRAMING: Orozco Seeks Minimum Wage, OT under Labor Code G SECURITY: "Osorio" Suit Seeks Unpaid Overtime Wages under FLSA GALARDI SOUTH: "Ross" Suit Seeks Unpaid OT Wages under FLSA GATEWAY ENERGY: Court Junks "Bell" Fraud Suit Without Prejudice GENESIS LOGISTICS: Settlement in "Aguirre" Has Final Approval GOOGLE INC: Faces iPhone Data Snooping Class Action in UK GOOGLE INC: Jan. 5 Reply Deadline on "Sweet" Dismissal Bid HAT WORLD: Court Grants Conditional Certification in "Ward" HEIGHTS TOWER: Bid to Decertify "Pietrzycki" Class Denied HILL'S PET: Court Grants Bid to Dismiss "Vanzant" ICFA Suit HILLSTONE HEALTHCARE: "Smith" Suit Seeks OT Wages under FLSA HOLTGER BROS: "McChesney" Suit Seeks Overtime Pay under FLSA HOME CAPITAL: West Face Opts Out of Class Action Settlement HOMESIDE FINANCIAL: "Cunningham" Stayed Pending ACA Int'l. Ruling HOTELS.COM LP: OTC Charges Ruling in Tax Ordinance Suit Vacated HSBC CARD: Settlement in "Medeiros" Suit Has Final Approval HSBC HOLDINGS: Plaintiff in Failed Class Action Faces $1MM Costs ICHIBAN GROUP: Court Narrows Claims in "Zhang" Labor Suit IMPAX LABORATORIES: "Vana" Suit Seeks to Enjoin Impax Merger IMPAX LABORATORIES: "Stone" Suit Seeks to Enjoin Amneal Merger JPMORGAN CHASE: Call Center Agents Not Paid OT, Rivenbark Says KATANGA MINING: Jan. 29 Lead Plaintiff Motion Deadline Set KOHL'S DEPARTMENT STORES: Judge Junks Suit Over Text Messages LAWRENCE LIVERMORE: Oakland Court Decertifies Retirees' Class LIFE PARTNERS: Pillar Funds' Appeal from Class Certs Denied LOCK HAVEN: Older Employees File Age Discrimination Class Action MASTERCARD: Faces Collective Action Over Interchange Fees MAXX POWERSPORT: May Amend Counterclaims in Usury Suit MDL 2382: Court Certifies Class in Vacuum Marketing & Sales Suit MDL 2740: Pinedas Sue over Docetaxel Injection Concentrate MDL 2800: "Bitton" Suit vs. Equifax Moved to N.D. Georgia MDL 2800: "Caplan" Suit vs. Equifax Transferred to N.D. Georgia MDL 2800: "Tirelli" Suit vs. Equifax Moved to N.D. Georgia MDL 2800: "Austin" Suit vs Equifax Seeks Moved to N.D. Georgia MDL 2800: Equifax Faces "Kishel" Suit over Consumer Data Breach MDL 2800: "Davis" Suit vs Equifax Transferred to N.D. Georgia MDL 2800: "Hensley" Suit v. Equifax Moved to N.D. Georgia MDL 2800: Pino Sues Equifax over Consumer Data Breach MDL 2800: Sprecher Sues Equifax over Consumer Data Breach MDL 2800: "Amadick" Suit v. Equifax Moved to N.D. Georgia MDL 2800: "Anderson" Suit v. Equifax Moved to N.D. Georgia MDL 2800: "Byas" Suit v. Equifax Moved to N.D. Georgia MDL 2800: "Tada" Suit v. Equifax Moved to N.D. Georgia MDL 2800: "Cole" Suit v. Equifax Transferred to N.D. Georgia MDL 2800: "Gallant" Suit vs. Equifax Transferred to N.D. Georgia MDL 2800: "Avise" Suit vs. Equifax Transferred to N.D. Georgia MDL 2800: "Joof" Suit vs. Equifax Transferred to N.D Georgia MDL 2800: "Neilan" Suit v. Equifax Moved to N.D. Georgia MDL 2800: "Faillace" Suit vs. Equifax Transferred to N.D. Georgia MDL 2800: "Barker" Suit vs Equifax Transferred to N.D. Georgia MDL 2800: "Collins" Suit vs. Equifax Transferred to N.D. Georgia MDL 2800: "Bandoh-Aidoo" Suit v. Equifax Moved to N.D. Georgia MDL 2800: "Santomauro" Suit v. Equifax Moved to N.D. Georgia MDL 2800: "Raffin" Suit v. Equifax Moved to N.D. Georgia MDL 2800: "Skye" Suit vs. Equifax Transferred to N.D. Georgia MDL 2800: "Duran" Suit vs. Equifax Transferred to N.D. Georgia MDL 2800: "Gerstein" Suit v. Equifax Moved to N.D. Georgia MDL 2800: "Kendall" Suit vs. Equifax Transferred to N.D. Georgia MDL 2800: "Kilgore" Suit v. Equifax Moved to N.D. Georgia MDL 2800: "Levy" Suit vs. Equifax Transferred to N.D. Georgia MDL 2800: "Belden" Suit vs. Equifax Transferred to N.D. Georgia MDL 2800: "Christen" Suit vs. Equifax Transferred to N.D. Georgia MDL 2800: "Derby" Suit vs. Equifax Transferred to N.D. Georgia MDL 2800: "Gibson" Suit v. Equifax Moved to N.D. Georgia MDL 2800: "Grossberg" Suit v. Equifax Moved to N.D. Georgia MDL 2800: "Jorge" Suit vs. Equifax Transferred to N.D. Georgia MDL 2800: "Salinas" Suit vs. Equifax Transferred to N.D. Georgia MDL 2800: "Zamora" Suit vs. Equifax Transferred to N.D. Georgia MDL 2800: "Mann" Suit vs. Equifax Transferred to N.D. Georgia MDL 2800: "Pavitt" Suit vs. Equifax Transferred to N.D. Georgia MDL 2800: "House" Suit vs. Equifax Transferred to N.D. Georgia MDL 2800: "Bahnmaier" Suit vs. Equifax Moved to N.D. Georgia MDL 2800: "Collins" Suit v. Equifax Moved to N.D. Georgia MDL 2800: "Lynch" Suit vs. Equifax Transferred to N.D. Georgia MDL 2800: "Martin" Suit vs. Equifax Moved to N.D. Georgia MDL 2807: "Huffer" Suit v. Sonic Consolidated in N.D. Ohio MDL 2807: "Lewin" Suit vs. Sonic Consolidated in N.D. Ohio MDL 2807: "Ramirez" Suit vs. Sonic Moved to N.D. Ohio MENORAH PARK: "Thompson" Suit Seeks Overtime Pay under FLSA MST GENERAL: "Guaman" Suit Seeks Unpaid Wages under Labor Law NEW TELECOM: Lin Seeks Unpaid minimum Wages, OT under Labor Law NEWFIT DALLAS: Fails to Pay Workers OT, "Avila" Suit Claims NPAS INC: Pickles Violates Fair Debt Collection Practices Act NURSE FORCE: "Pinard" Suit Seeks Overtime Pay under FLSA OHIO STATE: Ex-Player Seeks to Expand Commercial Image Use Suit PHARM-SAVE INC: Court Narrows Claims in "Savidge" PII Theft Suit PRINCE GEORGE'S HOSPITAL: Faces Class Action Over Fake Doctor RECON INDUSTRIES: "Roberts" Suit Seeks Minimum Pay REXALL SUNDOWN: Court Dismisses "Seegert" Suit Without Prejudice RYB EDUCATION: Law Firms Recruit Plaintiffs in Securities Suit SAINT CHARLES SCHOOL: Bid to Strike 3rd Amended "Stanek" OK'd SCHARFMAN ORGANIZATION: Faces Class Action Over J-51 Tax Program SEAWORLD ENTERTAINMENT: Court Certifies Class in Securities Suit SENTINEL TRANSPORATION: Fails to Pay Minimum Wages, Padilla Says SILVER SPRING: Faruqi & Faruqi Files Securities Class Action SILVERTREE MOHAVE: Court Dismisses "Lewis" Suit with Prejudice SONIQ SERVICES: Violates Wage and Hour Laws, Alexwright Says SP BANCORP: Md. Spec. App. Affirms Dismissal of "Stisser" Suit STATE FARM: Transferred MAO-MSO Class Suit to C.D. Illinois SUGAR TRANSPORT: Trial in "Guinn" Continued to Aug. 21 T-MOBILE USA: Stanbury Sues over Spam Text Messages TAKE TWO: Seyfarth Shaw Attorneys Discuss BIPA Case Ruling TENAGLIA & HUNT: Raju Sues over Debt Collection Practices TERMINIX INTERNATIONAL: Fails to Pay Minimum Wage, Renteria Says TESCO CORP: Rigrodsky & Long Files Securities Class Action TEZOS: Jan. 25 Lead Plaintiff Motion Deadline Set THE GAP: Faces Class Suit in New Jersey Over Deceiving Markdowns TIRE DISCOUNTERS: Service Managers Class in "Lindsey" Decertified TIVITY HEALTH: Jan. 19 Lead Plaintiff Motion Deadline Set TOLEDO TOOL: Court Denies Class Certification in "Marek" TRACTOR SUPPLY: Faces "Johnson" Wage-and-Hour Suit UBER TECHNOLOGIES: City of Chicago Files Data Breach Suit UBER TECHNOLOGIES: Faces Data Breach Class Action in Australia UBER TECHNOLOGIES: Local Governments File Joint Data Breach Suit UNITED STATES: Bernsen Named Lead Counsel in "Andrus" Suit UNITED STATES: Stetson Named Lead Counsel in "Andrus" Suit UNITED STATES: Filing of 1st Amended Suit Against HUD Partly OKd WAL-MART STORES: 5th Cir. Denies En Banc Rehearing Bid in "Odle" WELLS FARGO: Court Reserves Ruling Bid to Arbitrate "Mitchell" WESTMINSTER MANAGEMENT: Asks Judge to Hide Names of Investors WILLIS TOWERS: Pension Fund Files Class Action Over 2016 Merger WISCONSIN: CCI Inmates' Bid for Class Certification Denied WOLFGANG'S STEAKHOUSE: N.Y. Court Dismisses FACTA Class Action XE SERVICES: Court Dismisses "Mercadante" ERISA Suit w/ Prejudice XPO LOGISTICS: Faces "Alderson" Suit Over Failure to Pay Overtime YELP INC: 9th Cir. Upholds Dismissal of Securities Class Action YUMS CHINESE: "Wei" Suit Seeks Unpaid Overtime Wages under FLSA * Elmira Housing Authority Wins Class Action Against D.C. Firm * "Natural" Class Action Reflects Rise in Food Litigation * Vaginal Mesh Products Banned in Australia After Class Action ********* 360 DIGITAL: Sends Spam Text Messages, "Hormozdi" Suit Claims ------------------------------------------------------------- SHIREEN HORMOZDI, on behalf of herself and all others similarly situated, the Plaintiff, v. 360 DIGITAL MARKETING, LLC, the Defendant, Case No. 1:17-cv-05135-WSD (N.D. Ga., Dec. 13, 2017), seeks damages as a result of Defendant's violation of the Telephone Consumer Protection Act. This action arises out of Defendant's practice of sending autodialed text messages to individuals. The Plaintiff is one recipient of Defendant's spam text messaging. Defendant has sent text messages to Plaintiff's cellular telephone. These text messages were sent without prior express written consent of the recipients. All of these text messages were sent using an automatic telephone dialing system, and none of them were sent for an emergency purpose. 360 Digital delivers end-to-end digital marketing solutions.[BN] The Plaintiff is represented by: Charles M. Clapp, Esq. CMC LAW 5 Concourse Parkway NE, Suite 3000 Atlanta, GA 30328 Telephone: (404) 585 0040 Facsimile: (404) 393 8893 E-mail: charles@lawcmc.com ABERCROMBIE & FITCH: "Brown" Suit Moved to S.D. Ohio Court ---------------------------------------------------------- The class action lawsuit titled Alexander Brown and Arik Silva, individually and on behalf of all others similarly situated, the Plaintiffs, v. Abercrombie & Fitch Co., Abercrombie & Fitch Stores Inc., and Does 1-50, inclusive, Case No. 2:14-cv-01242, was transferred from the U.S. District Court for the Central District of California, to the U.S. District Court for the Southern District of Ohio (Columbus) on Dec. 14, 2017. The District Court Clerk assigned Case No. 2:17-cv-01093-MHW-KAJ to the proceeding. The case is assigned to the Hon. Judge Michael H. Watson. According to the complaint, the Plaintiffs have been injured by Defendants' failure to provide rest periods, failure to reimburse necessary expenditures incurred in direct consequence of Plaintiffs discharge of duties for Defendants, compulsion or coercion of Plaintiffs to patronize Defendants' Stores and/or other persons, and failure to minimum wages due hours for worked. Abercrombie & Fitch is an American retailer that focuses on upscale casual wear for young consumers, its headquarters are in New Albany, Ohio, a suburb of Columbus. The company operates two other offshoot brands: Abercrombie Kids & Hollister Co.[BN] The Plaintiffs are represented by: Randall B Aiman-Smith, Esq. Carey A James, Esq. Hallie Von Rock, Esq. Reed W L Marcy, Esq. AIMAN-SMITH AND MARCY 7677 Oakport Street Suite 1020 Oakland, CA 94621 Telephone: (510) 562 6800 Facsimile: (510) 662 6830 E-mail: ras@asmlawyers.com caj@asmlawyers.com hvr@asmlawyers.com rwlm@asmlawyers.com The Defendants are represented by: Alison B Willard, Esq. Barbara A Fitzgerald, Esq. Andrew P Frederick, Esq. John R Richards, Esq. Kathy H Gao, Esq. MORGAN LEWIS AND BOCKIUS LLP One Market Spear Street Tower San Francisco, CA 94105 Telephone: (415) 442 1000 Facsimile: (415) 442 1001 E-mail: awillard@morganlewis.com bfitzgerald@morganlewis.com andrew.frederick@morganlewis.com jrrichards@morganlewis.com kgao@morganlewis.com - and - Mark A. Knueve, Esq. Daren S Garcia, Esq. Michael Jacob Ball, Esq. Tyler B Pensyl, Esq. VORYS SATER SEYMOUR & PEASE-2 PO Box 1008 52 E Gay Street Columbus, OH 43216-1008 Telephone: (614) 464 6400 E-mail: maknueve@vorys.com mjball@vorys.com tbpensyl@vssp.com - and - Ryan Christopher Bykerk, Esq. Ashley Michelle Farrell, Esq. Mark D. Kemple, Esq. GREENBERG TRAURIG LLP 1840 Century Park East Suite 1900 Los Angeles, CA 90067 Telephone: (310) 586 7700 Facsimile: (310) 586-7800 E-mail: bykerkr@gtlaw.com farrellpicketta@gtlaw.com dsgarcia@vssp.com kemplem@gtlaw.com ACCREDITED DEBT: Terrado et al. Sue over Commission-Only Pay ------------------------------------------------------------ JORDAN TERRADO, PAKTIN KARIM, and JOSHUA ATOE individually and on behalf of all others similarly situated, the Plaintiffs, v. ACCREDITED DEBT RELIEF, LLC, SHAWN R. SYNDERGAARD, BENJAMIN P. SCHWAN, and BRIAN M. STONE, jointly and severally, the Defendants, Case No. 3:17-cv-02509-CAB-NLS (S.D. Cal., Dec. 14, 2017), seeks to recover wages for all hours under the Fair Labor Standards Act, California Labor Code, and California Industrial Welfare Commission Wage Order. The Defendants are in the debt-relief business. As part of their business practices, Defendants utilize tactics to generate their leads, including but not limited to contacting and enticing financially distressed consumers to hire Accredited Debt Relief to connect them with debt relief providers over the phone. The Defendants employed call center sales employees, referred to herein as call center agents. The Defendants employed these Agents, including Plaintiffs, in call center facilities in San Diego and La Jolla, California, respectively. The Defendants employ over 100 agents to make sales calls on prospective customer leads in the form of a call center with inbound and outbound calls. The individuals Plaintiffs seek to represent in this action are current and former Agents who are similarly situated to themselves in terms of their positions, job duties, pay structure, and Defendants' violations of federal and state law. The Defendants required their Agents to work a full-time schedule, plus overtime. However, Defendants did not actually or accurately record their Agents' compensable work time as required by law. Instead of paying Agents based on hours worked, Defendants allegedly paid their Agents on a contingent, commission-only basis. The Defendants' contingent, commission-only compensation system required payment of overtime based on actual wages, including commissions, during each work week. Defendants did not calculate overtime payments, when they were paid, using the correct regular rate for the Agents, but rather, for example, a fixed hourly rate of $15.80. Furthermore, Defendants required Managers to manually alter and falsify time records, giving them direct access to the data in the Paychex system. Defendants' Paychex pay stubs are in large part inaccurate, unreliable, and do not comply with the law. The Defendants also failed to pay Agents for all hours worked. For example, in the course of performing their job responsibilities, Defendants' Agents used multiple computer networks, software programs, applications, and phone systems. The time Agents spent booting up and logging into these programs and applications before and after their shifts was compensable because the programs and applications were an integral, indispensable, and important part of the Agents' work and they could not perform their jobs effectively without them.[BN] [ Counsel for Plaintiff and Proposed Class and Collective Members: Trenton Kashima FINKELSTEIN & KRINSK, LLP 550 West C St., Suite 1760 San Diego, CA 92101 Telephone: (619) 238 1333 Facsimile: (619) 238 5425 - and - James Hawkins, Esq. Gregory Mauro, Esq. JAMES HAWKINS, APLC 9880 Research Drive, Suite 200 Irvine, CA 92618 Telephone: (949) 387 7200 E-mail: james@jameshawkinsaplc.com greg@jameshawkinsaplc.com -- amended Dec. 29, 2017] ADVANCED CALL: Parsons Sues over Debt Collection Practices ---------------------------------------------------------- KENNETH J. PARSONS, on behalf of himself and all others similarly situated, the Plaintiff, v. ADVANCED CALL CENTER TECHNOLOGIES, LLC, a Georgia Limited Liability Company, the Defendant, Case No. 2:17-cv-14436-KAM (S.D. Fla., Dec. 14, 2017), seeks to recover statutory damages as a result of Defendant's violation of the Fair Debt Collection Practices Act. The Defendant is a Georgia Limited Liability Company engaged in the business of collecting consumer debts. It operates from offices located at 1235 Westlakes Drive, Suite 160, Berwyn, Pennsylvania 19312. The Defendant regularly uses the United States Postal Service and telephone in the collection of consumer debt. The Defendant regularly collects or attempts to collect debts for other parties. According to the complaint, the Defendant was acting as a debt collector with respect to the collection of Plaintiff's alleged debt. The Defendant sought to collect from Plaintiff an alleged debt incurred by Plaintiff for personal, family, or household purposes; more specifically, the debt at issue was a delinquent credit card debt. On September 20, 2017, Defendant sent a letter to Plaintiff that sought to collect an alleged debt due to Synchrony Bank. The Demand Letter was Defendant's initial communication with Plaintiff with respect to the alleged debt. According to the suit, the Defendant's Demand Letter falsely and misleadingly pronounces the verification rights of Plaintiff provided by 15 U.S.C. section 1692g.[BN] Attorney for Plaintiff: Leo W. Desmond, Esq. DESMOND LAW FIRM, P.C. 5070 Highway A1A, Suite D Vero Beach, FL 32963 Telephone: (772) 231 9600 Facsimile: (772) 231 0300 E-mail: lwd@desmondlawfirm.com AEROTEK INC: Court Junks "Abdul-Hasib" FLSA Suit w/o Prejudice -------------------------------------------------------------- Judge Marvin J. Garbis of the U.S. District Court for the District of Maryland dismissed without prejudice the case styled LINA ABDUL-HASIB, et al., Plaintiffs, v. AEROTEK, INC., Defendant, Civil Action No. MJG-17-1502 (D. Md.). Abdul-Hasib filed a putative collective action against Aerotek asserting an unpaid wages claim under the Fair Labor Standards Act ("FLSA"). Aliyah Smith and Beverly McGunigal joined the putative collective action as party Plaintiffs. Aerotek is a staffing company and has employed both Abdul-Hasib and Smith for temporary assignments. There are no records, however, indicating that McGunigal has ever been employed by Aerotek. As a part of their employment with Aerotek, Abdul-Hasib and Smith each entered into a Mutual Arbitration Agreement. The Agreements were signed electronically; Abdul-Hasib signed on Feb. 18, 2017, and Smith signed on Nov. 12, 2015. By its Motion to Dismiss, Aerotek seeks dismissal of Abdul-Hasib and Smith's claims without prejudice to their ability to pursue the claims in arbitration. Aerotek also seeks dismissal of McGunigal's claims because she cannot establish the requisite employer-employee relationship. McGunigal has subsequently withdrawn her consent to join the litigation. Therefore, McGunigal's claim will be dismissed. Abdul-Hasib and Smith do not dispute that they signed the Agreement, nor do they dispute that their claims are within the scope of the Agreement's covered claims. By filing the instant lawsuit, Abdul-Hasib and Smith have breached the Agreement. However, Abdul-Hasib and Smith assert that the Class Action Waiver contained within the Agreement is not enforceable, and therefore, the Court must deny Aerotek's dismissal motion or alternatively, the Court should wait for the United States Supreme Court's decision on the validity of class action waivers in employment contracts. Judge Garbis explains that under current Fourth Circuit precedent, class action waivers have been held permissible. As the Plaintiffs have noted, the two district courts in the Fourth Circuit to have specifically addressed class action waivers in the context of the FLSA and the National Labor Relations Act ("NLRA") have found such waivers valid and enforceable. Importantly, even if the Court were to find that the Class Action Waiver was not enforceable, this would not affect the enforceability of the arbitration provision of the Agreement, which is severable and remains intact. Further, while not dispositive, the Judge also notes that a putative class or collective action representative's claim is brought individually to the extent that the Court has not yet made the findings necessary to conditionally certify a collective action under FLSA, or a class action under the Federal Rules of Civil Procedure. As such, the individual claim is arbitrable under the Agreement. Accordingly, he concludes that Abdul-Hasib and Smith's claims are subject to a valid and enforceable arbitration agreement. For these reasons, Judge Garbis granted Aerotek's Motion to Dismiss the Claims of the Plaintiffs. Plaintiffs Abdul-Hasib and Smith's claims are dismissed without prejudice. Plaintiff McGunigal's claim is dismissed for failure to state a claim. The Judgment will be entered by separate Order. A full-text copy of the Court's Nov. 29, 2017 Memorandum and Order is available at https://is.gd/P83NU9 from Leagle.com. Lina Abdul-Hasib, on behalf of herself and others similarly situated, Plaintiff, represented by Jason S. Rathod -- jrathod@classlawdc.com -- Migliaccio and Rathod LLP. Lina Abdul-Hasib, on behalf of herself and others similarly situated, Plaintiff, represented by R. Andrew Santillo -- asantillo@winebrakelaw.com -- Winebrake & Santillo, LLC, pro hac vice & Nicholas A. Migliaccio -- nmigliaccio@classlawdc.com -- Migliaccio & Rathod LLP. Aliyah Smith, Plaintiff, represented by Jason S. Rathod, Migliaccio and Rathod LLP, R. Andrew Santillo, Winebrake & Santillo, LLC & Nicholas A. Migliaccio, Migliaccio & Rathod LLP. Beverly McGunigal, Plaintiff, represented by Jason S. Rathod, Migliaccio and Rathod LLP & Nicholas A. Migliaccio, Migliaccio & Rathod LLP. Aerotek, Inc., Defendant, represented by Steven A. Neeley, Jr. -- steve.neeley@huschblackwell.com -- Husch Blackwell LLP & William E. Corum -- william.corum@huschblackwell.com -- Husch Blackwell LLP, pro hac vice. AFL: John Platten Joins Concussion Class Action ----------------------------------------------- Stuart Honeysett, writing for nine.com.au, reports that former Brownlow medallist and four-time premiership winner John Platten has become the latest player to join a damages action against the AFL over concussion-related concerns. The 54-year-old joins former Essendon and Geelong ruckman John Barnes and retired Melbourne and North Melbourne flyer Shaun Smith as plaintiffs in the case. The Herald Sun has reported Platten was concussed 36 times in his career, and has said in the past he is concerned that he may be experiencing the early stages of Alzheimer's disease. The former champion played 258 games for the Hawks between 1986-98. "John went to hospital 10 times for concussions and always played the next week," lead lawyer Greg Griffin said. "He was a gladiator because that's what they had to do -- and a lot of them are paying a terrible price for that now." Mr. Barnes, who is the lead plaintiff in the case and won a premiership at the Bombers in 2000, recently said he was concerned the head knocks that he suffered during his career had triggered episodes of epilepsy and memory loss. "It's turned my life upside down . . . I'm not the same bloke I used to be," Mr. Barnes said. "I know things are changing in my mind and I want answers." Mr. Griffin, a commercial lawyer and chairman of A-League club Adelaide United, said writs could be lodged with the Federal Court next year. The case could have major ramifications for the code, in light of similar action that triggered a $1 billion lawsuit in the NFL. "The VFL/AFL have known for 40 years about the dangers associated with allowing concussed players to continue to play," Mr. Griffin said. "And only up until very recently has there been any attempt to protect the wellbeing of these players. "The problem the AFL has got is that the medical evidence has been around for decades -- everybody knew about it -- it's just like the NFL in the United States. "But the AFL chose to accept a contrary medical position, which was that there was no linkage between returning to the field after concussions and subsequent brain injury." The AFL Players Association has said it supports any player's right to pursue legal action. [GN] ALCON LABORATORIES: America's Health Suit Moved to N.D. Ill. ------------------------------------------------------------ The class action lawsuit titled America's Health & Resource Center, Ltd., an Illinois corporation, and Affiliated Health Group, Ltd., an Illinois corporation, individually and as the representatives of a class of similarly situated persons, v. Alcon Laboratories Inc. and Novartis Pharmaceuticals Corporation and John Does 1-12, the Defendant, Case No. 1:17-mc-00193, was transferred from the U.S. District Court for the District of Colorado, to the U.S. District Court for the Northern District of Illinois - (Chicago), on Dec. 8, 2017. The District Court Clerk assigned Case No. 1:17-cv-08857 to the proceeding. The case is assigned to the Hon. Gary Feinerman. Alcon is an American global medical company specializing in eye care products and headquartered in Hunenberg, Switzerland. Alcon's American headquarters are located in Fort Worth, Texas. Alcon is a subsidiary of Novartis.[BN] The Plaintiffs are represented by: Daniel J. Cohen, Esq. BOCK, HATCH, LEWIS & OPPENHEIM, LLC 134 N. La Salle St., Suite 1000 Chicago, IL 60602 Telephone: (314) 497 6352 E-mail: danieljaycohen209@gmail.com ALLEGIANT AIR: Must Reply to "Doliboa" Suit by Jan. 12 ------------------------------------------------------ Judge George Foley, Jr., of the U.S. District Court for the District of Nevada extended the deadline for Allegiant to respond to the case, SETH DOLIBOA, individually and on behalf of all others similarly situated, Plaintiffs, v. ALLEGIANT AIR, LLC, Defendant, Case No. 2:17-CV-02779-JCM-GWF (D. Nev.) to Jan. 12, 2018. The parties have stipulated to extend the deadline for the Defendant to respond to the Complaint to Jan. 12, 2018 to allow the counsel for the Defendant to familiarize themselves with the matter and prepare an appropriate response to the Complaint. A full-text copy of the Court's Nov. 29, 2017 Order is available at https://is.gd/wsOxFf from Leagle.com. Seth Doliboa, Plaintiff, represented by Francis J. Flynn, Jr., Law Office of Francis J. Flynn, Jr.. Seth Doliboa, Plaintiff, represented by Michael Kind, Kazerouni Law Group, APC. Allegiant Air, LLC, Defendant, represented by Michael R. Hogue -- hoguem@gtlaw.com -- Greenberg Traurig, LLP. ALLERGAN INC: Faces Antitrust Class Action Over Restasis Price -------------------------------------------------------------- Adam Lidgett, writing for Law360, reports that Allergan Inc. was hit with a lawsuit by a proposed class of indirect purchasers who bought the dry-eye treatment Restasis at allegedly "supracompetitive prices," saying the company entered into a deal with a Native American tribe to avoid patent invalidation. The Fraternal Order of Police, Miami Lodge 20, Insurance Trust Fund said in its complaint that even though the company made $3.3 billion from Restasis sales over 11 1/2 years while it was patent- protected, it developed a scheme to keep generic competitors off the market. [GN] The case is Fraternal Order of Police, Miami Lodge 20, Insurance Trust Fund v. Allergan, Inc., Case No. 2:17-cv-00755 (E.D. Tex.). The case is assigned to Judge Rodney Gilstrap. Law firms involved in the case are Hilliard & Shadowen LLP, Parker Bunt, and Shepherd Finkelman. ALLERGAN INC: Sergeants Fund Sues over Monopoly of Restatis Drops ----------------------------------------------------------------- Sergeants Benevolent Association Health & Welfare Fund, on behalf of itself and all others similarly situated, the Plaintiff, v. Allergan, Inc., the Defendant, Case No. 1:17-cv-07300 (E.D.N.Y., Dec. 14, 2017), seeks injunctive relief to end Allergan's wrongful monopoly conduct, together with damages for purchases and reimbursements of Restatis by Sergeants and other end-payors since May 17, 2014 -- when, but for Allergan's unlawful scheme, the Restatis market would have been opened to competition. According to the complaint, Allergan has reaped billions of dollars in profits from sales of its Restatis dry-eye drops. Restatis is a blockbuster drug and a key revenue source for Allergan that delivered nearly $1.5 billion in 2016 sales. This action arises because, instead of allowing its Restatis pharmaceutical patents to expire in the ordinary course, Allergan carried out a multifaceted scheme to prolong its Restatis monopoly and forestall the generic competition that should have, and otherwise would have, lowered prices for Sergeants and other end- payors. Each additional month of exclusive Restatis sales results in tens of millions of dollars in additional profits for Allergan. Allergan abused legal process on a number of fronts to perpetuate a patent monopoly to which it was no longer entitled. It committed fraud on the Patent Office to gain approval of a second wave of Restatis patents that never should have issued. It filed a set of sham citizen petitions with the FDA to delay approval of competing generic drugs. It pursued baseless infringement litigation against the generic drug makers that sought to compete in the Restatis market. And, facing a probable invalidity determination in an inter pares Patent Office proceeding, Allergan assigned the second wave of Restatis patents to a Mohawk Indian tribe in the hopes that borrowing the tribe's sovereign immunity (in exchange for a multi-million dollar reverse-licensing fee) could lend its patents the protection that the law does not afford. With these and other acts, Allergan manipulated the legal process to preserve its monopoly profits and foreclose generic entry, thereby preventing more affordable versions of Restatis from coming onto the market and causing end-payors to pay supracompetitive monopoly prices. Allergan's exclusionary conduct violates the antitrust laws. Allergan, Inc. is a global pharmaceutical company focused on eye care, neurosciences, medical dermatology, medical aesthetics, breast enhancement, obesity intervention and urologics.[BN] Attorneys for Plaintiff: Peter Safirstein, Esq. SAFIRSTEIN METCALF LLP 1250 Broadway, 27th Floor New York, NY 10001 Telephone: (212) 201 2845 E-mail: psafirstein@safirsteinmetcalf.com - and - Dena C. Sharp, Esq. Jordan Elias, Esq. Adam E. Polk, Esq. Daniel C. Girard, Esq. GIRARD GIBBS LLP 711 Third Ave, 20th Floor New York, New York 10017 Telephone: (212) 798 0136 Facsimile: (212) 557 2952 E-mail: dcg@girardgibbs.com chc@girardgibbs.com je@girardgibbs.com aep@girardgibbs.com ASKARI SECURITY: Nkanteen Seeks Minimum Pay, OT under Labor Code ---------------------------------------------------------------- PRINCEDUKE NKANTEEN, individually, and on behalf of all others similarly situated, and the general public, the Plaintiff, v. ASKARI SECURITY SERVICES, INC., a California corporation; and DOES 1 through 50, inclusive, the Defendant, Case No. BC686998 (Cal. Super. Ct., Dec. 13, 2017), seeks to recover unpaid overtime and minimum wages California Labor Code. According to the complaint, the Defendants employed Plaintiff and other persons as hourly-paid or non-exempt employees. The Defendants, jointly and severally, employed Plaintiff as an hourly, nonexempt Security Driver, from May 2016 through June 5, 2017, in the State of California, including the County of Los Angeles. The Defendant failed to compensate them for all hours worked, missed meal periods and/or rest breaks. The Defendants engaged in a uniform policy and systematic scheme of wage abuse against their hourly-paid or non-exempt employees. Askari Security is a fully licensed security firm with a statewide operational presence in the state of California.[BN] The Plaintiff is represented by: Heather Davis, Esq. Amir Nayebdadash, Esq. Luke Clapp, Esq. PROTECTION LAW GROUP, LLP 136 Main St., Suite A El Segundo, CA 90245 Telephone: (424) 290 3095 Facsimile: (866) 264 7880 AVEO: Levitt Robertson Seeks Customers to Join Class Action ----------------------------------------------------------- Adele Ferguson and Sarah Danckert, writing for The Weekly Source, report that on Nov. 25 Fairfax's Adele Ferguson returned in the Sydney Morning Herald and The Age to prosecute the case against the country's No.2 village operator with the headline "Hundred sign up for second Aveo class action". Lawyers for Levitt Robertson are charging ahead with a class action they estimate at $30 million after securing a litigation funder and lodging formal paperwork in the Federal Court last month. The Levitt Robinson class case is open to anyone who terminated an Aveo contract after 2015 and is specifically focuses on the company's strategy to change freehold titles to leasehold, as part of their Aveo Way strategy. Levitt Robinson senior partner Stewart Levitt -- SLevitt@levittrobinson.com -- said Aveo's changes to management contracts had depressed resale values across Aveo villages. "We are seeking compensation for owners and former owners, representing the difference in value of what they should have received and what they did receive, if they have sold their dwellings since early 2015," he said. The class action also seeks the return of sales commissions which Aveo has been charging residents to sell their units to themselves. Aveo is not alone in taking advantage of elderly people at a very vulnerable stage in their live. On Nov. 24 Aveo filed its defence. For Levitt Robertson to take the action they needed a lead applicant -- an Aveo customer that has had a significant loss and is typical of those the class action is to represent. They selected the children of a now deceased Peregian Springs village (Sunshine Coast) resident, Robert Luke. He bought the freehold unit in 2003 for $270,000 and it was sold for $379,000 on a 99-year lease. The action claims Robert Luke's family received less from the sale because Aveo converted the title from freehold to leasehold and that Aveo failed to disclose this to them. Aveo says the outgoing resident has the option to stay as is or take up their Aveo Way strategy of converting to leasehold by Aveo buying the unit at an agreed price and receive a number of benefits including no liability for refurbishment costs or sales commissions (up to 3%). Levitt Robertson question the price Aveo offered (and thus Aveo's integrity) and this Aveo Way deal. But it seems they have their facts wrong in the Luke case. Aveo has responded: That sale was commenced in late 2014 at a time when the Aveo Way programme had not yet been introduced to the village where the unit is located. A pre-sale estimate of the unit was prepared on that basis. Several months later, and after the Aveo Way programme had been introduced, the lead applicants consented to their unit being sold under the Aveo Way programme. That change had no impact on the price achieved which was in fact higher than the pre-sale estimate prepared prior to the introduction of the Aveo Way programme. The Fairfax article also features Prof Murray Gillin who is one of the 200 retirees who Levitt Robinson have signed up to their class action. He was a freehold resident at Sackville Grange village in Kew (VIC). However Prof. Gillin sold his unit as a freehold transaction in August 2016 and Sackville Grange was not offering the Aveo Way contract at that time. It appears that Fairfax missed this detail. The next court appearance is in March and the expectation is the Luke family claim will be struck out and Levitt Robertson will have to start again, meaning the class action will drag later into the year. [GN] AVIS BUDGET CAR: Settles FCRA Class Action for $2.7 Million ----------------------------------------------------------- Thomas Ahearn, writing for Employment Screening Resources, reports that Avis has agreed to pay $2.7 million to settle a class action lawsuit that claims the car rental company allegedly violated the federal Fair Credit Reporting Act (FCRA) when conducting background checks on job applicants for employment purposes, according to a report on the TopClassActions.com website. Top Class Actions reports plaintiff Angela Fuller claimed that when the defendant Avis conducted a background check on her in 2015 "she did not get the job because of a mistake in her consumer report that listed a 1985 infraction as a conviction." She claimed consumer reports are only supposed to list convictions for the past seven years. Top Class Actions reports that Avis has agreed to pay cash or another form of compensation under the terms of the settlement. Although the FCRA has a two-year statute of limitations, even those whose claims fall outside of the two-year limit will receive compensation under the Avis class action lawsuit settlement: -- Job applicants with Avis who had a credit report pulled by the company between June 9, 2013 and April 28, 2016, will receive a $45 payment. -- Those who lost or were not offered a job based on the consumer report between June 9, 2016 and April 28, 2016, will receive a $650 payment in addition to the $45 payment. -- Those who had a credit report pulled by Avis outside of the statute of limitations will receive up to two $20 vouchers from the car rental company for a weekday car rental. Top Class Actions reports that the defendants "deny that they have committed any wrongful acts or violations of law or that it has any liability to the Plaintiff or the Settlement Class" and that the plaintiff believes the defendants violated the FCRA but "she also recognizes the risk that the Court or a jury might not make that finding." The lawsuit is Fuller v. Avis Budget Car Rental LLC, et al., Case No. 2:15-cv-03856, in the U.S. District Court for the District of New Jersey. The complete Top Class Actions article is available at https://topclassactions.com/lawsuit-settlements/lawsuit- news/826564-avis-settles-job-applicant-background-check-class- action-2-7m/. Enacted in 1970, the FCRA is federal legislation that promotes the accuracy, fairness, and privacy of consumer information in the files of Consumer Reporting Agencies (CRAs) and protects consumers from the willful and/or negligent inclusion of inaccurate information in their background check reports. [GN] BADGER DAYLIGHTINING: Fails to Pay All Wages, "Shaw" Suit Says -------------------------------------------------------------- BRYAN SHAW, as an individual and on behalf of all employees similarly situated, the Plaintiff, v. BADGER DAYLIGHTINING CORP. dba NEVADA BADGER DAYLIGHTING CORP., an Indiana corporation, the Defendants, Case No. BC686602 (Cal. Super. Ct., Dec. 12, 2017), seeks to recover all wages due, including overtime pay under the California Labor Code. The Plaintiff alleges that Defendant failed to provide meal and rest periods or compensation in lieu, failed to pay wages upon termination of employment, failed to reimburse business expenses; and failed to provide accurate itemized wage statements upon payment of wages. Badger Daylighting is a publicly traded Canadian company. The company was founded in 1992 and is headquartered in Calgary, Alberta.[BN] The Plaintiff is represented by: Kevin Mahoney, Esq. Atoy H. Wilson, Esq. MAHONEY LAW GROUP, APC 249 E. Ocean Boulevard, Suite 814 Long Beach, CA 90802 Telephone No.: (562) 590 5550 Facsimile No.: (562) 590 8400 E-mail: kmahoney@mahoney-law.net kodenbreit@mahonev-law.net awilson@mahoney-law.net BANCO SANTANDER: "Gonzalez" Shareholder Remains in Federal Court ---------------------------------------------------------------- Judge Carmen Consuelo Cerezo of the U.S. District Court for the District of Puerto Rico denied the Plaintiffs' Motion to Remand the case, DIONISIO TRIGO GONZALEZ and ANA RITA SUAREZ SEIN, individually and on behalf of all others similarly situated, and derivatively on behalf of FIRST PUERTO RICO TAX-EXEMPT TARGET MATURITY FUND II, INC.; FIRST PUERTO RICO TAX-EXEMPT TARGET MATURITY FUND III, INC.; FIRST PUERTO RICO TAX-EXEMPT TARGET MATURITY FUND IV, INC.; FIRST PUERTO RICO TARGET MATURITY FUND V, INC.; and FIRST PUERTO RICO TAX-EXEMPT TARGET MATURITY FUND VII, INC. Plaintiffs, v. BANCO SANTANDER, S.A.; SANTANDER BANCORP; BANCO SANTANDER PUERTO RICO; SANTANDER SECURITIES LLC; SANTANDER ASSET MANAGEMENT, LLC; JUAN CARLOS BATLLE; FRANCISCO JAVIER HIDALGO; LUIS ROIG; ROMAN BLANCO; FREDY F. MOLFINO; FERNANDO L. BATLLE; MARIO F. GAZTAMBIDE; FRANCISCO MARRERO MELENDEZ; JOSE E. VASQUEZ BARQUET; and ANTONIO ARIAS III Defendants, v. FIRST PUERTO RICO TAX-EXEMPT TARGET MATURITY FUND II, INC.; FIRST PUERTO RICO TAX-EXEMPT TARGET MATURITY FUND III, INC.; FIRST PUERTO RICO TAXEXEMPT TARGET MATURITY FUND IV, INC.; FIRST PUERTO RICO TARGET MATURITY FUND V, INC.; and FIRST PUERTO RICO TAXEXEMPT TARGET MATURITY FUND VII, INC. Nominal Defendants, Civil 16-2868CCC (D. P.R.). On Sept. 16, 2016, the Plaintiffs filed a lawsuit against the Defendants in state court, asserting derivative and class claims, contending that the Defendants breached their fiduciary and contractual duties as to a number of closed-end Santander funds and as to the funds' investors in violation of various state laws. The closed-end Santander funds in question are First Puerto Rico Tax-Exempt Target Maturity Fund II, Inc., First Puerto Rico Tax- Exempt Target Maturity Fund III, Inc., and First Puerto Rico Tax- Exempt Target Maturity Fund V, Inc., incorporated in Puerto Rico that pool capital to earn income by investing in securities. The Funds, part of the Santander "First Puerto Rico Funds," were offered exclusively to individuals having their principal residence in Puerto Rico and to others whose principal office and principal place of business was located in Puerto Rico. The complaint alleges that SAM served as the investment advisor, Santander Securities as the primary underwriter and primary broker dealer and Banco Santander Puerto Rico as the primary transfer agent, administrator and custodian of the First Puerto Rico Funds. The overall management of the business and affairs of the First Puerto Rico Funds were vested with its Board of Directors. In order to purchase shares of the Funds, shareholders were required to enter into a binding contract for securities and services referred to as the Puerto Rico Residency Representation Letter which incorporated by reference the terms of the Funds' prospectuses. The Plaintiffs further allege that Santander Securities served as underwriter for a significant portion of the bonds issued by the Commonwealth of Puerto Rico and its political subdivisions, organizations, agencies and instrumentalities. The putative shareholder derivative and class action was removed by Defendant Banco Santander, S.A. from the Court of First Instance of the Commonwealth of Puerto Rico, Superior Court of San Juan, on Oct. 25, 2016 pursuant to the Class Action Fairness Act of 2005. The Plaintiffs filed their Motion to Remand on Nov. 15, 2016 arguing that the Court lacks jurisdiction over the action based on the "local controversy" exception under CAFA. They contend that they and the class' principal injuries were caused by the Defendants' wrongdoing and, because the funds were offered only to Puerto Rico residents, there can be no doubt that the injuries were incurred in Puerto Rico. Judge Cerezo denied the Plaintiffs' Motion to Remand on Sept. 29, 2017. She concluded that the Plaintiffs' own allegations defeat their primary argument that the principal injuries resulting from the Defendants' alleged misconduct was localized and did not extend beyond the shores of Puerto Rico. Additionally, the filing of other class actions in the District founded on essentially similar allegations, such as Civil No. 12-1663(CCC), Roman et al v. UBS Financial Services, Inc., et al, and Civil No. 17- 2243(CCC), Ponsa-Rabell et al v. Santander Securities, L.L.C., militate against the applicability of the "local controversy" exception to the case. The Plaintiffs did not discharge their burden of proof, as the party seeking remand, that would entitle them to avail themselves of the narrow local controversy exception to CAFA jurisdiction. A full-text copy of the Court's Dec. 1, 2017 Statement of Reasons is available at https://is.gd/pJycYi from Leagle.com. Dionisio Trigo-Gonzalez, Plaintiff, represented by Harold D. Vicente-Colon -- hdvc@vc-law.net -- Vicente & Cuebas. Dionisio Trigo-Gonzalez, Plaintiff, represented by Harold D. Vicente-Gonzalez, Vicente & Cuebas & Luis Sanchez-Betances -- lsb@sbsmnlaw.com -- Sanchez-Betances, Sifre & Munoz-Noya Law Offices, PSC. Ana Rita Suarez-Sein, Plaintiff, represented by Harold D. Vicente- Colon, Vicente & Cuebas, Harold D. Vicente-Gonzalez, Vicente & Cuebas & Luis Sanchez-Betances, Sanchez-Betances, Sifre & Munoz- Noya Law Offices, PSC. Banco Santander, S.A., Defendant, represented by Andrew W. Stern - - ASTERN@SIDLEY.COM -- Sidley Austin Brown & Wood LLP, pro hac vice, Nicholas P. Crowell -- NCROWELL@SIDLEY.COM -- Sidley Austin LLP, pro hac vice, Jason R. Aguilo-Suro -- jaguilo@pmalaw.com -- Pietrantoni Mendez & Alvarez, LLC, Sara L. Velez-Santiago -- svelez@pmalaw.com -- Pietrantoni Mendez & Alvarez & Nestor Mendez- Gomez -- nmendez@pmalaw.com -- Pietrantoni Mendez & Alvarez. Santander Bancorp, Defendant, represented by Nestor Mendez-Gomez, Pietrantoni Mendez & Alvarez, Jason R. Aguilo-Suro, Pietrantoni Mendez & Alvarez, LLC & Sara L. Velez-Santiago, Pietrantoni Mendez & Alvarez. Banco Santander Puerto Rico, Defendant, represented by Nestor Mendez-Gomez, Pietrantoni Mendez & Alvarez, Jason R. Aguilo-Suro, Pietrantoni Mendez & Alvarez, LLC & Sara L. Velez-Santiago, Pietrantoni Mendez & Alvarez. Santander Securities LLC, Defendant, represented by Nestor Mendez- Gomez, Pietrantoni Mendez & Alvarez, Jason R. Aguilo-Suro, Pietrantoni Mendez & Alvarez, LLC & Sara L. Velez-Santiago, Pietrantoni Mendez & Alvarez. Santander Asset Management LLC, Defendant, represented by Nestor Mendez-Gomez, Pietrantoni Mendez & Alvarez, Jason R. Aguilo-Suro, Pietrantoni Mendez & Alvarez, LLC & Sara L. Velez-Santiago, Pietrantoni Mendez & Alvarez. Luis Roig, Defendant, represented by Nestor Mendez-Gomez, Pietrantoni Mendez & Alvarez & Jason R. Aguilo-Suro, Pietrantoni Mendez & Alvarez, LLC. Fredy Molfino, Defendant, represented by Nestor Mendez-Gomez, Pietrantoni Mendez & Alvarez & Jason R. Aguilo-Suro, Pietrantoni Mendez & Alvarez, LLC. Mario Gaztambide, Defendant, represented by Alfredo Fernandez- Martinez, Delgado & Fernandez & Pedro Hernandez-Freire. Francisco Marrero-Melendez, Defendant, represented by Alfredo Fernandez-Martinez, Delgado & Fernandez & Pedro Hernandez-Freire. Jose Vasquez-Barquet, Defendant, represented by Alfredo Fernandez- Martinez, Delgado & Fernandez & Pedro Hernandez-Freire. BANGLA TIMES: Alam Seeks Unpaid OT, Minimum Wage under Labor Law ---------------------------------------------------------------- MD Nurul Alam, on behalf of himself and all persons similarly situated, the Plaintiff, v. Desh Bangla Inc.; The Bangla Times Inc.; and Choudhury S. Hasan, the Defendants, Case No. 717196/2017 (N.Y. Sup. Ct., Dec. 12, 2017), seeks to recover unpaid overtime, minimum wage and spread of hours compensation, maximum liquidated damages, prejudgment interest, and attorneys' fees and costs pursuant to New York Labor Law. According to the complaint, the Defendants failed to pay and willfully failed to pay Plaintiff all wages/commissions owed to him (non-overtime and overtime wages, etc.) within the time required by New York Labor Law. Desh Bangla is a Bangladeshi grocery store in Brooklyn, New York.[BN] The Plaintiff is represented by: Mohammed Gangat, Esq. LAW OFFICE OF MOHAMMED GANGAT 27005 79th Avenue New Hyde Park, NY 11040-1546 Telephone: (718) 669 0714 E-mail: mgangat107@gmail.com BAODING CFC: "Liu" Class Suit Seeks to Recover Unpaid Wages ----------------------------------------------------------- Wen Long Liu, individually and on behalf all other employees similarly situated v. Baoding CFC Inc. d/b/a "Baoding CFC", Bin Chen, Nisa Chen, Case No. 712992/2017 (N.Y. Sup. Ct., November 28, 2017), seeks to recover unpaid minimum wage, overtime wages, spread of hours compensation, damages for failure to provide wage statements, damages for failure to provide wage notice at the time of hiring, liquidated damages, interest, costs, and attorneys' fees for violations of the New York Labor Law. The Defendants own, operate, or control a restaurant located at 42-05 162nd Street, Flushing, NY 11358. [BN] The Plaintiff is represented by: Paul Mendez, Esq. HANG & ASSOCIATES, PLLC 136-18 391h Avenue, Suite 1003 Flushing, NY 11354 Telephone: (718) 353-8522 Facsimile: (718) 353-6288 E-mail: jhang@hanglaw.com BARKLEY COURT: Cal. App. Flips Statutory Rates Ruling in "Burd" --------------------------------------------------------------- In the case captioned TARA R. BURD, Plaintiff and Appellant, v. BARKLEY COURT REPORTERS, INC., Defendant and Respondent, Case No. B271694 (Cal. App.), Judge Victoria M. Chavez of the Court of Appeals of California for the Second District, Division Two, reversed the trial court's judgment that the statutory rates apply only to official reporters employed by the court. The Plaintiff is an attorney with her own law firm. The Defendant is a California corporation that provides certified shorthand reporting services. The Plaintiff retained the Defendant to serve as an official court reporter pro tempore at a June 27, 2013 hearing in the Los Angeles County Superior Court. She requested a transcript of the hearing and paid the Defendant approximately $587 for the hearing transcript. The charges included a $6.10 per page fee for the transcript, a $250 half-day per diem, $20 for a PDF copy of the transcript and exhibits, $20 for delivery of the original transcript, and a $42 fee for transcript production. The Plaintiff filed the instant action against the Defendant on May 30, 2014 alleging two causes of action: violation of sections 69950 and 69954, and violation of the California Unfair Competition law predicated on violations of sections 69950 and 69954. She sought, on behalf of herself and others similarly situated, declaratory relief, damages, fees, and costs. The Defendant filed a motion for judgment on the pleadings, arguing that the statutory transcription rates set forth in sections 69950 and 69954 apply only to official reporters employed by the courts, and not to privately retained certified shorthand reporters who serve as official reporters pro tempore. Following a Jan. 8, 2016 hearing at which the parties presented their arguments, the trial court granted the Defendant's motion as to all causes of action. Judgment was subsequently entered in the Defendant's favor, and the appeal followed. Judge Chavez explains that neither section 69950 nor section 69954 distinguishes between court reporters employed by the superior court and privately retained court reporters. Section 69950 does not use the terms "reporter," "official reporter," or "official reporter pro tempore." The statute prescribes the fee for transcription of an original and subsequent copies of a transcript without reference as to what sort of court reporter -- official, pro tempore, court employed, or privately retained -- performs the transcription. The plain language of the statutes indicates that the prescribed transcription fees are intended to apply to court reporters generally, and are not limited to court reporters employed by the superior court. The Judge finds that the trial court did not apply the plain language of sections 69950 and 69954, but instead considered the statutes in the context of article 9 as a whole. While acknowledging that the language of Article 9 is not perfectly consistent with an intention not to regulate rates for all reporters who transcribe courtroom proceedings, the trial court nevertheless concluded that the statutory scheme prescribed fee limits that apply only to court reporters employed by the courts or by local governments. Judge Chavez concludes that the plain language of sections 69950 and 69954 apply statutory transcription rates to official reporters and official reporters pro tempore, when producing transcripts of court proceedings, whether employed by the court or privately retained by a party. The trial court accordingly erred by concluding that the statutory rates apply only to official reporters employed by the court. For these reasons, the Judge reversed the trial court's judgment. The Plaintiff is awarded her costs on appeal. A full-text copy of the Court's Nov. 29, 2017 Order is available at https://is.gd/8smC5R from Leagle.com. Patterson Law Group, James R. Patterson -- jim@pattersonlawgroup.com -- and Allison H. Goddard -- ali@pattersonlawgroup.com; Carlson Lynch Sweet Kilpela & Carpenter and Todd D. Carpenter -- tcarpenter@carlsonlynch.com -- for Plaintiff and Appellant. Lichtfield Cavo, Marc V. Allaria -- allaria@litchfieldcavo.com -- and Joseph P. Tabrisky -- tabrisky@litchfieldcavo.com; Dykema Gossett, Jeffrey G. Huron -- jhuron@dykema.com -- Phu C. Nguyen, and Jyoti P. Avila -- javila@dykema.com -- for Defendant and Respondent. Horvitz & Levy, Lisa Perrochet -- lperrochet@horvitzlevy.com -- and Eric S. Boorstin -- eboorstin@horvitzlevy.com -- as Amicus Curiae on behalf of Plaintiff and Appellant. Richard L. Manford for California Court Reporters Association, Inc. as Amicus Curiae on behalf of Defendant and Respondent. BARNES & NOBLE: "Hartpence" Suit Moved to E.D. Pennsylvania ----------------------------------------------------------- The class action lawsuit titled CHRISTINE N. HARTPENCE, INDIVIDUALLY AND ON BEHALF OF THOSE SIMILARLY SITUATED, the Plaintiff, v. BARNES & NOBLE, INC., the Defendant, Case No. 170602515, was removed from the Court of Common Pleas of Philadelphia, to the U.S. District Court for the Eastern District of Pennsylvania (Philadelphia) on Dec. 8, 2017. The District Court Clerk assigned Case No. 2:17-cv-05491-CMR to the proceeding. The case is assigned to the Hon. Cynthia M. Rufe. Barnes & Noble, a Fortune 500 company, is the bookseller with the largest number of retail outlets in the United States, and a retailer of content, digital media, and educational products.[BN] The Plaintiff is represented by: Thomas More Holland, Esq. LAW OFFICES OF THOMAS MORE HOLLAND 1522 Locust St. Philadelphia, PA 19102 Telephone: (215) 592 8080 Facsimile: (215) 592 8550 E-mail: tmh@tmhlaw.com The Defendant is represented by: Daniel H. Aiken, Esq. DRINKER BIDDLE & REATH LLP ONE LOGAN SQUARE 18th & Cherry Sts. Philadelphia, PA 19103 Telephone: (215) 988 2942 E-mail: daniel.aiken@dbr.com BAYER HEALTHCARE: "Johnson" Remanded to Missouri State Court ------------------------------------------------------------ Judge Ronnie L. White of the U.S. District Court for the Eastern District of Missouri, Eastern Division, remanded the case, TIFFANY JOHNSON, et al., Plaintiffs, v. BAYER HEALTHCARE, LLC, et al., Defendants, Case No. 4:17-CV-1533-RLW (E.D. Mo.) to the Circuit Court for the Twenty-Second Judicial Circuit, City of St. Louis, State of Missouri. The Plaintiffs filed the action in the Circuit Court for the Twenty-Second Judicial Circuit, City of St. Louis, State of Missouri, on March 30 10, 2017. They allege injuries resulting from their use of Essure(R) permanent birth control system. They are citizens of the States of Alabama, Arizona, Arkansas, California, Colorado, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Maine, Michigan, Minnesota, Mississippi, Missouri, Nevada, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wisconsin. The Plaintiffs contend that there are several Named Plaintiffs that are not completely diverse with the Defendants. As admitted by the Defendants, Bayer Corp. is a citizen of Indiana and New Jersey. Defendant Bayer HealthCare is a citizen of Delaware, New Jersey, Pennsylvania, and Germany. Defendant Bayer Essure Inc. is a citizen of Delaware and New Jersey. Defendant Bayer Healthcare Pharmaceuticals Inc. is a citizen of Delaware and New Jersey. On May 18, 2017, the Defendants removed the action to the Court on the basis of diversity jurisdiction under 28 U.S.C. Section 1332(a), federal question jurisdiction under 28 U.S.C. Section 1331, and under the Class Action Fairness Act ("CAFA"). Although there appears to be a lack of complete diversity based upon the face of the Petition, the Defendants argue that they are not subject to personal jurisdiction with respect to the non-Missouri Plaintiffs' claims. They further assert that personal jurisdiction should be resolved before subject matter jurisdiction because it presents the "simpler question." In response, the Plaintiffs maintain that remand is appropriate because complete diversity does not exist and their claims are not fraudulently joined. They also put forth that the Court does not have federal question jurisdiction. Finally, they maintain that removal under CAFA is not appropriate because the Court cannot consider the pending petitions in Hinton v. Bayer Corp., L. Jordan v. Bayer Corp., Black v. Bayer Corp., Hines v. Bayer Corp., and McClain v. Bayer Corp., to be tried in conjunction, and the Court cannot aggregate these plaintiffs named in separate petition to create federal jurisdiction under CAFA. Judge White holds that there is not complete diversity on the face of the Petition and no basis for fraudulent joinder. The Plaintiffs' claims are not fraudulently joined, and complete diversity is absent. The Plaintiffs have filed suit against the Defendants for injuries caused by the same contraception system and arising out of the same practices for those products. He finds that common issues of law and fact are likely to arise in the litigation. Therefore, the Judge holds that joinder is proper and complete diversity does not exist. The Judge also holds that there is no federal cause of action under the Federal Food, Drug, and Cosmetic Act ("FDCA"). The purported federal issues raised in the Plaintiffs' Complaint are not substantial and cannot form the basis for federal question jurisdiction. As held by other courts, accepting federal jurisdiction in a medical device products liability case such as this would disrupt the federal-state balance contemplated by Congress. Therefore, he declines to find federal question jurisdiction. Finally, Judge White holds that the case cannot be combined with Hinton, Jordan, Black, Hines, and McClain to form a single mass action under CAFA. CAFA's "mass action" jurisdictional provision confers federal jurisdiction over civil actions in which the amount in controversy exceeds $75,000 and the monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs' claims involve common questions of law or fact. The Plaintiffs have not joined 100 or more Plaintiffs in a single complaint, nor have they attempted to consolidate the Hinton, Jordan, Black, Hines and McClain actions. Therefore, the Judge holds that CAFA does not apply and CAFA cannot form a basis for federal subject matter jurisdiction. The case will be remanded for further proceedings. Accordingly, Judge White granted the Plaintiffs' Motion to Remand and remanded the matter to the Circuit Court for the Twenty-Second Judicial Circuit, City of St. Louis, State of Missouri. He denied as moot all other motions. A full-text copy of the Court's Nov. 29, 2017 Memorandum and Order is available at https://is.gd/MP2ksa from Leagle.com. Tiffany Johnson, Plaintiff, represented by Eric D. Holland -- eholland@allfela.com -- HOLLAND LAW FIRM LLC. Tiffany Johnson, Plaintiff, represented by Patrick R. Dowd -- pdowd@allfela.com -- HOLLAND LAW FIRM LLC & Randall S. Crompton, HOLLAND LAW FIRM LLC. Kristen Money, Plaintiff, represented by Eric D. Holland, HOLLAND LAW FIRM LLC, Patrick R. Dowd, HOLLAND LAW FIRM LLC & Randall S. Crompton, HOLLAND LAW FIRM LLC. Nikita Langston, Plaintiff, represented by Eric D. Holland, HOLLAND LAW FIRM LLC, Patrick R. Dowd, HOLLAND LAW FIRM LLC & Randall S. Crompton, HOLLAND LAW FIRM LLC. Tenekia Rollins, Plaintiff, represented by Eric D. Holland, HOLLAND LAW FIRM LLC, Patrick R. Dowd, HOLLAND LAW FIRM LLC & Randall S. Crompton, HOLLAND LAW FIRM LLC. Julie Aguilera, Plaintiff, represented by Eric D. Holland, HOLLAND LAW FIRM LLC, Patrick R. Dowd, HOLLAND LAW FIRM LLC & Randall S. Crompton, HOLLAND LAW FIRM LLC. Cristina Alfaro, Plaintiff, represented by Eric D. Holland, HOLLAND LAW FIRM LLC, Patrick R. Dowd, HOLLAND LAW FIRM LLC & Randall S. Crompton, HOLLAND LAW FIRM LLC. Jessica Arroyo, Plaintiff, represented by Eric D. Holland, HOLLAND LAW FIRM LLC, Patrick R. Dowd, HOLLAND LAW FIRM LLC & Randall S. Crompton, HOLLAND LAW FIRM LLC. Christina Askin, Plaintiff, represented by Eric D. Holland, HOLLAND LAW FIRM LLC, Patrick R. Dowd, HOLLAND LAW FIRM LLC & Randall S. Crompton, HOLLAND LAW FIRM LLC. Alina Azios, Plaintiff, represented by represented by Eric D. Holland, HOLLAND LAW FIRM LLC, Patrick R. Dowd, HOLLAND LAW FIRM LLC & Randall S. Crompton, HOLLAND LAW FIRM LLC. Bayer Corp., Defendant, represented by W. Jason Rankin -- jrankin@heplerbroom.com -- HEPLER BROOM. Bayer HealthCare LLC, Defendant, represented by W. Jason Rankin, HEPLER BROOM. Bayer Essure, Inc., Defendant, represented by W. Jason Rankin, HEPLER BROOM. Bayer HealthCare Pharmaceuticals, Inc., Defendant, represented by W. Jason Rankin, HEPLER BROOM. BERNARD L. MADOFF: Shulman Trustees File Fraud Class Action ----------------------------------------------------------- Jonathan Stempel, writing for Reuters, reports that a new lawsuit accuses a lawyer representing hundreds of victims defrauded by Bernard Madoff of cheating her own clients through overbilling, discouraging settlements and having conflicts of interest. The proposed class-action complaint was filed on Nov. 29 against Becker & Poliakoff LLP and Chaitman LLP over the alleged conduct of Helen Chaitman, who has been perhaps the most visible lawyer representing victims of Mr. Madoff since his December 2008 arrest. Mr. Madoff, 79, is serving a 150-year prison term. "We have no comment," Ms. Chaitman said in an email. Becker & Poliakoff, her former employer, did not immediately respond to requests for comment. The complaint was filed in the U.S. District Court in Manhattan by trustees of the Florence Shulman Pourover Trust, a defendant in a 2010 lawsuit by Irving Picard, a court-appointed trustee liquidating Bernard L. Madoff Investment Securities LLC. Mr. Picard has recovered roughly $12.8 billion for former Madoff customers by suing people and companies he believes enabled or benefited from the fraud, including "net winners" that withdrew more money from Madoff's firm than they put in. He considers the Shulman trust a net winner, and sued it to recover $1.62 million of "fictitious profits." Dylan Ruga, the Shulman trustees' lawyer, said the trust lost a seven-figure sum with Madoff. In the Nov. 29 complaint, the Shulman trustees said Ms. Chaitman's "self-promotion as a savior for other Madoff victims paid off" with a large base of clients. But they said this left her with an "irreconcilable" conflict by representing three groups of plaintiffs with competing interests: net winners, "net losers" who lost money, and "early investors" whose alleged profits predated the fraud. The Shulman trustees also said Ms. Chaitman misled net winners by saying Mr. Picard would never settle for less than all he sought, enabling her to bill for "unnecessary" and "often unproductive" work, and did not specify on invoices what work she did. Both law firms "billed and were paid for needless and quixotic legal work, ostensibly for the benefit of FSPT and members of the proposed class, but which in reality only benefited defendants in the form of increased fees," the complaint said. "Net winners and net losers are inherently in conflict with each other because the only money available to pay net losers comes from net winners," Ruga said in an interview. "Lawyers who have conflicts like Ms. Chaitman must disgorge their fees." The lawsuit seeks unspecified damages for clients of both law firms. The case is Shulman et al v. Becker & Poliakoff LLP et al, U.S. District Court, Southern District of New York, No. 17-09330. [GN] BIG PHARMA: Steuben County to Join Opioid Crisis Class Action ------------------------------------------------------------- The Evening Tribune reports that Steuben County will join a class action lawsuit seeking payment of damages from any and all persons or entities responsible for creating the opioid addiction epidemic. County legislators voted unanimously to join counties and municipalities across the state in the effort to curb opioid addiction and recover the soaring local costs in law enforcement, mental health and social services caused by drug addiction. The effort will include large prescribers as well as the pharmaceutical industry, county Manager Jack Wheeler said. "We see this as a response to the cry from the public to 'do something' that we have heard at all our forums this year," Mr. Wheeler said. "Well, this is something we can do." The county hosted three substance abuse forums in Bath, Hornell and Corning focused on the devastating impact of opioids and other addictive substances. The forums also included information on supportive services through local agencies. The action is similar to a class action lawsuit Steuben joined in 1998 against four major tobacco growers in the U.S. The lawsuit resulted in a decline in production, compensation and funding for campaigns designed to curtail tobacco use. In other action, county legislators: Appointed county Deputy Manager Mitch Alger as the executive director of the independent Steuben County Land Bank Corporation. The appointment simply formalizes Alger's work in representing the county on the corporation board and makes communication with the state more efficient, Mr. Wheeler told Steuben lawmakers. Authorized a public hearing on the eight-year review of Agricultural District No. 10. Designated the Steuben County Conference and Visitors' Bureau as the Official Tourism Promotion Agency for the county. [GN] BOFI HOLDING: Judgment on Pleadings Bid in Securities Suit OK'd --------------------------------------------------------------- In the case, IN RE BofI HOLDING, INC. SECURITIES LITIGATION, Case No. 3:15-cv-02324-GPC-KSC (S.D. Cal.), Judge Gonzalo P. Curiel of the U.S. District Court for the Southern District of California granted the Defendants' motion for judgment on the pleadings, and granted the Plaintiff leave to amend its complaint. The Plaintiff filed its first Consolidated Amended Class Action Complaint ("CAC") on April 11, 2016. On Sept. 27, 2016, the Court issued an order granting in part and denying in part a motion to dismiss premised on the ground that the CAC's allegations did not meet the heightened pleading standards applicable to securities class actions. In that ruling, the Court rejected the Defendants' challenges to the Plaintiff's claims against Defendants BofI and Garrabrants, but granted dismissal of the Plaintiff's claims against Defendants Micheletti, Grinberg, Mosich, and Argalas. On Nov. 25, 2016, the Plaintiff filed a Second Amended Class Action Complaint ("SAC"), which added allegations relevant to its Section 20(a) claims against Defendants Micheletti, Grinberg, Mosich, and Argalas. The Defendants again moved to dismiss. The Court again granted in part and denied in part. It found the new allegations sufficient to support plausible Section 20(a) claims against all the Defendants. It revisited its previous analysis with respect to the Plaintiff's Section 10(b) claims against Defendants BofI and Garrabrants, and concluded that the Plaintiff's allegations stated plausible securities fraud claims only with respect to BofI and Garrabrants's statements about (i) BofI's loan underwriting standards and (ii) internal controls and compliance infrastructure. The Court dismissed the Plaintiff's Section 10(b) claims to the extent that they were premised on BofI and Garrabrants's alleged misrepresentations about BofI's allowance for loan losses, net income and diluted shares, loan-to- value ratio, and lending partnerships. On Sept. 23, 2017, the Defendants filed the now-pending motion for judgment on the pleadings. Their new theory is that the SAC does not contain sufficient allegations of loss causation. They argue that the "corrective disclosures" relied upon by the Plaintiff -- the Erhart whistleblower action and the related New York Times coverage, as well as a litany of articles about BofI published on the website Seeking Alpha -- did not disclose the falsity of the actionable misrepresentations and were merely duplicative of publicly available information. Upon review of the Erhart Complaint and the various articles referred to in the SAC, Judge Curiel concludes that -- even considering all of these documents together -- the SAC fails to identify a relevant corrective disclosure. Some of the Seeking Alpha articles identified in the SAC are relevant to BofI's loan underwriting standards, others are relevant to BofI's compliance infrastructure, and some are not relevant to either. However, according to the Judge, the SAC does not identify a sufficient corrective disclosure of the falsity of Garrabrant's statements about BofI's loan underwriting standards or its compliance infrastructure. In sum, Judge Curiel holds the SAC fails to identify corrective disclosures of the falsity of Garrabrants' statements that the Court has found to be actionable. In the absence of any other indication that the Defendants' misrepresentation caused the Plaintiff economic loss, the SAC fails to state a claim for securities fraud. As a result, he granted the Defendants' motion for judgment on the pleadings. He, however, also granted the Plaintiff leave to amend the SAC to cure the deficiencies discussed. The Plaintiff may file a Third Amended Complaint within 21 days of the date of the Order. If the Plaintiff chooses to amend its complaint, the Judge reminds the Plaintiff that there is little correlation between a complaint's length and the sufficiency of its allegations. While the pleading standards applicable to the Plaintiff's claims may be heightened, that fact does not abrogate Rule 8's requirement that a complaint be short and plain. To the contrary, even under heightened pleading standards it is the duty and responsibility, especially of experienced counsel, to state the essentials in short, plain and non-redundant allegations. A full-text copy of the Court's Dec. 1, 2017 Order is available at https://is.gd/gsFj8a from Leagle.com. Paul J. Grinberg, Defendant, represented by John P. Stigi, III -- jstigi@sheppardmullin.com -- Sheppard Mullin Richter & Hampton. Nicholas A. Mosich, Defendant, represented by John P. Stigi, III, Sheppard Mullin Richter & Hampton. James S. Argalas, Defendant, represented by John P. Stigi, III, Sheppard Mullin Richter & Hampton. Houston Municipal Employees Pension System, Plaintiff, represented by Daniel P. Chiplock -- dchiplock@lchb.com -- Lieff Cabraser Heimann & Bernstein LLP, pro hac vice, Joy Kruse -- jkruse@lchb.com -- Lieff Cabraser Heimann & Bernstein, Katherine Collinge Lubin -- klubin@lchb.com -- Lieff Cabraser Heimann & Bernstein, Michael Joseph Miarmi -- mmiarmi@lchb.com -- Lieff Cabraser Heimann & Bernstein, pro hac vice & Richard M. Heimann -- rheimann@lchb.com -- Lieff Cabraser Heimann and Bernstein LLP. BofI Holding, Inc., Defendant, represented by Alejandro E. Moreno -- amoreno@sheppardmullin.com -- Sheppard, Mullin, Richter & Hampton, LLP & John P. Stigi, III, Sheppard Mullin Richter & Hampton. Gregory Garrabrants, Defendant, represented by Alejandro E. Moreno, Sheppard, Mullin, Richter & Hampton, LLP & John P. Stigi, III, Sheppard Mullin Richter & Hampton. Andrew J. Micheletti, Defendant, represented by John P. Stigi, III, Sheppard Mullin Richter & Hampton. John Marco, Movant, represented by John P. Stigi, III, Sheppard Mullin Richter & Hampton & Laurence M. Rosen -- lrosen@rosenlegal.com -- The Rosen Law Firm, P.A. BUCKEYE TRANSPLANT: "Nguyen" Suit Seeks Unpaid Wages under FLSA --------------------------------------------------------------- MELISSA NGUYEN, c/o Attorney Scott Perlmuter 2012 W. 25th Street, Ste. 716 Cleveland, Ohio 44113, On behalf of herself and all others similarly situated, the Plaintiff, v. BUCKEYE TRANSPLANT SERVICES, LLC c/o its Statutory Agent Jeff Arrington 12224 Road K Ottawa, OH 45875; JEFF ARRINGTON, 12224 Road K Ottawa, OH 45875; and JILL ARRINGTON, 12224 Road K Ottawa, OH 45875, the Defendants, Case No. 3:17-cv-02607-JZ (N.D. Ohio, Dec. 14, 2017), seeks compensatory damages in the amount of unpaid wages, as well as liquidated damages in an equal amount pursuant to the Fair Labor Standards Act. Buckeye Transplant Services describes itself as "the leading provider in offering specialized 24-hour on call services for transplant centers nationwide." Buckeye's website states that "[s]ince [its] inception in 2008," it has "partnered with transplant centers across the country to manage organ offers through Donor Screening, Organ Call Coverage, Transportation Coordination, Donor Management, Facilitation of Organ Recovery and Transplantation processes, and Transplant Patient Calls." To provide these services, Buckeye employs 20 or more employees who work as transplant coordinators. The Plaintiff worked as a transplant coordinator for Buckeye Transplant Services from February 28, 2014 through December 10, 2017. The Plaintiff, as well as the Potential Opt-Ins who may join this case pursuant to 29 U.S.C. section 216(b), were in fact non-exempt employees of Defendants under the FLSA, but were unlawfully classified by Defendants as "independent contractors." Buckeye controlled the compensation its transplant coordinators earned for their work. Buckeye paid transplant coordinators "on an hourly base rate," at a rate set unilaterally by Buckeye and with no additional opportunity for compensation. Plaintiff was always paid by an hourly rate which increased over time solely at Buckeye's discretion. Plaintiff and other transplant coordinators submitted weekly timekeeping information into Buckeye's computer and were paid at their "hourly base rate" for the hours they worked.[BN] The Plaintiff is represented by: Scott D. Perlmuter, Esq. TITTLE & PERLMUTER 2012 West 25th Street, Ste. 515 Cleveland, OH 44113 Telephone: (216) 308 1522 E-mail: scott@tittlelawfirm.com - and - Thomas A. Downie CHAGRIN LAW 46 Chagrin Falls Plaza #104 Chagrin Falls, Ohio 44022 440-973-9000 E-mail: tom@chagrinlaw.com CANADA: Settles LGBP Purge Class Action for $145 Million -------------------------------------------------------- McKiggan Hebert Lawyers on Nov. 29 disclosed that following the official apology by Prime Minister Justin Trudeau for the state-sponsored, systemic oppression, and rejection of LGBTQ citizens, McKiggan Hebert Lawyers has announced that an Agreement in Principle was recently reached between counsel for the class members and the Department of Justice to settle the LGBTQ Purge class action lawsuit. The "LGBT Purge" refers to the Canadian government's systematic campaign between the 1950s and the 1990s to identify and purge lesbians, gay men, and those suspected of being gay from the Canadian Armed Forces and the Department of National Defence. "It caused an enormous amount of pain, anguish and heartache to those impacted by this horrible movement initiated by the government," stated John McKiggan -- john@mckigganhebert.com -- partner at McKiggan Hebert Lawyers. "This purge, which lasted for decades, denied individuals their basic human rights and treated fellow Canadians like outcasts." "I am pleased that after a great deal of hard work the parties have managed to reach an Agreement in Principle to settle the class-action," stated Mr. McKiggan. "Not only does the settlement provide compensation to address the harms suffered by class members, it also provides significant funding to reconciliation measures to I help class members heal and to educate Canadians about this chapter of our history." McKiggan Hebert LLP is co-counsel in this class action with Koskie Minsky LLP and Cambridge LLP, IMK LLP. McKiggan Hebert Lawyers also recognizes the efforts of the representative plaintiffs, Alida, Martine and Todd in leading this groundbreaking class- action lawsuit and the courage they showed in sharing their deeply personal stories. Highlights of Settlement -- A total financial settlement valued at up to $145 million -- A fund for individual compensation valued at up to $110 million -- Individual compensation will range based on harm suffered from a minimum of $5,000 up to a maximum of $150,000 -- A fund for Reconciliation and Memorialization measures of at least $15 million Next Steps & Settlement Details There are several steps that must be completed before this settlement is finalized and funds are available to victims. The Minutes of Settlement must be finalized and submitted to the Court for approval. Class Members will also be given notice of a fairness hearing and will have the opportunity to "opt out" if they choose. If more than 250 class members opt out, the government has the option of cancelling the deal. The claim will be administered by a neutral third party, who will accept applications for payment and determine which class members are entitled to payment and how much they are entitled to receive. [GN] CEDARHURST: Sued for Storing Employee's Biometric Information ------------------------------------------------------------- Lhalie Castillo, writing for Madison Record, reports that a Madison County woman alleges her former Edwardsville employer illegally stored and collected her biometric information. Dicha Jamerson filed a complaint on behalf of herself and on behalf of all others similarly situated on Nov. 17 in the Madison County Circuit Court against Cedarhurst of Edwardsville Holdings, Cedarhurst Memory Care of Edwardsville LLC, et al. alleging that they violated the Illinois Biometric Information Privacy Act (BIPA). According to the complaint, the plaintiff alleges that the defendants collected, captured, stored and used her biometric information when she was an employee of the defendants to track time and attendance. She alleges she was never informed in writing that the biometric information was collected and she never permitted in writing for the defendant to use this information. The plaintiff seeks an order certifying this case as a class action, actual and statutory damages, litigation expenses and any further relief that the court may deem appropriate. She is represented by John J. Driscoll and Christopher J. Quinn of The Driscoll Firm PC in St. Louis. The lawsuit is at least the second such proposed class actions alleging violations of the BIPA filed in local courts. An expert in employment and labor law has predicted that the number of biometric lawsuits will grow due to a unique facet the BIPA law. Passed by the state legislature in 2008 to ostensibly protect people against identity theft, the act places restrictions on the collection, storage and disclosure of personal biometric information by businesses. It requires businesses to obtain consent before collecting biometric data on people and sets limits on how long such information can be stored. It also places restrictions on the disclosure or use of such information after a business collects it. Karla Grossenbacher, an attorney and partner at Seyfarth Shaw in Washington, D.C., said one reason that there has been a recent rise in the number of lawsuits regarding the collection of physiological data is because the practice has become more commonly used by businesses today. When the BIPA was passed in 2008, the use of biometrics data was still in its infancy. Madison County Circuit Court case number 17-L-1582 [GN] CENTRA TECH: Rensel Sues over Sale of Cryptocurrency Securities --------------------------------------------------------------- JACOB ZOWIE THOMAS RENSEL, individually and on behalf of all others similarly situated, the Plaintiff, v. CENTRA TECH, INC., SOHRAB SHARMA, RAYMOND TRAPANI, ROBERT FARKAS, WILLIAM HAGNER, the Defendants, Case No. 1:17-cv-24500-JLK (S.D. Fla., Dec. 13, 2017), seeks compensatory, injunctive, and rescissory relief, providing rescission and repayment of all investments into the Centra ICO, and securing and conserving those funds until repayment. The Plaintiff brings this action on behalf of himself and all others similarly situated against Centra Tech for Defendants' violations of the Securities Act of 1933. Specifically, in connection with the Centra Initial Coin Offering, Defendants raised more than $30 million in digital cryptocurrencies by offering and selling unregistered securities in direct violation of the Securities Act. According to the complaint, between July 30, 2017 and October 5, 2017, the Defendants ran the Centra ICO during which they received more than $30 million in digital currency investments in exchange for Centra Tokens. There are conflicting reports as to the actual amount raised, some reports indicate that the amount raised may have been closer to $50 million. The purported primary purpose of the Centra ICO was to raise capital to operate the "world's first Multi-Blockchain Debit Card with a Smart and Insured Wallet". In other words, the product to be offered was a debit card that would function on the Visa and Mastercard networks and allow instant transactions using digital currencies. Further, the Centra ICO claimed to be intended to raise capital to create an online marketplace called "cBay" that would be similar to Amazon and eBay. Additionally, Centra Tech recently has claimed to be creating their own Centra blockchain. The Defendants have made a feeble attempt to portray the Centra ICO as a sale of "utility- based tokens" that were "not securities, shares or investments." The core offer during the Centra ICO was 200 CTR Tokens for Ether ("ETH"). The Centra ICO was a clear offer and sale of securities because, inter alia, Defendants touted, and Plaintiff and other Centra ICO investors reasonably expected, that the CTR Tokens received in exchange for their investments would be worth more than the ETH, Bitcoin (BTC), Litecoin (LTC), or other currencies invested. Additionally, Defendants have explicitly referred to the ICO participants as "investors" and repeatedly stressed the "growth potential" of the CTR Token. Centra Tech -- https://centra.tech/ -- is a Delaware Corporation, headquartered in Miami Beach, Florida. Centra Tech offers blockchain products such as a Wallet to store digital assets, a Prepaid Card to spend the digital assets, and three soon to be released products and services, which include a Marketplace to buy goods with the digital assets. The Plaintiff is represented by: Donald J. Enright, Esq. Elizabeth K. Tripodi, Esq. John A. Carriel, Esq. LEVI & KORSINSKY LLP 1101 30th Street, N.W., Suite 115 Washington, DC 20007 Telephone: (202) 524 4290 Facsimile: (202) 337 1567 - and - Emily C. Komlossy, Esq. Ross A. Appel, Esq. KOMLOSSY LAW P.A. 4700 Sheridan St., Suite J Hollywood, FL 33021 Telephone: (954) 842 2021 Facsimile: (954) 416 6223 E-mail: eck@komlossylaw.com raa@komlossylaw.com CKE RESTAURANTS: Aguilar Seeks Minimum Wage, OT under Labor Code ---------------------------------------------------------------- HERMELINDA AGUILAR, individually and on behalf of all others similarly situated, the Plaintiff, v. CKE RESTAURANTS HOLDINGS, INC., a Delaware Corporation; CARL'S JR. RESTAURANTS LLC, a Delaware Corporation; CARL'S JR. FUNDING LLC, a Delaware Corporation; and DOES 1 through 50, inclusive, the Defendant, Case No. BC686601 (Cal. Super. Ct., Dec. 12, 2017), seeks to recover unpaid minimum wage and overtime under the California Labor Code. According to the complaint, the Defendants consistently required Plaintiff and Plaintiff Class to perform work past their scheduled eight hours of work, however, Plaintiff and Plaintiff Class were not compensated for hours worked in excess of eight hours per day or 40 hours per week. This was a routine and habitual practice, which required Plaintiff and those similarly situated to work many hours "off the clock."[BN] CKE Restaurants is the parent company of the Carl's Jr., Hardee's, Green Burrito, and Red Burrito quick-service restaurant brands. The company's headquarters are located in Franklin, Tennessee. The Plaintiff is represented by: Kevin Mahoney, Esq. Atoy H. Wilson, Esq. MAHONEY LAW GROUP, APC 249 E. Ocean Boulevard, Suite 814 Long Beach, CA 90802 Telephone No.: (562) 590 5550 Facsimile No.: (562) 590 8400 E-mail: kmahoney@mahoney-law.net kodenbreit@mahonev-law.net awilson@mahoney-law.net CITIGROUP INC: Employees in 401(k) Suit Get Class Certification --------------------------------------------------------------- Colby Hamilton, writing for New York Journal, reports that class status was granted on Nov. 27 to Citigroup Inc. employees suing the managers of their 401(k)s during the early 2000s, even as recent U.S. Supreme Court precedent saw the court reverse itself on an issue of standing for a potential class representative. U.S. District Judge Sidney Stein of the Southern District of New York said the high court's ruling in California Public Employees' Retirement System v. ANZ Securities earlier this year required him to drop one of the potential class representatives, Sherri Harris, from consideration. In his opinion and order, Judge Stein agreed with the defendant members of the investment committees at Citigroup at the time that Harris' claims were, in fact, time-barred based on a reading of ANZ Securities. The Supreme Court's decision made clear that the tolling test established in American Pipe and Construction v. Utah is a kind of equitable tolling, meaning it could not be use to toll relevant Securities Act statutes of repose, and that statutory breach of fiduciary duty responsibility language in the U.S. code itself represented a statute of repose. As such, Judge Stein wrote that ANZ found the American Pipe tolling applied "not only to opt-out plaintiffs who elect to file individual suits, but also to putative class members seeking to intervene in a pre-existing class action." Ms. Harris, therefore, was barred from raising an individual claim and should not have been allowed to be a named plaintiff, even as she is still eligible to be part of the class. The potential for that was solidified further in Judge Stein's order, which dismissed attempts by defendants to sink class certification in the suit. At the forefront was the argument that the named plaintiffs weren't invested in all of the funds at the heart of the allegation that managers invested in Citigroup proprietary funds saddled investors with millions in fees that could have been avoided. "In this Circuit, plaintiffs do not need to point to individualized injuries with respect to each plan investment in order to establish constitutional standing in a derivative suit brought pursuant to" statuary fiduciary responsibility rules, Stein wrote. Judge Stein rejected defendants' argument that the appellate court's summary order in In re UBS ERISA Litigation, which upheld a district court's decision that loss alone in a defined contribution plan wasn't enough to establish injury-in-fact, as a plan can lose value even if an individual plaintiff's account does not. The Second Circuit's summary order, however, did not undo its holding in Long Island Head Start Child Development Services v. Economic Opportunity Commission of Nassau County, that allowed for an assertion of claims in a derivative capacity, which the UBS decision did not touch. "Here, plaintiffs have sued in a representative capacity and allege that the plan suffered millions of dollars a year in losses as a result of defendants' disloyal and imprudent decisions to offer the nine affiliated funds as investments," Judge Stein wrote. "The fact that only some of these alleged losses manifested themselves in the named plaintiffs' individual accounts does not deprive plaintiffs of their standing to seek redress on behalf of the plan for the broader injuries the plan incurred." The judge went on to find the plaintiffs easily met the appellate court's two-prong threshold test for standing, finding they had alleged personal harm and that the same set of concerns of the nine involved funds were shared by the potential members. Judge Stein limited class standing to participants in the 401(k) plan between October 2001 and December 2005. Plaintiffs Marya Leber and Sara Kennedy were appointed class representatives. McTigue Law name attorney J. Brian McTigue and Bailey & Glasser partner Gregory Porter -- gporter@baileyglasser.com -- were appointed class counsel, while Keller Rohrback partner David Preminger -- dpreminger@kellerrohrback.com -- was appointed liaison counsel. None could be reached for comment on Judge Stein's order. Paul, Weiss, Rifkind, Wharton & Garrison partner Lewis Clayton -- lclayton@paulweiss.com -- led the defendants' legal team. He also could not be reached for comment. [GN] CONN APPLIANCES: Williams Sues over Telemarketing Calls ------------------------------------------------------- MICHAELINE WILLIAMS, on behalf of herself and all others similarly situated, the Plaintiff, v. CONN APPLIANCES, INC., the Defendant, Case No. 5:17-cv-01264 (W.D. Tex., Dec. 14, 2017), seeks to enjoin CAI from placing any further telephone calls to Mrs. Williams and the class in violation of the Telephone Consumer Protection Act. According to the complaint, CAI has a practice of hoarding as many potentially valid phone numbers for a particular account as possible. CAI routinely uses the System to call more than one or all of these hoarded numbers which have become associated with a customer's account, including cell phone numbers, even when the number does not belong to the customer or a co-borrower. In addition to entering telephone numbers for non-customers into credit applications that its employees learn of during the sales or collections process, CAI has a practice of identifying phone numbers from public or commercial databases that it believes, but does not know to be, valid numbers for its customers using a practice known as skip-tracing. For example, Conn's 2017 Annual 10-K Report to the SEC states it "utilize[s] current technologies that assist us in locating contact information for customers who have moved and left no contact information." Numbers obtained through skip-tracing often locates cell phone numbers that belong to an individual with a similar name or address, but not the individual CAI is intending to reach and who it has no consent to call. CAI knows that the individuals it calls at these hoarded numbers did not consent to receive calls to the numbers, and that many of the individuals are not actually its customer, borrowers, or co- borrowers, but it places continuous and repeated calls to them because it may achieve its goal of harassing them or their family- member-customer into making payment. Conn Appliances owns and operates a chain of retail home appliances stores. The company is based in The Woodlands, Texas.[BN] The Plaintiff is represented by: Russell S. Thompson IV, Esq. THOMPSON CONSUMER LAW GROUP, PLLC 5235 E. Southern Ave. D106-618 Mesa, AZ 85206 Telephone: (602) 388 8898 Facsimile: (866) 317 2674 E-mail: rthompson@consumerlawinfo.com CVS HEALTH: "Prescott" Suit Transferred to Dist. of New Jersey -------------------------------------------------------------- The class action lawsuit titled JEANINE PRESCOTT, MICHAEL BEWLEY SCOTT STUMELLO, JULIA BOSS, individually and on behalf of all others similarly situated, and TYPE 1 DIABETES DEFENSE FOUNDATION, also known as: T1DF, the Plaintiffs, v. CVS HEALTH CORPORATION, CAREMARK RX, L.L.C., CAREMARK RX, INC., EXPRESS SCRIPTS HOLDING COMPANY, EXPRESS SCRIPTS INC., UNITEDHEALTH GROUP INC., OPTUMRX INC., ABBOTT LABORATORIES, ABBOTT DIABETES CARE INC., ABBOTT DIABETES CARE SALES CORPORATION, BAYER HEALTHCARE LLC, ASCENSIA DIABETES CARE US INC., LIFESCAN, INC., JOHNSON & JOHNSON, and ROCHE DIAGNOSTICS CORPORATION, the Defendants, Case No. 2:17-cv- 00803, was transferred from the U.S. District Court for the Western District of Washington, to the U.S. District Court for the District of New Jersey (Trenton) on Dec. 14, 2017. The New Jersey District Court Clerk assigned Case No. 3:17-cv-13066-BRM-LHG to the proceeding. The case is assigned to the Hon. Judge Brian R. Martinotti. According to the complaint, like the skyrocketing price of insulin, the list prices of glucose test strips -- the focus of this case -- are artificially inflated as a result of a scheme and enterprise among four dominant manufacturers and the three largest PBMs. In this "Test Strip Pricing Scheme," the manufacturer Defendants set two different prices for test strips--a publicly- available "list" price and an undisclosed lower "net" price that the PBMs actually pay for the test strips. And, also like insulin, test strips are a big business. In 2015, the global glucose monitoring and diabetes management market was valued at over $10 billion. Every year, diabetes patients in the United States spend close to $4 billion on the disposable strips. As shown in the below figure, test strips comprise a significant component of the global diabetes care market. Attorneys for Michael Bewley: Derek W Loeser, Esq. KELLER ROHRBACK 1201 3rd Ave., Ste 3200 Seattle, WA 98101-3052 Telephone: (206) 623-1900 E-mail: dloeser@kellerrohrback.com Attorneys for Abbott Diabetes Care Inc. James F. Hurst, Esq. WINSTON & STRAW, LLP 35 West Wacker Drive, 41st Floor Chicago, IL 60601 Telephone: (312) 558-5600 E-mail: jhurst@winston.com Attorneys for Ascensia Diabetes Care US Inc. Fred B Burnside, Esq. DAVIS WRIGHT TREMAINE (SEA) 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 Telephone: (206) 757 8106 Facsimile: (206) 757 7016 Attorneys for Roche Diagnostics Corporation Frank R. Volpe, Esq. SIDLEY AUSTIN 1501 K STREET, N.W. Washington, D.C. 20005 Telephone: 202 736 8000 Facsimile: 202 736 8711 E-mail: fvolpe@Sidley.com CYAN INC: 1998 Securities Reform Statute "Gibberish", Court Says ---------------------------------------------------------------- Ronald Mann, writing for SCOTUSblog, reports that the key word in the Nov. 28 argument in Cyan, Inc. v. Beaver County Employees Retirement Fund was "gibberish" -- the characterization by several of the justices of the text Congress provided in the Securities Litigation Uniform Standards Act of 1998. The argument revealed the justices' frustration at the statute's sloppy craftsmanship. The case involves the interplay between two sections of the federal securities laws. 15 U.S.C. Sec. 77v states that the "district courts . . . shall have jurisdiction . . ., concurrent with State . . . courts, except as provided in section 77p of this title with respect to covered class actions, of . . . actions . . . to enforce any liability . . .created by [the Securities Act of 1933]." However, as I explained in more detail in my preview, nothing in Section 77p restricts the jurisdiction of state courts over actions to enforce the Securities Act of 1933. The petitioner, Cyan (the defendant in the class action), argues that the provision bars concurrent jurisdiction over all "covered class actions," whether based on state law or federal law, pointing to a definition of covered class actions in Section 77p. The class- action plaintiffs, Beaver County Employees Retirement Fund and others, argue that the provision bars jurisdiction over "mixed" state- and federal-law actions, pointing to a provision in Section 77p that bars securities class actions that rely on state (as opposed to federal) law. The government, offering yet another reading, agrees with the plaintiffs that the statute bars only the actions that rely on state law, but argues that defendants can remove all actions (based on state or federal law) from state court to federal court. All the participating justices resisted the idea that any of those three readings flows readily from the actual language of Section 77v quoted above. So, for example, when Neal Katyal, representing Cyan, summarized his position that the statute broadly bars all state-court securities class actions -- whether based on federal law or state law -- Justice Ruth Bader Ginsburg responded that "Congress chose a rather obtuse way of saying that federal courts shall have exclusive jurisdiction. I could have simply said, in covered class actions related to claims under the '33 Act, federal courts shall have exclusive jurisdiction, period, and that would be clear and everybody would understand and you would prevail. But the Congress certainly took a[n] odd route to getting there." After suggesting that "this body could have written a much better statute than our friends across the street," Mr. Katyal contended that "the anomaly on the other side is far worse." When Mr. Katyal tried to discuss the purpose of the statute as opposed to the text, Justice Elena Kagan resisted: "Could we . . . just talk about the text before we speak about the purpose?" Justice Kagan then focused directly on what she saw as the central weakness of Mr. Katyal's reading: [T]he natural way to read that is we look at 77p, the whole thing, and we see what's the "except" that's provided [there]. We don't look to an ancillary definitional provision that all it does is define a term. We look for a rule that might be in conflict, that could be taken to be in conflict, with the jurisdictional provision. . . . So, . . . it just seems as though your interpretation does a very odd thing textually when you read "except as provided" in Section 77p to say let's look to a definition in that section. Mr. Katyal tried repeatedly to justify his reading, but Justice Kagan closed the discussion by commenting: "[I]f your reading were right, Mr. Katyal, it would be written something like: 'Except with respect to [covered] class actions as defined in' -- not 'as provided by' -- 'as defined in 77p(f)(2)' -- not just '77p.'" Justice Sonia Sotomayor shared Justice Kagan's doubts about Mr. Katyal's reading. For her, the point of departure was "the presumption, and one that exists when there's an ambiguity, that says we presume in favor of concurrent jurisdiction." Given the apparent ambiguity of the statute, she contended that Mr. Katyal was calling for "a fairly extreme result . . . taking a very strong presumption, turning it on its head, and saying we're ousting state courts o[f] jurisdiction o[ver] securities actions that have nothing to do with federal law." Justice Sotomayor appeared particularly exercised by the application of Mr. Katyal's reading to bar state-law actions even if they weren't pre-empted by the Securities Act, asking: In what other situation where we do not have a federal law that preempts a state law, have we ever permitted the federal government to tell the states that they can't adjudicate a case under their own law? You can pass a federal law that says this federal law precludes these actions. But if you don't have one that says that, . . . how can you order the state court not to adjudicate a claim that is not precluded, . . . that is expressly not [pre]cluded? Things didn't go much more smoothly for Allon Kedem, arguing on behalf of the government for the view that Congress intended to permit removal of all actions to federal court. Justice Samuel Alito for one found that reading untenable: Do you really think that whoever wrote this removal provision thought about all this stuff that you're telling us now? . . . If they set out to do what you say this does, and they decided this is the way we're going to do it, I think it's so far from reality that it really strains credulity. Mr. Kedem did, however, have the distinction of receiving a sympathetic comment. Justice Stephen Breyer posited a drafter "given a task / / /to do two things . . . to . . . get rid of these state actions [and] to remove the federal act cases into federal court." For him, "this is the language that does it." But Justice Breyer immediately qualified his comment by suggesting that the removal result for which Mr. Kedem argued was so eccentric that "I would expect there would be a report and in this report there would be an explanation such as you gave me of the [text]. And my guess is there is no such report." Mr. Kedem had to concede, as Alito suggested, that there is nothing in the legislative record to suggest that Congress had intended the removal reading that the government posited. Moreover, because the case in fact was not removed from state court, several justices (most notably Ginsburg and Justice Anthony Kennedy) seemed to think that the court could not properly consider Mr. Kedem's reading in this case even if the justices did find it plausible. The forceful questioning continued when Thomas Goldstein appeared on behalf of the plaintiffs, arguing that the statute should be read to match the jurisdictional provisions in section 77v to the preclusion provisions in section 77p, a position that would permit purely federal actions (like this one) to proceed in the state courts. Justice Neil Gorsuch commented that Mr. Goldstein's reading left the statute so "superfluous" that it was "stating the blindingly obvious, . . . closing a door twice." Alito also criticized Mr. Goldstein's reading: "What sense does that . . . make? The . . . state courts have concurrent jurisdiction over '33 Act claims, except if a lawyer is foolish enough to include in the state court complaint the state claims that fall within the . . . prohibition . . . What sense does that make?" Mr. Goldstein countered that Section 77v is "not intended to do very much. It's a conforming amendment. We don't think that the statute . . . is intended to accomplish very much." But Justice Ginsburg characterized Mr. Goldstein's reading as a "road to nowhere" for the provision. A comment of Justice Alito near the beginning of Mr. Katyal's presentation captured the justices' frustration with the statutory language: Our late colleague [Antonin Scalia] wrote a book called Reading Law, which provides guidance about how you read statutes. And I looked through that to see what we are supposed to do when Congress writes gibberish. And that's what we have here. You said it's obtuse. That's flattering. And we have very smart lawyers here who have come up with creative interpretations, but this is gibberish. It's . . just gibberish. Sharing Justice Alito's perspective, Justice Gorsuch later asked Goldstein whether "[s]peaking of gibberish, aren't we stuck with gibberish your way too? I mean, it seems like gibberish all the way down here." For Justice Alito, the drafting went far beyond the normal range of ambiguity or lack of clarity. Indeed, he suggested at one point that the statute in this case was so poorly crafted as to make the judicial task impossible: "I mean, all the readings that everybody has given to all of these provisions are a stretch. I'm serious. Is there a certain point at which we say this means nothing, we can't figure out what it means, and, therefore, it has no effect, it means nothing?" Presumably the justices won't issue an opinion concluding that the statute means nothing. But the tenor of the argument suggests that they may have a hard time finding a reading to which all of them can subscribe. DEL TACO: Jaffey Has Until Jan. 5 to Reply to Stay/Dismissal Bids ----------------------------------------------------------------- In the case, MICHAEL JAFFEY, individually and on behalf of all others similarly situated, Plaintiff, v. DEL TACO RESTAURANTS, INC., a Delaware corporation, Defendant, Case No. 2:17-CV-02600- JCM-PAL (D. Nev.), Judge of the U.S. District Court for the District of Nevada granted the parties stipulation that the Plaintiff will file his opposition to the Motion to Stay and Motion to Dismiss on or before Jan. 5, 2018 and Del Taco will file its reply in support of the Motions on or before Jan. 26, 2018. On Oct. 5, 2017, the Plaintiff filed a putative class action complaint against Del Taco. On Oct. 26, 2017, pursuant to the parties' Joint Stipulation, the Court extend Del Taco's deadline to respond to the complaint by to Nov. 22, 2017. On Nov. 21, 2017, Del Taco filed its Motion to Stay and Motion to Dismiss. The Plaintiff's deadline to file his opposition to the Motions is currently Dec. 5, 2017, and Del Taco's deadline to file its reply in support of the Motions is currently Dec. 12, 2017. Due to the holiday season, the relative complexity of the issues presented, and the counsel's pre-existing business commitments, the Plaintiff will require additional time to prepare his opposition to both Motions, and Del Taco will require additional time to prepare its reply briefs. The parties have agreed to a briefing schedule for the Motion. The stipulated briefing schedule agreed upon by the parties will not alter any event or deadline already affixed by Court order. The parties have stipulated and agreed that the Plaintiff will file his opposition to the Motion on or before Jan. 5, 2018 and Del Taco will file its reply in support of the Motion on or before Jan. 26, 2018. A full-text copy of the Court's Nov. 29, 2017 Order is available at https://is.gd/o05Qjd from Leagle.com. Michael Jaffey, Plaintiff, represented by Steven Lezell Woodrow -- swoodrow@woodrowpeluso.com -- Woodrow & Peluso, LLC, pro hac vice. Michael Jaffey, Plaintiff, represented by Patrick Harry Peluso -- ppeluso@woodrowpeluso.com -- Woodrow & Peluso, LLC, pro hac vice & Marc P. Cook, Cook and Kelesis, LTD. Del Taco Restaurants, Inc., Defendant, represented by Andrew L. Satenberg -- asatenberg@manatt.com -- Manatt, Phelps & Phillips, pro hac vice, LeAnn Sanders -- lsanders@alversontaylor.com -- Alverson, Taylor, Mortensen & Sanders, Liam O'Gorman-Hoyt -- lhoyt@alversontaylor.com -- Alverson Taylor Mortensen & Sanders & Matthew B. Golper -- mgolper@manatt.com -- Manatt, Phelps & Phillips, LLP, pro hac vice. DR REDDY'S: Faces Securities Class Action in New Jersey ------------------------------------------------------- The Economic Times reports that drug firm Dr Reddy's Laboratories said it has been served a securities class action lawsuit in the US for alleged violations of federal securities laws. The lawsuit filed at the District Court for New Jersey seeks damages to compensate the class of investors for a 'purported decline' in the company's share price allegedly caused by the misstatements or omissions. "US Securities class action lawsuit has been served on the company in the US by the lead plaintiff," Dr Reddy's Laboratories said in a filing to BSE. As intimated earlier, the company believes that the asserted claims are without merit and intends to vigorously defend itself against the allegation, it added. Regarding the lawsuit, earlier in August, Dr Reddy's had said: "On August 25, 2017, a law firm representing a purported investor in the company filed a purported class action lawsuit against the company, its CEO and CFO in the US District Court for the District of New Jersey alleging violation of the US federal securities laws." The company had said that the lawsuit represents a class of investors who purchased or otherwise acquired the company's publicly traded shares on the New York Stock Exchange between June 17, 2015 through August 10, 2017. The lawsuit alleged that the company made materially false and/or misleading statements or omissions in connection with its corporate quality system, it had added. The allegation is specifically in connection with a warning letter from the USFDA dated November 6, 2015 and a letter from Regierung von Oberbayern in Germany, dated August 10, 2017, Dr Reddy's said. [GN] DYNAMIC LEDGER: MacDonald Sues over Sale of Cryptocurrencies ------------------------------------------------------------ BRUCE MACDONALD, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. DYNAMIC LEDGER SOLUTIONS, INC., a Delaware corporation, TEZOS STIFTUNG, a Swiss Foundation, KATHLEEN BREITMAN, an Individual, ARTHUR BREITMAN, an Individual, TIMOTHY COOK DRAPER, an individual, DRAPER ASSOCIATES, JOHANN GEVERS, DIEGO PONZ, GUIDO SCHMITZKRUMMACHER, BITCOIN SUISSE AG, NIKLAS NIKOLAJSEN, and DOES 1-100, INCLUSIVE, the Defendants, Case No. 3:17-cv-07095-RS (N.D. Cal., Dec. 13, 2017), is a class action brought on behalf of all persons who purchased Tezos tokens by contributing fiat currency (e.g., U.S. Dollars) or other consideration (including the blockchain-based digital currencies bitcoin (BTC) and/or Ethereum ("ETC" or "ether")) to the Tezos "Initial Coin Offering" ("ICO") in July 2017. Tezos tokens are securities within the meaning of the California Corporations Code. As such, any offering or sale of such securities are required to be qualified under Cal. Corp Code sections 25111, 25112 or 25113. But in violation of California Corporations Code section 25110 and California's Unfair Competition Law. The Defendants engaged in an illegal sale of unqualified securities by offering and selling Tezos tokens without qualifying the securities pursuant to the California Corporations Code. Tezos Foundation, a Swiss company seeking non-profit status, currently holds the digital currencies paid by Plaintiff and other investors, and describes itself as simply "an organization dedicated to promoting the Tezos protocol. The Foundation has no apparent legal oversight or compulsion to do anything at all, and has admitted to gradually converting ICO proceeds into more traditional assets such as "cash, stocks, bonds, and precious metals" in order to "diversify" its assets. In short, the ICO for the Tezos tokens was an illegal offer and sale of securities for which no qualification was in effect, and as to which no exemption from qualification was sought or available. The ICO was a generalized solicitation made using statements posted on the Internet and distributed throughout the world, including in the United States, and the securities were offered and sold to Plaintiff and the general public. Therefore, under Cal. Corp Code section 25503, Plaintiff and the Class are entitled to recover the consideration paid for the Tezos tokens with interest thereon at the legal rate, or the equivalent in monetary damages plus interest at the legal rate from the date of purchase. Moreover, unless the Defendants are permanently restrained and enjoined from dissipating the proceeds of the ICO, they will continue to engage in the acts, practices, and courses of business set forth in this Complaint, including, but not limited to, the conversion, selling, and dissipation of ICO proceeds collected from the Class.[BN] The Plaintiff is represented by: Reed R. Kathrein, Esq. Peter E. Borkon, Esq. Danielle Charles, Esq. Steve W. Berman, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 715 Hearst Avenue, Suite 202 Berkeley, CA 94710 Telephone: 510 725 3000 Facsimile: 510 725 3001 E-mail: reed@hbsslaw.com peterb@hbsslaw.com daniellec@hbsslaw.com steve@hbsslaw.com - and - Jason M. Leviton, Esq. Joel A. Fleming, Esq. Jacob A. Walker, Esq. BLOCK & LEVITON LLP 155 Federal Street, Suite 400 Boston, MA 02110 Telephone: (617) 398 5600 E-mail: jason@blockesq.com joel@blockesq.com jake@blockesq.com ELECTRONIC TRANSACTION: Dismissal of Olde Gulf Club Suit Affirmed ----------------------------------------------------------------- Judge Richard Lowell Nygaard of the U.S. Court of Appeals for the Third Circuit affirmed the district court's dismissal of the case, OLDE HOMESTEAD GOLF CLUB, INDIVIDUALLY AND AS CLASS REPRESENTATIVE, Appellant, v. ELECTRONIC TRANSACTION SYSTEMS CORPORATION, Case No. 16-4140 (3d Cir.). ETS processes electronic payments and provides other services to a wide array of merchants, including retail stores, restaurants, and golf courses around the country. The company is headquartered in Loudoun County, Virginia, and is incorporated within that Commonwealth. ETS clients are required to sign a Merchant Application and Agreement ("MAA"), a seven-page contract that governs the relationship between ETS and its clients. ETS and the Club executed a new MAA in March of 2007. The MAA contains a forum selection clause, stating that any litigation that arises between the parties will be brought in the state court in Loudoun County. Then, in December of 2007, ETS asked the Club to execute another MAA, which the Club did. This newly executed contact contained the same forum selection clause as the one agreed-to in March, 2007. The signed agreement was faxed to ETS, but that transmission only included the first three pages of the document. The final four pages of the MAA, which included the forum selection clause, were not sent. In July of 2016, the Club filed a complaint in the District Court alleging that ETS breached the MAA by overbilling. The Club also alleged that ETS violated federal law by charging fees in excess of the mandated maximum for certain transactions. It also attempted to certify a class to include other merchants who executed MAAs with ETS. The Club averred that ETS failed to provide it (and other putative class members) with a copy of the forum selection clause, and that the clause was both unenforceable and unconscionable in any event. ETS filed a motion to dismiss, arguing forum non conveniens given the existence of the forum selection clause. The District Court held a hearing and ruled from the bench. It identified three issues: the Club's contention that it never saw the forum selection clause, the validity of that clause, and whether the clause was enforceable. After dismissing the Club's argument that it never saw the forum selection clause, the District Court ruled that the clause was valid and should be enforced. It then dismissed the Club's complaint without prejudice to it being re-filed in the appropriate state court. The Club timely appealed, raising three issues. First, it argues that the District Court erred by ruling the forum selection clause binding. Next, the Club claims the District Court erred as to the validity of the clause. The enforceability -- or lack thereof -- of the clause is the focus of the Club's last argument. First, Judge Nygaard finds that given the lack of evidence that the Club never received the forum selection clause, the District Court did not err by holding the Club to the terms and conditions of the MAA. Like the District Court, the Judge rejects the Club's position that the clause is procedurally unconscionable because it was not included in the MAA they executed because it is not supported by the record. He likewise rejects the Club's argument that the forum selection clause violates public policy. It seems to him, and as noted by the District Court, the only public policy implicated by these proceedings is the one favoring the enforcement of forum selection clauses in these types of contracts between these sophisticated parties. Finally, Judge Nygaard holds that the District Court correctly noted that the Club did not meet its heavy burden. Not only will Virginia law apply in the case, but ETS' headquarters, records, and witnesses are located in that jurisdiction. The only connection the Club has to Pennsylvania is that its headquarters is located there. It was not an abuse of discretion for the District Court to enforce the forum selection clause. For these reasons, Judge Nygaard affirmed the District Court's ruling dismissing the cause. A full-text copy of the Court's Nov. 29, 2017 Opinion is available at https://is.gd/CaiNEF from Leagle.com. EQUIFAX INC: ICBA Files Class Action Over July 2017 Data Breach --------------------------------------------------------------- Tara M. Swaminatha, Esq. and India K. Scarver, Esq., of Squire Patton Boggs, in an article for Lexology, wrote that in another lawsuit against Equifax, the Independent Community Bankers of America (ICBA), on behalf of thousands of community banks, seeks to hold Equifax accountable for the July 2017 data breach that potentially affected more than 145.5 million consumers. ICBA, along with Bank of Zachary and First State Bank, filed the class action in the U.S. District Court for the Northern District of Georgia. In analogous litigation, two open issues exist: (1) First, whether alleging the threat of future harm -- as opposed to alleging actual harm suffered -- is sufficient to establish Article III standing, and (2) Whether plaintiffs allege defendants' acts or omissions with sufficient specificity. Article III Standing for Threat of Future Harm vs. Actual Harm Suffered In the ICBA complaint, since Plaintiffs do allege actual harm suffered, in addition to the threat of future harm, Article III standing is likely established. Specifically, Plaintiffs allege actual harm suffered from having had the immediate need to mitigate and rectify fraudulent transactions (i.e., monetary harm from reissuing cards, stopping transactions, current monitoring efforts, fielding questions from consumers). Plaintiffs allege a threat of future injury from: (i) having to continue monitoring the "certainly impending risk" of fraudulent use of their customers' stolen identities; (ii) further monetary injury resulting from consumer emotional distress -- those emotionally distressed consumers may choose to forego banking services, instead opting to use cash, which ICBA argues will hurt revenue from transaction fees, ATM fees, interest and other monetary charges; and (iii) significant costs that will be incurred to implement additional methods to determine customer authentication and credit worthiness. In analogous litigation, many plaintiffs only allege the threat of future harm. The Supreme Court may settle a circuit split on whether such theoretical harm is sufficient to establish Article III standing. On December 12, the Federal Trade Commission (FTC) holds an open workshop for public commentary on the topic. Alleging Defendants' Acts with Sufficient Specificity Data breach plaintiffs often allege that the mere fact that a defendant suffered a data breach sufficiently demonstrates that the defendant (must have) behaved badly. Absent allegations that a defendant, for example, failed to fix a known insecurity, some courts reject such vague allegations. These plaintiffs face a particular challenge prior to discovery because acts or omissions that could have caused or enabled a data breach are not often public. In the Equifax case, however, Plaintiffs cite allegations of specific wrongdoing likely gleaned from media reports, including that Equifax actively mishandled its data security as evidenced by (i) not following known industry standards and prior recommendations, and (ii) failing to monitor its security systems. All this, Plaintiffs claim, opened the door for hackers to access the personally identifiable information and Payment Card Data of millions of Americans. Demands ICBA demands that Equifax compensate community banks and other financial institutions for "misfeasance" in failing to implement recommended security protocols and failing to detect the presence of hackers for weeks. ICBA also demands Equifax employ "adequate" security protocols consistent with industry standards to protect personally identifiable information and Payment Card Data. [GN] EXACTECH INC: "Pappalardo" Suit Challenges Osteon Merger -------------------------------------------------------- ANTHONY PAPPALARDO, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. EXACTECH, INC., WILLIAM PETTY, DAVID W. PETTY, JAMES G. BINCH, WILLIAM B. LOCANDER, RICHARD C. SMITH, FERN S. WATTS, W. ANDREW KRUSEN, JR., OSTEON HOLDINGS, L.P., OSTEON MERGER SUB, INC., and TPG CAPITAL L.P., the Defendants, Case No. 1:17-cv-00303-MW-GRJ (N.D. Fla., Dec. 14, 2017), seeks to enjoin Defendants from taking any steps to consummate a proposed merger transaction, including filing a definitive proxy statement with the Securities and Exchange Commission or otherwise causing a Definitive Proxy to be disseminated to Exactech's shareholders, unless and until certain material information is included in the Definitive Proxy or otherwise disseminated to Exactech's Shareholders. Plaintiff brings this class action on behalf of the public stockholders of Exactech, Inc. against Exactech's Board of Directors for their violations of Section 14(a) and 20(a) of the Securities Exchange Act of 1934, arising out of the Board's attempt to sell the Company to TPG Capital, L.P. through its affiliate Osteon Holdings, L.P. and its wholly-owned subsidiary Osteon Merger Sub, Inc. The Defendants have violated the Exchange Act by causing a materially incomplete and misleading preliminary proxy statement to be filed with the Securities and Exchange Commission on December 4, 2017, the lawsuit claims. The Proxy recommends that Exactech shareholders vote in favor of a proposed transaction whereby Exactech is acquired by TPG. The Proposed Transaction was first disclosed on October 23, 2017, when Exactech and TPG announced that they had entered into a definitive merger agreement pursuant to which TPG will acquire all the outstanding shares of common stock of Exactech for $42.00 per share. Exactech and TPG announced on December 4 that the Merger Agreement had been amended to reflect a new price of $49.25 per share. The deal is valued at approximately $737 million and is expected to close in the first quarter of 2018. The Proxy is materially incomplete and contains misleading representations and information in violation of Sections 14(a) and 20(a) of the Exchange Act. Specifically, the Proxy contains materially incomplete and misleading information concerning the sales process, financial projections prepared by Exactech management, as well as the financial analyses conducted by J.P. Morgan Securities LLC, Exactech's financial advisor.[BN] The Plaintiff is represented by: Cullin O'Brien, Esq. CULLIN O'BRIEN LAW, P.A. 6541 NE 21st Way Ft. Lauderdale, FL 33308 Telephone: (561) 676 6370 Facsimile: (561) 320 0285 E-mail: cullin@cullinobrienlaw.com - and - Shane T. Rowley, Esq. ROWLEY LAW PLLC Danielle Rowland Lindahl 50 Main Street, Suite 1000 White Plains, NY 10606 Telephone: (914) 400 1920 Facsimile: (914) 301 3514 FCA US: "Canfield" Suit Moved to District of Delaware ----------------------------------------------------- The class action lawsuit titled Timothy Canfield, Andrew Cattano, Dennis Peck, Steven Spratley, Susan Stebbins, and Yvette Taylor, on behalf of themselves and all others similarly situated, the Plaintiffs, v. FCS US LLC formerly known as: Chrysler Group LLC, the Defendant, Case No. N17C-10-00198 WCC, was removed from Delaware Superior Court, to the U.S. District Court for the District of Delaware (Wilmington) on Dec. 12, 2017. The District Court Clerk assigned Case No. 1:17-cv-01789-UNA to the proceeding.[BN] The Plaintiffs are represented by: Peter Bradford deLeeuw, Esq. Jeffrey S. Goddess, Esq. ROSENTHAL, MONHAIT & GODDESS, P.A. Mellon Bank Center, Suite 1401 P.O. Box 1070 919 Market Street Wilmington, DE 19899-1070 Telephone: (302) 656 4433 E-mail: bdeleeuw@rmgglaw.com jgoddess@rmgglaw.com The Defendant is represented by: Somers S. Price, Jr. POTTER ANDERSON & CORROON, LLP 1313 N. Market St., Hercules Plaza, 6th Flr. P.O. Box 951 Wilmington, DE 19899-0951 Telephone: (302) 984 6000 E-mail: sprice@potteranderson.com FIRST CHOICE: "Vincent" Suit Seeks OT Compensation under FLSA ------------------------------------------------------------- DAVID VINCENT, the Plaintiff, v. FIRST CHOICE PLUMBING SOLUTIONS, LLC, and MANUEL DURAN, individually, the Defendants, Case No. 2:17-cv-14430-RLR (S.D. Fla., Dec. 12, 2017), seeks to recover overtime compensation as required by federal law and the Fair Labor Standards Act. The Defendants hired Plaintiff as an employee in September 2016, and he worked for them until February 2017. The Plaintiff then started working for Defendants again in September 2017, and he worked for them until December 2017. Plaintiff does not recall the precise date that he was employed by Defendants. The Defendants kept the Plaintiff's work hours using a software program called "Service Fusion." Defendants would routinely sign Plaintiff out of the system, despite the fact that he continued performing work on behalf of the Defendants. While working for Defendants, Plaintiff and the Class performed non-exempt duties as plumbing assistants. Specifically, Plaintiff's job duties included but were not limited to loading work trucks, repairing plumbing leaks, clearing blocked drains, installing water heaters, cleaning toilets, determining the source of water leaks etc. The Defendants paid Plaintiff an hourly rate of $10.00 per hour on his check, and an additional $3.00 per hour in cash "off the books." Defendants refused to employ Plaintiff unless he agreed to this arrangement. While working for Defendants, Plaintiff was never paid at an overtime rate, regardless of the number of hours Plaintiff worked. Defendants also refused to pay Plaintiff at all for his last week of wages. Instead of paying Plaintiff, Defendants called the sheriff's department and lodged a complaint so that Plaintiff could not return to obtain his final paycheck. The Defendants never compensated Plaintiff or the Class at an overtime rate, despite the fact that they routinely worked in excess of 50 hours within a single work week. The Defendant First Choice Plumbing Solutions, LLC is a company that performs plumbing services that suffers persons such as Plaintiff and the Class to labor on its behalf for its business.[BN] The Plaintiff is represented by: J. Dennis Card, Jr., Esq. Darren R. Newhart., Esq. CONSUMER LAW ORGANIZATION, P.A. 721 US Highway 1, Suite 201 North Palm Beach, FL 33408 Telephone: (561) 822 3446 Facsimile: (305) 574 0132 E-mail: dennis@cloorg.com darren@cloorg.com FLEXI HOLIDAY: Responds to Class Action Over Timeshare Agreements ----------------------------------------------------------------- Patrick Cairns, writing for Moneyweb, reports that earlier in November consumer rights lawyer Trudie Broekmann was planning a class action suit against holiday clubs on behalf of at least 70 of her clients. She argues that not only do none of the contracts she has seen between holiday clubs and their members comply with legislation, but that the companies do not deliver on their obligations. Mrs Broekmann also noted that she had legally cancelled 48 contracts on behalf of clients, mostly with Quality Vacation Club and Flexi Holiday Club. However, she had received no response from these two companies to her letters. Flexi Holiday Club has now disputed this, claiming that it has "no record of any cancellations facilitated by Trudie Broekmann attorneys". The company also claimed that "other than stating that timeshare agreements are 'illegal and don't comply with the legal requirements', Mrs Broekmann has provided no specifics". Yet Moneyweb is in possession of a letter from Broekmann addressed to Club Leisure Management, which is Flexi Holiday Club's management company that was sent both by email and registered post on August 31 this year. It not only serves to cancel her clients' contract, but lays out extremely detailed reasons for doing so. Complaints Flexi Holiday Club also claimed that Mrs Broekmann misrepresented how many complaints had been laid against holiday clubs at the National Consumer Commission (NCC). In a press release, she had noted that, according to NCC commissioner Ebrahim Mohamed, the Department of Trade and Industry had received several thousand complaints about the industry. "The number of NCC complaints quoted by Trudie Broekmann differs substantially from the number quoted to the industry by the NCC," Flexi Club claimed. "To put this matter into context, the number of complaints received by the NCC Public Inquiry and lodged with the Consumer Goods and Services Ombud totals 440, which constitutes 0.1% of all timeshare weeks owned." Mrs Broekmann was however only quoting information already in the public domain. Mohamed has been quoted in the media as saying that thousands of complaints have been received, and Moneyweb has also reported on how the Freedom Front Plus has submitted more than 4 000 complaints to the NCC on behalf of consumers. Court action Given that the NCC has already conducted public hearings and is engaged in addressing issues in the industry, Flexi Holiday Club also questioned why Mrs Broekmann still felt it was necessary to take the issue to court. "Considering that class actions are known to be amongst the most protracted and costly means of consumer resolution and that the NCC Inquiry Panel is expected to make recommendations in the first quarter of next year, which at the very least will include new consumer protection and possibly legislative reforms, why would Mrs Broekmann engage in legal action knowing that it is likely that such action may become redundant?" the company asked. Mrs Broekmann however argues that, on the contrary, class actions are known to settle quickly after a class has been registered and that legislative reform won't help her clients. "A class action is specifically provided for in the CPA, and is an efficient way of dealing with broad-spectrum consumer complaints," she points out. "I am waiting for the NCC's report on their investigation into the industry before I finalise my strategy, but I expect they will only recommend legislative reform, which is a slow and uncertain process and most likely will not assist my clients who already have timeshare, as legislation cannot have a retroactive effect." She added that the benefit of a class action is that the legal costs are spread between claimants, which makes them manageable. False pretenses Flexi Holiday Club also urged consumers to "consult with their personal attorneys before participating in any class action to avoid contributing financially to an undertaking which may never materialise, or which is specifically designed to extort monies from consumers under false pretenses, as occurred in Europe". Moneyweb asked whether Flexi Club was suggesting that Mrs Broekmann was deliberately extorting money from her clients, but the company responded that: "We are merely urging consumers to act with caution to prevent a repeat of what happened in Europe where attorneys, or entities purporting to be attorneys, extorted money from consumers under the pretext of a pending class action, which ultimately never materialised. We have also written to Mrs Broekmann to request a list of the complaints against Flexi Holiday Club to engage with her to achieve a swift resolution for these consumers, however we have not yet received a response." Mrs Broekmann however notes that she is under no obligation to disclose her legal strategy. She also pointed out that the legal profession is regulated and lawyers can be removed from the roll if they are found to have misled clients or undertaken litigation under false pretences. "The class action will only go ahead once the legal team is satisfied that the legal grounds are sound, the best strategy is being employed and enough consumers are committed to take part to make the legal charges relatively affordable," Mrs Broekmann said. "We intend to engage at least one senior advocate and we are obtaining input from counsel who have already launched a class action in South Africa, so there will be a legal team of heavyweights who will all have to be convinced that the remedy I suggest can be achieved before we start approaching consumers to join up." [GN] FORCE FRAMING: Orozco Seeks Minimum Wage, OT under Labor Code ------------------------------------------------------------- JOSE OROZCO, as an individual and on behalf of all others similarly situated, the Plaintiff, v. FORCE FRAMING, INC., a California Corporation; and DOES 1 through 100, the Defendants, Case No. BC686094 (Cal. Super. Ct., Dec. 13, 2017), seeks to recover minimum wage and overtime wages under California Labor Code. The Plaintiff has worked for Defendants as a laborer since 2016, but has been on a medical leave of absence since approximately August 24, 2017. Throughout his employment with Defendants, Plaintiff was paid on a piece-rate basis, whereby he was paid a pre-determined rate per square foot based on the framing projects he completed. Plaintiff was compensated exclusively on a piece- rate basis, and Defendants did not maintain any record of the hours worked by Plaintiff. Additionally, throughout his employment with Defendants, Plaintiff regularly worked in excess of 8 hours per day and/or 40 hours per week. However, as a result of being compensated solely on a piece- rate basis, the Plaintiff was not compensated at one and one half times his regular rate of pay for hours worked in excess of 8 hours per day and/or 40 hours per week, and was therefore deprived of all overtime compensation. Further, as a result of Defendants' failure to record the hours Plaintiff worked. The Plaintiff did not receive all overtime compensation to which he was entitled. Lastly, Defendants' failure to compensate Plaintiff and other piece-rate employees for non-productive time has resulted in a failure to compensate these employees at one- and-a-half times the regular rate of pay for overtime hours, as non-productive wages are required to be included in the regular rate of pay for purposes of determining overtime compensation. Force Framing is in the framing contractor business.[BN] The Plaintiff is represented by: Paul K. Haines, Esq. Fletcher W. Schmidt, Esq. Andrew J. TRowbotham, Esq. HAINES LAW GROUP, APC 2274 East Maple Avenue El Segundo, CA 90245 Telephone: (424) 292 2350 Facsimile: (424) 292 2355 E-mail: phaines@haineslawgroup.com fschmidt@haineslawgroup.com arowbotham@haineslawgroup.com G SECURITY: "Osorio" Suit Seeks Unpaid Overtime Wages under FLSA ---------------------------------------------------------------- CINDY LEE OSORIO, on behalf of herself and others similarly situated, the Plaintiff, v. G SECURITY SERVICES LLC, d/b/a PATROL SERVICES OF ORLANDO, and JOHN GRASTA, the Defendants, Case No. 6:17-cv-02138-JA-GJK (M.D. Fla., Dec. 14, 2017), seeks to recover unpaid overtime compensation pursuant to the Fair Labor Standards Act. Defendant PSO is a private security business. GRASTA is the Captain and Manager of PSO. In that position, GRASTA exercises significant control over the company's operations, has the power to hire and fire employees, the power to determine salaries, the responsibility to maintain employment records and has operational control over significant aspects of the company's day-to-day functions. The Plaintiff was employed by Defendants from April 2, 2017 through June 25, 2017 as a security officer. During this time period, Defendants failed to pay any overtime compensation to Plaintiff or other similarly situated security officers. The Defendants failed to comply with the FLSA because Plaintiff, and other similarly situated security officers, were regularly required to work in excess of 40 hours a workweek were not paid overtime compensation as required by the FLSA.[BN] The Plaintiff is represented by: Jay P. Lechner, Esq. WHITTEL & MELTON, LLC One Progress Plaza 200 Central Avenue, #400 St. Petersburg, FL 33701 Telephone: (727) 822 1111 Facsimile: (727) 898 2001 E-mail: Pleadings@theFLlawfirm.com lechnerj@theFLlawfirm.com sonia@theFLlawfirm.com GALARDI SOUTH: "Ross" Suit Seeks Unpaid OT Wages under FLSA ----------------------------------------------------------- MARK ROSS, the Plaintiff, v. GALARDI SOUTH ENTERPRISES CONSULTING, INC. and RED EYED, INC., the Defendants, Case No. 1:17-cv-05119- WSD (N.D. Ga., Dec. 13, 2017), seeks to recover unpaid overtime compensation, liquidated damages, attorney's fees, costs, and other relief under the Fair Labor Standards Act. According to the complaint, the Plaintiff worked as Security Officer for Defendants out of Defendants' worksite located at 2555 Chantilly Drive, Atlanta, GA 30324. The Plaintiff worked out of the principal office address that both Galardi and Red Eyed shared. Plaintiff guarded the exterior of Defendants' properties and provided security duties for specific events. Plaintiff worked in this capacity from March 2012 through July 2017. The Plaintiff earned a rate of pay of $9.00 an hour. The Defendant agreed to pay Plaintiff wages for work performed by Plaintiff. Plaintiff accepted this agreement and did work for Defendant. During his employment, Plaintiff regularly worked more than 40 hours a week, but was not paid time and one-half his regular rate of pay for all hours worked in excess of 40 per work week during one or more work weeks. According to the lawsuit, Defendants subjected class members to the same illegal practice policy by not paying Plaintiff and those similarly situated correct overtime wages. The Defendants employed security officers who were improperly paid overtime wages in the State of Georgia within the past three years.[BN] The Plaintiff is represented by: Adian Miller, Esq. MORGAN & MORGAN, P.A. 191 Peachtree Street, N.E., Suite 4200 Atlanta, GA 30303 Telephone: (404) 496 7332 Facsimile: (404) 496 7428 E-mail: armiller@forthepeople.com GATEWAY ENERGY: Court Junks "Bell" Fraud Suit Without Prejudice --------------------------------------------------------------- Judge Katherine B. Forrest of the U.S. District Court for the Southern District of New York granted the Defendants' motions to dismiss the case, DANIELLE BELL, ERIN HITCHNER, and JONATHAN W. WALKER, individually and on behalf of all others similarly situated Plaintiffs, v. GATEWAY ENERGY SERVICES CORPORATION and DIRECT ENERGY SERVICES, LLC, Defendants, Case No. 17-cv-3893 (KBF) (S.D. N.Y.). On May 23, 2017, the Plaintiffs commenced the purported class action against two energy providers, the Defendants. They allege in sum that they were misled into contracting with Gateway for energy services by certain false promises. The Defendants raised the threshold issue in their respective motions to dismiss of whether the Court has subject matter jurisdiction over the Plaintiffs' claims. Judge Forrest finds that the allegations that Direct Energy dominates Gateway or even sets consumer prices fall short of asserting that Direct Energy injured these Plaintiffs in any way. And clear precedent in this circuit holds that the plaintiffs may not bring class actions against non-injurious defendants, even when they are affiliates of one another. Because the Plaintiffs here -- who contracted only with Gateway -- have no direct claim against Direct Energy, and because they have no standing to assert any claims that might exist on behalf of Direct Energy's other (non-Gateway) customers, she concludes that Direct Energy must be dismissed as a Defendant from the case. With Direct Energy dismissed from the case, the Judge next turns to the question of whether it has subject matter jurisdiction over the claims against the one remaining Defendant -- Gateway. She concludes that the Court does not. The Court, like all federal courts, is one of limited jurisdiction. It cannot hear a case unless it has subject matter jurisdiction over the claims asserted, and plaintiffs bear the burden on that issue. Further, the Plaintiffs must carry their burden with respect to subject matter jurisdiction by a preponderance of the evidence. When a factual challenge to the court's jurisdiction has been raised, the court may resolve any disputed jurisdictional fact issues by referring to evidence outside of the pleadings. Judge Forrest further concludes that CAFA's exclusion set forth in 28 U.S.C. Section 1332(d)(4)(B) applies. It is clear from the SAC that Gateway is the "primary defendant" in the case. All of the Plaintiffs contracted directly with Gateway, and Gateway is alleged to have made the actionable misrepresentations (some predating the acquisition by Direct Energy). Because greater than two-thirds of all proposed Plaintiffs and Gateway are citizens of New York, which is the state the action was filed, 28 U.S.C. Section 1332(d)(4)(B) applies and the Court has no jurisdiction to hear the action. Without CAFA, the Court lacks subject matter jurisdiction over the Plaintiffs' claims, and the case must be dismissed. For the reasons she states, Judge Forrest granted without prejudice the Defendants' respective motions to dismiss the SAC. She directed the Clerk of Court to terminate all open motions and to terminate the action. A full-text copy of the Court's Nov. 29, 2017 Opinion and Order is available at https://is.gd/CVV1vb from Leagle.com. Danielle Bell, Individually and all behalf of all others similarly situated, Plaintiff, represented by Nick Suciu, III -- nicksuciu@bmslawyers.com -- Barbat Mansour & Suciu PLLC. Danielle Bell, Individually and all behalf of all others similarly situated, Plaintiff, represented by Kevin Laukaitis -- klaukaitis@kohnswift.com -- Kohn, Swift, & Graf, P.C. & Jonathan Shub -- jshub@kohnswift.com -- Kohn, Swift, & Graf, P.C.. Erin Hitchner, Individually and all behalf of all others similarly situated, Plaintiff, represented by Kevin Laukaitis, Kohn, Swift, & Graf, P.C. & Jonathan Shub, Kohn, Swift, & Graf, P.C.. Jonathan W. Walker, Individually and all behalf of all others similarly situated, Plaintiff, represented by Kevin Laukaitis, Kohn, Swift, & Graf, P.C. & Jonathan Shub, Kohn, Swift, & Graf, P.C.. Gateway Energy Services Corporation, Defendant, represented by Andrew M. Edison -- andrew.edison@emhllp.com -- Edison, McDowell & Hetherington LLP, Diane Wizig -- diane.wizig@emhllp.com -- Edison, McDowell & Hetherington, LLP, Michael D. Matthews -- matt.matthews@emhllp.com -- Edison, McDowell & Hetherington LLP, Steven Miles Lucks -- slucks@fishkinlucks.com -- Fishkins Lucks LLP & Zachary Winthrop Silverman -- zsilverman@fishkinlucks.com -- Fishkin Lucks LLP. Direct Energy Services, LLC, Defendant, represented by Andrew M. Edison, Edison, McDowell & Hetherington LLP, Diane Wizig, Edison, McDowell & Hetherington, LLP, Michael D. Matthews, Edison, McDowell & Hetherington LLP, Steven Miles Lucks, Fishkins Lucks LLP & Zachary Winthrop Silverman, Fishkin Lucks LLP. GENESIS LOGISTICS: Settlement in "Aguirre" Has Final Approval ------------------------------------------------------------- In the case styled GARMALIEL AGUIRRE, LUIS BERNAL, KAREEM CRAIG, GREG GUERRERO, MARTHA HILDEBRAND, BRET LAMBOURNE, MATTHEW LAMBOURNE, DAN LE BOEUF, CARLOS MARTINEZ, BRIAN MATA, JOHN M. ORTEGA, ANTHONY ORTIZ, HENRY RENDON, KENNY SWAILS, and all other "aggrieved" employees, Plaintiffs, v. GENESIS LOGISTICS INC., an Ohio corporation, and DOES 1-100, inclusive, Defendants, Case No. SACV12-00687 JVS (KESx) (C.D. Cal.), Judge James V. Selna of the U.S. District Court for the Central District of California granted final approval of the parties' Class Action Settlement and Stipulation Agreement. Having previously granted preliminary approval of the parties' Settlement Agreement, the matter now comes before the Court for final approval of the proposed settlement set forth in the Settlement Agreement. Judge Selna granted final approval of the proposed settlement set forth in the Settlement Agreement. He finds that the proposed settlement is, in all respects, fair, adequate and reasonable and directs the Parties to effectuate the Settlement Agreement according to its terms. The Judge approved the proposed allocation of the Gross Settlement Fund as set forth in the Settlement Agreement as well as the Class Counsel's requests for $2,333,333 in attorneys' fees and $61,635.94 in costs to be paid from the Gross Settlement Fund provided for in the Settlement Agreement. The Class Counsel will not be entitled to any other award of attorneys' fees or costs in any way connected with the action. Any separate appeal from the Order as to the Class Counsel Attorneys' Fees and Costs and/or the Class Representative Enhancement will not operate to terminate or cancel the Settlement Agreement or otherwise affect the finality of the Order. The Judge also approved the enhancement payment of $5,000 to $15,000 each to the Class Representatives (for a total of $190,000) from the Gross Settlement Fund. He approved the following tiered enhancement awards: a. Tier One: $15,000 Garmaliel Aguirre Brian Mata Monica Torres Martha Hildebrand Henry Rendon Bret Lambourne Kenny Swails b. Tier Two: $10,000 Luis Bernal Quincy Jefferson John M. Ortega Greg Guerrero Dan Le Boeuf Anthony Ortiz c. Tier Three: $5,000 Kareem Craig Matthew Lambourne Nicho David Vera Juan Gonzalez Carlos Martinez Judge Selna further approved the payment of $1,000,000 of the Gross Settlement Amount as PAGA penalties from the Gross Settlement Fund. This $1,000,000 will be distributed with 75% ($750,000) going to the California Labor and Workforce Development Agency, and the remaining 25% ($250,000) being divided equally among the Settlement Class Members and included in their Settlement Awards. He approved the payment of $12,250 to the Claims Administration from the Gross Settlement Fund. For all other purposes, the Judge entered the judgment under the terms of his Order, and dismissed the case with prejudice. A full-text copy of the Court's Nov. 29, 2017 Order is available at https://is.gd/tlxlr5 from Leagle.com. Garmaliel Aguirre, Plaintiff, represented by Aashish Y. Desai -- aashish@desai-law.com -- Desai Law Firm PC. Garmaliel Aguirre, Plaintiff, represented by Maria Adrianne De Castro, Desai Law Firm PC. Luis Bernal, Plaintiff, represented by Aashish Y. Desai, Desai Law Firm PC & Maria Adrianne De Castro, Desai Law Firm PC. Kareem Craig, Plaintiff, represented by Aashish Y. Desai, Desai Law Firm PC & Maria Adrianne De Castro, Desai Law Firm PC. Greg Guerrero, Plaintiff, represented by Aashish Y. Desai, Desai Law Firm PC & Maria Adrianne De Castro, Desai Law Firm PC. Martha Hildebrand, Plaintiff, represented by Aashish Y. Desai, Desai Law Firm PC & Maria Adrianne De Castro, Desai Law Firm PC. Bret Lambourne, Plaintiff, represented by Aashish Y. Desai, Desai Law Firm PC & Maria Adrianne De Castro, Desai Law Firm PC. Matthew Lambourne, Plaintiff, represented by Aashish Y. Desai, Desai Law Firm PC & Maria Adrianne De Castro, Desai Law Firm PC. Dan Le Boeuf, Plaintiff, represented by Aashish Y. Desai, Desai Law Firm PC & Maria Adrianne De Castro, Desai Law Firm PC. Carlos Martinez, Plaintiff, represented by Aashish Y. Desai, Desai Law Firm PC & Maria Adrianne De Castro, Desai Law Firm PC. Genesis Logistics, Defendant, represented by Matthew A. Hodel -- mhodel@hodelwilks.com -- Hodel Wilks LLP, Ashley E. Merlo -- amerlo@hodelwilks.com -- Hodel Wilks LLP, Frederick L. Wilks -- fwilks@hodelwilks.com -- Hodel Wilks LLP, James E. Davidson -- james.davidson@icemiller.com -- Ice Miller LLP, pro hac vice, Paul L. Bittner -- paul.bittner@icemiller.com -- Ice Miller LLP, pro hac vice & John Patrick Gilligan -- john.gilligan@icemiller.com -- Ice Miller LLP. GOOGLE INC: Faces iPhone Data Snooping Class Action in UK --------------------------------------------------------- Tom Warren, writing for The Verge, reports that Google may be forced to pay out compensation to more than 5 million Brits if a class action lawsuit in the UK is successful. A group, labeling itself "Google You Owe Us," is taking Google to court, claiming it unlawfully collected personal information by bypassing privacy settings on Apple's iPhone Safari browser. Google, Facebook, and several other online advertising networks were caught in 2012 using a workaround to bypass restrictions, allowing the companies to deposit cookies on an iPhone even if the device was set to block them. While Google claimed at the time its practice was limited to the company's failed Google+ initiative, the UK lawsuit alleges that Google used the workaround to track "internet browsing history, which Google then used to sell a targeted advertising service." Google's revenues rely on selling targeted ads, and obtaining as much personal information on its users to sell services and recommend products. Richard Lloyd, former director of consumer body Which? In the UK, is taking Google to court alongside law firm Mischon de Reya. "I believe that what Google did was simply against the law. Their actions have affected millions, and we'll be asking the courts to remedy this major breach of trust," explains Lloyd in an interview with The Guardian. "Through this action, we will send a strong message to Google and other tech giants in Silicon Valley that we're not afraid to fight back if our laws are broken." The case is rather unique in the UK against a giant tech company. While there have been numerous class action lawsuits in the US against big tech companies, the practice isn't as widespread in the UK. Google was forced to pay a $22.5 million fine for the same Safari privacy breach back in 2012. At the time it was one of the highest fines the Federal Trade Commission had administered. Britain's High Court will hear the case some time next year, and if the action is successful then iPhone users from 2011-2012 will be able to claim part of the damages. Google says it will defend the case. "This is not new," says a Google spokesperson. "We have defended similar cases before. We don't believe it has any merit and we will contest it." [GN] GOOGLE INC: Jan. 5 Reply Deadline on "Sweet" Dismissal Bid ---------------------------------------------------------- In the case styled JAMES SWEET; CHUCK MERE; ZOMBIE GO BOOM, LLC, DBA ZOMBIEGOBOOM, Plaintiff, v. GOOGLE, LLC; YOUTUBE, LLC; and DOES 1-10, inclusive, Defendant, Case No. 3:17-cv-03953-EMC (N.D. Cal.), Judge Edward M. Chen of the U.S. District Court for the Northern District of California, San Francisco Division, continued the Plaintiff's deadline to file opposition to the Defendant's Motion to Dismiss to Jan. 25, 2018 from Dec. 14, 2017. On July 13, 2017, the Plaintiff filed a purported Class Action Complaint against the Defendant, and served the Complaint on the Defendant on Aug. 4, 2017. On Oct. 26, 2017, he filed their First Amended Complaint ("FAC") against the Defendant, and served the FAC on the Defendant on Oct. 26, 2017. The Defendant filed, on Nov. 30, 2017, a Motion to Dismiss the Plaintiff's FAC. Pursuant to Northern District of California Local Rule 7-3(a), the Plaintiff's deadline to file an opposition to the Defendant's Motion to Dismiss is Dec. 14, 2017, only 14 days after the Defendant's filing of their Motion. Said Motion is scheduled to be heard on Jan. 4, 2018. The Plaintiff's lead counsel will be out of the country for a period of time encompassing the Motion to Dismiss' hearing date, the parties wish to continue the Plaintiff's deadline to file their opposition to the Defendant's Motion, and to research and respond adequately to the Defendant's issues raised in their Motion. The parties have stipulated and agreed to extend the deadline to Jan. 25, 2018 for the Plaintiff to file their opposition to Defendant's Motion to Dismiss. They've agreed to extend the deadline to Feb. 8, 2018 for the Defendant to respond to the Plaintiff's opposition to the Defendant's Motion to Dismiss. The parties will request the Court to vacate the Jan. 4, 2018, hearing date for the Defendant's Motion to Dismiss the Complaint and set the hearing date for March 1, 2018. They request that the case management conference currently scheduled for March 1, 2018, be continued to May 3, 2018. Judge Chen granted the parties' stipulation. A full-text copy of the Court's Dec. 1, 2017 Order is available at https://is.gd/lO4BML from Leagle.com. James Sweet, Plaintiff, represented by Todd Michael Friedman, Law Offices of Todd M. Friedman, P.C. James Sweet, Plaintiff, represented by Adrian Bacon, Law Offices of Todd M. Friedman, P.C. Chuck Mere, Plaintiff, represented by Todd Michael Friedman, Law Offices of Todd M. Friedman, P.C. & Adrian Bacon, Law Offices of Todd M. Friedman, P.C. Zombie Go Boom, LLC dba ZombieGoBoom, Plaintiff, represented by Todd Michael Friedman, Law Offices of Todd M. Friedman, P.C. & Adrian Bacon, Law Offices of Todd M. Friedman, P.C. Google, Inc., Defendant, represented by Anthony J. Weibell -- aweibell@wsgr.com -- Wilson Sonsini Goodrich & Rosati, Lena Ting Yi Wong -- lwong@wsgr.com -- Wilson Sonsini Goodrich and Rosati, Maura Lea Rees -- MRees@wsgr.com -- Wilson Sonsini Goodrich & Rosati & Eli Bard Richlin -- erichlin@wsgr.com -- Wilson Sonsini Goodrich and Rosati PC, pro hac vice. YouTube, LLC, Defendant, represented by Anthony J. Weibell, Wilson Sonsini Goodrich & Rosati A Professional Corporation. Google LLC, Defendant, represented by Anthony J. Weibell, Wilson Sonsini Goodrich & Rosati A Professional Corporation. HAT WORLD: Court Grants Conditional Certification in "Ward" ----------------------------------------------------------- In the case, MATTHEW WARD, on behalf of himself individually and on behalf of other similarly situated current or former employees, Plaintiff, v. HAT WORLD, INC., Defendant, Case No. 1:17-cv-02557- TWP-MJD (S.D. Ind.), Judge Tanya Walton Pratt of the U.S. District Court for the Southern District of Indiana, Indianapolis Division, granted Ward's Motion for conditional certification and denied the request for a hearing. Hat World is a Minnesota corporation that operates a retail business out of Indianapolis, Indiana. Ward previously was employed by Defendant Hat World as a regional loss prevention investigator ("RLPI"). As a salaried employee, he often worked more than 40 hours per week, yet Hat World failed to pay him any overtime wages for hours worked in excess of 40 hours. Because he was not paid overtime wages, Ward initiated the lawsuit against Hat World under the Fair Labor Standards Act ("FLSA"), and under similar state law provisions. The Plaintiff asks the Court to conditionally certify a collective action for the FLSA claim and permit notice to potential Plaintiffs who similarly have worked or are working for Hat World as RLPIs and who have not been paid for overtime work. Also before the Court is Ward's Request for Oral Argument on his Motion. Judge Pratt finds that the arguments advanced by each party and the evidence offered in support show that RLPIs employed by Hat World have similar job responsibilities, are subject to similar company policies and practices, and are paid under a similar compensation structure. Additionally, there appears to be no dispute that all RLPIs have been similarly classified by Hat World as "exempt" employees. Whether that "exempt" classification is actually appropriate is at the heart of the parties' dispute and is a merits question. It appears that Ward and the potential Plaintiffs are similarly situated employees who were subject to a common policy, plan, or practice. The issue to be resolved later on the merits is whether that common policy, plan, or practice violated the law. Therefore, the Judge concludes that Ward has met his burden of making a modest factual showing that he is similarly situated to the potential Plaintiffs to conditionally certify a collective action against Hat World. Therefore, Judge Pratt granted Ward's Motion and conditionally certified the FLSA claim as a collective action for the class of all RLPIs who are working or have worked for Hat World at any time in the past three years and during their employment worked, at any time, in excess of 40 hours in a given week. The Judge ordered that Hat World to produce the Employee Information of all current and former RLPIs who are or were employed by Hat World during the three-year period prior to the date of the Order. She also ordered Hat World to provide the Employee Information in a usable electronic format to counsel for Ward within 14 days from the entry of the Order. She authorized that the proposed "Notice of Right to Join Lawsuit" and corresponding "Consent to Join" form submitted by Ward at Filing No. 52-1 at 4-7 and Filing No. 52-1 at 8 may be issued to those individuals whose names are provided by Hat World as required by the Order. The Notice will be mailed within seven days after Hat World provides the Employee Information. The "Consent to Join" form will be enclosed with the Notice, along with a self-addressed, postage paid return envelope. Ward is permitted to send subsequent mailings of this Notice. The Notice and Consent forms will be mailed by first-class mail or overnight delivery. The potential Plaintiffs will have 60 days after the deadline for mailing of the Notice of Right to Join Lawsuit to return a Consent to Join form to opt-in to the litigation, unless the parties agree to permit late filings or good cause can be shown as to why the form was not returned prior to the deadline. Judge Pratt denied as moot Ward's Request for Oral Argument on His Motion for Conditional Collective Action Certification. She notes that Attorneys Scott McKay, Curt Hineline, and James Morrison are not registered for electronic filing in the district despite having been ordered to do so. The Clerk of Court is not required to mail hard copies to the unregistered attorneys. A full-text copy of the Court's Nov. 29, 2017 Order is available at https://is.gd/927gdM from Leagle.com. MATTHEW WARD, Plaintiff, represented by Scott J. McKay, LAW OFFICES OF SCOTT MCKAY. MATTHEW WARD, Plaintiff, represented by Marina Visan, CARSON & NOEL PLLC, pro hac vice & Todd W. Wyatt -- todd@carsonnoel.com -- CARSON & NOEL PLLC, pro hac vice. HAT WORLD INC., Defendant, represented by James Raymond Morrison - - jmorrison@bakerlaw.com -- BAKER HOSTETLER LLP, Bonnie Keane DelGobbo -- bdelgobbo@bakerlaw.com -- BAKER HOSTETLER LLP, Joel Griswold -- jcgriswold@bakerlaw.com -- BAKER HOSTETLER LLP, John Conlaeth McIlwee -- jmcilwee@bakerlaw.com -- BAKER & HOSTETLER & Curt Roy Hineline -- chineline@bakerlaw.com -- BAKER HOSTETLER LLP. HEIGHTS TOWER: Bid to Decertify "Pietrzycki" Class Denied --------------------------------------------------------- In the case, JASON PIETRZYCKI, on behalf of himself and all other plaintiffs similarly situated, Plaintiff, v. HEIGHTS TOWER SERVICE, INC., and MARK MOTTER, Defendants, Case No. 14 C 6546 (N.D. Ill.), Magistrate Judge Jeffrey T. Gilbert of the U.S. District Court for the Northern District of Illinois, Eastern Division, denied the Plaintiffs' Motion for Summary Judgment, the Defendants' Motion for Summary Judgment, and the Defendants' Motion to Decertify. On Aug. 25, 2014, Pietrzycki filed the original complaint in the case on behalf of himself and similarly situated persons. A little less than one year later, Pietrzycki filed the Second Amended Complaint, which is the extant complaint at the present time. The Second Amended Complaint asserts two counts. Count I is brought under the Fair Labor Standards Act ("FLSA") and Count II under the Illinois Minimum Wage Law ("IMWL"). Both counts allege the Defendants underpaid the Plaintiffs for their overtime work. The Plaintiffs now have refined their case to two claims, which are identical under the two statutes. First, they claim HTS should have counted Drive Time as "hours worked" for the purposes of determining how many overtime hours they worked. Second, they claim HTS should have included the amounts paid at the Drive Time Rate when determining each of their regular rate. On April 1, 2015, at the joint request of the parties, the Court conditionally certified a FLSA collective action. The following year, Pietrzycki moved to certify a Rule 23 class and the Defendants moved to decertify the collective action. Based on the parties' arguments and the record then before it, the Court certified, under Federal Rules of Civil Procedure 23(b)(2) and (3), a class of Illinois workers under the IMWL that is comprised of all current and former HTS Tower Technicians and Foremen who received compensation for Drive Time as reflected in HTS's payroll records and who worked in Illinois since August 25, 2011. The Court denied the motion to decertify the collective action. After the Court's ruling, the Defendants sought additional discovery, which they were permitted to take. This was followed by the current round of motion practice. The parties have filed cross-motions for summary judgment. The Defendants also have filed a motion to decertify the Rule 23 class action and the FLSA collective action. The Court heard oral argument on the pending motions on July 31, 2017. Magistrate Judge Gilbert concludes that the Plaintiffs have not shown based on the undisputed facts that Drive Time counts as hours worked and the Defendants have not shown based on the undisputed facts that Drive Time does not count as hours worked. Therefore, the Judge cannot grant summary judgment to either party on the issue of whether the Defendants improperly excluded Drive Time from their calculation of hours worked by the Plaintiffs including for purposes of determining overtime. He, however, goes on to address the Plaintiffs' argument that the Defendants improperly calculated their regular rate by not including payments made at the Drive Time Rate in that calculation, including for purposes of paying overtime compensation, because that could be helpful in moving the case forward to an eventual resolution. To sum up, Magistrate Judge finds that HTS had a non-written contract with employees to compensate them for the activity of traveling as passengers in a vehicle regardless of whether it was an HTS truck or a personal vehicle. HTS also had a custom or practice of compensating employees for traveling as passengers in an HTS truck. It remains an open question whether HTS had a custom or practice of compensating employees for traveling as passengers in a personal vehicle, but that issue is not material in light of HTS's non-written contract. Therefore, if the Plaintiffs can prove that the Defendants violated the FLSA, then the Portal-to-Portal Act of 1947 ("PPA") will not shield the Defendants from liability on their hours worked or regular rate claims. Accordingly, he says the Defendants have not shown they are entitled to judgment as a matter of law based on the PPA given the undisputed facts in the present record. For all of these reasons, Magistrate Judge Gilbert denied the Plaintiffs' and the Defendants' motions for summary judgment. With respect to the Defendant's Motion to Decertify, the Magistrate Judge disagrees with the Defendants to the extent they contend HTS did not have a custom, practice, or contract to compensate employees for the activity of traveling as passengers in a vehicle. He says whether HTS had a custom or practice of compensating for travel as passengers in a personal vehicle remains an open question. But the answer to that question is not determinative for the reasons discussed. Based on the arguments asserted by the Plaintiffs at summary judgment, Drive Time potentially may be hours worked if it is more than ordinary home-to-work commuting. At this time, therefore, the question with respect to personal vehicles is not a basis upon which to decertify the class. For the reasons he explained, Magistrate Judge Gilbert denied the Defendants' Motion to Decertify. A full-text copy of the Court's Nov. 29, 2017 Memorandum Opinion and Order is available at https://is.gd/0q1tws from Leagle.com. Jason Pietrzycki, Plaintiff, represented by John C. Kunze, The Fish Law Firm. Jason Pietrzycki, Plaintiff, represented by Kimberly A. Hilton, The Fish Law Firm, P.C. & David J. Fish -- dfish@fishlawfirm.com - - The Fish Law Firm, P.C.. Heights Tower Service, Inc, Defendant, represented by Douglas P. Holthus -- dholthus@mrrlaw.com -- Mazanec, Raskin & Ryder Co., LPA, pro hac vice & Michael H. McColl -- mmccoll@fgppr.com -- Foran, Glennon, Palandech Ponzi & Rudloff PC. Mark Motter, Defendant, represented by Douglas P. Holthus, Mazanec, Raskin & Ryder Co., LPA, pro hac vice & Michael H. McColl, Foran, Glennon, Palandech Ponzi & Rudloff PC. HILL'S PET: Court Grants Bid to Dismiss "Vanzant" ICFA Suit ----------------------------------------------------------- Judge Samuel Der-Yeghiayan of the U.S. District Court for the Northern District of Illinois dismissed the case, HOLLY BLAINE VANZANT, et al., Plaintiffs, v. HILL'S PET NUTRITION INC., et al., Defendants, Case No. 17 C 2535 (N.D. Ill.). Plaintiffs Holly Blaine Yaruant and Dana Land allegedly owned cats that had serious health problems. After appointments with veterinarians, the veterinarians allegedly prescribed Prescription Cat Food to treat the health problems of their cats. The Prescription Cat Food is allegedly made by the Defendant. The Plaintiffs allegedly used the prescriptions from the veterinarians to purchase the Prescription Cat Food from Defendant Petsmart, Inc. They allegedly continued to purchase the Prescription Cat Food for years. The Plaintiffs contend that the prescriptions are not required by law and that the prescription requirement is deceptive and allows HPN and Petsmart to profit by selling the Prescription Cat Food at above-market prices. They contend that the Prescription Cat Food does not contain any ingredient that cannot be found in other non- prescription pet food. The Plaintiffs also contend that the use of the word "prescription" and similar wording deceives consumers into believing that the product has been evaluated by the U.S. Food and Drug Administration. The Plaintiffs include in the amended complaint claims brought against HPN alleging a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA")(Count I), ICFA claims brought against Petsmart (Count II), unjust enrichment claims brought against HPN (Count III), and unjust enrichment claims brought against Petsmart (Count IV). The Defendants move to dismiss all claims. They argue that the Plaintiffs have not pled sufficient facts to support an ICFA claim, that the ICFA claim is barred by the ICFA safe harbor exemption, that the Plaintiffs have failed to plead their ICFA claims with particularity, and that the ICFA claims cannot stand. Judge Der-Yeghiayan granted the Defendants' motion to dismiss. He explains that the FDA is the regulatory authority that is charged with overseeing therapeutic pet food and the Plaintiffs cannot seek to impose stricter requirements upon the Defendants in pursuing their ICFA claims. The Defendants are thus protected by the safe harbor exception in Section 10b(1). The Judge finds that the Plaintiffs' case rests on their claims that the Defendants, which are private corporate entities, somehow are engaging in fraud or unfair practices by following the guidance of the FDA. He says there is simply no basis in the law to support such a notion. If, as Plaintiffs now claim, they had known all they know about prescription pet food, they would not have paid the amount sought in the marketplace for such food, they could have chosen to forego the therapeutic food for their cats. There is no deception based on the face of the Plaintiffs' own pleadings. Based on this, the Defendants' motion to dismiss the ICFA claims is granted. Finally, with respect to unjust enrichment, Judge Der-Yeghiayan says the Seventh Circuit has stated that when the unjust enrichment claim is premised on the same fraud underlying the ICFA claim, and there was no valid underlying fraud, both the ICFA claim and the unjust enrichment claim fail. The Plaintiffs' unjust enrichment claims are premised on the same alleged deception that supported their ICFA claims. Therefore, the Defendants' motion to dismiss the unjust enrichment claims is granted. A full-text copy of the Court's Nov. 29, 2017 Memorandum Opinion is available at https://is.gd/23pUPv from Leagle.com. Holly Blaine Vanzant, Plaintiff, represented by Ellen M. Carey -- ecarey@fordellp.com -- Forde Law Offices LLP. Holly Blaine Vanzant, Plaintiff, represented by Kevin Michael Forde -- mforde@fordellp.com -- Forde Law Offices LLP & Michael K. Forde, Forde Law Offices LLP. Dana Land, Plaintiff, represented by Ellen M. Carey, Forde Law Offices LLP, Kevin Michael Forde, Forde Law Offices LLP & Michael K. Forde, Forde Law Offices LLP. Hill's Pet Nutrition, Inc., Defendant, represented by Hannah Chanoine -- hchanoine@omm.com -- O'Melveny & Myers LLP, pro hac vice, John C. Gekas -- john.gekas@saul.com -- Saul Ewing Arnstein & Lehr LLP & Richard B. Goetz -- rgoetz@omm.com -- O'Melveny & Myers, pro hac vice. PetSmart, Inc., Defendant, represented by Eileen Regina Ridley -- eridley@foley.com -- Foley & Lardner Llp, Alan R. Ouellette -- aouellette@foley.com -- Foley & Lardner Llp, John Louis Litchfield -- jlitchfield@foley.com -- Foley & Lardner Llp & Zaldwaynaka L. Scott -- zscott@foley.com -- Foley & Lardner. Medical Management International, Inc. d/b/a Banfield Pet Hospital, Defendant, represented by Brett Michael Doran -- doranb@gtlaw.com -- Greenbert Traurig LLP, Francis A. Citera -- citeraf@gtlaw.com -- Greenberg Traurig, LLP & John E. Schmidtlein -- jschmidtlein@wc.com -- Williams & Connolly LLP, pro hac vice. BluePearl Vet, LLC, Defendant, represented by Brett Michael Doran, Greenbert Traurig LLP, Benjamin M. Greenblum, Williams & Connolly LLP, pro hac vice & Francis A. Citera, Greenberg Traurig, LLP. HILLSTONE HEALTHCARE: "Smith" Suit Seeks OT Wages under FLSA ------------------------------------------------------------ Doniele Smith, 784 S. Broadleigh Rd., Apt. G Columbus, Ohio 43209, on behalf of herself and other members of the general public similarly situated, the Plaintiff, v. Hillstone Healthcare Inc. c/o Matthew Dapore 979 Brule Ct. Westerville, Ohio 43081; and Cornerstone Innovations, Inc. c/o Steven Oddo 3745 Medina Road Medina, Ohio 44256, the Defendants, Case No. 2:17-cv-01075-JLG-EPD (S.D. Ohio, Dec. 12 , 2017), seeks to recover overtime wages and all available relief under the Fair Labor Standards Act of 1938, the Ohio Minimum Fair Wage Standards Act, and the Ohio Prompt Pay Act. The Plaintiff was jointly employed by Defendants as an STNA from May 2017 when Defendants jointly purchased and/or began jointly operating Isabelle Ridgway through August 2017. As an STNA, Plaintiff was an hourly, non-exempt employee of Defendants as defined in the FLSA and the Ohio Acts. During her employment with Defendants, the Plaintiff was not fully and properly paid for all of her compensable hours worked because Defendants did not properly calculate her regular rate of pay for the purposes of lawfully paying her for her overtime hours worked, resulting in unpaid overtime wages. The Plaintiff and other similarly situated employees worked in excess of 40 hours in a workweek. The Plaintiff and other similarly situated employees were compensated on an hourly, not a salary or fee basis. The Plaintiff and other similarly situated employees received compensation at an hourly rate for all hours worked, plus additional remuneration for work performed during specific shift(s) and/or day(s). Hillstone Healthcare has management of three nursing homes.[BN] Attorneys for Plaintiff and similarly situated employees: Matthew J.P. Coffman, Esq. COFFMAN LEGAL, LLC 1457 S. High St. Columbus, Ohio 43207 Telephone: (614) 949 1181 Facsimile: (614) 386 9964 E-mail: mcoffman@mcoffmanlegal.com - and - Peter Contreras, Esq. CONTRERAS LAW, LLC PO Box 215 Amlin, Ohio 43002 Telephone: (614) 787 4878 Facsimile: (614) 923 7369 E-mail: peter.contreras@contrerasfirm.com HOLTGER BROS: "McChesney" Suit Seeks Overtime Pay under FLSA ------------------------------------------------------------ JACOB MCCHESNEY, Individually and on behalf of All Others Similarly Situated, the Plaintiff, v. HOLTGER BROS., INC., the Defendant, Case No. 4:17-cv-00824-SWW (E.D. Ark., Dec. 13, 2017), seeks to recover declaratory judgment, monetary damages, liquidated damages, prejudgment interest, civil penalties and costs, including reasonable attorneys' fees as a result of Defendant's failure to pay Plaintiff and other field workers lawful overtime compensation for hours worked in excess of 40 hours per week and lawful compensation for all hours worked. According to the complaint, for at least three years prior to the filing of this Complaint, the Defendant has willfully and intentionally committed violations of the FLSA. As a field worker, Plaintiff's primary duties were to dig, construct and install fiber optic wire in locations in the field. Plaintiff was classified as an hourly employee the entire duration of his employment with Defendant and paid an hourly rate. During his shifts, Plaintiff almost always worked in excess of 40 hours per week throughout his tenure with Defendant. Other field workers worked similar hours. The Plaintiff and other field workers were not paid for all hours worked, nor were they paid properly for overtime. The Plaintiff and the other field worker employees were and are entitled to a their regular rate for all hours worked under 40 per week and overtime compensation in the amount of 1.5 times their regular rate of pay for all hours worked in excess of 40 in a week. Holtger Bros., Inc. is a family- owned and operated turnkey utility contractor.[BN] The Plaintiff is represented by: Chris Burks, Esq. Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford Road, Suite 411 Little Rock, AK 72211 Telephone: (501) 221 0088 Facsimile: (888) 787 2040 E-mail: chris@sanfordlawfirm.com josh@sanfordlawfirm.com HOME CAPITAL: West Face Opts Out of Class Action Settlement ----------------------------------------------------------- Barbara Shecter, writing for Financial Post, reports that alternative asset manager West Face Capital, which opted out of a class-action settlement with Home Capital Group Inc. last summer, has given the mortgage lender a draft statement of claim that asserts damages of $70 million for alleged misrepresentation in Home Capital's disclosure. Home Capital issued a statement on Nov. 28 disclosing receipt of the draft claim, which has not been filed in court. West Face says it was short shares of Home Capital from April 2013 to April 2015. "West Face covered its short position during a period in which West Face now believes that market prices of Home Capital shares were inflated due to incomplete public disclosures by Home Capital," West Face said in a statement on Nov. 28. Between late 2014 and early 2015, Home Capital discovered some mortgage brokers had submitted falsified income information for borrowers. The discovery, and steps taken by the company including cutting ties with a number of brokers, caused mortgage originations to fall. The Ontario Securities Commission took issue with the company's disclosure of the problem, and Home Capital, along with three former executives, settled with the OSC this summer over allegations the company failed to comply with continuous disclosure obligations and made misleading statements to its investors. The episode caused the shares to drop dramatically, to less than $6 in May 2017 from more than $55 in August 2014. West Face said on Nov. 28 that the firm "elected to opt out" of the related class action lawsuit that was settled in August for $29.5 million, and "raised its claim with Home Capital directly." For its part, Home Capital said it "believes it has valid defences" against the allegations made by West Face. "If West Face commences the claim, the company intends to fully defend its conduct, as well as to investigate the conduct of the various short sellers and the propriety of their actions whether acting alone or in concert with others," Home Capital said. West Face said the firm has not traded shares of Home Capital since April 2015. "West Face acted alone in its short position and did not act in concert with any other short sellers," the firm said in its statement. Allan Coleman, a partner at law firm Osler, Hoskin & Harcourt LLP in Toronto, said nothing prohibits short sellers from participating in securities class action lawsuits, but their loss calculation can differ significantly from investors who hold a long position in the stock. "If you are a short seller, you may fall within the class definition because you may have acquired shares during the class period," said Mr. Coleman. "But you may not have suffered any loss as measured by the relevant sections of the Securities Act." He said class action lawsuits that seek damages for misleading disclosure are often structured to calculate losses based on the difference between what an investor pays for the stock and the price at which they sell the shares after the disclosure is corrected. In the case of a short seller, who borrows stock betting the price will fall, the actual purchase and disposition of the share to cover the short position is almost simultaneous, meaning there could be no loss if such a calculation were used, Coleman said. In addition, the crucial time for a short seller isn't what happens to the share price after the misleading disclosure is corrected, but what happens to the stock between when the short position is taken and when it is covered. "I have not seen the draft statement of claim, but what I suspect a short seller such as West Face could claim is that . . . had the alleged misrepresentation not been made, or been revealed between them taking the short position and covering the short position, the stock would have dropped in price and then they would have bought and covered their short position at a much lower price," he said. "In other words, they would have profited from the short position or at least lost less." Mr. Coleman said it is rare in Canada for large investors to opt out of class actions because think they can get a better deal on their own. "In typical circumstances, the reason why an investor would opt out and pursue their own action . . . is that their position is large enough that they believe they can exert a better settlement or better result than the class counsel can achieve on behalf of the class," he said. [GN] HOMESIDE FINANCIAL: "Cunningham" Stayed Pending ACA Int'l. Ruling ----------------------------------------------------------------- Judge Marvin J. Garbis of the U.S. District Court for the District of Maryland stayed the case, CRAIG CUNNINGHAM, on behalf of himself and others similarly situated, Plaintiff, v. HOMESIDE FINANCIAL, LLC, Defendant, Civil Action No. MJG-17-2088 (D. Md.) pending the D.C. Circuit's decision in ACA Int'l, et al. v. FCC on the validity and meaning of the FCC's ruling with regard to the definition of automatic telephone dialing system ("ATDS"). Cunningham filed a putative class action against Homeside asserting violations of the Telephone Consumer Protection Act ("TCPA"). He alleges that Homeside placed telemarketing calls to his cellular telephone number for the purposes of advertising its services using an automated dialing system. He alleges that he did not consent to receive the calls. Since telemarketing campaigns generally place calls to thousands or millions of potential customers, he is suing on behalf of a proposed nationwide class of others who also received illegal telemarketing calls. Homeside asserts that it only contacts customers who have consented to receive calls, and the dialing equipment it uses is not an ATDS for purposes of the TCPA. It filed the instant motion to stay proceedings, requesting that the Court stay the matter pending the D.C. Circuit's decision in ACA Int'l on the validity and meaning of the FCC's ruling with regard to the definition of ATDS. Judge Garbis concludes that the resolution of the meaning of an ATDS will directly affect the case, either by having a dispositive effect on the claims or at least by focusing discovery. Because the D.C. Circuit Court has the exclusive jurisdiction to review the FCC ruling, its ruling will be binding. Staying the case pending the ruling will permit the Court and the parties to evaluate the viability of the Plaintiff's claims under the most complete precedent and streamline the proceedings. Therefore, the Plaintiff is unlikely to be prejudiced by a stay that could reduce the burden of litigation on both parties. Further, a stay could promote the efficient use of judicial resources. The Judge is, however, mindful of the Plaintiff's concern regarding an indefinite stay. Since oral argument in the ACA Int'l case was over a year ago, a decision will not likely remain pending for long. The stay is not indefinite because it is directly tied to the proceedings in that case. Upon issuance of the opinion in ACA Int'l, either party may move to lift the stay. For the foregoing reasons, Judge Garbis granted the Defendant's Motion to Stay Proceedings, and stayed the case until further Order. It will remain stayed until the issuance of the opinion from the D.C. Circuit. The Judge directed the parties to notify the Court within seven days of the D.C. Circuit opinion's filing. Either party may provide status reports as deemed appropriate. A full-text copy of the Court's Dec. 1, 2017 Memorandum and Order is available at https://is.gd/6KT6jr from Leagle.com. Craig Cunningham, on behalf of himself and others similarly situated, Plaintiff, represented by Anthony I. Paronich -- anthony@broderick-law.com -- Broderick and Paronich PC, pro hac vice. Craig Cunningham, on behalf of himself and others similarly situated, Plaintiff, represented by Brian K. Murphy -- murphy@mmmb.com -- Murray Murphy Moul and Basil LLP, pro hac vice, Jonathan P. Misny -- misny@mmmb.com -- Murray Murphy Moul and Basil LLP, pro hac vice & Stephen Howard Ring -- shr@ringlaw.us -- Stephen H Ring PC. Homeside Financial LLC, Defendant, represented by Patrick R. Buckler -- patrick.buckler@wbd-us.com -- Womble Bond Dickinson (US) LLP & Hillary Victoria Colonna -- hillary.colonna@wbd-us.com -- Womble Bond Dickinson (US) LLP. HOTELS.COM LP: OTC Charges Ruling in Tax Ordinance Suit Vacated --------------------------------------------------------------- In the case styled CITY OF SAN ANTONIO, TEXAS, On Behalf Of Itself And All Other Similarly Situated Texas Municipalities, Plaintiff- Appellee Cross-Appellant, v. HOTELS.COM, L.P.; HOTWIRE, INCORPORATED; TRIP NETWORK, INCORPORATED, doing business as Cheaptickets.com; EXPEDIA, INCORPORATED; INTERNETWORK PUBLISHING CORPORATION, doing business as Lodging.Com; ORBITZ, L.L.C.; PRICELINE.COM, INCORPORATED; SITE59.COM, L.L.C.; TRAVELOCITY.COM, L.P.; TRAVELWEB, L.L.C.; TRAVELNOW.COM, INCORPORATED, Defendants- Appellants Cross-Appellees, Case No. 16-50479 (5th Cir.), Judge Rhesa Hawkins Barksdale of the U.S. Court of Appeals for the Fifth Circuit vacated the district court's judgment that the service fee an online travel company ("OTC") charges for facilitating a hotel reservation is included in the cost of occupancy, and, therefore, subject to the municipalities' hotel occupancy tax ordinances. An OTC website allows a traveler to compare the rates for airlines, hotels, and rental-car companies, as well as request reservations from them. Regarding the ordinances at issue, OTCs do not own, operate, or manage hotels; instead, they transmit information and payments between travelers and hotels. The OTC retains its service fee as compensation for its online services. Therefore, although the hotel determines the discounted room rate, an OTC decides the total amount the traveler pays when booking through the OTC's website. The OTC later forwards the amount of the discounted room rate and applicable taxes to the hotel, which remits the taxes to the taxing authority. The OTC is the merchant of record in the transaction with the traveler. In 1987, the Texas legislature authorized municipalities to impose a tax on a person who pays for the use or possession or for the right to the use or possession of a room that is in a hotel. Pursuant to this enabling act, Texas municipalities enacted hotel occupancy tax ordinances. San Antonio filed the diversity action in May 2006, against OTCs for violations of the Texas tax code and municipal ordinances, and for conversion. In May 2008, the district court certified a class of 175 Texas municipalities whose ordinances contain language that requires every person owning, operating, managing or controlling any hotel to collect and remit hotel occupancy taxes. After the class was certified, however, two cities, including Houston, opted out. The remaining 173 municipalities (cities) sought, inter alia, money damages for unpaid or underpaid hotel occupancy taxes, and a declaration that an OTC is required to collect and remit hotel occupancy taxes based on the amount it collects for the discounted room rate and service fee (the retail rate). A jury trial began on Oct. 5 2009, to determine whether OTCs "control" hotels and are therefore subject to the ordinances. On Oct. 27, 2009, the cities and the OTCs moved for judgment as a matter of law; the court denied the motions from the bench the next day. Almost two years after the jury verdict, the court, on July 1, 2011, rendered its findings of fact and conclusions of law, concluding the retail rate paid the OTC by the traveler, rather than the discounted room rate the OTC pays the hotel, is subject to the hotel occupancy tax. On a parallel track, in 2007, Houston, which, as noted, opted out of the class action, and the Houston Sports Authority had sued OTCs in Texas state court to recover claimed unpaid occupancy taxes. The Houston ordinance levied a tax upon the cost of occupancy of any room furnished by any hotel. Houston and the Sports Authority asserted "the cost of occupancy" was the retail rate the consumer paid the OTC. By summary judgment, the trial court rejected their claims. And, on Oct. 25, 2011, an intermediate Texas court of appeals affirmed, holding the tax applied only to the discounted-room-rate] amounts paid to hotels. In the class action at hand, OTCs moved the district court to amend its findings and conclusions in the light of Houston, claiming, under the Erie doctrine, the court was required to rule that, as a matter of Texas law, only the discounted room rate the OTC pays the hotel is subject to hotel occupancy taxes. Despite previously acknowledging the scope of the tax base is a "pure question of law", the court denied OTCs' motion on the grounds that the Houston holding was specific to the Houston ordinance, and the larger evidentiary record in the class action compelled a different result. On April 4, 2013, nearly four years after trial, the district court entered its first final judgment, awarding cities $55,146,489 in unpaid taxes, interest, and penalties. OTCs then pursued a renewed motion for judgment as a matter of law, or alternatively, motion for new trial; the court denied both motions on Feb. 20, 2014. Two years later, the court issued an amended final judgment of $84,123,089 to include increased penalties, as well as the taxes and interest that had accrued since the first judgment in April 2013. The appeal and cross-appeal present numerous issues. OTCs claim, inter alia, they are entitled to judgment as a matter of law, or alternatively, a new trial. Judge Barksdale holds that the differing language in the ordinances does not affect the outcome. Dallas-type ordinances tax the amount paid by the occupant of the room to the hotel. Moreover, the taxable consideration excludes costs not related to cleaning and readying the room or space for occupancy. Only the discounted room rate the OTC pays to the hotel can be related to cleaning and readying the room or space for occupancy. Similarly, the Judge says San Antonio-type ordinances tax the amount paid for a sleeping room to include all goods and services provided by the hotel. Again, only the discounted room rate paid to the hotel covers services provided by the hotel. Moreover, Cities concede OTCs have been collecting taxes on the discounted room rate paid to the hotel, and the hotels have been remitting them. Because the only monetary amounts at issue in the class action are those not included in the scope of the hotel occupancy tax base, as limited by his holding, the Judge holds OTCs are not liable. For these reasons, Judge Barksdale vacate the judgment and rendered the judgment for OTCs. A full-text copy of the Court's Nov. 29, 2017 Order is available at https://is.gd/Qld7y5 from Leagle.com. David E. Keltner -- david.keltner@kellyhart.com -- for Defendant- Appellant Cross-Appellee. Alan B. Rich, for Plaintiff-Appellee Cross-Appellant. Rosemary Tyson Snider -- rsnider@mckoolsmith.com -- for Plaintiff- Appellee Cross-Appellant. Ricardo Gonzalez Cedillo, for Defendant-Appellant Cross-Appellee. Gary Cruciani -- gcruciani@mckoolsmith.com -- for Plaintiff- Appellee Cross-Appellant. Deborah Lynne Klein, for Plaintiff-Appellee Cross-Appellant. Brian Scott Stagner -- brian.stagner@kellyhart.com -- for Defendant-Appellant Cross-Appellee. Marianne Marsh Auld, for Defendant-Appellant Cross-Appellee. Deborah Savarese Sloan -- dsloan@jonesday.com -- for Defendant- Appellant Cross-Appellee. Steven D. Wolens -- swolens@mckoolsmith.com -- for Plaintiff- Appellee Cross-Appellant. Derek Montgomery, for Defendant-Appellant Cross-Appellee. Anne Marie Seibel -- aseibel@bradley.com -- for Defendant- Appellant Cross-Appellee. Jennifer J. McGahey -- jmcgahey@bradley.com -- for Defendant- Appellant Cross-Appellee. Stacy Rene Horth-Neubert -- stacy.horth-neubert@skadden.com -- for Defendant-Appellant Cross-Appellee. Thomas M. Sims -- tsims@baronbudd.com -- for Plaintiff-Appellee Cross-Appellant. HSBC CARD: Settlement in "Medeiros" Suit Has Final Approval ----------------------------------------------------------- In the cases, GAIL MEDEIROS, et al., Plaintiffs, v. HSBC CARD SERVICES, INC. and HSBC TECHNOLOGY & SERVICES (USA), INC., Defendants. TERRY J. FANNING, et al., Plaintiffs, v. HSBC CARD SERVICES INC. and HSBC TECHNOLOGY & SERVICES (USA), INC., Defendants. STEFAN O. LINDGREN, Plaintiff, v. HSBC CARD SERVICES, INC. AND HSBC TECHNOLOGY & SERVICES (USA), INC., Defendants, Case Nos. 2:15-cv-09093-JVS-AFM, 8:12-cv-00885-JVS-RNBx, 14-cv-05615- JVS-RNBx (C.D. Cal.), Judge James V. Selna of the U.S. District Court for the Central District of California granted final approval of the Settlement Agreement and Release dated Aug. 25, 2016. Judge Selna finally approved the Agreement and finds that the terms constitute, in all respects, a fair, reasonable and adequate settlement as to all Settlement Class Members in accordance with Rule 23 of the Federal Rules of Civil Procedure. The Judge finally certified the Settlement Class for settlement purposes defined as all persons in California who received a telephone call between March 23, 2009 and May 1, 2012 from or on behalf of HSBC and whose call was recorded or monitored by or on behalf of HSBC Card Services or HSBC Technology & Services (USA) Inc. She approved the plan of distribution for the Settlement Fund as set forth in the Agreement. The Claims Administrator is ordered to comply with the terms of the Agreement with respect to distribution of Settlement Awards, the Second Distribution and disposition of any Remaining Funds thereafter. Should any Remaining Funds be distributed, the Judge approved the Rose Foundation's Consumer Privacy Rights Fund as the cy pres recipient. Judge Selna dismissed these Actions, with prejudice, without costs to any party, except as expressly provided for in the Agreement. She also approved the Class Counsel's application for $4,333,333.33, which is 33-1/3% of the Settlement Amount, as reasonable attorneys' fees, and an additional $340,120 to reimburse them for litigation costs actually incurred. The Class Counsel may elect to have all or part of their attorneys' fees award paid in periodic payments through a structured settlement arrangement entered into prior to payment of such fees to Class Counsel. Notwithstanding any term in the Agreement to the contrary, any fees awarded to the Class Counsel to be so structured will be paid by the Settlement Fund to an assignment company(ies) pursuant to assignment and release agreements reasonably acceptable to the Claims Administrator ("Assignment Agreements"). The Class Counsel has no present right to payment of any structured fees that are the subject of Assignment Agreements. Prior to the payment by the Settlement Fund under any Assignment Agreement, Class Counsel will indemnify and hold harmless the Claims Administrator administering the Settlement Fund. The Judge authorized the Claims Administrator and Settlement Fund to execute documents and take such actions as may be necessary to effectuate the assignment and payment of fees under any Assignment Agreement. The Judge awarded service awards in the amount of $5,000 each for Plaintiffs Fanning and Lindgren, and service awards in the amount of $1,500 each for the other Plaintiffs. A full-text copy of the Court's Nov. 29, 2017 Final Approval Order and Judgment is available at https://is.gd/02ifSB from Leagle.com. Gail Medeiros, Plaintiff, represented by David J. McGlothlin, Hyde and Swigart APC. Gail Medeiros, Plaintiff, represented by Joshua B. Swigart -- josh@westcoastlitigation.com -- Hyde and Swigart, Seyed Abbas Kazerounian, Kazerouni Law Group APC & Todd M. Friedman, Todd M Friedman Law Offices PC. Tracy T. Bomberger, Plaintiff, represented by David J. McGlothlin, Hyde and Swigart APC, Joshua B. Swigart, Hyde and Swigart, Seyed Abbas Kazerounian, Kazerouni Law Group APC & Todd M. Friedman, Todd M Friedman Law Offices PC. Peter Morrissey, Plaintiff, represented by David J. McGlothlin, Hyde and Swigart APC, Joshua B. Swigart, Hyde and Swigart, Seyed Abbas Kazerounian, Kazerouni Law Group APC & Todd M. Friedman, Todd M Friedman Law Offices PC. Julie Pulatie, Plaintiff, represented by David J. McGlothlin, Hyde and Swigart APC, Joshua B. Swigart, Hyde and Swigart, Seyed Abbas Kazerounian, Kazerouni Law Group APC & Todd M. Friedman, Todd M Friedman Law Offices PC.. Terry J Fanning, Intervenor Plaintiff, represented by Azra Z. Mehdi, The Mehdi Firm PC, Elizabeth J. Arleo, Arleo Law Firm PLC, Eve H. Cervantez -- ecervantez@altshulerberzon.com -- Altshuler Berzon LLP, Michael Rubin -- mrubin@altshulerberzon.com -- Altshuler Berzon LLP & P. Casey Pitts -- cpitts@altshulerberzon.com -- Altshuler Berzon LLP. Stefan O Lindgren, Intervenor Plaintiff, represented by Azra Z. Mehdi, The Mehdi Firm PC, Elizabeth J. Arleo, Arleo Law Firm PLC, Eve H. Cervantez, Altshuler Berzon LLP, Michael Rubin, Altshuler Berzon LLP & P. Casey Pitts, Altshuler Berzon LLP. HSBC Card Services Inc, Defendant, represented by Arjun P. Rao -- arao@stroock.com -- Stroock and Stroock and Lavan LLP, Shannon Elizabeth Dudic -- sdudic@stroock.com -- Stroock and Stroock and Lavan LLP & Julia B. Strickland -- jstrickland@stroock.com -- Stroock and Stroock and Lavan LLP. HSBC Technology & Services (USA) Inc., Defendant, represented by Arjun P. Rao, Stroock and Stroock and Lavan LLP, Shannon Elizabeth Dudic, Stroock and Stroock and Lavan LLP & Julia B. Strickland, Stroock and Stroock and Lavan LLP. Christine Chavez, Objector, represented by Timothy R. Hanigan -- trhanigan@gmail.com -- Lang Hanigan and Carvalho LLP. HSBC HOLDINGS: Plaintiff in Failed Class Action Faces $1MM Costs ---------------------------------------------------------------- Patricia Chisholm, writing Investment Executive, reports that a retail investor who failed in a class-action bid against HSBC Holdings PLC has been hit with more than $1 million in costs. The result could have a dampening effect on other representative plaintiffs who believe they have a case against a major bank. The November ruling from the Ontario Superior Court reviews the factors that led to the representative plaintiff's failure to certify a class action for misrepresentation and concludes that much of the drive behind the lawsuit was "entrepreneurial." The ruling by Justice Paul Perell notes that the plaintiff, Ontario resident Wai Kan Yip, bought shares in HSBC Holdings on the Hong Kong Stock Exchange; the firm's shares trade in Hong Kong and London, but on no Canadian exchange. The decision notes that Mr. Yip "alleged that the putative class members were misled by HSBC Holdings (which was regulated by foreign regulators) making false disclosures about compliance with anti-money laundering and anti-terrorist financing laws and about its nonparticipation in an illegal scheme to manipulate benchmark interest rates used by banks across the world." Mr. Yip alleged that a $7-billion decline in the shares was due to the allegations, which surfaced in 2012. Although there may be situations in which shares issued and traded on foreign exchanges are the subject of successful investor lawsuits in Ontario, Justice Perell concluded that this case did not fall within those situations. Justice Perell also concluded that Ontario was not the appropriate jurisdiction for the class action, based on convenience, and that the U.K. was the "natural forum." In disputing the costs request made by HSBC Holdings (the ultimate parent of HSBC Canada), Mr. Yip's lawyers argued that he was a "retail investor of modest means with a modest personal stake in the litigation and who tried to access justice on behalf of Canadian investors," the decision notes. However, Justice Perell did not agree with that characterization: "There is a make-believe quality to Mr. Yip's lawyers' characterization of Mr. Yip's lawsuit and of HSBC Holdings' defence to it. It is a fantasy to suggest that when Mr. Yip and his entrepreneurial class counsel sued a foreign defendant for $20 billion, later reduced to the not trifling $8 billion, that they did not reasonably anticipate that HSBC Holdings would spend $0.0001 billion to defend itself." The decision continues: "The proposed class action was not altruistic litigation; it was entrepreneurial litigation. Mr. Yip and others willingly traded in foreign stock exchanges with no reasonable expectation that Ontario law might follow them overseas but with the knowledge that the foreign stock markets were regulated by foreign regulators." [GN] ICHIBAN GROUP: Court Narrows Claims in "Zhang" Labor Suit --------------------------------------------------------- Judge Mae A. D'Agostino of the U.S. District Court for the Northern District of New York granted in part and denied in part the Defendants' motion to dismiss the case, XUE HUI ZHANG, Plaintiff, v. ICHIBAN GROUP, LLC, et al., Defendants, Case No. 1:17-CV-148 (MAD/TWD) (N.D. N.Y.). On Feb. 9, 2017, Plaintiff Xue Hui Zhang filed the complaint in the putative class action against Defendants Ichiban Group, Ichiban Food Services, Inc., Chen & Ju, Inc., David Ip, Shiow Fei Ju, Shin Shii Ju, Chwon Tzu Ju, Liping Ju, Tyng Quh Ju, and Tommy Ju. The Plaintiff alleges, among other claims, numerous violations of the Fair Labor Standards Act ("FLSA") and New York Labor Law ("NYLL"). The Plaintiff alleges that he was employed by Defendants Ichiban Goup, Ichiban Food, and Chen & Ju. He further alleges that those three entities were, and continue to be, a single and joint employer and have had a high degree of interrelated and unified operation, and share common management, centralized control of labor relations, common ownership, common control, common website, common business purposes and interrelated business goals. David Ip, Shiow Fei Ju, Shin Shii Ju, Chwon Tzu Ju, Liping Ju, Tyng Quh Ju, and Tommy Ju are individuals who owned and operated the businesses that employed the Plaintiff. The Plaintiff worked as a chef at a restaurant located at 1652 Western Avenue in Albany, New York, which was allegedly owned by the Defendants, from Nov. 20, 2008 to Dec. 7, 2015 for approximately 70 hours per week. He alleges that he made a flat salary every month, which ranged from $2,700 to $3,300. Additionally, the Plaintiff was provided with a dormitory that he shared with approximately 10 coworkers. He alleges that he was given only 15 minutes or less to eat meals, he was not paid minimum wage, and he was never provided with any overtime compensation. The Plaintiff claims that the conditions of his employment violated the FLSA and the NYLL, as well as other state and federal laws. He his FLSA claims individually and pursuant to the FLSA's collective action mechanism, and he brings his NYLL claims as part of a putative class action pursuant to Federal Rule of Civil Procedure 23. On May 11, 2017, the Defendants moved to dismiss the complaint in its entirety arguing that the Plaintiff's claims should be dismissed for insufficient service of process and for failure to state a claim. The Plaintiff submitted an opposition, and the Defendants filed a reply. In moving to dismiss the complaint as to Chen & Ju, Inc., and its shareholders Liping Ju and Tyng Quh Ju, the Defendants provide extrinsic evidence meant to disprove the Plaintiff's claims, including a sales contract and multiple affidavits. To consider such evidence would convert their motion to dismiss into a motion for summary judgment, which the Judge D' Agostino declines to do at this stage. Therefore, the Defendants' motion to dismiss the complaint against Defendants Liping Ju, Tyng Quh Ju, and Chen & Ju, Inc., for failure to state a claim will be denied. Although the Plaintiff alleges that the Defendants violated 26 U.S.C. Section 7434, the complaint does not include any factual allegations supporting that claim. Judge D'Agostino finds that the Plaintiff merely states the elements of a claim under 26 U.S.C. Section 7434 and asserts that he is entitled to relief. The pleading standard under Federal Rule of Civil Procedure 8(a)(2) requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do. Therefore, he will dismiss the Plaintiff's claim under 26 U.S.C. Section 7434. The Judge will also dismiss the Plaintiff's claim under New York Labor Law section 162. Despite his allegations, his claim must be dismissed because under N.Y. Lab. Law Section 162 (requiring meal periods), no private statutory right of action exists to enforce it. Finally, the Judge finds that there was a Department of Labor investigation and a compliance conference that the Plaintiff did not even attend; there was no formal hearing. Furthermore, the Plaintiff provides just three separate documents relating to the DOL investigation, and it is not entirely clear whether these documents resolve his complaint. Therefore, according to the Judge, the action is not barred by res judicata. After carefully reviewing the entire record in the matter, the parties' submissions and the applicable law, and for the stated reasons, Judge D'Agostino granted in part the Defendants' motion to dismiss as to the Plaintiff's claims under 26 U.S.C. Section 7434 and New York Labor Law section 162; and denied in part as to all other claims. The Judge ordered that the service was not proper as to Defendants David Ip, Shiow Fei Ju, Shin Shii Ju, or Chwon Tzu Ju, and the Plaintiff is granted a 30-day extension of time to serve those Defendants; if the Plaintiff fails to properly serve them within 30 days, then any of those Defendants that is not properly served will be dismissed. While he does not make a finding as to whether or not Defendants Ichiban Group, Ichiban Food Services, were properly served, Judge D'Agostino granted the Plaintiff a 30-day extension of time to serve those Defendants; if the Plaintiff fails to serve them within 30 days, then the Defendants may renew their motion to dismiss for improper service of process as to those Defendants in a properly filed motion for summary judgment. The Judge directed the Clerk of the Court to serve a copy of the Memorandum-Decision and Order on all parties in accordance with the Local Rules. A full-text copy of the Court's Dec. 1, 2017 Memorandum-Decision and Order is available at https://is.gd/Hr3vJ2 from Leagle.com. Xue Hui Zhang, on behalf of himself and others similarly situated, Plaintiff, represented by John Troy -- johntroy@troypllc.com -- John Troy & Associates, PLLC. Ichiban Group, LLC, doing business as Ichiban Japenese & Chinese Restaurant doing business as Takara, Defendant, represented by Matthew J. Mann -- info@mannlawpc.com, Mann Law Firm, PC. Ichiban Food Services, Inc., doing business as Ichiban Japanese & Chinese Restaurant doing business as Takara, Defendant, represented by Matthew J. Mann, Mann Law Firm, PC. Chen & Ju, Inc., doing business as Ichiban Japanese & Chinese Restaurant doing business as Takara, Defendant, represented by Matthew J. Mann, Mann Law Firm, PC. David L Ip, Defendant, represented by Matthew J. Mann, Mann Law Firm, PC. Shiow Fei Ju, Defendant, represented by Matthew J. Mann, Mann Law Firm, PC. Shin Shii Ju, Defendant, represented by Matthew J. Mann, Mann Law Firm, PC. Chwon Tzu Ju, Defendant, represented by Matthew J. Mann, Mann Law Firm, PC. Liping Ju, Defendant, represented by Matthew J. Mann, Mann Law Firm, PC. Tyng Quh Ju, Defendant, represented by Matthew J. Mann, Mann Law Firm, PC. Tommy Ju, Defendant, represented by Matthew J. Mann, Mann Law Firm, PC. IMPAX LABORATORIES: "Vana" Suit Seeks to Enjoin Impax Merger ------------------------------------------------------------ SUSAN VANA, On Behalf of Herself and All Others Similarly Situated, the Plaintiff, v. IMPAX LABORATORIES, INC., ATLAS HOLDINGS, INC., K2 MERGER SUB CORPORATION, LESLIE Z. BENET, PAUL M. BISARO, J. KEVIN BUCHI, ROBERT L. BURR, ALLEN CHAO, MARY K. PENDERGAST, PETER R. TERRERI, JANET S. VERGIS, and AMNEAL PHARMACEUTICALS LLC, the Defendants, Case No. 3:17-cv-07079 (N.D. Cal., Dec. 12, 2017), seeks to enjoin Defendants and all persons acting in concert with them from proceeding, consummating, or closing a proposed transaction, and in the event Defendants consummate the Proposed Transaction, rescinding it and setting it aside or awarding rescissory damages. This action stems from a proposed "Up-C" transaction announced on October 17, 2017, pursuant to which Impax Laboratories and its subsidiaries, Holdco and K2 Merger Sub Corporation, will be acquired by Amneal Pharmaceuticals LLC. On October 17, 2017, Impax's Board of Directors caused the Company to enter into a Business Combination Agreement with Amneal, which was amended on November 2, 2017. Pursuant to the terms of the Merger Agreement, (i) Merger Sub will merge with and into Impax, with Impax surviving the merger as a direct wholly owned subsidiary of Holdco; (ii) Impax will convert into a Delaware limited liability company to be named Impax Laboratories, LLC; (iii) Holdco will contribute all of the equity interests of Impax to Amneal in exchange for certain equity interests of Amneal; (iv) Holdco will operate as a new holding company, which will be renamed Amneal Pharmaceuticals, Inc.; (v) New Amneal will issue shares of Class B common stock to the existing members of Amneal; and (vi) New Amneal will become the managing member of Amneal. In connection with the Proposed Transaction, each share of common stock of Impax will be converted into the right to receive one share of New Amneal Class A common stock. Holders of Impax common stock immediately prior to the Proposed Transaction will collectively hold approximately 25%, and the Existing Amneal Members will hold approximately 75%, of the voting and economic interests in the combined businesses of Impax and Amneal under New Amneal. Following the closing of the Proposed Transaction and a private sale of New Amneal common stock to certain institutional investors including TPG Improv Holdings, L.P. and funds affiliated with Fidelity Management & Research Company pursuant to a purchase agreement, Existing Amneal Members will hold approximately 60% of the voting power of the outstanding shares of New Amneal common stock and the PIPE Investors will hold approximately 15% of the voting power of the outstanding New Amneal common shares. On November 21, 2017, defendants filed a Form S-4 Registration Statement with the United States Securities and Exchange Commission in connection with the Proposed Transaction. The Registration Statement omits material information with respect to the Proposed Transaction, which renders the Registration Statement false and misleading. Accordingly, plaintiff alleges herein that defendants violated Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 in connection with the Registration Statement. Impax is a specialty pharmaceutical company focused on developing, manufacturing and marketing generic and branded products.[BN] The Plaintiff is represented by: Michael Schumacher, Esq. RIGRODSKY & LONG, P.A. 155 Jackson Street, #1903 San Francisco, CA 94111 Telephone: (415) 855 8995 Facsimile: (302) 654 7530 E-mail: ms@rl-legal.com IMPAX LABORATORIES: "Stone" Suit Seeks to Enjoin Amneal Merger -------------------------------------------------------------- DAVID STONE, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, v. LESLIE Z. BENET, PAUL M. BISARO, J. KEVIN BUCHI, ROBERT L. BURR, ALLEN CHAO, MARY K. PENDERGAST, PETER R. TERRERI, JANET S. VERGIS, IMPAX LABORATORIES, INC., ATLAS HOLDINGS, INC., K2 MERGER SUB CORPORATION, AMNEAL PHARMACEUTICALS, LLC, the Defendants, Case No. 3:17-cv-07123 (N.D. Cal., Dec. 14, 2017), seeks to enjoin Defendants from holding the stockholder vote on a proposed merger transaction and taking any steps to consummate the Proposed Transaction unless and until material information is disclosed to Impax stockholders sufficiently in advance of the vote on the proposed transaction or, in the event the proposed transaction is consummated, to recover damages resulting from the Defendants' violations of the Exchange Act. This action is brought as a class action by Plaintiff on behalf of himself and the other public holders of the common stock of Impax against the Company and the members of the Company's board of directors for violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934, in connection with the proposed merger of Impax with privately held Amneal Pharmaceuticals LLC, through Atlas Holdings, Inc. and K2 Merger Sub Corporation. On October 17, 2017, Impax announced it had entered into a Business Combination Agreement, dated October 17, among itself, Holdco, Merger Sub and Amneal Pharmaceuticals LLC, in connection with the Proposed Transaction. Under the terms of the BCA, Amneal will own approximately 75% of the voting power of the new, publicly traded holding company, Amneal Pharmaceuticals, Inc. and Impax's shareholders will own approximately 25% of the voting power. However, there is no definitive offer price and Impax's public shareholders are left in the dark as to the true value of this deal. Following the closing of the Proposed Transaction and a private sale of the combined company's common stock to certain institutional investors, including TPG Improv Holdings, L.P. and funds affiliated with Fidelity Management & Research Company pursuant to a purchase agreement, current Amneal members will own approximately 60% of the voting power of the outstanding shares of the combined company's common stock and the PIPE Investors will hold approximately 15% of the voting power of the outstanding combined company's common shares.+ On November 21, 2017, to convince Impax shareholders to vote in favor of the Proposed Transaction, the Board authorized Holdco to file a materially incomplete and misleading registration statement on Form S-4 with the SEC, in violation of Sections 14(a) and 20(a) of the Exchange Act. While Defendants are touting the fairness of the Proposed Transaction to the Company's stockholders in the S-4, they have failed to disclose certain material information that is necessary for stockholders to properly assess the fairness of the Proposed Transaction, thereby rendering certain statements in the S-4 incomplete and misleading. The Proposed Transaction has been unanimously approved by the Boards of Directors of Amneal and Impax, and is also supported by the management teams of both companies. However, it is subject to the satisfaction of customary closing conditions, such as the receipt of regulatory approvals and Impax's shareholder approval. The Proposed Transaction is expected to close in the first half of 2018. Plaintiffs contend that it is imperative that the material information that has been omitted from the S-4 is disclosed to the Company's stockholders prior to the forthcoming stockholder vote so that they can properly exercise their corporate suffrage rights.[BN] Attorneys for Plaintiff: Marc G. Reich, Esq. Adam T. Hoover, Esq. REICH RADCLIFFE & HOOVER LLP 4675 MacArthur Court, Suite 550 Newport Beach, CA 92660 Telephone: (949) 975 0512 Facsimile: (949) 208 2839 E-mail: mgr@reichradcliffe.com adhoover@reichradcliffe.com - and - Joshua M. Lifshitz, Esq. LIFSHITZ & MILLER 821 Franklin Ave., Suite 209 Garden City, NY 11530 Telephone: (516) 493 9780 Facsimile: (516) 280 7376 E-mail: jml@jlclasslaw.com JPMORGAN CHASE: Call Center Agents Not Paid OT, Rivenbark Says -------------------------------------------------------------- SHANNON RIVENBARK, Individually and on behalf of all others similarly situated, the Plaintiff, v.JPMORGAN CHASE & CO., the Defendant, Case No. 4:17-cv-03786 (S.D. Tex., Dec. 14, 2017), seeks to recover overtime wages, liquidated damages, and attorneys' fees and costs pursuant to the provisions of Sections 207 and 216(b) of the Fair Labor Standards Act of 1938. The Plaintiff and the Putative Class Members are those persons who are current and former non-exempt employees of Chase who worked in call centers and were responsible for answering customer phone calls and assisting customers with their Chase bank account(s). The Plaintiff and the Putative Class Members routinely work (and worked) in excess of 40 hours per workweek. According to the complaint, Chase has knowingly and deliberately failed to compensate Plaintiff and the Putative Class Members for all hours worked in excess of forty hours each workweek on a routine and regular basis in the last three years. The Plaintiff and the Putative Class Members did not and currently do not perform work that meets the definition of exempt work under the FLSA.[BN] Attorneys in Charge for Plaintiff and Putative Class Members: Clif Alexander, Esq. Austin W. Anderson Lauren E. Braddy Carter T. Hastings ANDERSON2X, PLLC 819 N. Upper Broadway Corpus Christi, Texas 78401 Telephone: (361) 452-1279 Facsimile: (361) 452-1284 E-mail: clif@a2xlaw.com austin@a2xlaw.com lauren@a2xlaw.com carter@a2xlaw.com KATANGA MINING: Jan. 29 Lead Plaintiff Motion Deadline Set ---------------------------------------------------------- Bronstein, Gewirtz & Grossman, LLC, notified investors that a class action lawsuit has been filed against Katanga Mining Limited ("Katanga" or the "Company") (OTCMKTS: KATFF) and certain of its officers, on behalf of shareholders who purchased or otherwise acquired Katanga securities between February 11, 2016 through November 19, 2017, both dates inclusive (the "Class Period"). Such investors are encouraged to join this case by visiting the firm's site: http://www.bgandg.com/katff 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, Defendants made materially false and misleading statements and/or failed to disclose that: (1) Katanga engaged in improper accounting practices; (2) there were material weaknesses in Katanga's internal control over financial reporting; and (3) consequently, Katanga's public statements were materially false and misleading at all relevant times. 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: http://www.bgandg.com/katffor 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 Katanga you have until January 29, 2018 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. 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. [GN] KOHL'S DEPARTMENT STORES: Judge Junks Suit Over Text Messages ------------------------------------------------------------- Michael Booth, writing for Law.com, reports that a federal judge has dismissed a purported Telephone Consumer Protection Act class action against Kohl's Department Stores Inc. because the plaintiff failed to follow explicit instructions for stopping text messages from the company. U.S District Judge Brian Martinotti, sitting in Trenton, dismissed the lawsuit filed by lead plaintiff Amy Viggiano, an Ocean County resident, against Kohl's on Nov. 27. Judge Martinotti said in his opinion that while Ms. Viggiano may have received unwanted text messages from Kohl's, there was no evidence that the retailer knowingly and purposefully violated the TCPA. The TCPA was enacted in 1991 and, in part, requires companies that send out texts, emails, faxes and the like to provide means for consumers from receiving solicitations. The act prohibits one party from using an automated dialing system to send a commercial message with the recipient's consent. Ms. Viggiano filed the complaint on behalf of herself and an unspecified number of other plaintiffs that she estimated could be in the "tens of thousands," according to Judge Martinotti's opinion. But Judge Martinotti dismissed the case because Ms. Viggiano failed to follow Kohl's specific instruction that the only way to unsubscribe from the text messages was to reply with a text that read "STOP." Instead, according to Judge Martinotti, Ms. Viggiano sent several messages in response such as: "I've changed my mind and don't want to receive these anymore," "Please do not send any further messages," and "I don't want these messages anymore. This is your last warning!" In response, Kohl's texted her that it didn't understand her requests. The promotional texts from Kohl's continued, and Ms. Viggiano filed her lawsuit. Judge Martinotti, in his ruling, said the instructions in Kohl's texts were clear. The lawsuit, Judge Martinotti said, did not allege that Kohl's deliberately made it difficult or impossible to opt out of the text messages. "To the contrary, the facts in the complaint suggest plaintiff herself adopted a method of opting out that made it difficult or impossible for defendant to honor her request," the judge said, taking guidance from a February ruling by the U.S. District Court for the Central District of California in Epps v. Earth Fare, which he said dealt with "nearly identical facts." The court in Epps found that the plaintiff's TCPA claim failed because "heeding defendant's opt-out instruction would not have plausibly been more burdensome on plaintiff than sending verbose requests to terminate the messages." And, like Judge Martinotti, the court in Epps also said the plaintiff failed to allege the defendant made it "difficult or impossible to effectuate revocations." Judge Martinotti rejected Ms. Viggiano's claims that her demands were "unequivocal written withdrawals of consent." Rules issued by the Federal Communications Commission are clear that "a caller may not designate a method of opting out 'in ways that make it difficult or impossible to effectuate revocation,'" Judge Martinotti said, quoting the regulations. "Plaintiff's arguments to the contrary defy both the FCC's rulings and common sense." Ms. Viggiano was represented by Gerald Clark, who runs a firm in Red Bank. Kohl's was represented by Jeffrey Jacobson -- jjacobson@kelleydrye.com -- of the New York office of Kelley Drye & Warren. Neither returned phone calls seeking comment. [GN] LAWRENCE LIVERMORE: Oakland Court Decertifies Retirees' Class ------------------------------------------------------------- The Independent reports that an Oakland court reversed itself, decertifying the "class" of Lawrence Livermore National Laboratory retirees three years after certifying it in a lawsuit aimed at regaining University of California health care. The surprise decertification order was issued on Nov. 27 by Superior Court Judge George Hernandez, the judge who certified the class in 2014. In his reversal, Hernandez acknowledged that certification is normally established early in a legal proceeding. That is not an "iron clad standard," however, particularly if it becomes clear that "individual issues will engulf the litigation," he wrote. That appears to be the case now, he indicated. In his judgment, it has not actually been established that "any members of the putative class (of retirees) were damaged" by the loss of University of California health care. A class-action trial might be appropriate if the main question is the extent of individual damages -- but not if it remains to be resolved "whether each class member has in fact been damaged at all." UC health care benefits were available to the LLNL retirees from the time of the Laboratory's founding in 1952 until 2008, shortly after a for-profit consortium took over for the University as manager of the national defense laboratory. The retirees considered the loss of UC health care to be a violation of promises made during their careers at the Laboratory -- promises on which some of them based career decisions. They filed suit in 2010, and the suit became a class action four years later. Following certification, the retirees spent many thousands of dollars compiling lists of those who might be eligible for UC health care and their survivors, sparring with University counsel and representatives of LLNL over the completeness of records provided by those institutions. Neither the retirees nor the University commented publicly on the decertification order. At the time the Independent went to press, the retirees had not decided on next steps, which include the possibility of appeal. [GN] LIFE PARTNERS: Pillar Funds' Appeal from Class Certs Denied ----------------------------------------------------------- In the case, In the Matter of: LIFE PARTNERS, INCORPORATED Debtor. PHILIP M. GARNER, and all other similarly situated; CHRISTINE DUNCAN; STEVE SOUTH, as Trustee for, and on behalf of South Living Trust; MICHAEL ARNOLD; JANET ARNOLD; DOCTOR JOHN S. FERRIS; REORGANIZED LIFE PARTNERS, INCORPORATED, formerly known as Life Partners, Incorporated, ET AL, Appellees, v. PILLAR LIFE SETTLEMENT FUND I, L.P., PILLAR II LIFE SETTLEMENT FUND, L.P., PILLAR 3 LIFE SETTLEMENT FUND, L.P., PILLAR 4 LIFE SETTLEMENT FUND, L.P., PILLAR 5 LIFE SETTLEMENT FUND, L.P., ET AL, Appellants, Case No. 16-11436 (5th Cir.), the U.S. Court of Appeals for the Fifth Circuit dismissed as moot Pillar Funds' appeal on the approval of a bankruptcy proceeding's Settlement Agreement and class certifications. Michael Arnold, Janet Arnold, Dr. John S. Ferris, Christine Duncan, and Steven South as Trustee for and on behalf of South Living Trust ("Arnold Plaintiffs") filed a class action against LPI in Texas state court ("Arnold State Court Action"), alleging that LPI sold unregistered securities in violation of the Texas Securities Act ("TSA"). The Arnold Plaintiffs sought rescission as well as attorneys' fees, costs, and interest. The trial court concluded that life settlements were not securities and dismissed the suit. The Dallas Court of Appeals reversed, holding that life settlements were securities as a matter of law. The Texas Supreme Court unanimously affirmed-life settlements are securities under the TSA. LPHI voluntarily commenced chapter 11 bankruptcy while the Arnold State Court Action was pending in the Texas Supreme Court. The bankruptcy court affirmed the U.S. Trustee's appointment of H. Thomas Moran as the chapter 11 trustee ("Trustee"). The Trustee filed petitions for chapter 11 bankruptcy for LPI and another Life Partners company, which were the operating subsidiaries of LPHI. The bankruptcy court then consolidated these proceedings ("Bankruptcy Cases"). It also lifted the automatic stay so the Texas Supreme Court could render its decision in the Arnold State Court Action. Philip M. Garner, Duncan, and South ("Garner Plaintiffs") filed an adversary proceeding in the Bankruptcy Cases on behalf of a class of LPI investors, seeking a declaration that: (i) the class members were the beneficial owners of the life settlements; and (ii) the life settlements were not part of LPI's bankruptcy estate ("Garner Class Adversary"). The parties and the district court referred to the dispute regarding the ownership of the life settlements as the "Ownership Issue." The resolution of the Ownership Issue was complicated by the fact that most investors purchased fractional interests in life settlements from LPI, rather than whole life insurance policies. The Arnold Plaintiffs filed a second adversary proceeding in the Bankruptcy Cases ("Arnold Class Adversary"). The Arnold Plaintiffs asserted claims under the TSA on behalf of a class of LPI investors for rescission of their purchases of life settlements. They also sought attorneys' fees, costs, and interest. The Garner Plaintiffs and the Arnold Plaintiffs ("Named Plaintiffs") later moved to consolidate the Garner Class Adversary and the Arnold Class Adversary, which the bankruptcy court granted ("Consolidated Class Adversary"). The district court then withdrew the automatic reference to the bankruptcy court, and the Consolidated Class Adversary was filed in district court. The Trustee, the Official Committee of Unsecured Creditors, and the Named Plaintiffs announced the general terms of a settlement to resolve the Consolidated Class Adversary. After the parties announced the settlement, Pillar Life Settlement Fund I, L.P., Pillar II Life Settlement Fund, L.P., Pillar 3 Life Settlement Fund, L.P., Pillar 4 Life Settlement Fund, L.P., Pillar 5 Life Settlement Fund, L.P., Evergreen Lifeplan Fund L.P., Evergreen II Lifeplan Fund L.P., Evergreen III Fund LLC, and Black Diamond Lifeplan Fund L.P. ("Pillar Funds") filed their own adversary proceeding in the Bankruptcy Cases, seeking to settle the Ownership Issue ("Pillar Adversary"). The bankruptcy court abated the Pillar Adversary. The Trustee, the Committee, and the Named Plaintiffs then finalized and filed the Settlement Agreement to resolve the Consolidated Class Adversary. The Settlement Agreement sought certification for two settlement classes: (i) the ownership settlement subclass; and (ii) the rescission settlement subclass. Both settlement classes were defined as all persons or entities who purchased and hold, as of the Plan Effective Date, securities issued or sold by LPI related to viatical settlements or life settlements, regardless of how the investments were denominated and who are Current Position Holders under the Plan, regardless of whether or not a claim was filed by a class member. The parties sought and received preliminary approval of the Settlement Agreement from both the bankruptcy court and the district court. The parties served class notice on all settlement class members. The parties then jointly moved for class certification, for final approval of the Settlement Agreement, and to appoint class counsel and representatives. The Pillar Funds objected to class certification and to the Settlement Agreement. The district court referred the matter to the bankruptcy court to conduct a hearing. The bankruptcy court held a hearing, reviewed the Pillar Funds's objections, and issued a report recommending that the district court certify the settlement classes and grant final approval of the Settlement Agreement. The district court certified the settlement classes and adopted the bankruptcy court's findings of fact and conclusions of law, granted the parties' joint motion for final approval of the Settlement Agreement, and entered judgment approving the Settlement Agreement. The Pillar Funds appeal the district court's order certifying the classes approving the Settlement Agreement. The Pillar Funds argue that the district court erred by certifying the class actions pursuant to Rule 23(b)(2) and approving the Settlement Agreement. Reorganized Life Partners Inc., Eduardo S. Espinosa, and Alan M. Jacobs ("New LPI"), as well as the Named Plaintiffs, oppose the Pillar Funds's appeal. Importantly, they did not seek a stay of the reorganization plan, and the bankruptcy court entered a chapter 11 confirmation order while this appeal was pending. The Pillar Funds did not appeal the bankruptcy court's confirmation order. As conceded by the Pillar Funds, the plan has been substantially consummated. The Fifth Circuit holds that even if the rescission provision allowed the Pillar Funds to rescind the Settlement Agreement if it is modified or set aside on appeal, it does not- and cannot- authorize an appeal if the Court does not have jurisdiction to hear the appeal. Because the confirmation order incorporated and implemented the Settlement Agreement, the Pillar Funds's claims were nullified when the bankruptcy court entered the confirmation order. The Pillar Funds concededly failed to appeal the bankruptcy court's confirmation order. A timely notice of appeal is necessary to the exercise of appellate jurisdiction. As such, the Court cannot grant any effectual relief to the Pillar Funds's appeal of only the Settlement Agreement. Because the Pillar Funds's appeal is moot, the Court needs not reach the other issues raised on appeal. Accordingly, the appeal is dismissed as moot. A full-text copy of the Court's Nov. 29, 2017 Order is available at https://is.gd/1lNGIv from Leagle.com. David Mark Bennett -- david.bennett@tklaw.com -- for Appellee. Jeffrey David Sternklar, for Appellee. Brent Clark Perry -- bperry@burfordperry.com -- for Appellant. Dennis L. Roossien, Jr. -- droossien@munsch.com -- for Appellant. Henry Jefferson LeForce, for Appellant. Christopher D. Kratovil -- ckratovil@dykema.com -- for Appellee. Richard Barrett Phillips, Jr. -- Rich.Phillips@tklaw.com -- for Appellee. Nicole Williams -- Nicole.Williams@tklaw.com -- for Appellee. Keith Lamar Langston -- klangston@langston-lawfirm.com -- for Appellee. Melanie Lynn Fry, for Appellee. John C. Leininger -- jcl@sbbolaw.com -- for Appellee. Stephen Krosschell, for Appellant. Michael Silverman, for Appellee. Klint Bruno, for Appellee. LOCK HAVEN: Older Employees File Age Discrimination Class Action ---------------------------------------------------------------- John Beauge, writing for PennLive, reports that class-action status is sought for a federal lawsuit that accuses Lock Haven University of forcing out older employees to avoid paying them retirement benefits they would receive at age 60. Pattiann Merrifield who in August filed suit in U.S. Middle District Court, asked Judge Matthew W. Brann to certify the case as a class action. She wants the class to be comprised of those over the age of 40 who allegedly were forced out by Deana Hill, associate vice president of human resources, to avoid paying retirement benefits. Merrifield does not say how many might be in the class but said she has requested from Lock Haven the names of those older than 40 who in the past 10 years have resigned or been terminated by Hill. Affidavits from former public relations director Scott Eldredge and Carol A. Latronica, former dean of student development, claiming they were treated similarly to Merrifield are attached to her court complaint. The class-action motion identifies a fourth individual who Merrifield says will be filing an affidavit soon. Mr. Eldredge in his affidavit claims he was denied severance because he refused to sign an agreement not to sue under the Age Discrimination Employment Act. He says he was terminated after 14 years at age 51 and replaced by a 24-year-old. Ms. Latronica contends she was "forced out" the day after her 57th birthday after 26 years of employment. Ms. Merrifield, of Mill Hall, claims she was given the option of early retirement and when she refused, was fired on Jan. 20, 2016, and replaced by a 34-year-old. She had been a clerk since October 2006. She contends the university fired her at age 58 to avoid paying the retirement benefits she would have received at 60. Her suit also accuses Lock Haven of failing to adequately adopt, post and implement procedures to respond to allegations of age discrimination. Ms. Merrifield notes the U.S. Department of Education in November 2015 told the university it did not have age discrimination grievance procedures that incorporated due process standards and provided for the prompt equitable resolution of complaints Lock Haven has declined to comment on the suit in which the university and Hill are the defendants. [GN] MASTERCARD: Faces Collective Action Over Interchange Fees --------------------------------------------------------- William Allison, Esq. -- wallison@dacbeachcroft.com -- of DAC Beachcroft, in an article for Lexology, wrote that following the European Commission decision in December 2007, which decided that interchange fees charged by MasterCard were anti-competitive, an individual, Walter Merricks, sought approval from The Competition Appeal Tribunal ("CAT") to act as the class representative to bring a GBP14 billion collective action against MasterCard on behalf of 45 million customers who purchased goods or services from businesses which accepted payment by MasterCard between May 1992 and June 2008. The action was brought pursuant to the "opt- out" collective class action regime introduced by the Consumer Rights Act 2015. The CAT decided in July 2017 not to approve the action. The CAT's decision was primarily based on its finding that the damages model proposed was theoretical and not compensatory in nature. Mr Merricks has filed an appeal against the Tribunal's decision, arguing that any deficiency in the compensation model can be overcome and that the case is suitable for the collective action regime. The date for the appeal has not published so far, but its outcome will be eagerly awaited. [GN] MAXX POWERSPORT: May Amend Counterclaims in Usury Suit ------------------------------------------------------ In the case captioned FORWARD FINANCING LLC, Plaintiff and Counterclaim-Defendant, v. MAXX POWERSPORT LLC, and ROBERT LANDIS, Defendants and Counterclaim-Plaintiffs, Civil Action No. 17-10764- FDS (D. Mass.), Judge F. Dennis Saylor, IV of the U.S. District Court for the District of Massachusetts granted the Defendants' Motion for Leave to File Second Amended Counterclaims. Forward Financing filed a complaint on May 2, 2017, against Maxx Powersport and Landis alleging breach of contract. It alleges that the Maxx Powersport and Landis, the sole member of Maxx Powersport, breached a "Future Receipt Sales Agreement" executed by the parties on Oct. 5, 2016. On Aug. 9, 2017 Maxx Powersport filed an answer and two class- action counterclaims: one for violation of Mass. Gen. Laws ch. 93A, Sections 2 and 11 ("unfair trade practices"), and one for violation of Mass. Gen. Laws ch. 271, Section 49 ("criminal usury"). On Aug. 28, 2017, before Forward Financing answered the counterclaims, Maxx Powersport filed amended counterclaims. The amended counterclaims asserted the same two causes of action but specified the alleged classes and their commonality more precisely. On Sept. 18, 2017, Forward Financing filed a motion to dismiss the counterclaims. Maxx Powersport filed an opposition on Oct. 10, and Forward Financing filed a reply on Oct. 17, 2017 . The Court held a hearing on Oct. 19, 2017 and took the matter under advisement. On Nov. 3, 2017, Maxx Powersport filed the present motion for leave to file second amended counterclaims. The proposed amendment does not add any new counts, but rather alleges a substantial number of new facts, alleged to have been recently discovered by counsel and related to the arguments advanced by the parties in the motion-to-dismiss papers. Judge Saylor finds that at this stage of the proceedings, it is by no means clear that the proposed amendment would be futile. The principal question before the Court in the pending motion to dismiss is whether the transaction at issue is a bona fide sale or in fact a disguised loan. The Plaintiff insists that the character of the transaction can be completely determined from the plain language of the Agreement itself, and so there is no need to allow additional facts of the kind proposed to be alleged by the Defendants. But, the Judge says the Agreement is convoluted and difficult to understand, and seems to contain internal contradictions. He is not prepared to find that there is no plausible basis to look to extrinsic evidence. To the extent there is ambiguity, of course, allegations about how the parties understood or interpreted the Agreement would likely be relevant. Furthermore, although Defendants are not seeking to add any additional counts, they do seek to include another theory under which they might recover under Mass. Gen. Laws Chapter 93A -- namely, that Forward Financing violated Chapter 93A by unconscionably making, servicing, or collecting, or attempting to collect, on loans issued to Massachusetts small businesses and individual owners without appropriate evaluation of their ability to repay the loans. The Plaintiff does not address this additional allegation in its opposition, or explain why such a theory would be futile. In summary, because there is no apparent reason why leave to amend should not be given in the case, Judge Saylor granted the Defendants to amend their counterclaims. They are directed to promptly file their second amended counterclaims. The Plaintiff's Motion to Dismiss the Counterclaims is denied as moot without prejudice to its renewal in whole or in part as to the amended counterclaims. A full-text copy of the Court's Nov. 29, 2017 Memorandum and Order is available at https://is.gd/GKMWSW from Leagle.com. Forward Financing LLC, Plaintiff, represented by Alaina Fotiu- Wojtowicz -- alaina@bfwlegal.com -- Brodsky Fotiu-Wojtowicz, PLLC, pro hac vice. Forward Financing LLC, Plaintiff, represented by Benjamin H. Brodsky -- bbrodsky@bfwlegal.com -- Brodsky Fotiu-Wojtowicz, PLLC, pro hac vice & Kimberly C. Emerling . Maxx Powersport LLC, Defendant, represented by Courtney C. Booth - - cbooth@beneschlaw.com -- Benesch, Friedlander, Coplan & Aronoff LLP, pro hac vice, David S. Almeida -- dalmeida@beneschlaw.com -- Benesch, Friedlander, Coplan & Aronoff LLP, pro hac vice, J. Dominick Larry, Benesch, Friedlander, Coplan & Aronoff LLP, pro hac vice, Rachel J. Eisenhaure -- eisenhaurer@whiteandwilliams.com -- White and Williams LLP & Shane R. Heskin, White and Williams LLP. Robert Landis, Defendant, represented by Courtney C. Booth, Benesch, Friedlander, Coplan & Aronoff LLP, pro hac vice, David S. Almeida, Benesch, Friedlander, Coplan & Aronoff LLP, pro hac vice, J. Dominick Larry, Benesch, Friedlander, Coplan & Aronoff LLP, pro hac vice, Rachel J. Eisenhaure, White and Williams LLP & Shane R. Heskin, White and Williams LLP. Maxx Powersport LLC, Counter Claimant, represented by Courtney C. Booth, Benesch, Friedlander, Coplan & Aronoff LLP, pro hac vice, David S. Almeida, Benesch, Friedlander, Coplan & Aronoff LLP, pro hac vice, J. Dominick Larry, Benesch, Friedlander, Coplan & Aronoff LLP, pro hac vice, Rachel J. Eisenhaure, White and Williams LLP & Shane R. Heskin, White and Williams LLP. Robert Landis, Counter Claimant, represented by Courtney C. Booth, Benesch, Friedlander, Coplan & Aronoff LLP, pro hac vice, David S. Almeida, Benesch, Friedlander, Coplan & Aronoff LLP, pro hac vice, J. Dominick Larry, Benesch, Friedlander, Coplan & Aronoff LLP, pro hac vice, Rachel J. Eisenhaure, White and Williams LLP & Shane R. Heskin, White and Williams LLP. Forward Financing LLC, Counter Defendant, represented by Alaina Fotiu-Wojtowicz, Brodsky Fotiu-Wojtowicz, PLLC, pro hac vice, Benjamin H. Brodsky, Brodsky Fotiu-Wojtowicz, PLLC, pro hac vice & Kimberly C. Emerling . Maxx Powersport LLC, Counter Claimant, represented by Courtney C. Booth, Benesch, Friedlander, Coplan & Aronoff LLP, pro hac vice, David S. Almeida, Benesch, Friedlander, Coplan & Aronoff LLP, pro hac vice, J. Dominick Larry, Benesch, Friedlander, Coplan & Aronoff LLP, pro hac vice, Rachel J. Eisenhaure, White and Williams LLP & Shane R. Heskin, White and Williams LLP. Robert Landis, Counter Claimant, represented by Courtney C. Booth, Benesch, Friedlander, Coplan & Aronoff LLP, pro hac vice, David S. Almeida, Benesch, Friedlander, Coplan & Aronoff LLP, pro hac vice, J. Dominick Larry, Benesch, Friedlander, Coplan & Aronoff LLP, pro hac vice, Rachel J. Eisenhaure, White and Williams LLP & Shane R. Heskin, White and Williams LLP. Forward Financing LLC, Counter Defendant, represented by Alaina Fotiu-Wojtowicz, Brodsky Fotiu-Wojtowicz, PLLC, pro hac vice, Benjamin H. Brodsky, Brodsky Fotiu-Wojtowicz, PLLC, pro hac vice & Kimberly C. Emerling. MDL 2382: Court Certifies Class in Vacuum Marketing & Sales Suit ---------------------------------------------------------------- In the case captioned IN RE: EMERSON ELECTRIC CO. WET/DRY VAC MARKETING AND SALES LITIGATION. THIS DOCUMENT APPLIES TO: ALL ACTIONS, MDL No. 2382, Case No. 4:12MD2382 HEA (E.D. Mo.), Judge Henry Edward Autrey of the U.S. District Court for the Eastern District of Missouri, Eastern Division, granted the Plaintiffs' motion to certify a class. Pending before the Court is the Named Plaintiffs' motion to certify a class. This is an action for violations of the Missouri Merchandising Practices Act, breach of express warranty, breach of implied warranty, unjust enrichment, violations of consumer protection laws in various states for subclasses and breach of implied warranty redhibition on behalf of the Louisiana subclass. Relevant to the class certification issue are the Plaintiffs' allegations that the Defendant misled the public, including them, into purchasing or paying more for the Defendant's product, the RIGID wet/dry vacuum, that it did not perform as expressly and impliedly marketed through a national and uniform advertising campaign. The marketing was based on the stated wet/dry vacuum's "Peak HP." The Plaintiffs allege the vacuum cannot attain the advertised horsepower in a standard, household electrical wall outlet. The Plaintiffs now seek certification under Missouri law, or alternatively with subclasses for the different home states of the various Plaintiffs. The case presents the classic case for treatment as a class action: that is, the commonality linking the class members is the dispositive question in the lawsuit. The issue of liability predominates over whatever individual inquiries will have to be performed to determine damages. Judge Autrey has conducted a rigorous and painstaking analysis to ensure that the Plaintiffs satisfied all Rule 23 requirements for certifying a class. He has reviewed the materials submitted in favor of and against class-action certification, with an eye focused upon satisfying the concerns expressed by the Eighth Circuit. He finds that they've shown that class action certification is undoubtedly appropriate. Based therefore on the foregoing, the Motion for Class Certification is granted. Accordingly, pursuant to Federal Rules of Civil Procedure 23(a) and (b)(3), Judge Autrey certified the matter as a class action. The class is defined as all the Purchasers of the RIGID wet/dry vacuum. He certified a Louisiana sub-class under the theory of redhibition. The Judge ordered that the parties meet and confer within 21 calendar days of the filing of the Order to agree on the proposed notice to potential class members pursuant to Federal Rule of Civil Procedure 23(c)(2)(B). The notice will be submitted to the Court within 28 calendar days of the filing of the Order. A full-text copy of the Court's Dec. 1, 2017 Opinion, Memorandum and Order is available at https://is.gd/GsmgRo from Leagle.com. Jeff Hale, on behalf of himself and all others similarly situated, Plaintiff, represented by David W. Bauman -- dave@padberglaw.com - - PADBERG AND CORRIGAN. Jeff Hale, on behalf of himself and all others similarly situated, Plaintiff, represented by Eric D. Holland -- eholland@allfela.com -- HOLLAND LAW FIRM LLC, Matthew J. Padberg -- mjp@padberglaw.com -- PADBERG, CORRIGAN & APPELBAUM, Michael P. Corrigan -- michael@padberglaw.com -- PADBERG AND CORRIGAN, Robert I. Lax, LAX, LLP, Ryan A. Keane -- rkeane@simonlawpc.com -- KEANE LAW LLC & Sanford P. Dumain -- sdumain@milberg.com -- MILBERG LLP. Raymond Gray, on Behalf of himself and all others Similarly Situated, Plaintiff, represented by Adam R. Gonnelli -- gonnellia@thesultzerlawgroup.com -- THE SULTZER LAW GROUP, PC, Bonner C. Walsh -- bonner@walshpllc.com -- WEINSTEIN LAW, Eric D. Holland, HOLLAND LAW FIRM LLC, Jeffrey L. Weinstein, WEINSTOCK AND SCAVO, Ryan A. Keane, KEANE LAW LLC & Thomas P. Germeroth, THE GERMEROTH LAW FIRM. Andrew Bowers, Plaintiff, represented by David W. Bauman, PADBERG AND CORRIGAN, Eric D. Holland, HOLLAND LAW FIRM LLC & Ryan A. Keane, KEANE LAW LLC. Emilio Gonzales, Plaintiff, represented by David W. Bauman, PADBERG AND CORRIGAN, Eric D. Holland, HOLLAND LAW FIRM LLC & Ryan A. Keane, KEANE LAW LLC. Kenneth Thompson, on behalf of themselves and all other similarly situated, Plaintiff, represented by David W. Bauman, PADBERG AND CORRIGAN, Eric D. Holland, HOLLAND LAW FIRM LLC & Ryan A. Keane, KEANE LAW LLC. Eric Shults, Plaintiff, represented by Adam R. Gonnelli, THE SULTZER LAW GROUP, PC, Bonner C. Walsh, WEINSTEIN LAW, Eric D. Holland, HOLLAND LAW FIRM LLC, Jeffrey L. Weinstein, WEINSTOCK AND SCAVO & Ryan A. Keane, KEANE LAW LLC. Justin Swires, individually and on behalf of all others similarly situated, Plaintiff, represented by Eric D. Holland, HOLLAND LAW FIRM LLC, John G. Simon, THE SIMON LAW FIRM, P.C., Randall S. Crompton, HOLLAND LAW FIRM LLC, Ryan A. Keane, KEANE LAW LLC & Anthony G. Simon, THE SIMON LAW FIRM, P.C.. Estaban Maravilla, individually and on behalf of all others similarly situated, Plaintiff, represented by Eric D. Holland, HOLLAND LAW FIRM LLC, John G. Simon, THE SIMON LAW FIRM, P.C., Randall S. Crompton, HOLLAND LAW FIRM LLC, Reginald Von Terrell, THE TERRELL LAW GROUP, Ryan A. Keane, KEANE LAW LLC & Anthony G. Simon, THE SIMON LAW FIRM, P.C.. Lauren Checki, Plaintiff, represented by Charles E. Schaffer -- cschaffer@lfsblaw.com -- LEVIN AND FISHBEIN, pro hac vice, Douglas E. Rushton, NEBLETT AND BEARD, Eric D. Holland, HOLLAND LAW FIRM LLC, Jay Patrick Dinan, PARKER WAICHMAN, John R. Climaco -- jrclim@climacolaw.com -- CLIMACO AND WILCOX, John A. Peca -- japeca@climacolaw.com -- CLIMACO AND WILCOX, John G. Simon, THE SIMON LAW FIRM, P.C., Jordan L. Chaikin, CHACKES AND CARLSON, Randall S. Crompton, HOLLAND LAW FIRM LLC, Richard J. Arsenault, NEBLETT AND BEARD, Ryan A. Keane, KEANE LAW LLC & Anthony G. Simon, THE SIMON LAW FIRM, P.C.. Emerson Electric Company, Defendant, represented by Joseph C. Orlet -- joseph.orlet@huschblackwell.com -- HUSCH BLACKWELL, LLP, Mark G. Arnold -- mark.arnold@huschblackwell.com -- HUSCH BLACKWELL, LLP & Matthew R. Grant -- matt.grant@huschblackwell.com -- HUSCH BLACKWELL, LLP. Sears Holdings Corporation, Defendant, represented by Matthew R. Grant, HUSCH BLACKWELL, LLP. Sears, Roebuck & Co., Defendant, represented by Matthew R. Grant, HUSCH BLACKWELL, LLP. MDL 2740: Pinedas Sue over Docetaxel Injection Concentrate ---------------------------------------------------------- IN RE: TAXOTERE (DOCETAXEL) PRODUCTS LIABILITY LITIGATION (MDL 2740), MICHELLE MARIE PINEDA and ESTABIN PINEDA, the Plaintiff, v. SANOFI US SERVICES INC. f/k/a SANOFI-AVENTIS U.S. INC.; SANOFI- AVENTIS U.S. LLC; SANDOZ, INC., ACCORD HEALTHCARE, INC.; MCKESSON CORPORATION d/b/a MCKESSON PACKAGING; HOSPIRA WORLDWIDE, LLC f/k/a HOSPIRA WORLDWIDE, INC.; HOSPIRA INC.; PFIZER INC., the Defendants, Case No. 2:17-cv-17135 (E.D. La., Dec. 12, 2017), seeks to recover damages caused by Defendant's breach of warranty. Defendants expressly warranted to Plaintiffs and Plaintiffs' healthcare providers that Taxotere, Docefrez, Docetaxel Injection, and Docetaxel Injection Concentrate were safe and fit for use for the purposes intended, that they did not produce any dangerous side effects in excess of those risks associated with other forms of treatment for cancer, that the side effects they did produce were accurately reflected in the warnings, and that they were adequately tested. Taxotere, Docefrez, Docetaxel Injection, and Docetaxel Injection Concentrate do not conform to Defendants' express warranties, because is the drugs are not safe, were not adequately tested, and have numerous serious side effects, which are in excess of those risks associated with other forms of treatment and which were not accurately warned about by Defendants. Defendants' sales representatives met with Plaintiffs' healthcare provider(s), including but not limited to in-person meetings, "window calls," phone calls, office meetings, lunches, dinners, conferences, and presentations to discuss Taxotere prior to Plaintiffs' first Taxotere treatment. During Defendants' sales representatives and marketing agents communications with healthcare providers, they made statements, comments, and express suggestions that the risk of permanent hair loss associated with Taxotere use was no higher than its competitor's alternatives. Defendants' sales representatives expressly warranted to Plaintiffs and Plaintiffs' healthcare providers that once patients who are administered Taxotere complete treatment, their hair would grow back. Defendants published and disseminated Taxotere safety labels and Patient Information leaflets, which expressly stated that "[o]nce you have completed all your treatments, hair generally grows back." Defendants' Patient Information leaflets contained this statement until at least 2010. Defendants' statements were false. Defendants knew or should have known that, in fact, their representations and warranties were false, misleading, and untrue. Defendants' misrepresentations were made to potential prescribers and/or purchasers or users as members of the public at large. These express warranties became part of the basis of the bargain Defendants made with Plaintiffs. The Plaintiffs and their healthcare providers relied on Defendants' express warranties in electing to purchase and use their product. Members of the medical community, including physicians and other healthcare providers, relied upon the representations and warranties of Defendants for use of Taxotere, Docefrez, Docetaxel Injection, and Docetaxel Injection Concentrate in recommending, prescribing, and/or dispensing the drugs at issue. The Plaintiffs' physicians and others similarly situated relied upon these representations before prescribing Taxotere. As a direct and proximate result of the foregoing breaches of warranty, Defendants caused Plaintiffs to suffer the injuries claimed.[BN] MDL 2800: "Bitton" Suit vs. Equifax Moved to N.D. Georgia --------------------------------------------------------- The class action lawsuit titled Avi Joshua Bitton, individually and on behalf of all others similarly situated, the Plaintiff, v. Equifax Information Services LLC and Does 1 through 10, inclusive, the Defendant, Case No. 7:17-cv-06946, was transferred from the U.S. District Court for the Southern District of New York, to the U.S. District Court for the Northern District of Georgia (Atlanta) MDL 2800, on Dec. 13, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05126-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The lead case is Case No. 1:17-cv-05004-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on more than 800 million individual consumers and 88 million businesses worldwide.[BN] MDL 2800: "Caplan" Suit vs. Equifax Transferred to N.D. Georgia --------------------------------------------------------------- The class action lawsuit titled DAVID CAPLAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, the Plaintiff, v. Equifax Information Services, LLC, the Defendant, v. Equifax, Inc., the Defendant, Case No. 2:17-cv-04055, was transferred from the U.S. District Court for the Eastern District of Pennsylvania, to the U.S. District Court for the Northern District of Georgia (Atlanta), on Dec. 13, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05130-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The lead case is Case No. 1:17-cv-05004-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on more than 800 million individual consumers and 88 million businesses worldwide.[BN] MDL 2800: "Tirelli" Suit vs. Equifax Moved to N.D. Georgia ---------------------------------------------------------- The class action lawsuit titled Linda Tirelli and Brooke Merino, individually and on behalf of those similarly situated, the Plaintiffs, v. Equifax Information Services LLC, the Defendant, Case No. 7:17-cv-06868, was transferred from the U.S. District Court for the Southern District of New York, to the U.S. District Court for the Northern District of Georgia (Atlanta) MDL 2800, on Dec. 13, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05124-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The lead case is Case No. 1:17-cv-05004-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on more than 800 million individual consumers and 88 million businesses worldwide.[BN] MDL 2800: "Austin" Suit vs Equifax Seeks Moved to N.D. Georgia -------------------------------------------------------------- The class action lawsuit titled MICHELLE E. AUSTIN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, the Plaintiff, v. Equifax, Inc. and Equifax Credit Information Services, Inc., the Defendants, Case No. 2:17-cv-04045, was transferred from the U.S. District Court for the Eastern District of Pennsylvania, to the U.S. District Court for the Northern District of Georgia (Atlanta) MDL 2800, on Dec. 13, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05129-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The lead case is Case No. 1:17-cv-05004-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on more than 800 million individual consumers and 88 million businesses worldwide.[BN] MDL 2800: Equifax Faces "Kishel" Suit over Consumer Data Breach --------------------------------------------------------------- TIMOTHY S. KISHEL, and ALEXANDER S. HEPBURN, on behalf of themselves and all others similarly situated, the Plaintiffs, v. EQUIFAX INC., and EQUIFAX INFORMATION SERVICES, INC., the Defendants, Case No. 1:17-cv-05139-TWT (N.D. Ga., Dec. 13, 2017), seeks declaratory relief and redress for affected Equifax consumers alleging violations of the federal Fair Credit Reporting Act, the Minnesota Prevention of Consumer Fraud Act, negligence, negligence per se, and unjust enrichment. According to the complaint, because Plaintiffs and the Class entrusted Defendants with their sensitive personal information, Equifax owed them a duty of care to take adequate measures to protect the information entrusted to it, to detect and stop data breaches, and to inform Plaintiffs and the Class of data breaches that could expose Plaintiffs and the Class to harm. Equifax failed to do so. Equifax acknowledges that, between May 2017 and July 2017, it was the subject of a data breach in which unauthorized individuals accessed Equifax's database and the names, Social Security Numbers, addresses, and other Personal Identifying Information ("PII") ("Data Breach"). According to Equifax, the Data Breach affected as many as 145 million people. Equifax admits that it discovered the unauthorized access on July 29, 2017, but failed to alert Plaintiffs and the Class to the fact of the breach until September 7, 2017. The Data Breach was the inevitable result of Equifax's inadequate approach to data security and the protection of the PII that it collected during the course of its business. Defendants knew and should have known of the inadequacy of their own data security. Equifax has experienced similar such breaches of PII on smaller scales in the past, including in 2013, 2016, and even as recently as January 2017. Over the years, Equifax has jeopardized the PII and, as a result, financial information of hundreds of thousands of Americans. Despite this long history of breaches, Defendants have failed to prevent the Data Breach that has exposed the personal information of over 100 million Americans. The damage done to these individuals may follow them for the rest of their lives, as they will have to monitor closely their financial accounts to detect any fraudulent activity and incur out-of-pocket expenses for years to protect themselves from, and to combat, identity theft now and in the future. Equifax knew and should have known the risks associated with inadequate security, and with delayed reporting of the breach. The potential for harm caused by insufficient safeguarding of PII is profound. With data such as that leaked in the Data Breach, identity thieves can cause irreparable and long- lasting damage to individuals, from filing for loans and opening fraudulent bank accounts to selling valuable PII to the highest bidder. In the case of Defendants' Data Breach, the potential repercussions for consumers are particularly egregious. Privacy researchers and fraud analysts have called this attack "as bad as it gets." The Defendants failed to inform millions of consumers of the Data Breach until September 7, 2017, over a month after Defendants first discovered it on July 29. While Defendants took no steps at that time to inform the public in the interim, Defendants did not hesitate to protect themselves; at least three Equifax senior executives, including CFO John Gamble, upon information and belief, sold shares worth $1.8 million in the days following the Data Breach. To provide relief to the millions of people whose PII has been compromised by the Data Breach, Plaintiffs Timothy S. Kishel and Alexander S. Hepburn bring this action on behalf of themselves and all others similarly situated. They seek to recover actual and statutory damages, equitable relief, restitution, reimbursement of out-of-pocket losses, other compensatory damages, credit monitoring services with accompanying identity theft insurance, and injunctive relief including an order requiring Equifax to improve its data security and bring an end to its long history of breaches at the cost of consumers. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on more than 800 million individual consumers and 88 million businesses worldwide.[BN] Attorney for Plaintiffs and the Class: Kevin Sharp, Esq. SANFORD HEISLER SHARP, LLP 611 Commerce St., Suite 3100 Nashville, TN 37203 Telephone: (615) 434 7001 Facsimile: (615) 434 7020 E-mail: ksharp@sanfordheisler.com MDL 2800: "Davis" Suit vs Equifax Transferred to N.D. Georgia ------------------------------------------------------------- The class action lawsuit titled Jeremy Davis, Amanda Gurtis and John Hughes, individually and on behalf of all others similarly situated, the Plaintiff, v. Equifax, Inc., the Defendant, Case No. 7:17-cv-06883, was transferred from the U.S. District Court for the Southern District of New York, to the U.S. District Court for the Northern District of Georgia (Atlanta) MDL 2800, on Dec. 13, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05125-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The lead case is Case No. 1:17-cv-05004-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on more than 800 million individual consumers and 88 million businesses worldwide.[BN] MDL 2800: "Hensley" Suit v. Equifax Moved to N.D. Georgia --------------------------------------------------------- The class action lawsuit titled Barbara Hensley, individually and on behalf of all others similarly situated, the Plaintiff, v. Equifax, Inc. and Equifax Information Services LLC, the Defendants, Case No. 5:17-cv-04105, was transferred from the U.S. District Court for the Eastern District of Pennsylvania, to the U.S. District Court for the Northern District of Georgia (Atlanta), on Dec. 13, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05131-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The lead case is Case No. 1:17-cv-05004-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on more than 800 million individual consumers and 88 million businesses worldwide.[BN] MDL 2800: Pino Sues Equifax over Consumer Data Breach ----------------------------------------------------- KRISTA PINO, on behalf of herself and all others similarly situated, the Plaintiff, v. EQUIFAX INC., and EQUIFAX INFORMATION SERVICES, INC, Defendants, the Plaintiff, Case No. 1:17-cv-05140- TWT (N.D. Ga., Dec. 13, 2017), seeks to recover actual and statutory damages, equitable relief, restitution, reimbursement of out-of-pocket losses, other compensatory damages, credit monitoring services with accompanying identity theft insurance, and injunctive relief including an order requiring Equifax to improve its data security and bring to an end its long history of breaches at the expense of consumers. The Defendants Equifax Inc. and Equifax Information Services, LLC operate one of the three largest consumer credit reporting agencies in the United States. Plaintiff Krista Pino has been a consumer of Defendants' services and entrusted Defendants with her personal information. Plaintiff brings this action on a class basis alleging violations of the federal Fair Credit Reporting Act (FCRA), New Mexico's Unfair Practices Act (UPA), negligence, negligence per se, and unjust enrichment. Plaintiff seeks declaratory and injunctive relief and redress for affected Equifax consumers. Because Plaintiff and the Class entrusted Defendants with their sensitive personal information, Defendants owed them a duty of care to take adequate measures to protect the information entrusted to them, to detect and stop data breaches, and to inform Plaintiff and the Class of data breaches that could expose Plaintiff and the Class to harm. Equifax failed to do so. The Defendants acknowledge that, between May 2017 and July 2017, they were the subject of a data breach in which unauthorized individuals accessed Equifax's database and the names, Social Security numbers, addresses, and other Personal Identifying Information ("PII") stored therein. According to Equifax, the Data Breach affected as many as 145 million people. Defendants admit that they discovered the unauthorized access on July 29, 2017, but failed to alert Plaintiff and the Class to the fact of the breach until September 7, 2017. The Data Breach was the inevitable result of Defendants' inadequate approach to data security and the protection of the PII that they collected during the course of their business. Defendants knew and should have known of the inadequacy of their own data security. They have experienced similar such breaches of PII on smaller scales in the past, including in 2013, 2016, and even as recently as January 2017. Over the years, Defendants have jeopardized the PII and, as a result, financial information of hundreds of thousands of Americans. Despite this long history of breaches, Defendants have failed to prevent the Data Breach that has exposed the personal information of over 100 million Americans. The damage done to these individuals may follow them for the rest of their lives, as they will have to monitor closely their financial accounts to detect any fraudulent activity and incur out-of-pocket expenses for years to protect themselves from, and to combat, identity theft now and in the future. Equifax knew and should have known the risks associated with inadequate security, and with delayed reporting of the breach. The potential for harm caused by insufficient safeguarding of PII is profound. With data such as that leaked in the Data Breach, identity thieves can cause irreparable and long-lasting damage to individuals, from filing for loans and opening fraudulent bank accounts to selling valuable PII to the highest bidder.[BN] The Plaintiff is represented by: Kevin Sharp, Esq. SANFORD HEISLER SHARP, LLP 611 Commerce St., Suite 3100 Nashville, TN 37203 Telephone: (615) 434 7001 Facsimile: (615) 434 7020 E-mail: ksharp@sanfordheisler.com MDL 2800: Sprecher Sues Equifax over Consumer Data Breach --------------------------------------------------------- TAYLOR SPRECHER, on behalf of himself and all others similarly situated, the Plaintiff, v. EQUIFAX INC., and EQUIFAX INFORMATION SERVICES, INC., the Defendants, Case No. 1:17-cv-05141-TWT (N.D. Ga., Dec. 13, 2017), seeks to recover actual and statutory damages, equitable relief, restitution, reimbursement of out-of- pocket losses, other compensatory damages, credit monitoring services with accompanying identity theft insurance, and injunctive relief including an order requiring Equifax to improve its data security and bring to an end its long history of breaches at the expense of consumers. The Defendants operate one of the three largest consumer credit reporting agencies in the United States. The Plaintiff has been a consumer of Defendants' services and entrusted Defendants with his personal information. Plaintiff brings this action on a class basis alleging violations of the federal Fair Credit Reporting Act (FCRA), Oregon's Unlawful Trade Practices Act, negligence, negligence per se, and unjust enrichment. Plaintiff seeks declaratory and injunctive relief and redress for affected Equifax consumers. The Because Plaintiff and the Class entrusted Defendants with their sensitive personal information, Defendants owed them a duty of care to take adequate measures to protect the information entrusted to them, to detect and stop data breaches, and to inform Plaintiff and the Class of data breaches that could expose Plaintiff and the Class to harm. Equifax failed to do so. Defendants acknowledge that, between May 2017 and July 2017, they were the subject of a data breach in which unauthorized individuals accessed Equifax's database and the names, Social Security numbers, addresses, and other Personally Identifiable Information ("PII") stored. According to Equifax, the Data Breach affected as many as 145 million people. Defendants admit that they discovered the unauthorized access on July 29, 2017, but failed to alert Plaintiff and the Class to the fact of the breach until September 7, 2017. The Data Breach was the inevitable result of Defendants' inadequate approach to data security and the protection of the PII that they collected during the course of their business. Defendants knew and should have known of the inadequacy of their own data security. They have experienced similar such breaches of PII on smaller scales in the past, including in 2013, 2016, and even as recently as January 2017. Over the years, Defendants have jeopardized the PII and, as a result, financial information of hundreds of thousands of Americans. Despite this long history of breaches, Defendants have failed to prevent the Data Breach that has exposed the personal information of over 100 million Americans. The damage done to these individuals may follow them for the rest of their lives, as they will have to monitor closely their financial accounts to detect any fraudulent activity and incur out-of-pocket expenses for years to protect themselves from, and to combat, identity theft now and in the future. Equifax knew and should have known the risks associated with inadequate security, and with delayed reporting of the breach. The potential for harm caused by insufficient safeguarding of PII is profound. With data such as that leaked in the Data Breach, identity thieves can cause irreparable and long-lasting damage to individuals, from filing for loans and opening fraudulent bank accounts to selling valuable PII to the highest bidder. In the case of Defendants' Data Breach, the potential repercussions for consumers are particularly egregious. Privacy researchers and fraud analysts have called this attack "as bad as it gets." The Defendants failed to inform millions of consumers of the Data Breach until September 7, 2017, over a month after Defendants first discovered it on July 29. While Defendants took no steps at that time to inform the public in the interim, Defendants did not hesitate to protect themselves; at least three Equifax senior executives, including CFO John Gamble.[BN] The Plaintiff is represented by: Kevin Sharp, Esq. SANFORD HEISLER SHARP, LLP 611 Commerce St., Suite 3100 Nashville, TN 37203 Telephone: (615) 434 7001 Facsimile: (615) 434 7020 E-mail: ksharp@sanfordheisler.com MDL 2800: "Amadick" Suit v. Equifax Moved to N.D. Georgia --------------------------------------------------------- The class action lawsuit titled Margaret Amadick, Jeannie Ball Jennifer Ball, Thomas Greenwood, Robert Roehl, Constance Zasada, and Theodore Zasada, on behalf of themselves and all others similarly situated, the Plaintiff, v. Equifax Information Services LLC, the Defendant, Case No. 0:17-cv-04196, was transferred from the U.S. District Court for the District of Minnesota, to the U.S. District Court for the Northern District of Georgia (Atlanta), on Dec. 10, 2017. The District Court Clerk assigned Case No. 1:17-cv- 05027-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The Lead case is Case No. 1:17-md- 02800-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on over 800 million individual consumers and more than 88 million businesses worldwide.[BN] MDL 2800: "Anderson" Suit v. Equifax Moved to N.D. Georgia ---------------------------------------------------------- The class action lawsuit titled Christine Anderson, Individually and on behalf of all other similarly situated, Director Kim Wolfe, and Frances Jones, the Plaintiffs, v. Equifax, Inc., Case No. 2:17-cv-00156, was transferred from the U.S. District Court for the Eastern District of Kentucky, to the U.S. District Court for the Northern District of Georgia (Atlanta) MDL 2800, on Dec. 8, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05008-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The Lead case is Case No. 1:17-md-02800-TWT. Equifax, Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on over 800 million individual consumers and more than 88 million businesses worldwide.[BN] The Plaintiffs are represented by: Jasper D. Ward, IV, Esq. JONES WARD, PLC 312 South Fourth Street, Sixth Floor Louisville, KY 40202 Telephone: (502) 882 6000 Facsimile: (502) 587 2007 E-mail: jasper@jonesward.com - and - Steven W. Teppler, Esq. ABBOTT LAW GROUP, P.A. 2929 Plummer Cove Road Jacksonville, FL 32223 Telephone: (904) 292 1111 E-mail: steppler@abbottlawpa.com MDL 2800: "Byas" Suit v. Equifax Moved to N.D. Georgia ------------------------------------------------------ The class action lawsuit titled Deidra Byas and K'acia Drummer, individually and on behalf of all others similarly situated, v. Equifax, Inc., the Defendant, Case No. 4:17-cv-00130, was transferred from the U.S. District Court for the Northern District of Mississippi, to the U.S. District Court for the Northern District of Georgia (Atlanta), on Dec. 10, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05027- TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr., the Lead case is Case No. 1:17-cv-05025- TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on over 800 million individual consumers and more than 88 million businesses worldwide.[BN] MDL 2800: "Tada" Suit v. Equifax Moved to N.D. Georgia ------------------------------------------------------ The class action lawsuit titled Caralyn Tada, Craig Nowinsky, and Lori Pobiner, individually and on behalf of all others similarly situated, the Plaintiffs, v. Equifax, Inc., the Defendant, Case No. 2:17-cv-06666, was transferred from the U.S. District Court for the Central District of California, to the U.S. District Court for the Northern District of Georgia (Atlanta) MDL 2800, on Dec. 10, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05027-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The Lead case is Case No. 1:17-cv-05004-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on over 800 million individual consumers and more than 88 million businesses worldwide.[BN] The Plaintiffs are represented by: Joseph Gentile, Esq. Ronen Sarraf, Esq. SARRAF GENTILE LLP 11 Hanover Square, 2nd Floor New York, NY 10005 Telephone: (212) 433 1312 Facsimile: (212) 406 3677 E-mail: ronen@sarrafgentile.com - and - Mark A Ozzello, Esq. OZZELLO PRACTICE PC 17383 West Sunset Boulevard Suite A-380 Pacific Palisades, CA 90272 Telephone: (844) 774 2020 Facsimile: (310) 454 5970 MDL 2800: "Cole" Suit v. Equifax Transferred to N.D. Georgia ------------------------------------------------------------ The class action lawsuit titled Philip Cole, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. Equifax, Inc. and Equifax Information Services LLC, the Defendants, Case No. 1:17-cv-11712, was transferred from the U.S. District Court for the District of Massachusetts, to the U.S. District Court for the Northern District of Georgia (Atlanta) MDL 2800, on Dec. 8, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05015-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The Lead case is Case No. 1:17-md-02800-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on over 800 million individual consumers and more than 88 million businesses worldwide.[BN] The Plaintiff is represented by: John J. Roddy, Esq. RODDY, KLEIN AND RYAN 727 Atlantic Avenue, 2nd Floor Boston, MA 02111 Telephone: (617) 357 5500 ext. 16 Facsimile: (617) 357 5030 MDL 2800: "Gallant" Suit vs. Equifax Transferred to N.D. Georgia ---------------------------------------------------------------- The class action lawsuit titled Joseph Gallant, Jr., individually and on behalf of those similarly situated, the Plaintiff, v. Equifax Inc., the Defendant, Case No. 8:17-cv-02712, was transferred from the U.S. District Court for the District of Maryland, to the U.S. District Court for the Northern District of Georgia (Atlanta), on Dec. 10, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05024-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The Lead case is Case No. 1:17-md-02800-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on over 800 million individual consumers and more than 88 million businesses worldwide.[BN] MDL 2800: "Avise" Suit vs. Equifax Transferred to N.D. Georgia -------------------------------------------------------------- The class action lawsuit titled Grant Avise, individually and on behalf of all others similarly situated, the Plaintiff, v. Equifax Inc., the Defendant, Case No. 8:17-cv-01563, was transferred from the U.S. District Court for the Central District of California, to the U.S. District Court for the Northern District of Georgia (Atlanta) MDL 2800, on Dec. 10, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05022-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The Lead case is Case No. 1:17-md-02800-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on over 800 million individual consumers and more than 88 million businesses worldwide.[BN] The Defendant is represented by: John R Lawless, Jr., Esq. KING AND SPALDING LLP 633 West Fifth Street Suite 1700 Los Angeles, CA 90071 Telephone: (213) 443 4355 Facsimile: (213) 443 4310 MDL 2800: "Joof" Suit vs. Equifax Transferred to N.D Georgia ------------------------------------------------------------ The class action lawsuit titled Henan Louis Joof and Akop Sogomonyan, an individual, individually and on behalf of similarly situated California consumers, the Plaintiffs, v. Equifax Inc., a Georgia corporation, the Defendant, Case No. 2:17-cv-06659, was transferred from the U.S. District Court for the Central District of California, to the U.S. District Court for the Northern District of Georgia (Atlanta) MDL 2800, on Dec. 10, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17- cv-05003-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The Lead case is Case No. 1:17-md- 02800-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on over 800 million individual consumers and more than 88 million businesses worldwide.[BN] MDL 2800: "Neilan" Suit v. Equifax Moved to N.D. Georgia -------------------------------------------------------- The class action lawsuit titled Sean Neilan, individually and on behalf of all others similarly situated, the Plaintiff, v. Equifax Inc., the Defendant, Case No. 1:17-cv-06508, was transferred from the U.S. District Court for the Northern District of Illinois, to the U.S. District Court for the Northern District of Georgia (Atlanta) MDL 2800, on Dec. 8, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-06010-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The Lead case is Case No. 1:17-md-02800-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on over 800 million individual consumers and more than 88 million businesses worldwide.[BN] The Plaintiff is represented by: Ben Barnow, Esq. BARNOW & ASSOCIATES, P.C. One North LaSalle Chicago, IL 60602 Telephone (312) 621 2000 E-mail: b.barnow@barnowlaw.com MDL 2800: "Faillace" Suit vs. Equifax Transferred to N.D. Georgia ----------------------------------------------------------------- The class action lawsuit titled Ondrea Faillace, individually and on behalf of all others similarly situated, the Plaintiff, v. Equifax Inc., the Defendant, Case No. 2:17-cv-06721, was transferred from the U.S. District Court for the Central District of California, to the U.S. District Court for the Northern District of Georgia (Atlanta) MDL 2800, on Dec. 8, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17- cv-05006-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The Lead case is Case No. 1:17-md- 02800-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on over 800 million individual consumers and more than 88 million businesses worldwide.[BN] MDL 2800: "Barker" Suit vs Equifax Transferred to N.D. Georgia -------------------------------------------------------------- The class action lawsuit titled Patrick Barker, on behalf of himself and all others similarly situated, the Plaintiff, v. Equifax Inc. and Does 1 to 10, inclusive, the Defendants, Case No. 8:17-cv-01560, was transferred from the U.S. District Court for the Central District of California, to the U.S. District Court for the Northern District of Georgia (Atlanta) MDL 2800, on Dec. 8, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05007-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The Lead case is Case No. 1:17-md-02800-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on over 800 million individual consumers and more than 88 million businesses worldwide.[BN] The Plaintiff is represented by: John R. Lawless, Jr., Esq. KING AND SPALDING LLP 633 West Fifth Street Suite 1700 Los Angeles, CA 90071 Telephone: (213) 443 4355 Facsimile: (213) 443 4310 MDL 2800: "Collins" Suit vs. Equifax Transferred to N.D. Georgia ---------------------------------------------------------------- The class action lawsuit titled Randall Collins, on Behalf of Himself and All Others Similarly Situated, the Plaintiff, v. Equifax, Inc., the Defendant, Case No. 8:17-cv-01561, was transferred from the U.S. District Court for Central District of California, to the U.S. District Court for the Northern District of Georgia (Atlanta) MDL 2800, on Dec. 10, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05021- TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The Lead case is Case No. 1:17-md-02800- TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on over 800 million individual consumers and more than 88 million businesses worldwide.[BN] The Plaintiff is represented by: Timothy G. Blood, Esq. BLOOD HURST & O'REARDON, LLP 701 B Street, Suite 1700 San Diego, CA 92101 Telephone: (619) 338 1100 Facsimile: (619) 338 1101 E-mail: tblood@bholaw.com MDL 2800: "Bandoh-Aidoo" Suit v. Equifax Moved to N.D. Georgia -------------------------------------------------------------- The class action lawsuit titled Samuel Bandoh-Aidoo, on behalf of himself individually, and on behalf of all those similarly situated, the Plaintiff, v. Equifax Inc. and Does 1 through 10, the Defendant, Case No. 2:17-cv-06658, was transferred from the U.S. District Court for the Central District of California, to the U.S. District Court for the Northern District of Georgia (Atlanta) MDL 2800, on Dec. 8, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05002-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The Lead case is Case No. 1:17-md-02800-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on over 800 million individual consumers and more than 88 million businesses worldwide.[BN] MDL 2800: "Santomauro" Suit v. Equifax Moved to N.D. Georgia ------------------------------------------------------------ The class action lawsuit titled Rodd Santomauro, Brenda Birkett, and Debra Lee, Individually and on behalf of all others similarly situated, the Plaintiffs, v. Equifax, Inc., the Defendant, Case No. 1:17-cv-01852, was transferred from the U.S. District Court for the District of Columbia, to the U.S. District Court for the Northern District of Georgia (Atlanta) MDL 2800, on Dec. 10, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05028-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The Lead case is Case No. 1:17- md-02800-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on over 800 million individual consumers and more than 88 million businesses worldwide.[BN] MDL 2800: "Raffin" Suit v. Equifax Moved to N.D. Georgia -------------------------------------------------------- The class action lawsuit titled Sheena Raffin, individually and on behalf of all others similarly situated, the Plaintiff, v. Equifax, Inc., the Defendant, Case No. 2:17-cv-06620, was transferred from the U.S. District Court for the Central District of California, to the U.S. District Court for the Northern District of Georgia (Atlanta) MDL 2800, on Dec. 8, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17- cv-05001-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The Lead case is Case No. 1:17-md- 02800-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on over 800 million individual consumers and more than 88 million businesses worldwide.[BN] The Plaintiff is represented by: Todd M. Friedman, Esq. KIRKLAND & ELLIS-NY 153 East 53rd Street Citicorp Center New York, NY 10022-4675 Telephone: (212) 446 4786 E-mail: tfriedman@kirkland.com MDL 2800: "Skye" Suit vs. Equifax Transferred to N.D. Georgia ------------------------------------------------------------- The class action lawsuit titled KAETHE SKYE, individually on behalf of all others similarly situated, the Plaintiff, v. Equifax, Inc., the Defendant, Case No. 1:17-cv-11742, was transferred from the U.S. District Court for the District of Massachusetts, to the U.S. District Court for the Northern District of Georgia (Atlanta) MDL 2800, on Dec. 8, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17- cv-05016-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The Lead case is Case No. 1:17-md- 02800-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on over 800 million individual consumers and more than 88 million businesses worldwide.[BN] MDL 2800: "Duran" Suit vs. Equifax Transferred to N.D. Georgia -------------------------------------------------------------- The class action lawsuit titled Wendy Duran and Roy Duran, on behalf of themselves, and all others similarly situated, the Plaintiff, v. Equifax, Inc. and Does 1 to 10, inclusive, the Defendants, Case No. 8:17-cv-01571, was transferred from the U.S. District Court for the Central District of California, to the U.S. District Court for the Northern District of Georgia (Atlanta) MDL 2800, on Dec. 10, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05023-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The Lead case is Case No. 1:17-md-02800-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on over 800 million individual consumers and more than 88 million businesses worldwide.[BN] The Plaintiffs are represented by: Natalie S Pang, Esq. KABATECK BROWN KELLNER LLP 644 South Figueroa Street Los Angeles, CA 90017 Telephone: (213) 217 5000 Facsimile: (213) 217 5010 MDL 2800: "Gerstein" Suit v. Equifax Moved to N.D. Georgia ---------------------------------------------------------- The class action lawsuit titled Joshua Gerstein and Charles Stimac, Jr., individually and on behalf of those similarly situated, the Plaintiff, v. Equifax Information Services LLC, the Defendant, Case No. 1:17-cv-00593, was transferred from the U.S. District Court for Southern District of Ohio, to the U.S. District Court for the Northern District of Georgia (Atlanta) MDL 2800, on Dec. 11, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05048-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The lead case is Case No. 1:17-cv-05004-TWT. Equifax is a consumer credit reporting agency. Equifax collects and aggregates information on more than 800 million individual consumers and 88 million businesses worldwide.[BN] The Plaintiff is represented by: Marc Edward Dann, Esq. THE DANN LAW FIRM CO. LPA P.O. Box 6031040 2728 Euclid Avenue, Suite 300 Cleveland, OH 44103 Telephone: (216) 373 0539 E-mail: notices@dannlaw.com MDL 2800: "Kendall" Suit vs. Equifax Transferred to N.D. Georgia ---------------------------------------------------------------- The class action lawsuit titled CHRISTOPHER JOHN KENDALL, MICHAEL FRANKLIN, and KAREN FRANKLIN, individually and on behalf of those similarly situated, the Plaintiffs, v. Equifax Information Services LLC, the Defendant, Case No. 1:17-cv-06922, was transferred from the U.S. District Court for the District of New Jersey, to the U.S. District Court for the Northern District of Georgia (Atlanta), on Dec. 11, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05049-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The lead case is Case No. 1:17-cv-05004-TWT. Equifax is a consumer credit reporting agency. Equifax collects and aggregates information on more than 800 million individual consumers and 88 million businesses worldwide.[BN] The Defendant is represented by: Scott B. Galla, Esq. CLARK HILL PLC One Commerce Square 2005 Market Street, Suite 1000 Philadelphia, PA 19103 Telephone: (215) 640 8500 Facsimile: (215) 640 8501 MDL 2800: "Kilgore" Suit v. Equifax Moved to N.D. Georgia --------------------------------------------------------- The class action lawsuit titled Shelbi Kilgore, Michael Schaber, and "John" Howard, on behalf of themselves and all others similarly situated, the Plaintiffs, v. Equifax Information Services LLC, the Defendant, Case No. 1:17-cv-00942, was transferred from the U.S. District Court for the District of New Mexico, to the U.S. District Court for the Northern District of Georgia (Atlanta) MDL 2800, on Dec. 11, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05070- TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The lead case is Case No. 1:17-cv-05004-TWT. Equifax is a consumer credit reporting agency. Equifax collects and aggregates information on more than 800 million individual consumers and 88 million businesses worldwide.[BN] MDL 2800: "Levy" Suit vs. Equifax Transferred to N.D. Georgia ------------------------------------------------------------- The class action lawsuit titled Daniel Levy, individually and on behalf of all others similarly situated, the Plaintiff, v. Equifax Information Services LLC and Does 1 through 10, the Defendant, Case No. 1:17-cv-05354, was transferred from the U.S. District Court for the Eastern District of New York, to the U.S. District Court for the Northern District of Georgia (Atlanta) MDL 2800, on Dec. 11, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05063-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The lead case is Case No. 1:17-cv-05004-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on more than 800 million individual consumers and 88 million businesses worldwide.[BN] MDL 2800: "Belden" Suit vs. Equifax Transferred to N.D. Georgia --------------------------------------------------------------- The class action lawsuit titled Mr. Matthew Belden, individually and on behalf of all other similarly situated California citizens, the Plaintiff, v. Equifax, Inc., a Georgia corporation, the Defendant, Case No. 5:17-cv-05260, was transferred from the U.S. District Court for the Northern District of California, to the U.S. District Court for the Northern District of Georgia (Atlanta), on Dec. 11, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05039-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The lead case is Case No. 1:17-cv-05004-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on more than 800 million individual consumers and 88 million businesses worldwide.[BN] MDL 2800: "Christen" Suit vs. Equifax Transferred to N.D. Georgia ----------------------------------------------------------------- The class action lawsuit titled PEGGY CHRISTEN and JOSEPH T. COUGHLIN, individually and on behalf of all others similarly situated, the Plaintiffs, v. Equifax, Inc., the Defendant, Case No. 1:17-cv-06951, was transferred from the U.S. District Court for the District of New Jersey, to the U.S. District Court for the Northern District of Georgia (Atlanta), on Dec. 11, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05059-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The lead case is Case No. 1:17- cv-05004-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on more than 800 million individual consumers and 88 million businesses worldwide.[BN] The Plaintiff is represented by: Phillip A. Tortoreti, Esq. WILENTZ, GOLDMAN & SPITZER 90 Woodbridge Center Drive Woodbridge, NJ 07095 Telephone: (732) 855 6221 E-mail: ptortoreti@wilentz.com MDL 2800: "Derby" Suit vs. Equifax Transferred to N.D. Georgia -------------------------------------------------------------- The class action lawsuit titled MELISSA DERBY, on behalf of herself and all others similarly situated, the Plaintiff, v. Equifax, Inc., the Defendant, Case No. 2:17-cv-01186, was transferred from the U.S. District Court for the Western District of Pennsylvania, to the U.S. District Court for the Northern District of Georgia (Atlanta), on Dec. 11, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05068- TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The lead case is Case No. 1:17-cv-05004-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on more than 800 million individual consumers and 88 million businesses worldwide.[BN] The Defendant is represented by: Vincent M. Roskovensky, Esq. CLARK HILL PLC One Oxford Centre, 14th Floor 301 Grant Street Pittsburgh, PA 15219 Telephone: (412) 394 7716 MDL 2800: "Gibson" Suit v. Equifax Moved to N.D. Georgia -------------------------------------------------------- The class action lawsuit titled Robin Gibson, individually and on behalf of others similarly situated, the Plaintiffs, v. Equifax, Inc., the Defendant, Case No. 5:17-cv-00973, was transferred from the U.S. District Court for Western District of Oklahoma, to the U.S. District Court for the Northern District of Georgia (Atlanta), on Dec. 11, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05072-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The lead case is Case No. 1:17-cv-05004-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on more than 800 million individual consumers and 88 million businesses worldwide.[BN] The Plaintiff is represented by: William B. Federman, Esq. Joshua D. Wells, Esq. FEDERMAN & SHERWOOD 10205 N. Pennsylvania Avenue Oklahoma, OK 73120 Telephone: (405) 235 1560 Facsimile: (405) 239 2112 E-mail: wbf@federmanlaw.com MDL 2800: "Grossberg" Suit v. Equifax Moved to N.D. Georgia ----------------------------------------------------------- The class action lawsuit titled Josh Grossberg, Lisa Olivo, Justin Rothman, Michael Rothman, and Margret Linich, on behalf of themselves and all others similarly situated, the Plaintiff, v. Equifax, Inc., the Defendant, Case No. 1:17-cv-05280, was transferred from the U.S. District Court for the Eastern District of New York, to the U.S. District Court for the Northern District of Georgia (Atlanta) MDL 2800, on Dec. 11, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05061- TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The lead case is Case No. 1:17-cv-05004-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on more than 800 million individual consumers and 88 million businesses worldwide.[BN] MDL 2800: "Jorge" Suit vs. Equifax Transferred to N.D. Georgia -------------------------------------------------------------- The class action lawsuit titled Christine Jorge and Joanne Durrangm, on behalf of themselves and all others similarly situated, the Plaintiff, v. Equifax, Inc., the Defendant, Case No. 2:17-cv-05404, was transferred from the U.S. District Court for the Eastern District of New York, to the U.S. District Court for the Northern District of Georgia (Atlanta) MDL 2800, on Dec. 11, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05071-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The lead case is Case No. 1:17-cv-05004-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on more than 800 million individual consumers and 88 million businesses worldwide.[BN] The Defendant is represented by: Peter Isajiw, Esq. CADWALADER WICKERSHAM & TAFT One World Financial Center New York, NY 10281 Telephone: (212) 504 6579 Facsimile: (212) 504 6666 E-mail: peter.isajiw@cwt.com MDL 2800: "Salinas" Suit vs. Equifax Transferred to N.D. Georgia ---------------------------------------------------------------- The class action lawsuit titled Alejandro Salinas and Michael Ribons, Individually and on Behalf of All Others Similarly Situated, the Plaintiffs, v. Equifax, Inc., the Defendant, Case No. 5:17-cv-05284, was transferred from the U.S. District Court for the Northern District of California, to the U.S. District Court for the Northern District of Georgia (Atlanta), on Dec. 11, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05042-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The lead case is Case No. 1:17-cv-05004-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on more than 800 million individual consumers and 88 million businesses worldwide.[BN] MDL 2800: "Zamora" Suit vs. Equifax Transferred to N.D. Georgia --------------------------------------------------------------- The class action lawsuit titled Victor Zamora, on behalf of himself and all others similarly situated, the Plaintiff, v. Equifax Inc. and Equifax Information Services, LLC, the Defendants, Case No. 1:17-cv-07085, was transferred from the U.S. District Court for the District of New Jersey, to the U.S. District Court for the Northern District of Georgia (Atlanta), on Dec. 11, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05062-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The lead case is Case No. 1:17-cv-05004-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on more than 800 million individual consumers and 88 million businesses worldwide.[BN] MDL 2800: "Mann" Suit vs. Equifax Transferred to N.D. Georgia ------------------------------------------------------------- The class action lawsuit titled DANIEL J. MANN, INDIVIDUALLY AND ON BEHALF ALL OTHERS SIMILARLY SITUATED, the Plaintiff, v. Equifax Information Services LLC, the Defendant, Case No. 2:17-cv-04100, was transferred from the U.S. District Court for the Eastern District of Pennsylvania, to the U.S. District Court for the Northern District of Georgia (Atlanta), on Dec. 12, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17- cv-05103-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The lead case is Case No. 1:17-cv- 05004-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on more than 800 million individual consumers and 88 million businesses worldwide.[BN] The Plaintiff is represented by: John Soumilas, Esq. FRANCIS & MAILMAN, P.C. 19th Floor, Land Title Building 100 South Broad Street Philadelphia, PA 19110 Telephone: (215) 735 8600 E-mail: jsoumilas@consumerlawfirm.com The Defendant is represented by: Vincent M. Roskovensky, Esq. CLARK HILL PLC One Oxford Center, 14th Floor 301 Grant Street Pittsburgh, PA 15219 Telephone: (412) 394 7716 MDL 2800: "Pavitt" Suit vs. Equifax Transferred to N.D. Georgia --------------------------------------------------------------- The class action lawsuit titled Jodie Pavitt, Jennifer Mertlich, and Simon Kaufman, individually and on behalf of other similarly situated persons, the Plaintiffs, v. Equifax, Inc., the Defendant, Case No. 2:17-cv-01363, was transferred from the U.S. District Court for the Western District of Washington, to the U.S. District Court for the Northern District of Georgia (Atlanta) MDL 2800, on Dec. 12, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05101-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The lead case is Case No. 1:17-cv-05004-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on more than 800 million individual consumers and 88 million businesses worldwide.[BN] MDL 2800: "House" Suit vs. Equifax Transferred to N.D. Georgia -------------------------------------------------------------- The class action lawsuit titled Aaron House, Individually and on behalf of all others similarly situated, the Plaintiff, v. Equifax, Inc., the Defendant, Case No. 2:17-cv-02523, was transferred from the U.S. District Court for the District of Kansas, , to the U.S. District Court for the Northern District of Georgia (Atlanta), on Dec. 12, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05102-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The lead case is Case No. 1:17-cv-05004-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on more than 800 million individual consumers and 88 million businesses worldwide.[BN] MDL 2800: "Bahnmaier" Suit vs. Equifax Moved to N.D. Georgia ------------------------------------------------------------ The class action lawsuit titled Mikayla Dawn Bahnmaier, individually and on behalf of all others similarly situated, the Plaintiff, v. Equifax, Inc., the Defendant, Case No. 4:17-cv- 00512, was transferred from the U.S. District Court for the Northern District of Oklahoma, to the U.S. District Court for the Northern District of Georgia (Atlanta), on Dec. 12, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17- cv-05087-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The lead case is Case No. 1:17-cv- 05004-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on more than 800 million individual consumers and 88 million businesses worldwide.[BN] The Plaintiff is represented by: Joshua D. Wells, Esq. FEDERMAN & SHERWOOD 10205 N. Pennsylvania Avenue Oklahoma, OK 73120 Telephone: (405) 235 1560 MDL 2800: "Collins" Suit v. Equifax Moved to N.D. Georgia --------------------------------------------------------- The class action lawsuit titled Robert L. Collins, on behalf of himself and all others similarly situated, the Plaintiff, v. Equifax, Inc., the Defendant, Case No. 1:17-cv-00187, was transferred from the U.S. District Court for the Southern District of Texas, to the U.S. District Court for the Northern District of Georgia (Atlanta) MDL 2800, on Dec. 12, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05088- TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The lead case is Case No. 1:17-cv-05004-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on more than 800 million individual consumers and 88 million businesses worldwide.[BN] MDL 2800: "Lynch" Suit vs. Equifax Transferred to N.D. Georgia -------------------------------------------------------------- The class action lawsuit titled Reagan Lynch, Alicia Lynch, and Amber Hernandez, individually and on behalf of all others similarly situated, the Plaintiff, v. Equifax, Inc., the Defendant, Case No. 4:17-cv-00640, was transferred from the U.S. District Court for the Eastern District of Texas, to the U.S. District Court for the Northern District of Georgia (Atlanta), on Dec. 12, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05090-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The lead case is Case No. 1:17-cv-05004-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on more than 800 million individual consumers and 88 million businesses worldwide.[BN] MDL 2800: "Martin" Suit vs. Equifax Moved to N.D. Georgia --------------------------------------------------------- The class action lawsuit titled Sean J. Martin, Richard Shanken Tonya Shanken, and Nancy Stabell on behalf of himself and all others similarly situated, the Plaintiffs, v. Equifax, Inc. and Equifax Information Services LLC, the Defendants, Case No. 3:17- cv-01246, was transferred from the U.S. District Court for the Middle District of Tennessee, to the U.S. District Court for the Northern District of Georgia (Atlanta) MDL 2800, on Dec. 12, 2017. The Northern District of Georgia Court Clerk assigned Case No. 1:17-cv-05116-TWT to the proceeding. The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. The lead case is Case No. 1:17- cv-05004-TWT. Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on more than 800 million individual consumers and 88 million businesses worldwide.[BN] MDL 2807: "Huffer" Suit v. Sonic Consolidated in N.D. Ohio ---------------------------------------------------------- The class action lawsuit titled Brian Huffer and Caitlin Gilmore, individually and on behalf of all others similarly situated, the Plaintiffs, v. Sonic Corp., the Defendant, Case No. 5:17-cv-01032, was transferred from the U.S. District Court for the Western District of Oklahoma, to the U.S. District Court for the Northern District of Ohio, on Dec. 12, 2017. The Ohio Northern District Court Clerk assigned Case No. 1:17-sb-55001-JSG to the proceeding. The Gilmore case is being consolidated with MDL 2807 in Re: Sonic Corp. Customer Data Security Breach Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on December 6, 2017. Before the Panel, Plaintiffs in two Western District of Oklahoma actions, move under 28 U.S.C. section 1407 to centralize this litigation in the Western District of Oklahoma. This litigation consists of five actions pending in three districts. The Plaintiffs in the remaining Western District of Oklahoma action and the District of Oregon action support the motion or, alternatively, support centralization in the Northern District of Ohio. Plaintiffs in the District of Nevada action and the Northern District of Ohio potential tag-along action support centralization in the Northern District of Ohio. Defendant Sonic Corp. opposes centralization or, alternatively, supports centralization in the Western District of Oklahoma. In its December 6, 2017 Order, the MDL Panel found that the centralization under Section 1407 in the Northern District of Ohio will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. These actions -- all of which are putative nationwide class actions -- share factual issues concerning an incident in which Sonic's point-of-sale system was breached, allowing computer hackers to gain access to up to 5 million individuals' personally identifiable information. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings on class certification and other issues; and conserve the resources of the parties, their counsel, and the judiciary. Presiding Judge in the MDL is Hon. Judge James S. Gwin, United States District Judge. The lead case is 1:17-md-02807-JSG.[BN] The Plaintiffs are represented by: Carin L. Marcussen, Esq. Joshua D. Wells, Esq. William B. Federman, Esq. FEDERMAN & SHERWOOD 10205 North Pennsylvania Avenue Oklahoma City, OK 73120 Telephone: (405) 235 4560 Facsimile: (405) 239 2112 E-mail: wbf@federmanlaw.com The Defendant is represented by: Amy J. Pierce, Esq. Joe M. Hampton, Esq. CORBYN HAMPTON BARGHOLS PIERCE 211 North Robinson Avenue, Ste. 1910 Oklahoma City, OK 73102 Telephone: (405) 239 7055 Facsimile: (405) 702 4348 MDL 2807: "Lewin" Suit vs. Sonic Consolidated in N.D. Ohio ---------------------------------------------------------- The class action lawsuit titled Jeffrey Lewin and Audrey Bernstein, Individually and on behalf of all others similarly situated, the Plaintiffs, v. Sonic Corp., the Defendant, Case No. 5:17-cv-01047, was transferred from the U.S. District Court for the Western District of Oklahoma, to the U.S. District Court for the Northern District of Ohio, on Dec. 12, 2017. The Ohio Northern District Court Clerk assigned Case No. 1:17-sb-55003-JSG to the proceeding. The Lewin case is being consolidated with MDL 2807 in Re: Sonic Corp. Customer Data Security Breach Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on December 6, 2017. Before the Panel, Plaintiffs in two Western District of Oklahoma actions, move under 28 U.S.C. section 1407 to centralize this litigation in the Western District of Oklahoma. This litigation consists of five actions pending in three districts. The Plaintiffs in the remaining Western District of Oklahoma action and the District of Oregon action support the motion or, alternatively, support centralization in the Northern District of Ohio. Plaintiffs in the District of Nevada action and the Northern District of Ohio potential tag-along action support centralization in the Northern District of Ohio. Defendant Sonic Corp. opposes centralization or, alternatively, supports centralization in the Western District of Oklahoma. In its December 6, 2017 Order, the MDL Panel found that the centralization under Section 1407 in the Northern District of Ohio will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. These actions -- all of which are putative nationwide class actions -- share factual issues concerning an incident in which Sonic's point-of-sale system was breached, allowing computer hackers to gain access to up to 5 million individuals' personally identifiable information. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings on class certification and other issues; and conserve the resources of the parties, their counsel, and the judiciary. Presiding Judge in the MDL is Hon. Judge James S. Gwin, United States District Judge. The lead case is 1:17-md-02807-JSG.[BN] The Plaintiffs are represented by: William B. Federman, Esq. Carin L. Marcussen, Esq. Joshua D. Wells, Esq. FEDERMAN & SHERWOOD 10205 North Pennsylvania Avenue Oklahoma City, OK 73120 Telephone: (405) 235 1560 Facsimile: (405) 239 2112 E-mail: wbf@federmanlaw.com The Defendant is represented by: Amy J. Pierce, Esq. Joe M. Hampton, Esq. CORBYN HAMPTON BARGHOLS PIERCE 211 North Robinson Avenue, Ste. 1910 Oklahoma City, OK 73102 Telephone: (405) 239 7055 Facsimile: (405) 702 4348 MDL 2807: "Ramirez" Suit vs. Sonic Moved to N.D. Ohio ----------------------------------------------------- The class action lawsuit titled Denise Ramirez, Individually and on behalf of all others similarly situated, the Plaintiff, v. Sonic Corp., the Defendant, Case No. 5:17-cv-01044, was transferred from the U.S. District Court for the Western District of Oklahoma, to the U.S. District Court for the Northern District of Ohio, on Dec. 12, 2017. The Ohio Northern District Court Clerk assigned Case No. 1:17-sb-55002-JSG to the proceeding. The Ramirez case is being consolidated with MDL 2807 in Re: Sonic Corp. Customer Data Security Breach Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on December 6, 2017. Before the Panel, Plaintiffs in two Western District of Oklahoma actions, move under 28 U.S.C. section 1407 to centralize this litigation in the Western District of Oklahoma. This litigation consists of five actions pending in three districts. The Plaintiffs in the remaining Western District of Oklahoma action and the District of Oregon action support the motion or, alternatively, support centralization in the Northern District of Ohio. Plaintiffs in the District of Nevada action and the Northern District of Ohio potential tag-along action support centralization in the Northern District of Ohio. Defendant Sonic Corp. opposes centralization or, alternatively, supports centralization in the Western District of Oklahoma. In its December 6, 2017 Order, the MDL Panel found that the centralization under Section 1407 in the Northern District of Ohio will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. These actions -- all of which are putative nationwide class actions -- share factual issues concerning an incident in which Sonic's point-of-sale system was breached, allowing computer hackers to gain access to up to 5 million individuals' personally identifiable information. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings on class certification and other issues; and conserve the resources of the parties, their counsel, and the judiciary. Presiding Judge in the MDL is Hon. Judge James S. Gwin, United States District Judge. The lead case is 1:17-md-02807-JSG.[BN] The Plaintiff is represented by: William B. Federman, Esq. Carin L. Marcussen, Esq. Joshua D. Wells, Esq. FEDERMAN & SHERWOOD 10205 North Pennsylvania Avenue Oklahoma City, OK 73120 Telephone: (405) 235 1560 Facsimile: (405) 239 2112 E-mail: wbf@federmanlaw.com The Defendant is represented by: Amy J. Pierce, Esq. Joe M. Hampton, Esq. CORBYN HAMPTON BARGHOLS PIERCE 211 North Robinson Avenue, Ste. 1910 Oklahoma City, OK 73102 Telephone: (405) 239 7055 Facsimile: (405) 702 4348 MENORAH PARK: "Thompson" Suit Seeks Overtime Pay under FLSA ----------------------------------------------------------- KEISHA THOMPSON, 12806 North Road, Cleveland, OH 44111 on behalf of herself and all others similarly situated, the Plaintiff, v. MENORAH PARK CENTER FOR SENIOR LIVING BET MOSHAV ZEKENIM HADATI c/o Statutory Agent Taft Service Solutions Corp. 200 Public Sq. Ste 3500 Cleveland, OH 44114, Defendant, Case No. 1:17-cv-02580 (N.D. Ohio, Dec. 12, 2017), seeks to recover overtime compensation for all of the hours worked over 40 each workweek, pursuant to the Fair Labor Standards Act. The Defendant is a long-term care facility for elderly individuals and located in Beachwood, Ohio. The Plaintiff was employed by Defendant as a Registered Nurse between April 2017 and December 2017. Other similarly-situated employees were employed by Defendant as RNs, LPNs, and nursing assistants. The Plaintiff and other similarly-situated employees were classified by Defendant as non-exempt employees. The Plaintiff and other similarly-situated employees were paid by Defendant on an hourly basis. The Defendant has a policy that required Plaintiff and other similarly-situated employees to clock out after working heir 8-hour shift. However, Defendant required Plaintiff and other similarly-situated employees to keep working and finish their job duties after clocking out. The Defendant required Plaintiff and other similarly-situated employees to perform unpaid work off-the-clock at the end of their shifts.[BN] Attorneys for Plaintiff: Lori M. Griffin, Esq. Anthony J. Lazzaro, Esq. Chastity L. Christy, Esq. THE LAZZARO LAW FIRM, LLC 920 Rockefeller Building 614 W. Superior Avenue Cleveland, Ohio 44113 Telephone: (216) 696 5000 Facsimile: (216) 696 7005 E-mail: lori@lazzarolawfirm.com anthony@lazzarolawfirm.com chastity@lazzarolawfirm.com MST GENERAL: "Guaman" Suit Seeks Unpaid Wages under Labor Law ------------------------------------------------------------- MANUEL GUAMAN, JOHNNY PEREZ, GEOVANNI CALLE, FLA VIO CALLE, MARIO LOJANO, JULIO LOJANO, VICTOR LOZADO, FREDDY CALLE, JUAN MAURIZACA, GALO PACHECO, on behalf of themselves and all others similarly situated who were employed by M.S.T. General Contracting Restoration Corp. with respect to certain Public Works Projects, the Plaintiffs, v. M.S.T. GENERAL CONTRACTING RESTORATION INC., MANI SINGH TIDND, GURINDA SINGH, KLEBER CIDCAIZA, and JOHN DOE BONDING COMPANIES 1-5, the Defendants, Case No. 655469/2016 (N.Y. Sup. Ct., Dec. 14, 2017), seeks to recover unpaid prevailing wages, overtime premiums, shift-differentials, holiday premiums, and supplemental benefits and supplemental benefits which Plaintiffs were entitled to receive for work performed on public works projects in a number of locations, including but not limited to the following locations in the state or city of New York, pursuant to the New York Labor Law. According to the complaint, the Defendants paid Plaintiff Guaman $255 per day for the 12-hour shifts that he worked on Saturdays and Sundays. The Plaintiff was never paid prevailing wages, overtime premiums, shift-differential, holiday premiums and supplemental benefits for his work on these Public Works Projects. The Defendants allegedly instructed Guaman to lie and say that he was being paid $71 per hour when questioned by NYCHA inspectors. In fact, Defendants paid Plaintiff Guaman approximately $20 per hour for his work on Public Works Projects. MST General has over two decades of experience working in New York City specializing in exterior restoration, brick pointing, waterproofing, building exterior maintenance, expansion joints, flashing, water barriers, and lintel replacement.[BN] Attorneys for Plaintiffs: Steven Arenson, Esq. ARENSON, DITTMAR AND KARBAN 200 Park A venue, Suite 1700 New York, NY 10166 Telephone: (212) 490 3600 E-mail: steve@adklawfirm.com NEW TELECOM: Lin Seeks Unpaid minimum Wages, OT under Labor Law --------------------------------------------------------------- HONG LIN, individually and on behalf of all others similarly situated, the Plaintiff, v. NEW TELECOM, INC. d/b/a FLUSHING INN, ABC CORP. d/b/a FLUHING INN, ZEMING CHENG a.k.a "DA VlD" CHENG, and YU ZHANG, Defendants, Case No. 711709/2017 (Cal. Super. Ct., Dec. 12, 2017), seeks to recover overtime wages, unlawful deductions, spread of hours compensation, damages for failure to provide wage statements, damages for failure to provide wage notice at the time of hiring liquidated damages, interest, costs, and attorneys' fees for violations of the New York Labor Law. According to the complaint, the Plaintiff worked for Defendants in excess of 40 hours per week, without appropriate compensation for the hours over 40 per week that he worked. The Defendants failed to maintain accurate records of the hours Plaintiff worked, failed to pay Plaintiff minimum wages, and failed to pay Plaintiff appropriately for any hours worked over 40, whether at the straight rate of pay, or for any additional overtime premium. The Defendants allegedly failed to pay Plaintiff the required "spread of hours" pay for any day in which he had to work over 10 hours per day. The Defendants maintained a policy and practice of requiring Plaintiff and other employees to work in excess of 40 hours per week without providing the minimum wage and overtime compensation required by New York State Law and regulations.[BN] The Plaintiff is represented by: Phillip H. Kim, Esq. HANG & ASSOCIATES, PLLC 136-18 391h Avenue, Suite 1003 Flushing, NY 11354 Telephone: (718) 353 8522 The Defendants are represented by: KAUFMAN DOLOWICH & VOLUCK, LLP 135 Crossways Park Dr. Ste 201 Woodbury, NY 11797 Telephone: (516) 681-1100 NEWFIT DALLAS: Fails to Pay Workers OT, "Avila" Suit Claims ------------------------------------------------------------ Roberto Avila, on behalf of himself and all others similarly situated v. Newfit Dallas, Ltd d/b/a Fitness Connection, Case No. 3:17-cv-03233-D (N.D. Tex., November 28, 2017), is brought against the Defendants for failure to pay overtime wages for hours worked in excess of 40 hours per week. Newfit Dallas, Ltd. owns and operates health and fitness clubs in Texas. [BN] The Plaintiff is represented by: Richard C. Dalton, Esq. RICHARD C. DALTON, LLC 1343 West Causeway Approach Mandeville, LA 70471 Telephone: (985) 778-2215 Facsimile: (985) 778-2233 E-mail: rick@rickdaltonlaw.com NPAS INC: Pickles Violates Fair Debt Collection Practices Act ------------------------------------------------------------- HELEN PICKLES, on behalf of herself and all others similarly situated, the Plaintiff, v. NPAS, INC., a Tennessee Corporation, the Defendant, Case No. 2:17-cv-14432-JEM (S.D. Fla., Dec. 12, 2017), seeks to recover monetary damages as a results of Defendant's violations of the Fair Debt Collection Practices Act. The Defendant sought to collect a consumer debt from Plaintiff, more specifically, a medical debt. The debt was incurred primarily for personal, household or family use. The debt was not incurred for any commercial purpose. On or about October 14, 2017, Defendant mailed or caused to be mailed to Plaintiff a letter seeking payment of an alleged debt. The Defendant is licensed in Florida as a consumer collection agency, license number CCA9902869. Defendant is not licensed in Florida as a commercial collection agency. The Defendant regularly collects or attempts to collect consumer debts for other parties. Defendant is a "debt collector" as defined by the FDCPA.[BN] Attorney for Plaintiff: Leo W. Desmond, Esq. DESMOND LAW FIRM, P.C. 5070 Highway A1A, Suite D Vero Beach, FL 32963 Telephone: 772.231.9600 Facsimile: 772.231.0300 E-mail: lwd@desmondlawfirm.com NURSE FORCE: "Pinard" Suit Seeks Overtime Pay under FLSA -------------------------------------------------------- SAMANTHA PINARD individually and on behalf of all persons similarly situated, the Plaintiff, v. NURSE FORCE, INC., the Defendant, Case No. 4:17-cv-00434-JAJ-RAW (S.D. Iowa., Dec. 12, 2017), seeks to recover overtime pay and all available relief under the Fair Labor Standards Act of 1938. According to the complaint, NFI failed to accurately calculate the amount of overtime owed to the FLSA Class members, failed to accurately pay Plaintiff and the FLSA Class the correct amount of overtime wages. The similarly situated employees are known to the Defendant, are readily identifiable, and can be easily located through Defendant's business and human resources records. Nurse Force provides a wide variety of hourly in-home care services in the Des Moines area.[BN] The Plaintiff is represented by: Michael D. Currie, Esq. Mark W. Thomas, Esq. GREFE & SIDNEY, P.L.C. 500 E. Court Avenue, Suite 200 Des Moines, IA 50309 Telephone: (515) 245 4300 Facsimile: (515) 245 4452 E-mail: mcurrie@grefesidney.com mthomas@grefesidney.com OHIO STATE: Ex-Player Seeks to Expand Commercial Image Use Suit --------------------------------------------------------------- Andrew Welsh-Huggins, writing for The Associated Press, reports that a former Ohio State and NFL star is asking a judge to let him expand a class-action lawsuit over allegations that marketing campaigns for dozens of big-time colleges and universities improperly used the images of thousands of current and former football players. Those athletes should be compensated, according to the proposed update of a lawsuit by ex-linebacker turned broadcaster Chris Spielman. Attorneys for Mr. Spielman asked a federal judge on Nov. 28 to allow the broad expansion of Mr. Spielman's claims, which accuse talent management giant IMG and apparel-maker Nike of wrongly using the likenesses of current and former players at 89 colleges and universities. Mr. Spielman attorney Brian Duncan said he's confident the expanded lawsuit will go forward soon. Originally filed just on behalf of Ohio State athletes, the proposed antitrust complaint names schools including Alabama, Clemson, Florida, Ole Miss, Notre Dame, Virginia Tech and Texas, among many others. IMG and Nike have restricted players' ability to "capitalize on the proverbial blood, sweat, and tears" shed by Mr. Spielman and the other athletes during their playing days, said the proposed lawsuit, also filed on Nov. 28. The updated complaint calls IMG and Nike's actions "patently anti- competitive and illegal," and said actions by the companies and the universities led to the players "losing their freedom to compete in the open market." One contested marketing campaign is a Honda-sponsored program of 64 banners hung around Ohio Stadium featuring photos of former players with a Honda logo. Honda executed the program under contract with IMG, not Ohio State. IMG, Nike and their business partners earned millions from TV contracts, rebroadcasts, film sales and rentals, jersey sales and other sources while athletes received nothing, according to the updated lawsuit. The new complaint names IMG and Nike as defendants and Honda, Ohio State, and the other universities as co-conspirators. Nike is targeted for its "Legends of the Scarlet and Gray" vintage jersey licensing program and for other apparel contracts at the various other schools. Ohio State alone will receive $2.5 billion in revenue through its IMG contract and the company has similar contracts at other universities, Mr. Spielman told The Associated Press in a statement on Nov. 28. Mr. Spielman said he remains hopeful Ohio State "will step up and lead the change in this area on behalf of its former players. " Both IMG and Ohio State have previously urged a judge to dismiss the lawsuit. In October, IMG Worldwide, Inc. and related entities said the lawsuit should be tossed out because there's no evidence the company did anything wrong. In September, the university said federal courts don't have jurisdiction over the complaint and Mr. Spielman hasn't met a legal burden required in such antitrust lawsuits. Judge Michael Watson has yet to rule on the motions to throw out the case. Messages were left for Honda's Ohio-based spokesman, Ohio State, and Beaverton, Oregon-based Nike Inc. An attorney for New York- based IMG said he hadn't had a chance to review the new lawsuit. Mr. Spielman is an NFL and college football analyst for Fox. He was an All-American linebacker at Ohio State, where he played from 1984 to 1987, and an All-Pro linebacker in the NFL who spent most of his career with the Detroit Lions. A breast cancer research center at Ohio State carries the name of his late wife, Stefanie Spielman, who died of cancer in 2009. [GN] PHARM-SAVE INC: Court Narrows Claims in "Savidge" PII Theft Suit ---------------------------------------------------------------- In the case captioned ANDREA K. SAVIDGE, et al., Plaintiffs, v. PHARM-SAVE, INC., et al., Defendants, Civil Action No. 3:17-CV- 00186-TBR (W.D. Ky.), Judge Thomas B. Russell of the U.S. District Court for the Western District of Kentucky, Louisville Division, (i) granted in part and denied in part the Defendants' Motion to Dismiss, (ii) granted the Plaintiffs' Joint Motion for Extension of Time to File Response as to Defendants' Motion to Dismiss, (iii) denied as moot the Plaintiffs' Joint Motion to Remand, (iv) granted the Plaintiffs' Motion for Leave to File First Amended Class Action Complaint, (v) denied the Plaintiffs' Joint Motion to Stay, and (vi) granted the Defendants' Motion for Leave to File Sur-Reply. Plaintiffs Savidge and Lynch were employees of Pharm-Save from 2013 to 2015 and 2013 to 2014, respectively. On March 3, 2016, after the each of the Plaintiffs' employment with Pharm-Save had ended, a data breach occurred through which an outside individual or group obtained copies of the W-2 forms which Pharm-Save sent to its employees and the IRS which would have included employees' social security numbers, addresses and their 2015 salary information. In letters dated March 26, 2016, Pharm-Save notified all affected employees, including Savidge and Lynch, of the incident. Therein, it explained the security breach and told employees that it is possible that the criminal(s) may have filed or may try to file fraudulent tax refunds in the names of our employees. Also in the letters, it offered employees a complimentary two-year membership of Experian's ProtectMyID Alert. In a letter dated March 29, 2016, the IRS notified Savidge that it had received a federal income tax return for the 2015 tax year with her name and social security number. However, the IRS stated that, to protect her from identity theft, the IRS needs to verify her identity before it processes her return. Additionally, the IRS wrote it won't process this tax return until it hears from her. Indeed, that tax return was fraudulent. On March 2, 2017, the Plaintiffs brought suit against Pharm-Save and Neil Medical Group, Inc. in Kentucky state court, alleging several causes of action related to the theft of their personally identifiable information ("PII"). The Defendants removed the action to the Court on March 27, 2017, and simultaneously filed the instant motion to dismiss. The Plaintiffs filed a motion to remand the action back to Kentucky state court. They also filed a motion for leave to file a first amended class action complaint. Finally, the Plaintiffs filed a motion to stay the ruling on the Defendants' motion to dismiss until after they've had an opportunity to conduct limited discovery. The Defendants then moved to file a sur-reply. The Defendants seek dismissal of the Plaintiffs' claims of negligence, negligence per se, invasion of privacy, breach of implied contract, and intentional and negligent infliction of emotional distress. First, they argue that Neil Medical Group is not an appropriately named Defendant because it was not in operation at the time of the alleged conduct. Second, they argue that the Plaintiffs fail to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). Because the parties no longer dispute that the Court has jurisdiction to hear the case, Judge Russell denied as moot the Plaintiffs' Joint Motion to Remand. Judge Russell granted in part and denied in part the Defendants' Motion to Dismiss. The Plaintiffs' claims of negligence per se, invasion of privacy, intentional infliction of emotional distress, and negligent infliction of emotional distress are dismissed for failure to state a claim upon which relief can be granted. The portion of the Defendants' motion to dismiss Neil Medical Group on grounds of lack of personal jurisdiction under Rule 12(b)(2) is denied without prejudice. The parties have until Jan. 31, 2018 to conduct limited discovery on the issue of personal jurisdiction. Thereafter, the Defendants have leave to refile their motion to dismiss Neil Medical Group under Rule 12(b)(2). Accordingly, the Judge granted the Plaintiffs' Joint Motion for Extension of Time to File Response as to Defendants' Motion to Dismiss, is granted. The Judge granted the Plaintiffs' Motion for Leave to File First Amended Class Action Complaint due to the lack of opposition from the Defendants, and Rule 15(a)(2)'s direction that courts should allow parties to amend pleadings freely as justice requires. The Plaintiffs will add four new causes of action: violations of the Kentucky Uniform Trade Secrets Act, conversion, trespass to chattels, and bailment. Due to the filing of this amended complaint, the Defendants will hereafter be permitted to file another motion to dismiss addressing the Plaintiffs' new claims. The Judge also granted the Defendants' Motion for Leave to File Sur-Reply and, though he agreed with that Plaintiffs that limited discovery is warranted, he denied Plaintiffs' Joint Motion to Stay. Rather, he denied without prejudice the Defendants' 12(b)(2) motion at this time pending further limited discovery. Finally, Judge Russell concludes that he will address class certification issue at a later time after the Plaintiffs have properly raised it in a motion to certify. The Plaintiffs state in their complaint that they seek to bring the suit as a class action on behalf of all individuals whose PII was compromised as a result of the March 3, 2016 breach. In their motion to dismiss, the Defendants oppose class certification, making several arguments related to broadness, arbitrariness, ascertainability, numerosity, adequate representation, typicality, and predominance. The Judge says at this early stage, it is premature to decide the class certification issue. A full-text copy of the Court's Dec. 1, 2017 Memorandum Opinion and Order is available at https://is.gd/Law1uu from Leagle.com. Andrea K. Savidge, Plaintiff, represented by Peter J. Jannace -- peter.jannace@gmail.com. Andrea K. Savidge, Plaintiff, represented by Teddy B. Gordon -- tbearaty@aol.com. Beth A. Lynch, Plaintiff, represented by Peter J. Jannace & Teddy B. Gordon. Pharm-Save, Inc., Defendant, represented by Byron N. Miller -- bmiller@tmslawplc.com -- Thompson Miller & Simpson PLC, Joseph A. Wright -- jwright@tmslawplc.com -- Thompson Miller & Simpson PLC, Michael J. Bender -- mbender@tmslawplc.com -- Thompson Miller & Simpson PLC & Mitchel Terence Denham -- mitchel.denham@ag.ky.gov - - Kentucky Attorney General. Neil Medical Group, Inc., Defendant, represented by Byron N. Miller, Thompson Miller & Simpson PLC, Joseph A. Wright, Thompson Miller & Simpson PLC, Michael J. Bender, Thompson Miller & Simpson PLC & Mitchel Terence Denham, Kentucky Attorney General. PRINCE GEORGE'S HOSPITAL: Faces Class Action Over Fake Doctor ------------------------------------------------------------- Marina Marraco, writing for FOX5, reports that at least ten women say their patient rights were violated by a man who purported to be a gynecologist at Prince George's Hospital Center. Prince George's Hospital Center has acknowledged that they employed a man who is said to be Dr. Charles J. Akoda. The hospital also acknowledged that he used a complex and sophisticated identity theft scheme. However, the hospital maintains they completed a diligent and thorough background check of this man who practiced at their facility. A class action complaint was filed in federal court by ten anonymous women coming forward claiming Akoda allegedly falsified the majority, if not all of his medical degrees, documentations and identity, as he practiced medicine as a gynecologist at hospital for a total of eight years from 2008 to 2016 -- as both a resident and then as a doctor. Now, one woman whose baby was delivered by this man has come forward. "He has messed up my health afterwards," said Jazmine Tinsley, one of the alleged victims. "But throughout the entire time, I put my trust in him, and now to find out that he is actually a fake, I am very appalled and in disbelief because I wouldn't expect a hospital to not do a thorough background check on people that is willing to work for them. I would expect them to really do diligent background checks on people and expect those people to be who they say they are because the name that he introduced me as isn't the name that he originally is." "He was indicted by the federal government, the U.S. attorney in June of 2016 for a fraudulent social security number," said attorney Jonathan Schochor. "They then executed warrants at his home and found a false passport, a false social security number, altered immigration documents, altered diploma, altered medical transcripts, altered letters of recommendation." Through a spokesperson, Prince George's Hospital Center said in a statement: We are aware of a lawsuit filed on behalf of patients who may have received care from "Dr. Charles J. Akoda." We intend to vigorously defend the lawsuit which is based on assumptions and accusations that he was not a trained, licensed medical professional. Dr. "Akoda" is the identity used by a trained and licensed physician in the practice of Obstetrics and Gynecology when he delivered his private patients at our facility. Dr. "Akoda" completed his residency in Obstetrics and Gynecology at Howard University in Washington, DC. He demonstrated the breadth and depth of clinical competence expected of a resident in Obstetrics and Gynecology. He underwent biannual evaluations of his clinical knowledge and surgical skills based on the fulfilling the Core Competencies of residency training. Subsequent to completion of his residency program in Obstetrics and Gynecology, Dr. "Akoda" was Board Certified by the American Board of Obstetrics and Gynecology in 2014. Upon successful completion of his residency program, he applied for and was granted medical staff privileges at Prince George's Hospital Center. A background check performed by an outside source validated the social security number he provided. Throughout the course of his clinical activity at PGHC, he underwent scheduled Focused Practice and Ongoing Professional Practice Evaluations which he completed successfully. Dr. "Akoda" held physician's licenses in good standing in the State of Maryland and the Commonwealth of Virginia. We are deeply committed to high quality patient care, delivered with compassion and an expectation of integrity from every member of our team. We are disappointed that our expectation of integrity was not met in the case of Dr. "Akoda" given his complex, sophisticated identity theft scheme. Back in 2014, Prince George's County said they looked into Akoda for operating as a doctor without a license. Eventually, the case went federal and he was indicted on that charge last year. Now, these ten women in the complaint and at least 100 other women have told lawyers they were also patients of Akoda's at Prince George's Hospital Center and are seeking damages as a result. [GN] RECON INDUSTRIES: "Roberts" Suit Seeks Minimum Pay -------------------------------------------------- KRISTOPHER ROBERTS on behalf of himself and all others similarly situated, the Plaintiff, v. RECON INDUSTRIES INC. dba CALIFORNIA SAFETY AGENCY, a California corporation; DARREL COWAN, an individual; and DOES 1 through 100, inclusive the Defendant, Case No. BC686779 (Cal. Super. Ct., Dec. 14, 2017), seeks to recover minimum and overtime wages under the California Labor Code. According to the complaint, for at least four years prior to the filing of this action and continuing to the present, Defendants have had a consistent policy of failing to pay wages, including minimum and overtime wages, to Plaintiff and other similarly situated current and former employees in the State of California in violation of California state wage and hour laws as a result of, including but not limited to, failing to pay wages for all hours worked and failing to pay proper overtime wages for all overtime hours worked. Recon consists of project teams that have experience in refractory design and installation, as well as piping and mechanical services.[BN] The Plaintiff is represented by: Andrew J. Malatesta, Esq. MALATESTA LAW 2029 Century Park East, Suite 400 Los Angeles, CA 90067 Telephone: (424) 284 1384 Facsimile: (424) 284 8170 - and - Mehrdad Bokhour, Esq. BOKHOUR LAW GROUP, P.C. 287 S. Robertson Blvd., Suite 303 Beverly Hills, CA 90211 Telephone: (310) 975 1493 Facsimile: (310) 300 1705 REXALL SUNDOWN: Court Dismisses "Seegert" Suit Without Prejudice ---------------------------------------------------------------- In the lawsuit styled SANDRA SEEGERT, individually and on behalf of all other similarly situated, Plaintiff, v. REXALL SUNDOWN, INC., Defendant, Case No. 17cv1243-JAH (JLB) (S.D. Cal.), Judge John A. Houston of the U.S. District Court for the Southern District of California granted the Defendant's motion to dismiss, motion to strike Seegert's class action complaint, and request for judicial notice. The Plaintiff filed her Complaint on June 19, 2017, on behalf of herself and a putative class. The Plaintiff alleges that the Defendant engaged in false and misleading advertising of four Osteo Bi-Flex dietary supplements. She posits that the Defendant falsely claims the products promote joint health. She contends that on Feb. 20, 2017, she purchased one of the Defendant's products, Osteo Bi-Flex Triple Strength, in reliance on the product's advertising. The Plaintiff alleges the product did not provide "meaningful joint health benefits" and was falsely, deceptively, and misleadingly advertised. The Plaintiff argues that the Defendant violated three California statutes: (i) California's Unfair Competition Law; (ii) California's Consumers Legal Remedies Act; and California's False Advertising Law. She presents allegations on behalf of herself and a putative class of similarly situated individuals. Specifically, the Plaintiff asserts that the Defendant falsely advertises four products: Osteo Bi-Flex One Per Day; Osteo Bi-Flex Triple Strength; Osteo Bi-Flex Triple Strength MSM; and Osteo Bi- Flex Triple Strength with Vitamin D. She argues that none of the four products achieve their intended purpose, to support or benefit joint health. The Plaintiff requests restitution, disgorgement, injunctive relief, attorney's fees, and interest on damage awards. On Aug. 14, 2017, the Defendant filed a motion to dismiss the Plaintiff's Complaint. The same day, it filed a motion to strike. The Defendant also filed a request for judicial notice. On Oct. 9, 2017, the Plaintiff filed a response in opposition to the Defendant's motion to dismiss. On the same day, she filed a response in opposition to the Defendant's motion to strike. Judge Houston finds that the Plaintiff lacks standing to assert a claim in the instant matter. She fails to demonstrate how the Defendant's advertisement of its product, Osteo Bi-Flex Triple Strength, is false or misleading. She fails to specifically mention any of the challenged labels in her Complaint. The Plaintiff also fails to show that her cited scientific studies are relevant or that the active ingredients in the Defendant's products do not deliver promised results. As to the Defendant's three other products, the Plaintiff fails to show how she was injured by products she did not come across or purchase. She also fails to demonstrate that she faces "imminent harm" pursuant to the requirements necessary for injunctive relief. The Judge also finds that the Plaintiff's Complaint does not demonstrate she has pleaded with particularity sufficient to meet the 9(b) heightened standard. He says the Plaintiff fails to sufficiently allege the "who, what, where, how and why" of the Defendant's misconduct. The pleadings do not allege with specificity how Defendant misrepresented its product. The Plaintiff also fails to show that the Defendant's products do not achieve the intended purpose. With respect to the Defendant's motion to strike, the Judge finds that the Plaintiff fails to prove that all members of her class definition have been injured and/or have standing pursuant to Article III. The members of the class must have the same interest and suffer the same injury as other class members. Thus, he will grant the Defendant's motion to strike the class definition pursuant to FRCP Rule 12(f). Finally, because the request of judicial notice is capable of accurate and ready determination from sources whose accuracy cannot be reasonably questioned and the parties do not dispute the authenticity of the document, the Judge will grant the Defendant's request for judicial notice. Based on the foregoing reasons, Judge Houston granted the Defendant's motion to dismiss the Plaintiff's Complaint, and dismissed without prejudice the Plaintiff's claims. Accordingly, he granted Defendant's motion to strike as well. To the extent that the Plaintiff is able to cure the noted deficiencies, the Plaintiff may file a second amended complaint within 30 days of the Order. A full-text copy of the Court's Dec. 1, 2017 Order is available at https://is.gd/sdcViI from Leagle.com. Sandra Seegert, individually and on behalf of all others similarly situated, Plaintiff, represented by Thomas Joseph O'Reardon, II -- toreardon@bholaw.com -- Blood Hurst & O'Reardon, LLP. Sandra Seegert, individually and on behalf of all others similarly situated, Plaintiff, represented by Timothy G. Blood -- tblood@bholaw.com -- Blood Hurst & O'Reardon, LLP & Todd D. Carpenter -- tcarpenter@carlsonlynch.com -- Carlson Lynch Sweet Kilpela & Carpenter, LLP. Rexall Sundown, Inc., Defendant, represented by Adriane K. Peralta -- ADRIANE.PERALTA@SIDLEY.COM -- Sidley Austin LLP & Amy Pesapane Lally -- ALALLY@SIDLEY.COM -- Sidley Austin LLP. RYB EDUCATION: Law Firms Recruit Plaintiffs in Securities Suit -------------------------------------------------------------- Anna Zhang, writing for Law.com, reports that at least four U.S. law firms are recruiting plaintiffs in a securities fraud class action against New York Stock Exchange-listed Chinese early education service provider RYB Education Inc. after allegations of child abuse in several of its kindergartens prompted a public uproar. New York-based shareholder litigation firms, including Pomerantz, The Rosen Law Firm, Bronstein, Gewirtz & Grossman and Bragar Eagel & Squire, accuse RYB and chief executive Shi Yanlai of making misleading statements to investors and of failing to implement sufficient measures at its kindergartens to protect children from harm and abuse. The case is filed by Pomerantz co-managing partner Jeremy Lieberman at U.S. District Court for the Southern District of New York in Manhattan. Beijing-based RYB went public in September in an initial public offering that raised $133 million. On the listing, RYB was advised by Skadden, Arps, Slate, Meagher & Flom China practice head Julie Gao, while underwriters Credit Suisse Securities and Morgan Stanley were represented by Kirkland & Ellis Hong Kong partner David Zhang and Beijing partner Steve Lin. Commerce & Finance Law Offices and Grandall Law Firm were Chinese counsel to the issuer and the underwriters, respectively. On Nov. 22, eight parents of one of RYB's kindergartens in Beijing reported to local police that their children were found with needle marks on their bodies and were given unidentified pills. Parents also reported that children were "made to stand naked" in class. Local police soon arrested one 22-year-old female teacher who allegedly disciplined children using sewing needles. On Nov. 29, Beijing police said in a statement that no molestation and drugging were found after reviewing 113 hours of surveillance footage. The police also said footage was lost due to a damaged hard drive. The law firms are suing because RYB's share price dropped by 38 percent to $16.45 on Nov. 24 from the previous closing, as the public outcry became widespread. The company announced a $50 million share buyback immediately. RYB closed on Nov. 28 at $22.20. RYB issued a statement on Nov. 28 apologizing to the public, saying that it has a "zero-tolerance policy towards unethical or illegal behavior." The company, whose Beijing facility costs between $540 and $750 per month, has been aware of the potential danger of abuse. In its prospectus for the IPO, the company included among risk factors that despite training and supervision, it cannot assure its teachers will completely follow its service manual and standards all the time. "For example, video footage that allegedly depicts improper behavior of a teacher at one of our then-directly operated kindergartens was released online in April 2017. It soon led to broad distribution and caused negative publicity on our operations and harmed our brand," RYB wrote. The company was referring to a video depicting a teacher from another of RYB's Beijing kindergartens pushing and kicking children and pulling children's hair. RYB apologized and fired the teacher. [GN] SAINT CHARLES SCHOOL: Bid to Strike 3rd Amended "Stanek" OK'd ------------------------------------------------------------- In the case styled MATTHEW STANEK, SANDRA STANEK, and BOGDAN STANEK, Plaintiffs, v. SAINT CHARLES COMMUNITY UNIT SCHOOL DIST NO. 303, et al., Defendants, Case No. 13-CV-3106 (N.D. Ill.), Judge Jorge L. Alonso of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted the (i) Defendants' Motion to Strike Plaintiffs' Third Amended Complaint and Class Allegations, and (ii) Defendants Julie Steston and Rory Pine's Motion to Dismiss. Plaintiff Mathew Stanek is autistic. He attended St. Charles High School from 2009-13, during which time he received special education services. According to the Plaintiffs, Matthew excelled when he received adequate supportive services. During his junior year of high school however, the Defendants failed to provide adequate services, discriminated against Matthew based on his disability, and retaliated against the Plaintiffs for their advocacy on his behalf. They allege that Matthew and his parents and co-Plaintiffs Sandra and Bogdon Stanek suffered as a result. On April 1, 2013, the Plaintiffs filed a state court complaint against the St. Charles Community Unit School District and 12 Individual Defendants which was thereafter removed to federal court. In August 2013, the Court found the Plaintiffs' complaint "impossible to decipher," as it was written largely in narrative form, referred to many federal and state laws, and did not make clear which Plaintiffs were asserting which claims against which Defendants. The Plaintiffs were given leave to amend their complaint. The Plaintiffs filed their First Amended Complaint in September 2013. It was 20 single-spaced pages, and contained six counts. After the Defendants' motion to dismiss was granted in its entirety, the Plaintiffs successfully appealed to the Seventh Circuit, who in 2015 affirmed in part and reversed in part. Specifically, the Seventh Circuit affirmed the district court's dismissal of Matthew Stanek's retaliation claim under the Rehabilitation Act and the ADA, all of the Plaintiffs' official capacity claims against the Individual Defendants except for Superintendent Donald Scholmann, the individual capacity claims under the Rehabilitation Act and the ADA, and any further claims not addressed specifically in the decision. In all other respects, the dismissal was vacated and the case was returned to the district court. The Defendants then answered the complaint, and Settlement Assistance Counsel was appointed. After an unsuccessful settlement conference with the Magistrate Judge, the Plaintiffs were directed to file an amended complaint consistent with the Seventh Circuit's decision. Their second amended complaint more than quadrupled in size, to 88 pages, and contained five counts. The Defendants moved to strike the complaint as inconsistent with the Seventh Circuit's ruling, and violative of Rule 8's requirement of a "short and plain" statement of the claims. The Court gave the Plaintiffs leave to file a third amended complaint ("TAC"), which they did in May 2016. The TAC swelled to 203 pages, containing seven counts over 631 paragraphs. The TAC alleges violations of the Individuals with Disabilities in Education Act ("IDEA"), the Rehabilitation Act of 1973, the Civil Rights Act of 1871, the First Amendment, the Americans with Disabilities Act, and the Illinois School Student Records Act. It attempts to add four new Defendants, the Illinois State Board of Education ("ISBE"), State Superintendent Tony Smith, Rory Pine, who is alleged to have been Matthew's substitute teacher during the 2011-12 school year, and Julie Stetson, who is alleged to have been Matthew's special education case manager for a portion of that same year. It also attempts to add class claims on behalf of all students with disabilities, present and future, in District # 303. ISBE and Smith moved to dismiss the TAC against them, which was granted in part and denied in part. The Illinois Student Records Act claim was dismissed with prejudice as to both Defendants, and as to Smith, the IDEA claim was dismissed with prejudice and the constitutional claims were dismissed without prejudice. Pending before the Court is Defendants Stetson and Pine's motion to dismiss on personal jurisdiction and timeliness grounds. Also before the Court is the Defendants' motion to strike the class allegations on the ground that the Plaintiffs cannot not satisfy the threshold requirements of a class action, and to strike the TAC in its entirety because it does not contain a short and plain statement of the claims as required by Rule 8 of the Federal Rules of Civil Procedure. Because the Court lacks personal jurisdiction over Stetson and Pine due to the failure to serve them, and because any amended complaint would be beyond the statute of limitations and unsaved by the principle of relation back, Judge Alonso granted Stetson and Pine's motion to dismiss with prejudice. The Judge finds that the Plaintiffs fill the TAC with allegations about students other than Matthew. They also include allegations about clustering of students with disabilities, and allegations that a former District #303 employee complained about improperly obtained special education funds. The TAC additionally includes the recitation (sometimes repeatedly) of countless conversations and exchanges of emails with Matthew's teachers and other school employees. Together, all of these allegations so weigh down the complaint that it fails to provide the Defendants with the requisite notice of the Plaintiffs' claims. Further, its length, needless complexity, and inclusion of irrelevant material and repetitive material imposes an undue burden on the Court, to the prejudice of other litigants who also seek its attention. For these reasons, the Plaintiffs' TAC is stricken. The Plaintiffs have already filed four complaints in the action, and are given one last chance to file one that comports with the Federal Rules. The Judge ordered that any amended complaint must state in short and plain terms the claims the Plaintiffs make. The Plaintiffs are warned that they may not attempt to resurrect any claims that the Court or the Court of Appeals has unequivocally stated fails to state a claim. They're also warned that although they are being given the opportunity to amend, it is for the purpose of allowing them to attempt to state cognizable claims against the proper Defendants. They may not add any new claims. The Plaintiffs are reminded that they may obtain free limited legal assistance by scheduling an appointment with the William J. Hibbler Pro Se Assistance Program, located at 219 South Dearborn, 20th floor, or by calling (312) 435-5691. The Plaintiff is given leave until Jan. 5, 2018 to file an amended complaint consistent with the Opinion. The failure to do so will result in summary dismissal of the case. The status hearing remains set on Dec. 7, 2017, at 9:30 a.m. A full-text copy of the Court's Dec. 1, 2017 Memorandum Opinion and Order is available at https://is.gd/lvPkz1 from Leagle.com. Matthew Stanek, Plaintiff, Pro Se. Sandra Stanek, Plaintiff, Pro Se. Bogdan Stanek, Plaintiff, Pro Se. St. Charles Community Unit School District #303, Defendant, represented by Pamela E. Simaga -- psimaga@hlerk.com -- Hodges, Loizzi, Eisenhammer, Rodick & Kohn Llp & Stanley Bert Eisenhammer -- seisenhammer@hlerk.com -- Hodges, Loizzi, Eisenhammer, Rodick & Kohn. Donald Schlomann, Defendant, represented by Pamela E. Simaga, Hodges, Loizzi, Eisenhammer, Rodick & Kohn Llp & Stanley Bert Eisenhammer, Hodges, Loizzi, Eisenhammer, Rodick & Kohn. John Knewitz, Defendant, represented by Pamela E. Simaga, Hodges, Loizzi, Eisenhammer, Rodick & Kohn Llp & Stanley Bert Eisenhammer, Hodges, Loizzi, Eisenhammer, Rodick & Kohn. Beth Jones, Defendant, represented by Pamela E. Simaga, Hodges, Loizzi, Eisenhammer, Rodick & Kohn Llp & Stanley Bert Eisenhammer, Hodges, Loizzi, Eisenhammer, Rodick & Kohn. Korie Bowers, Defendant, represented by Pamela E. Simaga, Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLP & Stanley Bert Eisenhammer, Hodges, Loizzi, Eisenhammer, Rodick & Kohn. Kimberly Zupec, Defendant, represented by Pamela E. Simaga, Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLP & Stanley Bert Eisenhammer, Hodges, Loizzi, Eisenhammer, Rodick & Kohn. Kathy Zimmer, Defendant, represented by Pamela E. Simaga, Hodges, Loizzi, Eisenhammer, Rodick & Kohn Llp & Stanley Bert Eisenhammer, Hodges, Loizzi, Eisenhammer, Rodick & Kohn. Shanon Vonessen, Defendant, represented by Pamela E. Simaga, Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLP & Stanley Bert Eisenhammer, Hodges, Loizzi, Eisenhammer, Rodick & Kohn. Justin Dohm, Defendant, represented by Pamela E. Simaga, Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLP & Stanley Bert Eisenhammer, Hodges, Loizzi, Eisenhammer, Rodick & Kohn. Bethany Herrera, Defendant, represented by Pamela E. Simaga, Hodges, Loizzi, Eisenhammer, Rodick & Kohn Llp & Stanley Bert Eisenhammer, Hodges, Loizzi, Eisenhammer, Rodick & Kohn. SCHARFMAN ORGANIZATION: Faces Class Action Over J-51 Tax Program ---------------------------------------------------------------- Emily Nonko, writing for Curbed, reports that four class action lawsuits were filed on Nov. 29 against three New York landlords -- the Scharfman Organization, Chestnut Holdings, and KMR Amsterdam - - believed to be among the biggest abusers of the J-51 tax program in the city. The suits were filed in New York County Supreme Court by the law firm Newman Ferrara after an investigation by the non-profit watchdog group, Housing Rights Initiative. The J-51 tax program offers developers an as-of-right tax exemption and abatement for rehabs or conversions of multi-family dwellings. Upon completion, the landlord has to rent stabilized all of the units for at least the duration of the tax benefit, and can only increase the rents in accordance with the rent guidelines board. Landlords get up to a 34-year exemption from increases in real estate taxes resulting from the work. In addition, existing real estate taxes receive an abatement of up to 12.5 percent. J-51 was in the spotlight back in 2009, when Tishman Speyer was held responsible for not keeping all the apartments in Stuyvesant Town rent regulated, despite utilizing the tax exemption. (Tishman Speyer is no longer an owner of the massive east side complex.) Despite the court ruling, according to Housing Rights Initiative, "the Department of Homes and Community Renewal, the state's housing enforcement agency, has effectively disregarded the ruling through a failure to enforce it." Tens of thousands of units illegally destabilized under J-51 were never placed back on rent stabilization by landlords -- which is bad news for a city struggling with an affordable housing crisis. In response, Governor Cuomo launched an initiative at the start of 2016 that sought to re-stabilize 50,000 illegally deregulated units by sending landlords voluntary compliance letters. For its part, HRI says Cuomo's J-51 initiative is "the same kind of hands-off-enforcement approach that caused this problem to go unabated for over nine years" after the Stuy Town case. This leads us to the current lawsuits, which are targeting landlords who are still allegedly abusing the J-51 tax exemption. All of the landlords named in the suit own buildings in upper Manhattan: Two class action suits were filed against Scharfman Organization, landlord of 55 Cooper Street in Inwood and 260 Convent Avenue in Hamilton Heights. The third suit was filed against Chestnut Holdings, landlord of 310 Convent Avenue in Hamilton Heights. A fourth suit was filed against KMR Amsterdam, landlord of Washington Height's 2201 Amsterdam Avenue. According to HRI, these firms have either disregarded Cuomo's voluntary compliance letter and failed to re-stabilize illegally deregulated units, or have "created the illusion of compliance" by re-stabilizing illegally deregulated units at illegal amounts. The suits have been filed on behalf of hundreds of former and current tenants in over 200 units across all the buildings. Aaron Carr, founder of Housing Rights Initiative, calls it "a historic opportunity to return tens of thousands of units back to the rent stabilization rolls amid an affordable housing crisis." He adds, "The only way this can be done is through transparency and mandatory compliance." [GN] SEAWORLD ENTERTAINMENT: Court Certifies Class in Securities Suit ---------------------------------------------------------------- In the case, LOU BAKER, individually and on behalf of all others similarly situated, et al., Plaintiffs, v. SEA WORLD ENTERTAINMENT, INC., et al., Defendants, Case No. 14cv2129-MMA (AGS) (S.D. Cal.), Judge Michael M. Anello of the U.S. District Court for the Southern District of California granted the Plaintiffs' motion for class certification. Lead Plaintiffs Arkansas Public Employees Retirement System ("APERS") and Pensionskassen for Borne-Og Ungdomspaedagoger ("PBU") bring the putative securities fraud class action against the Defendants asserting claims pursuant to Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. They bring the action on behalf of all individuals and entities who purchased or acquired common stock of SeaWorld Entertainment, Inc. during the proposed class period of Aug. 29, 2013 and Aug. 12, 2014, inclusive. The Plaintiffs filed their previous Consolidated Amended Class Action Complaint ("CAC") on Feb. 27, 2015. The CAC named 27 Defendants, including all of the banking institutions that underwrote SeaWorld Entertainment's public offerings. It also included five counts, including three claims under Sections 11, 12, and 15 of the Securities Act of 1933, and two claims under Sections 10(b) and 20 of the Securities Exchange Act of 1934. The Court granted the Defendants' motion to dismiss on March 31, 2016 and allowed the Plaintiffs 60 days to amend. The Plaintiffs filed their Second Amended Consolidated Class Action Complaint ("SAC") on May 31, 2016. They limited the Defendants in the action to SeaWorld Entertainment, James Atchison, James M. Heaney, Marc Swanson, and The Blackstone Group L.P. They also limited their causes of action to two counts for violations of Sections 10(b) and 20 of the Securities Exchange Act of 1934. The Plaintiffs seek the following relief on behalf of the class: (i) a declaration that the action is a proper class action, designating them the class representatives under Rule 23 and their counsel as the Class Counsel; (ii) compensatory damages against the Defendants jointly and severally, including interest; (iii) reasonable costs and expenses incurred in the action, including counsel fees and expert fees; and (iv) awarding all equitable and other relief as the Court may deem just. On June 29, 2016, the Defendants filed a motion to dismiss the Plaintiffs' SAC for failure to state a claim under Rules 9(b) and 12(b)(6), as well as the Private Securities Litigation Reform Act of 1995. The Court heard oral argument on the motion, and denied the Defendants' motion to dismiss. On May 19, 2017, the Plaintiffs move for class certification pursuant to Federal Rule of Civil Procedure 23. The Defendants filed an opposition to the Plaintiffs' motion, to which the Plaintiffs replied. The Defendants also filed a sur-reply, to which the Plaintiffs filed a sur-sur-reply. After entertaining the oral arguments of counsel at the hearing on Nov. 13, 2017, the Court took the motion under submission for further review and consideration. In sum, Judge Anello concludes that the Plaintiffs have satisfied the numerosity, commonality, and typicality requirements of the Rule 23(a). He also finds that the Plaintiffs and the Class Counsel have shown that they will fairly and adequately protect the interests of the class, thereby satisfying the adequacy requirement. He further concludes that the Plaintiffs have sufficiently satisfied the predominance and the superiority requirements of Rule 23(b)(3). In addition, the Judge finds that where it was unclear whether the first corrective disclosure identified by the parties was the indeed the first corrective disclosure, the SAC alleges only one corrective disclosure -- the August 13, 2014 statement. Thus, only those who held SEAS Common Stock through that date were allegedly harmed. All other persons or investors who may have bought or acquired SEAS Common Stock during the proposed class period, but sold prior to Aug. 13, 2014, would not have suffered any injury because they would have also sold the stock at an alleged artificially inflated price, and the level of artificial inflation present in the stock cannot change, absent any intervening corrective disclosures. Accordingly, he will exclude in-out traders from the class (i.e., those who sold their SEAS Common Stock shares prior to Aug. 13, 2014). Based on this, Judge Anello granted the Plaintiffs' motion for class certification. He certified the Plaintiffs' class defined as all persons and entities who purchased or otherwise acquired the publicly traded common stock of SeaWorld Entertainment, Inc. between Aug. 29, 2013 and Aug. 12, 2014, who did not sell such acquired securities before Aug. 13, 2014, and were damaged. Excluded from the class are: (i) Defendants, (ii) present or former executive officers of SeaWorld, members of SeaWorld's Board of Directors, and members of their immediate families, (iii) any of the foregoing persons' legal representative, heirs, successors or assigns, and (iv) any entity in which Defendants have or had a controlling interest or any affiliate of SeaWorld. Judge Baker appointed APERS and PBU as the Class Representatives and the law firms Nix Patterson & Roach, LLP and Kessler Topaz Meltzer & Cheek, LLP as the Class Counsel. A full-text copy of the Court's Nov. 29, 2017 Order is available at https://is.gd/jsrdDs from Leagle.com. Lou Baker, Plaintiff, represented by Ethan Thomas Boyer -- eboyer@noonanlance.com -- Noonan Lance Boyer & Banach LLP. Lou Baker, Plaintiff, represented by Gregory M. Castaldo, Kessler Topaz Meltzer & Check LLP, pro hac vice, Joshua E. D'Ancona -- jdancona@ktmc.com -- Kessler Topaz Meltzer & Check LLP, pro hac vice, Joshua A. Materese -- jmaterese@ktmc.com -- Kessler Topaz Meltzer & Check LLP, pro hac vice, Laurence M. Rosen -- lrosen@rosenlegal.com -- The Rosen Law Firm, P.A., Megan Koneski - - mkoneski@ktmc.com -- Kessler Topaz Meltzer & Check LLP, pro hac vice & Michael K. Yarnoff -- myarnoff@kehoelawfirm.com -- Kessler Topaz Meltzer & Check LLP, pro hac vice. Pensionskassen for Borne-Og UngdomspAedagoger, Plaintiff, represented by Bradley E. Beckworth -- bbeckworth@nixlaw.com -- Nix Patterson & Roach LLP, pro hac vice, David J. Noonan -- dnoonan@noonanlance.com -- Noonan Lance Boyer & Banach LLP, Eli R. Greenstein -- egreenstein@ktmc.com -- Kessler Topaz Meltzer & Check, LLP, Ethan Thomas Boyer, Noonan Lance Boyer & Banach LLP, Gregory M. Castaldo, Kessler Topaz Meltzer & Check LLP, pro hac vice, Joshua E. D'Ancona, Kessler Topaz Meltzer & Check LLP, pro hac vice, Joshua A. Materese, Kessler Topaz Meltzer & Check LLP, pro hac vice, Megan Koneski, Kessler Topaz Meltzer & Check LLP, pro hac vice & Michael K. Yarnoff, Kessler Topaz Meltzer & Check LLP, pro hac vice. Arkansas Public Employees Retirement System, Plaintiff, represented by Bradley E. Beckworth, Nix Patterson & Roach LLP, pro hac vice, Cody L. Hill, Nix Patterson & Roach LLP, pro hac vice, David J. Noonan, Noonan Lance Boyer & Banach LLP, Eli R. Greenstein, Kessler Topaz Meltzer & Check, LLP, Ethan Thomas Boyer, Noonan Lance Boyer & Banach LLP, Gregory M. Castaldo, Kessler Topaz Meltzer & Check LLP, pro hac vice, Jeffrey J. Angelovich, Nix Patterson & Roach LLP, pro hac vice, Joshua E. D'Ancona, Kessler Topaz Meltzer & Check LLP, pro hac vice, Joshua A. Materese, Kessler Topaz Meltzer & Check LLP, pro hac vice, Lloyd Nolan Duck, III, Nix, Patterson & Roach, LLP, pro hac vice, Megan Koneski, Kessler Topaz Meltzer & Check LLP, pro hac vice, Michael K. Yarnoff, Kessler Topaz Meltzer & Check LLP, pro hac vice & Susan Whatley, Nix Patterson & Roach, LLP, pro hac vice. Seaworld Entertainment, Inc., Defendant, represented by Chet A. Kronenberg -- ckronenberg@stblaw.com -- Simpson Thacher and Bartlett LLP, Dean Michael McGee -- dean.mcgee@stblaw.com -- Simpson Thacher & Bartlett LLP, pro hac vice, Janet Gochman -- jgochman@stblaw.com -- Simpson Thacher & Bartlett LLP, pro hac vice, Jonathan Youngwood -- jyoungwood@stblaw.com -- Simpson Thacher & Bartlett LLP, pro hac vice & Meredith Karp -- meredith.karp@stblaw.com -- Simpson Thacher & Bartlett LLP, pro hac vice. James M Heaney, Defendant, represented by Chet A. Kronenberg, Simpson Thacher and Bartlett LLP, Dean Michael McGee, Simpson Thacher & Bartlett LLP, pro hac vice, Janet Gochman, Simpson Thacher & Bartlett LLP, pro hac vice, Jonathan Youngwood, Simpson Thacher & Bartlett LLP, pro hac vice & Meredith Karp, Simpson Thacher & Bartlett LLP, pro hac vice. Marc Swanson, Defendant, represented by Chet A. Kronenberg, Simpson Thacher and Bartlett LLP, Dean Michael McGee, Simpson Thacher & Bartlett LLP, pro hac vice, Janet Gochman, Simpson Thacher & Bartlett LLP, pro hac vice, Jonathan Youngwood, Simpson Thacher & Bartlett LLP, pro hac vice & Meredith Karp, Simpson Thacher & Bartlett LLP, pro hac vice.. The Blackstone Group L.P., Defendant, represented by Chet A. Kronenberg, Simpson Thacher and Bartlett LLP, Dean Michael McGee, Simpson Thacher & Bartlett LLP, pro hac vice, Janet Gochman, Simpson Thacher & Bartlett LLP, pro hac vice, Jonathan Youngwood, Simpson Thacher & Bartlett LLP, pro hac vice & Meredith Karp, Simpson Thacher & Bartlett LLP, pro hac vice. James Atchison, Defendant, represented by Michael Joseph Diver -- michael.diver@kattenlaw.com -- Katten Muchin Rosenman LLP, pro hac vice, Michael J. Lohnes -- michael.lohnes@kattenlaw.com -- Katten Muchin Rosenman LLP, pro hac vice, Richard H. Zelichov -- chard.zelichov@kattenlaw.com -- Katten Muchin Rosenman LLP, Gil M. Soffer -- gil.soffer@kattenlaw.com -- Katten Muchin Rosenman LLP & Jason Yuegin Kelly -- jason.kelly@kattenlaw.com -- Katten Muchin Rosenman LLP. The Blackstone Group, L.P., Defendant, represented by Dean Michael McGee -- dean.mcgee@stblaw.com -- Simpson Thacher & Bartlett LLP, pro hac vice. The Oklahoma City Employee Retirement System, ThirdParty Plaintiff, represented by Jeffrey Almeida, Grant & Eisenhofer P.A., pro hac vice & Timothy G. Blood -- tblood@bholaw.com -- Blood Hurst & O'Reardon, LLP. Pembroke Pines Firefighters and Police Officers Pension Fund, ThirdParty Plaintiff, represented by Jeffrey Almeida, Grant & Eisenhofer P.A., pro hac vice & Timothy G. Blood, Blood Hurst & O'Reardon, LLP. United States of America, Intervenor, represented by Michael John Rinaldi, U.S. Department of Justice. SENTINEL TRANSPORATION: Fails to Pay Minimum Wages, Padilla Says ---------------------------------------------------------------- ARMANDO PADILLA, an individual on behalf of himself and others similarly situated, the Plaintiff, v. SENTINEL TRANSPORATION, LLC, and DOES 1 through 25; inclusive, the Defendants, Case No. BC686887 (Cal. Super. Ct., Dec. 14, 2017), seeks to recover unpaid overtime and unpaid minimum wages in violation of the California Labor Code. According to the complaint, Defendant failed to pay for all time worked every pay period, specifically including required minimum wages and daily overtime and daily double time; failed to provide off-duty meal and rest periods to its California drivers in accordance with the California Labor Code and Industrial Wage Order; failed to pay its drivers one hour of pay at their regular rate of compensation for each instance that Defendant failed to provide statutorily mandated rest periods and off-duty meal periods; for penalties arising from Defendant's issuing to its drivers inaccurate wage statements; failed to reimburse employees for uniforms and maintenance; and failed to provide sick days in accordance with the law. Sentinel Transportation provides transportation and logistical services for Chemours and Phillips 66 companies. It transports various chemicals and petroleum products through tankers, containers, vans, flatbeds, and a large fleet of specialized service vehicles in the United States and Canada.[BN] The Plaintiff is represented by: Jasmine Duel, Esq. Kousha Berokim, Esq. BEROKIM & DUEL, P.C. 270 North Canon Drive, Third Floor Beverly Hills, CA 90210 Telephone: (310) 993 3703 Facsimile: (310) 300 1233 E-mail: jasmine@berokimduel.com berokim@berokimduel.com SILVER SPRING: Faruqi & Faruqi Files Securities Class Action ------------------------------------------------------------ Faruqi & Faruqi, LLP, disclosed that it has filed a class action lawsuit in the United States District Court for the Northern District of California, case No. 5:17-cv-06532, on behalf of shareholders of Silver Spring Networks, Inc. ("Silver Spring" or the "Company") (NYSE: SSNI) who have been harmed by Silver Spring's and its board of directors' (the "Board") alleged violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") in connection with the proposed merger of the Company with Itron, Inc. ("Itron"). On September 17, 2017, the Board caused the Company to enter into an Agreement and Plan of Merger ("Proposed Transaction"), under which the Company's shareholders will receive $16.25 in cash for each share of Silver Spring stock they own (the "Merger Consideration"). The shareholder vote on the Proposed Transaction is expected to occur on January 3, 2018. If you wish to obtain information concerning this action, you can do so by clicking here: www.faruqilaw.com/SSNInotice. The complaint alleges that the Proxy Statement on Schedule 14A (the "Proxy") filed with the Securities and Exchange Commission ("SEC"), violates Sections 14(a) and 20(a) of the Exchange Act because it provides materially incomplete and misleading information about the Company and the Proposed Transaction, including information concerning the Company's financial projections and analysis, on which the Board relied to recommend the Proposed Transaction as fair to Silver Spring shareholders. Take Action Plaintiff is represented by Faruqi & Faruqi, LLP, a law firm with extensive experience in prosecuting class actions, and significant expertise in actions involving corporate fraud. Faruqi & Faruqi, LLP, was founded in 1995 and the firm maintains its principal office in New York City, with offices in Delaware, California, Georgia, and Pennsylvania. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from the date of this notice. 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: Nadeem Faruqi, Esq. James M. Wilson, Jr., Esq. FARUQI & FARUQI, LLP 685 3rd Avenue, 26th Floor New York, NY 10017 Telephone: (877) 247-4292 or (212) 983-9330 E-mail: nfaruqi@faruqilaw.com jwilson@faruqilaw.com Web site: http://www.faruqilaw.com[GN] SILVERTREE MOHAVE: Court Dismisses "Lewis" Suit with Prejudice -------------------------------------------------------------- Judge William Alsup of the U.S. District Court for the Northern District of California, San Francisco Division, has entered final judgment in the case captioned DOMENICA LEWIS, et al., Plaintiffs, v. SILVERTREE MOHAVE HOMEOWNERS' ASSOCIATION, INC., et al., Defendants, Case No. 3:16-cv-03581-WHA (JSC) (N.D. Cal.) as between the Plaintiffs and the Defendants. The Judge ordered the parties to comply with the terms of the Settlement and Release Agreement, including without limitation, the obligations imposed upon the Defendants under the Injunctive Relief and Remediation terms. The Settlement Agreement does not operate to release all claims that class members have as alleged in the Plaintiffs' Complaint. The release and waiver of claims in the Settlement Agreement only applies to the first, second, third, fourth and seventh causes of action of the Complaint. It does not release and waive claims as to class members who have opted out of the Settlement Agreement or who the Plaintiffs' Counsel were unable to locate after a diligent search. Judge Alsup ordered that the case is dismissed with prejudice as against the Defendants, each side to bear its own attorneys' fees and costs except as provided by the Settlement Agreement and the Court's orders. The Final Judgment constitutes a final judgment and separate document for purposes of Federal Rule of Civil Procedure 58(a). Without affecting the finality of the Court's judgment in any way, the Court retains jurisdiction over the action in accordance with the Settlement Agreement. A full-text copy of the Court's Dec. 1, 2017 Final Judgment is available at https://is.gd/v9h2HD from Leagle.com. Domenica Lewis, Plaintiff, represented by Annette D. Kirkham -- annettek@lawfoundation.org -- Law Foundation of Silicon Valley Fair Housing Law Project. Domenica Lewis, Plaintiff, represented by Corey David Attaway -- cattaway@winston.com -- Winston and Strawn, Kyra Ann Kazantzis -- kyrak@lawfoundation.org -- Law Foundation of Silicon Valley Fair Housing Law Project, Matthew Frederick Warren -- matthew.warren@lawfoundation.org -- Law Foundation of Silicon Valley Fair Housing Law Project, Nadia Aziz -- nadia.aziz@lawfoundation.org -- Law Foundation of Silicon Valley Fair Housing Law Project & Robert Alan Julian, Esq., -- rjulian@winston.com -- Winston & Strawn LLP. Jerrold Lewis, Domenica Lewis as guardian ad-litem for their minor children S.L. and E.L., on behalf of themselves and all others similarly situated, Plaintiff, represented by Annette D. Kirkham, Law Foundation of Silicon Valley Fair Housing Law Project, Corey David Attaway, Winston and Strawn, Kyra Ann Kazantzis, Law Foundation of Silicon Valley Fair Housing Law Project, Matthew Frederick Warren, Law Foundation of Silicon Valley Fair Housing Law Project, Nadia Aziz, Law Foundation of Silicon Valley Fair Housing Law Project & Robert Alan Julian, Esq., Winston & Strawn LLP. S. L., a minor, Plaintiff, represented by Annette D. Kirkham, Law Foundation of Silicon Valley Fair Housing Law Project, Kyra Ann Kazantzis, Law Foundation of Silicon Valley Fair Housing Law Project, Matthew Frederick Warren, Law Foundation of Silicon Valley Fair Housing Law Project, Nadia Aziz, Law Foundation of Silicon Valley Fair Housing Law Project & Robert Alan Julian, Esq., Winston & Strawn LLP. E. L., a minor, Plaintiff, represented by Annette D. Kirkham, Law Foundation of Silicon Valley Fair Housing Law Project, Kyra Ann Kazantzis, Law Foundation of Silicon Valley Fair Housing Law Project, Matthew Frederick Warren, Law Foundation of Silicon Valley Fair Housing Law Project, Nadia Aziz, Law Foundation of Silicon Valley Fair Housing Law Project & Robert Alan Julian, Esq., Winston & Strawn LLP. Project Sentinel, a California non-profit corporation, on behalf of itself and the general public, Plaintiff, represented by Annette D. Kirkham, Law Foundation of Silicon Valley Fair Housing Law Project, Kyra Ann Kazantzis, Law Foundation of Silicon Valley Fair Housing Law Project, Matthew Frederick Warren, Law Foundation of Silicon Valley Fair Housing Law Project, Nadia Aziz, Law Foundation of Silicon Valley Fair Housing Law Project & Robert Alan Julian, Esq., Winston & Strawn LLP. Silvertree Mohave Homeowners' Association, Inc., Defendant, represented by Drew Thomas Williams -- Drew.Williams@McNamaraLaw.com -- McNamara, Ney, Beatty, Slattery, Borges Amacher LLP, Jacy C. Dardine -- Jacy.Dardine@mcnamaralaw.com -- McNamara Law Firm & Lisa Renee Roberts -- Lisa.Roberts@McNamaraLaw.com -- McNamara Ney Beatty Slattery Borges & Ambacher LLP. Carol Lee Adams, also known as Lee Adams, Defendant, represented by Drew Thomas Williams, McNamara, Ney, Beatty, Slattery, Borges Amacher LLP, Jacy C. Dardine, McNamara Law Firm & Lisa Renee Roberts, McNamara Ney Beatty Slattery Borges & Ambacher LLP. Marilyn Black, Defendant, represented by Drew Thomas Williams, McNamara, Ney, Beatty, Slattery, Borges Amacher LLP, Jacy C. Dardine, McNamara Law Firm & Lisa Renee Roberts, McNamara Ney Beatty Slattery Borges & Ambacher LLP. Anand Bhaskaran, Defendant, represented by Drew Thomas Williams, McNamara, Ney, Beatty, Slattery, Borges Amacher LLP, Jacy C. Dardine, McNamara Law Firm & Lisa Renee Roberts, McNamara Ney Beatty Slattery Borges & Ambacher LLP. Tamela Durant, individually and as members of the Board of Directors of Silvertree Mohave Homeowner's Association, Inc., Defendant, represented by Drew Thomas Williams, McNamara, Ney, Beatty, Slattery, Borges Amacher LLP, Jacy C. Dardine, McNamara Law Firm & Lisa Renee Roberts, McNamara Ney Beatty Slattery Borges & Ambacher LLP. Donald W Murphy, individually, and doing business as Management Solutions, Defendant, represented by Drew Thomas Williams, McNamara, Ney, Beatty, Slattery, Borges Amacher LLP, Jacy C. Dardine, McNamara Law Firm & Lisa Renee Roberts, McNamara Ney Beatty Slattery Borges & Ambacher LLP. SONIQ SERVICES: Violates Wage and Hour Laws, Alexwright Says ------------------------------------------------------------ ALEXWRIGHT, both in his individual capacity and, in addition, as a collective action on behalf of others similarly situated, the Plaintiff, v. SONIQ SERVICES, INC., a Washington corporation, the Defendant, Case No. 3:17-cv-01990-AC (D. Ore., Dec. 13, 2017), seeks to recover unpaid minimum wages and liquidated damages under the Fair Labor Standards Act and federal wage and hour laws.[BN] Attorney for Plaintiff: Jon M. Egan, Esq. 547 Fifth Street Lake Oswego, OR 97034-3009 Telephone: (503) 697 3427 Facsimile: (866) 311 5629 E-mail: Jegan@eganlegalteam.com SP BANCORP: Md. Spec. App. Affirms Dismissal of "Stisser" Suit -------------------------------------------------------------- Judge Andrea M. Leahy of the Court of Special Appeals of Maryland affirmed the circuit court's decisions dismissing SP and Searchlight from the case styled ARY W. STISSER, ET AL. v. SP BANCORP, INC., et al., Case No. 1790 (Md. Spec. App.). Back in October 2010, SP converted its business structure from a mutually-owned thrift to a stock-based ownership bank holding company. This conversion triggered federal regulations prohibiting the sale of SP for the next three years. SP was incorporated in Maryland and served as the holding company and parent of SharePlus Bank, a Texas-chartered state bank. Its principal place of business was in Texas, and the company did not have any offices or employees in Maryland. Indeed, according to the record on appeal, none of the SP Directors resided or were employed in Maryland. By mid-2012, the SP Directors began entertaining the idea of a possible merger with Green. On Aug. 2, 2012, Mr. Jeffrey L. Weaver, SP's President, and Mr. Paul M. Zmigrosky, the Chairman of SP's Board of Directors, met in Dallas, Texas with representatives from Green, during which the representatives of Green initiated a high-level discussion of a potential reverse merger with SP Bancorp following expiration of the three year restriction. On May 5, 2014, the SP Directors voted unanimously to approve the merger agreement. SP announced the merger agreement that same day and set Aug. 15, 2014, as the record date for its special meeting, at which point then-current owners of SP common stock would be entitled to a vote at the special meeting. The special meeting, scheduled for Oct. 8, 2014, in Plano, Texas, required a quorum of eligible voters, in person or by proxy, representing a majority of SP's 1,602,313 outstanding shares of common stock. Of those voting shareholders, the merger agreement required a bare majority for its approval. Stisser and Fundamental Partners ("Appellants") are not residents of Maryland, but they owned shares of common stock in SP, which was a company headquartered in Texas and incorporated in Maryland. They filed a shareholder class action in the Circuit Court for Baltimore City following the merger of SP into a newly formed subsidiary of Green Bancorp, Inc. -- a bank holding company incorporated under Texas law with its principal place of business in Texas. The Appellants filed the lawsuit against SP and the individual members of SP's Board of Directors, and against Green and Green's newly-formed Maryland subsidiary, Searchlight Merger Sub, Inc. Their primary contention was that the SP Directors breached their fiduciary duty, aided and abetted by Green, in contriving the merger to advance their interests at the shareholders' expense. The circuit court granted motions to dismiss filed by the SP Defendants and the Green Defendants ("Appellees"), finding that the court lacked personal jurisdiction over the SP Directors and Green, and that, although the court had jurisdiction over SP and Searchlight, the Appellants failed to state a claim against them. The Appellants noted an appeal to the Court presenting four questions: whether Green subjected itself to personal jurisdiction in Maryland by forming Searchlight in Maryland for the purpose of consummating a merger; (ii) whether the SP Directors are subject to personal jurisdiction in Maryland because the Articles of Merger were filed in Maryland; (ii) whether SP and Searchlight were necessary parties under Maryland Rule 2-211(a); and (iv) whether the Complaint states a claim for relief against each of the Appellees. Judge Leahy holds that Green was not subject to specific jurisdiction in Maryland because (i) the quality and quantity of its contacts in Maryland in relation to the merger did not rise to the level of "transacting any business" in Maryland within the meaning of Maryland's long-arm statute; and (ii) Maryland's exercise of jurisdiction would not comport with traditional notions of due process under International Shoe Co. v. Washington, given Green's limited and attenuated contacts in Maryland. In accordance with the Supreme Court's recent decisions delimiting the authority of state courts to exercise general jurisdiction over nonresident corporations and corporate directors, the Judge also conclude Green was not "at home" in Maryland for purposes of general personal jurisdiction. Consistent with Daimler AG v. Bauman, she holds that a nonresident parent corporation is not subject to general jurisdiction in Maryland based solely on its incorporation of a subsidiary within Maryland. She also declines to impute SP's contacts to its directors, and holds that the SP Directors -- all nonresidents who never entered Maryland in connection with SP business -- did not purposefully avail themselves of the privileges and protections of Maryland law. Judge Leahy's resolution of the Appellants' first and second questions disposes of their contentions that SP and Searchlight were necessary parties under Maryland Rule 2-211(a), and that their complaint stated a claim for relief against each of the Appellees. Although the circuit court acknowledged that it had personal jurisdiction over SP and Searchlight, the Appellants' sole contention and on appeal is that SP and Searchlight were necessary parties in the litigation of their claims against Green and the SP Directions. Having held that the Appellants may not maintain their action in Maryland against Green and the SP Directors, the Judge says there is no longer a cause of action to which SP and Searchlight are necessary parties. Although the Appellants maintain that they stated a claim for relief against each of the Appellees -- including SP and Searchlight -- the 27 pages of briefing they dedicate to this issue refer to only the SP Directors and Green. In fact, the Appellants concede that their complaint does not specifically allege a claim against SP and Searchlight. In light of these holdings, Judge Leahy does not reach the Appellants' third and fourth questions. Therefore, Judge Leahy affirmed the circuit court's decisions dismissing SP and Searchlight from the underlying action. A full-text copy of the Court's Nov. 29, 2017 Opinion is available at https://is.gd/FtAgSZ from Leagle.com. STATE FARM: Transferred MAO-MSO Class Suit to C.D. Illinois ----------------------------------------------------------- The class action lawsuit filed on February 23, 2017 captioned MAO-MSO Recovery II, LLC, MSP Recovery, LLC, MSPA Claims 1, LLC, v. State Farm Mutual Automobile Insurance Company, Case No. 3:17- cv-00202 was transferred on November 28, 2017 from the U.S District Court for the Southern District of Illinois to the U.S. District Court for the Central District of Illinois. The District Court Clerk assigned Case No. 1:17-cv-01537-JBM-JEH to the proceeding. The case alleges that the Defendant failed to fulfill its statutorily-mandated duty to reimburse Medicare Advantage Organizations ("MAOs") for medical expenses arising out of automobile accidents. State Farm Mutual Automobile Insurance Company offers automobile insurance policies that contain no-fault1 coverages as well as medical payments ("Med Pay") coverage for any automobile accident- related medical expenses. [BN] The Plaintiff is represented by: Christopher L. Coffin, Esq. PENDLEY BAUDIN & COFFIN LLP 24110 Eden St., PO Drawer 71 Plaquemine, LA 70765 Telephone: (225) 687-6396 Facsimile: (225) 687-6398 E-mail: ccoffin@pbclawfirm.com - and- R. Brent Wisner, Esq. Adam M. Foster, Esq. Michael Baum, Esq. Pedram Esfandiary, Esq. BAUM, HEDLUND, ARISTEI & GOLDMAN, PC 12100 Wilshire Boulevard, Suite 950 Los Angeles, CA 90025 Telephone: (310) 207-3233 Facsimile: (310) 820-7444 E-mail: rbwisner@baumhedlundlaw.com afoster@baumhedlundlaw.com mbaum@baumhedlundlaw.com pesfandiary@baumhedlundlaw.com - and - Courtney L. Stidham, Esq. Nicholas R. Rockforte, Esq. PENDLEY, BAUDIN & COFFIN, L.L.P. 1515 Poydras Street, Suite 1400 New Orleans, LA 70112 Telephone: (504) 355-0086 Facsimile: (504) 523-0699 E-mail: cstidham@pbclawfirm.com nrockforte@pbclawfirm.com - and - David M. Hundley II, Esq. HUNDLEY LAW GROUP, P.C. 1620 West Chicago Ave., Suite 307 Chicago, IL 60622 Telephone: (312) 212-3343 Facsimile: (312) 724-7766 E-mail: dmh@hundleylaw.com The Defendant is represented by: D. Matthew Allen, Esq. CARLTON FIELDS JORDAN BURT PA 4221 West Boy Scout Boulevard, Suite 1000 Tampa, FL 33607 Telephone: (813) 229-4304 Facsimile: (813) 229-4133 E-mail: mallen@carltonfields.com - and - Joseph A. Cancila Jr., Esq. James P Gaughan, Esq. RILEY SAFER HOLMES & CANCILA LLP Three First National Plaza 70 West Madison St., Suite 2900 29th Floor Chicago, IL 60602 Telephone: (847) 951-6981 E-mail: jcancila@rshc-law.com jgaughan@rshc-law.com - and - Patrick D. Cloud, Esq. HEYL ROYSTER VOELKER & ALLEN Suite 100, 105 W. Vandalia Street PO Box 467 Edwardsville, IL 62025 Telephone: (618) 656-4646 E-mail: pcloud@heylroyster.com - and - Benjamine Reid, Esq. CARLTON FIELDS JORDAN BURT PA 100 S.E. 2nd St. Miami Tower, Ste. 4200 Miami, FL 33131-2113 Telephone: (305) 539-7222 Facsimile: (305) 530-0055 E-mail: breid@carltonfields.com SUGAR TRANSPORT: Trial in "Guinn" Continued to Aug. 21 ------------------------------------------------------ In the case styled RYAN GUINN, an individual, on behalf of himself, and on behalf of all other persons similarly situated, Plaintiffs, v. SUGAR TRANSPORT OF THE NORTHWEST, INC.; BRONCO WINE COMPANY, a California corporation; CLASSIC WINES OF CALIFORNIA, a California corporation, a California corporation, and DOES 1 through 100, Defendants, Case No. 2:16-cv-00325-WBS-EFB (E.D. Cal.), Judge William B. Shubb of the U.S. District Court for the Eastern District of California granted the Parties' stipulation order amending the scheduling order. On June 17, 2016, the Court entered a scheduling order, titled "Status (Pretrial Scheduling) Order." On Aug. 24, 2016, it entered a stipulated order, titled "Stipulation and Order Extending Scheduled Dates for Settlement Efforts," revising the Initial Scheduling Order in the Case. On Jan. 24, 2017, the Court, on Plaintiff's motion, entered an order granting the Plaintiff leave to amend his complaint in the Case to add two additional defendants, Bronco Wine Company and Classic Wines of California. On Feb. 24, 2017, the Court entered a stipulated order, titled "Stipulation and Order Extending Scheduling Order," revising the Scheduling Order in the Case. On May 17, 2017, the Court entered a stipulated order, titled "Stipulation and Order Further Amending Scheduling Order and Extending Scheduling Date for Filing Motion for Class Certification," further revising the scheduling order. The Parties engaged in discovery, and the Defendants noticed several depositions. When it became apparent that the Parties would not complete the necessary discovery in time for the Defendants to utilize that discovery in their Opposition to the Plaintiff's Motion for Proceeding as Collective Action and for Class Certification, the Parties stipulated to move the hearing date of that motion from Oct. 30, 2017 to Dec. 18, 2017, with briefing to follow the new hearing date. On Oct. 13, 2017, the Court entered a stipulated order, titled "Stipulation Continuing Motion for Proceeding as Collective Action and for Class Certification Hearing," moving the hearing date on the Motion for Proceeding as Collective Action and for Class Certification to Dec. 18, 2017. Having moved the Motion hearing date by two months, the Parties agree that it is necessary to move the remainder of the dates in the action by at least a commensurate amount. Therefore, the Parties stipulated and agreed that the following deadlines previously scheduled by the Court through the Further Amended Scheduling Order, be extended as follows: a. The deadline for the Parties to disclose those experts from whom they intend to offer testimony at trial and produce reports in accordance with Federal Rule of Civil Procedure 26(a)(2) be extended from November 30, 2017 to February 19, 2018. b. The deadline for the Parties to disclose any expert witnesses intended solely for rebuttal at trial and to produce their reports in accordance with Rule 26(a)(2) of the Federal Rules of Civil Procedure will be extended from Dec. 22, 2017 to March 14, 2018. c. The deadline for the Parties to complete all discovery, including depositions for preservation of testimony, will be extended from Jan. 19, 2018 to April 19, 2018. d. The deadline for the Parties to notice all discovery- related motions, including motions to compel discovery, on the Magistrate Judge's calendar in accordance with the Local Rules of this Court, will be extended from Jan. 19, 2018 to April 19, 2018. e. The deadline for the Parties to file all other non- dispositive pre-trial motions, excluding motions for continuances, applications for temporary restraining order, other emergency applications, and motions in limine, will be extended from Jan. 19, 2018 to April 19, 2018. f. The deadline for the Parties to file dispositive pre- trial motions will be extended from Feb. 16, 2018 to May 7, 2018. g. The Final Pretrial Conference will be continued from April 9, 2018 at 1:30 p.m. to on or about June 22, 2018 at 1:30 p.m. in Courtroom No. 5, subject to the Court's availability. h. The Trial will be continued from June 5, 2018 at 9:00 a.m. to on or about Aug. 21, 2018 at 9:00 a.m. in Courtroom No. 5, subject to the Court's availability. Judge Shubb granted the Parties' stipulation. A full-text copy of the Court's Nov. 29, 2017 Order is available at https://is.gd/Qpcrqo from Leagle.com. Ryan Guinn, Plaintiff, represented by Ian A. Kass -- paganolaw@aol.com -- Pagano & Kass APC. Ryan Guinn, Plaintiff, represented by James L. Pagano, Pagano & Kass APC. Sugar Transport of the Northwest, Inc., Defendant, represented by Cassandra M. Ferrannini -- cferrannini@downeybrand.com -- Downey Brand LLP & Alexandra K. LaFountain -- amurphy@downeybrand.com -- Downey Brand LLP. Bronco Wine Company, Defendant, represented by Eric J. Sousa -- esousa@rodsoulaw.com -- Rodarakis & Sousa, APC. Classic Wines of California, Defendant, represented by Eric J. Sousa, Rodarakis & Sousa, APC. T-MOBILE USA: Stanbury Sues over Spam Text Messages --------------------------------------------------- RYAN STANBURY, individually and on behalf of all others similarly situated, the Plaintiffs, v. T-MOBILE USA, INC., a Delaware corporation, and SUNRISE COMMUNICATIONS, INC., a Missouri corporation, the Defendants, Case No. 6:17-cv-03396-BP (W.D. Mo., Dec. 14, 2017), seeks injunction requiring Defendants to cease all improper wireless text-messaging activities and an award of statutory damages to the Class members, together with costs and reasonable attorneys' fees. According to the complaint, in an attempt to increase its bottom line, Defendant Sunrise, on behalf of Defendant T-Mobile, uses an autodialer to send text messages to consumers on their cellular telephones without their prior express written consent in an effort to solicit consumers' business. Defendant conducted (and continues to conduct) a wide-scale telemarketing campaign that features the repeated sending of unwanted solicitation text messages to consumers' cellular telephones without consent, including even to those who have registered their numbers on the National Do Not Call Registry, all in violation of the Telephone Consumer Protection Act. By sending these text messages, Sunrise caused Plaintiff and the members of the Classes actual harm and cognizable legal injury. This includes the aggravation and nuisance and invasions of privacy that result from the receipt of such text messages, in addition to the wear and tear on their cellular telephones, consumption of battery life, lost cellular minutes, loss of value realized for the monies consumers paid to their wireless carriers for the receipt of such text messages, all contributing to the diminished use, enjoyment, value, and utility of their cellular telephone plans. Furthermore, Sunrise sent the text messages knowing they interfered with Plaintiff and the other Class members' use and enjoyment of, and the ability to access, their cellphones, including the related data, software, and hardware components. T-Mobile is a wireless network provider and no stranger to the TCPA. In fact, in August of 2015, T-Mobile concluded a TCPA settlement worth up to $5 million for over 100,000 class members. In an apparent attempt to circumvent its liability, while still aggressively promoting its business, T-Mobile utilizes a third party marketer, Sunrise Communications, to do its bidding.[BN] Attorney for Plaintiff and the Proposed Classes: Matthew L. Dameron, Esq. John F. Doyle, Esq. WILLIAMS DIRKS DAMERON LLC 1100 Main Street, Suite 2600 Kansas City, MO 64105 Telephone: (816) 945 7110 Facsimile: (816) 845 7118 E-mail: matt@williamsdirks.com jdoyle@williamsdirks.com - and - Matthew R. Wilson, Esq. Michael J. Boyle, Jr., Esq. MEYER WILSON CO., LPA 1320 Dublin Road, Suite 100 Columbus, OH 43215 Telephone: (614) 224 6000 Facsimile: (614) 224 6066 E-mail: mwilson@meyerwilson.com mboyle@meyerwilson.com - and - Stefan Coleman, Esq. THE LAW OFFICE OF STEFAN COLEMAN, P.A. 201 S. Biscayne Blvd., 28th floor Miami, FL 33131 Telephone: (877) 333 9427 Facsimile: (888) 498 8248 E-mail: Law@stefancoleman.com TAKE TWO: Seyfarth Shaw Attorneys Discuss BIPA Case Ruling ---------------------------------------------------------- Laura J. Maechtlen, Esq., and Thomas E. Ahlering, Esq., of Seyfarth Shaw LLP, in an article for Lexoloyg, wrote that as biometric technology has become more advanced and affordable, more companies and employers have begun implementing procedures and systems that rely on biometric data. Given the serious repercussions of compromised biometric data, a number of states have proposed or passed laws regulating the collection and storage of biometric data, including Illinois through the passage of the Illinois Biometric Privacy Act ("BIPA") -- the only biometric statute which provides a private cause of action. Plaintiffs' class action attorneys have taken notice, as the number of class action lawsuits alleging violations of the BIPA in Illinois has surged in recent months. As more and more employers are utilizing biometric technology for various purposes, including timekeeping, employers are at a significant risk of becoming a target of class action litigation under the BIPA if it fails to comply with the requirements of the statute. Cases brought pursuant to the BIPA are akin to other "gotcha" statutory class actions -- highly popular with the plaintiffs' bar due to the inclusion of statutory damages and a provision for attorneys' fees. The theories underlying BIPA class actions, and the defenses thereto, remain largely untested. However, the Second Circuit became the first U.S. Court of Appeals to wade into the rising tide of litigation under the BIPA in Santana v. Take Two Interactive Software, 2017 U.S. App. LEXIS 23446 (2d Cir. Nov. 21, 2017), by affirming the district court's dismissal of the case based upon a lack of Article III standing under the principles announced by the Supreme Court in Spokeo v. Robins, 136 S. Ct. 1540 (2016), but vacating the district court's finding that plaintiffs were not "aggrieved by" a violation the BIPA (e.g., failed to state a cause of action under the statute due to a failure to plead actual damages). The decision sheds light on the viability of certain potential employer defenses in BIPA class actions, particularly at the motion to dismiss stage. *** Requirements Of The BIPA Notice And Consent The BIPA prohibits companies from collecting employees' biometric information until the company notifies the employee in writing that the information is being collected. Specifically, the written notice must inform the individual of the "specific purpose and length of term for which a biometric identifier or biometric information is being collected, stored and used." 740 ILCS Sec. 14/15(b). Likewise, a company must obtain a written release from the individual enabling it to collect and store the information. In the employment context, "written release" is defined as a "a release executed by an employee as a condition of employment." 740 ILCS Section 14/10. Written Policy The BIPA also requires companies to develop a written policy establishing a retention schedule and guidelines for permanently destroying biometric information when the initial purpose for collecting them has been satisfied or within three years of the employee's last interaction with the employer, whichever occurs first. 740 ILCS Section 14/15(a). The policy must be made available to the public. Id. Disclosure To Third-Parties In addition, a company may not disclose biometric information to a third party unless: it obtains consent for disclosure from the individual; the disclosure completes a financial transaction requested by the individual; the disclosure is required by law; or the disclosure is required by a valid warrant or subpoena. 740 ILCS Section 14/15(d). Standard Of Care Also, the BIPA requires that a company use "the reasonable standard of care" within its industry for storing, transmitting and protecting biometric information and act "in a manner that is the same as or more protective than the manner in which the [company] stores, transmits and protects other confidential and sensitive information." Id. Section 14/15(e). Case Background In Santana, Plaintiffs alleged that Defendant violated the BIPA based on the use of a feature in the NBA 2K15 and NBA 2K16 video games, which contain a feature called "MyPlayer" which allows gamers to create a personalized basketball player that has a realistic 3-D rendition of the gamer's face. The 3-D mapping process used cameras to capture a scan of the gamer's facial geometry to disseminate a realistic rendition of the gamer's face which requires gamers to hold their faces within 6 to 12 inches of the camera and slowly turn their heads during the scanning process. Id. *2-3. To use the feature, gamers must also first agree to terms and conditions acknowledging that the face scan will be visible and may be recorded during gameplay and requires gamers to "agree and consent to such uses." Id. Plaintiffs alleged that Defendant: (1) collected their biometric data without their informed consent; (2) disseminated their biometric data to others during game play without their informed consent; (3) failed to inform them in writing of the specific purpose and length of term for which their biometric data would be stored; (4) failed to make publicly available a retention schedule and guidelines for permanently destroying plaintiffs' biometric data; and (5) failed to store, transmit, or protect from disclosure plaintiffs' biometric data by using a reasonable standard of care or in a manner that is at least as protective as the manner in which it stores, transmits, and protects other confidential and sensitive information. Id. *4. Defendant moved to dismiss Plaintiffs' claims for lack of Article III standing and for failure to state a cause of action under the statute (i.e., lack of "statutory standing"). The district court granted the motion on both grounds and dismissed the action with prejudice, and Plaintiffs appealed. The Second Circuit's Decision In its ruling of November 21, 2017, the Second Circuit entered a summary order affirming the district court's decision insofar as it held that plaintiffs lacked Article III standing, but vacating the decision in part insofar as it held that plaintiffs lacked a statutory cause of action as "aggrieved" parties. In regards to Article III standing, the Second Circuit held that "none of the alleged procedural violations [] raise[d] a material risk of harm" to Plaintiffs arising out of the use, collection, or disclosure of an individual's biometric data. Id. *7. In reaching this conclusion the Second Circuit noted that no reasonable person would believe that the feature of the game at issue was anything other than a facial scan and Plaintiffs did "not plausibly assert (beyond a mere conclusory allegation) that they would have withheld their consent had Take-Two included additional language in its consent disclaimer. Id. *8. Plaintiffs' alleged violations of the BIPA's notice provisions similarly failed to raise a material risk of harm because Plaintiffs did not allege that Defendant had not or will not destroy their biometric data within the period specified by the statute nor did Plaintiffs allege that Defendant lacked such protocols or that its policies were inadequate and "there is accordingly no material risk that [Defendant's procedural violations have resulted in plaintiffs' biometric data being used or disclosed without their consent. Id. *9. Finally, the Court was not persuaded by Plaintiffs attempts to "manufacture an injury" by alleging that they would be deterred from using biometric technology in the future because "Plaintiffs' fear, without more, is insufficient to confer Article III injury- in-fact. Id. *11. Despite this ruling, the Second Circuit remanded to the district court with the instruction that the district court shall enter dismissal without prejudice finding that the district court did not have subject matter jurisdiction to ultimately find that plaintiff did not have "statutory standing," e.g., that Plaintiffs had not alleged a cause of action under the statute -- specifically, that Plaintiffs were not "aggrieved by" a violation of the statute because they did not allege "actual damages." The Second Circuit held: Since the statutory standing arguments here are based on differing constructions of the term 'aggrieved party' as used in BIPA, the district court's resolution of the issue was a judgment on the merits that could not be properly addressed absent subject matter jurisdiction. The district court was therefore without power to dismiss the complaint with prejudice for failure to state a cause of action under the statute. Id. at *13. Implications For Employers The Second Circuit's ruling represents a victory for employers to the extent that it will make it more difficult for plaintiffs to plead and maintain Article III standing to survive a motion to dismiss in federal courts. On the other hand, the Second Circuit opinion did not bring any clarity as to who a "person aggrieved" is for purposes of the statute and whether plaintiffs must plead actual damages in order to state a cause of action under the BIPA. The practical import of this ruling is that the battleground for defenses based on subject-matter jurisdiction and standing grounds and a lack of statutory standing (e.g. failure to plead a cause of action because plaintiffs were not "aggrieved by" a violation of the statute) will likely shift back to the Illinois state courts, which (despite being similar in many respects) have different and independent standing principles from federal courts. Courts remain split as whether plaintiffs alleging violations under the BIPA must allege actual damages in order to state a cause of action, with state courts generally finding that actual damages are not necessary to plead a cause of action under the statute. Compare McCollough v. Smarte Carte, Inc., 2016 WL 4077108, at *4 (N.D. Ill. Aug. 1, 2016) (dismissing BIPA action for lack of actual damages) and Rottner v. Palm Beach Tan, Inc., 2015-CH-16695 (BIPA requires showing of actual damages) with Monroy v. Shutterfly, Inc., 2017 WL 4099846, at *9 (N.D. Ill. Sept. 15, 2017) ("[w]hile the matter is not free from doubt, the court declines to hold that a showing of actual damages is necessary in order to state a claim under the BIPA); Rosenbach v. Six Flags Entertainment Corporation et al., 16 CH 13 (Cir. Court, Lake County, IL, June 17, 2016) (finding sufficient statutory standing for the plaintiff to survive a motion to dismiss where the plaintiff had provided fingerprints to Six Flags as part of an annual pass program to the amusement park); Sekura v. Krishna Schaumberg Tan, Inc., 2017 WL 1181420 (Cir. Ct., Cook County, IL, Feb. 9, 2017) (denying motion to dismiss BIPA claim and noting that "the term 'aggrieved' has been used consistently in numerous statutes to provide claims for the infringement of granted legal rights without the need to plead specific or actual damages" and "it is not this court's role to determine whether BIPA was well intentioned or even well drafted, only to determine, in this case, whether it requires that plaintiffs plead actual damages to state claims thereunder.") In sum, while the Second Circuit's opinion provides employers with strong support for arguments based on a lack of subject-matter jurisdiction and standing (particularly in federal courts), arguments by employers at the motion to dismiss stage that a plaintiff lacks statutory standing (e.g., whether the statute requires a plaintiff to plead actual damages to state a cause of action) will likely have to be resolved by Illinois state courts and any such arguments in federal court may result in remand to state court, or a dismissal without prejudice allowing plaintiffs to re-file in state court. [GN] TENAGLIA & HUNT: Raju Sues over Debt Collection Practices --------------------------------------------------------- KARTHIKEYAN RAJU, on behalf of himself and all other similarly situated, the Plaintiff, v. TENAGLIA & HUNT, P.A., the Defendant, Case No. 2:17-cv-12986 (D.N.J., Dec. 12, 2017), seeks to recover actual and statutory damages and declaratory and injunctive relief arising from the Defendant's violation of the Fair Debt Collection Practices Act. Prior to December 12, 2016 Plaintiff allegedly incurred a financial obligation to Bank of America, N.A. based upon purchases made on a consumer credit card. The Bank of America obligation arose out of a transaction in which money, property, insurance or services, which are the subject of the transaction, are primarily for personal, family or household purposes. Bank of America is a "creditor" as defined by 15 U.S.C. section 1692a(4). At some time prior to December 12, 2016, the Bank of America obligation became past due. At some time prior to December 12, 2016, Bank of America transferred or assigned the Obligation to Defendant for collection. On or about December 12, 2016, Defendant sent Plaintiff a collection letter with respect to the Obligation. The December 12, 2016 letter was a "communication". The December 12 collection letter contained the following language ("Debt Dispute Language"): "If you dispute the debt in According to the Debt Dispute Language, the least sophisticated consumer would be lead to believe that under the law that Defendant would have to stop collection efforts, by simply disputing the debt, at any time, irrespective of whether or not the dispute was made within the 30 day period as required by section 1692g(b)." Similarly, according to the Debt Dispute Language, the least sophisticated consumer would be lead to believe that under the law that Defendant would have to stop collection efforts if the consumer requested proof of the debt or the name and address of the original creditor within the 30-day time period, even if the request was not in writing, as required by section 1692g(b). The lawsuit contends that the Debt Dispute Language is not an accurate statement of section 1692g(b) and is a false, deceptive and misleading representation. The Plaintiff suffered injury in fact by being subjected to unfair and abusive practices of Defendant. The Plaintiff suffered actual harm by being the target of Defendant's misleading debt collection communications. Defendant violated Plaintiff's rights not to be the target of misleading debt collection communications. Defendant violated Plaintiff's right to a truthful and fair debt collection process. Under the FDCPA, Plaintiff had the right to receive certain information from Defendant. Plaintiff had the right to receive from Defendant accurate information as what the law is, if Defendant is going to make such representation. Defendant's collection letter caused Plaintiff a concrete injury in that Plaintiff was deprived of his right to receive accurate statement of the law.[BN] Attorney for Plaintiff, on behalf of himself and all others similarly situated: Lawrence C. Hersh, Esq. LAWRENCE HERSH, ATTORNEY AT LAW 17 Sylvan Street, Suite 102B Rutherford, NJ 07070 Telephone: (201) 507 6300 TERMINIX INTERNATIONAL: Fails to Pay Minimum Wage, Renteria Says ---------------------------------------------------------------- JIMMY RENTERIA, an individual, on behalf of himself and all others similarly situated, the Plaintiff, v. TERMINIX INTERNATIONAL, INC., a Delaware Corporation; and DOES 1 through 100, the Defendant, Case No. BC686832 (Cal. Super. Ct., Dec. 13, 2017), seeks to recover statutory minimum wages for all hours worked and overtime compensation in violation of California Labor Code. The Plaintiff was initially hired by Alterra Pest Control in December 2015, as a non-exempt Pest Technician. Alterra was acquired by Defendant Terminix after Plaintiffs hire, and in January 2017, Terminix officially assumed control of all of Alterra's operations, including the employment of Plaintiff and all other non-exempt employees of Alterra. Plaintiff's job duties included residential and commercial pest inspection and control at different locations in and around Southern California. The Plaintiff continued in this role until he suffered a work-related injury, for which he has been on a workers' compensation leave of absence since May 30, 2017. The Plaintiff's typically work schedule was from 6:30 a.m. to 6:30 p.m. Monday through Friday, although Plaintiff often worked longer hours. The Plaintiff was paid on an hourly basis from the start of his employment until January 2017, at which point Defendants switched to a commission based compensation system, whereby Plaintiff was paid commissions once a month upon completion of a certain number of inspection and extermination jobs in that month. Despite being paid on a "salary" basis, Plaintiff was still required to record the hours that he worked both by handwritten timecards and through a "Workday" phone application. Under Defendants' Commission Compensation Plans, in pay periods when Plaintiff received commissions he was not separately compensated for time spent working on non-productive tasks, which were not compensated on a commission basis. As a result, Plaintiff was not paid for all hours worked, including all overtime hours worked. Once Defendants' began requiring Plaintiff and other non- exempt employees to use the "Workday" application, Defendants only paid Plaintiff for a maximum of 12.0 hours per day, despite Plaintiff regularly working shifts in excess of 12.0 hours in order to complete scheduled extermination jobs and make mandatory phone calls to confirm scheduled appointments for the next day at the end of his shift. Specifically, once Defendants began to use the Workday phone application, the application would automatically clock Plaintiff out of his shift for the day once his shift reach 12.0 hours, despite Defendants' requirement that Plaintiff continue to perform work duties beyond the twelfth hour of his shift. As a result, Plaintiff was not paid for all hours worked, including all overtime hours worked.[BN] The Plaintiff is represented by: Paul K. Haines, Esq. Sean M. Blakely, Esq. Daniel J. Brown, Esq. HAINES LAW GROUP, APC 2274 East Maple Avenue El Segundo, CA 90245 Telephone: (424) 292 2350 Facsimile: (424) 292 2355 E-mail: phaines@haineslawgroup.com sblakely@haineslawgroup.com dbrown@haineslawgroup.com TESCO CORP: Rigrodsky & Long Files Securities Class Action ---------------------------------------------------------- Rigrodsky & Long, P.A., disclosed that it has filed a class action complaint in the United States District Court for the Southern District of Texas on behalf of holders of Tesco Corporation ("Tesco") (NasdaqGS:TESO) common stock in connection with the proposed acquisition of Tesco by Nabors Industries Ltd. and its affiliate ("Nabors") announced on August 14, 2017 (the "Complaint"). The Complaint, which alleges violations of the Securities Exchange Act of 1934 against Tesco, its Board of Directors (the "Board"), and Nabors, is captioned The Vladimir Gusinsky Rev. Trust v. Tesco Corporation, Case No. 4:17-cv-02918 (S.D. Tex.). If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Seth D. Rigrodsky or Gina M. Serra at Rigrodsky & Long, P.A., 2 Righter Parkway, Suite 120, Wilmington, DE 19803, by telephone at (888) 969-4242, by e-mail at info@rl- legal.com, or at http://rigrodskylong.com/contact-us/. On August 13, 2017, Tesco entered into an agreement and plan of merger (the "Merger Agreement") with Nabors. Pursuant to the Merger Agreement, shareholders of Tesco will receive, for each share of Tesco they own, 0.68 shares of Nabors common stock (the "Proposed Transaction"). Among other things, the Complaint alleges that, in an attempt to secure shareholder support for the Proposed Transaction, defendants issued materially incomplete disclosures in a Preliminary Proxy Statement (the "Proxy Statement") filed with the United States Securities and Exchange Commission. The Complaint alleges that the Proxy Statement, which recommends that Tesco stockholders vote in favor of the Proposed Transaction, omits material information necessary to enable shareholders to make an informed decision as to how to vote on the Proposed Transaction, including material information with respect to Tesco's and Nabors' financial projections, the analyses performed by Tesco's financial advisor, and the background of the Proposed Transaction. The Complaint seeks injunctive and equitable relief and damages on behalf of holders of Tesco common stock. If you wish to serve as lead plaintiff, you must move the Court no later than January 29, 2018. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Any member of the proposed class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. With offices in Wilmington, Delaware and Garden City, New York Rigrodsky & Long, P.A. -- http://www.rigrodskylong.com-- regularly prosecutes securities fraud, shareholder corporate, and shareholder derivative litigation on behalf of shareholders in state and federal courts throughout the United States. [GN] TEZOS: Jan. 25 Lead Plaintiff Motion Deadline Set ------------------------------------------------- Hagens Berman Sobol Shapiro LLP advises crowdfund investors in Tezos (XTZ) that a securities class action on behalf of investors who purchased or otherwise attempted to acquire "Tezzies" or "XTZ" tokens during the Tezos Initial Coin Offering ("ICO") is pending in the U.S. District Court for the Northern District of California. The Lead Plaintiff deadline is January 25, 2018. If you submitted bitcoin (BTC), Ethereum (ETH) or other consideration in the July 2017 Tezos offering or crowdsale in order to purchase or otherwise acquire "Tezzies" or "XTZ" tokens contact Hagens Berman Sobol Shapiro LLP. For more information visit: https://www/hbsslaw.com/cases/XTZ or contact Reed Kathrein, who is leading the firm's investigation, by calling 510-725-3000 or emailing XTZ@hbsslaw.com. The complaint alleges that Dynamic Ledger Solutions, Inc., Tezos Stiftung (also known as the Tezos Foundation), Kathleen Breitman, and Arthur Breitman engaged in an unregistered offering and sale of securities in violation of Sections 5, 12(a)(1) and 15 of the Securities Act of 1933, 15 U.S.C. Secs. 77e, 77l(a)(1) and 77o, and that the Tezos ICO was an offering and sale of "securities" to United States investors. Defendants conducted the Tezos ICO without filing a Registration Statement or seeking an exemption from registration. The lawsuit is seeking to recover the bitcoin and Ethereum contributed to the Tezos ICO, along with any corresponding appreciation in value of those invested assets, or the equivalent in monetary damages or restitution. "We are focused on recovering the consideration paid by Tezos crowdfund investors, and to preserve these assets which have been shuttled away to Zug Switzerland," said Hagens Berman partner Reed Kathrein. Whistleblowers: Persons with non-public information regarding the Tezos ICO should consider their options to help in the investigation or take advantage of the SEC whistleblower program. Under the new program, whistleblowers who provide original information may receive rewards totaling up to 30 percent of any successful recovery made by the SEC. For more information, call Reed Kathrein at 510-725-3000 or email XTZ@hbsslaw.com About Hagens Berman Hagens Berman -- http://www.hbsslaw.com-- 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. [GN] THE GAP: Faces Class Suit in New Jersey Over Deceiving Markdowns ---------------------------------------------------------------- Amanda Hoover, writing for NJ.com, reports that a woman has filed a class action suit on behalf of New Jersey customers who shopped at The Gap and Banana Republic outlet stores, claiming the stores advertised higher original prices and made deceiving markdowns. The suit, filed in federal court in Camden, alleges that the discount factory stores operated by the retailers inflated the original prices on merchandise, leading customers to think they were getting better deals off the markdowns than they actually were. "In actuality, the lower, purportedly discounted prices are the prices at which defendants consistently and regularly sell their items," the suit claims. The suit encompasses any customer who shopped at the outlet stores across the state between October 2011 and fall 2017. Gap and Banana Republic are operated by the same parent company. The claim alleges the stores scheme customers by using in-store signage to suggest the items are "up to 70 percent off original Gap Factory prices" and also printing total discount amounts customers received on the receipts. Because of the alleged inflation, those numbers are "not based on any real prices" and "entirely illusory," according to the claim. Those alleged acts violate both federal and state sales regulations, the lawsuit claims. Other companies, including J.C. Penney and Kohl's, have been hit with similar lawsuits in recent years as various companies seek to lure customers in with seemingly slashed prices. The plaintiff, Caron Coladonato, was a regular customer of the stores who made purchases at outlet stores in Blackwood, Camden County on Black Friday of 2016, the suit states. Taking advantage of an advertised 50 percent markdown, she bought two items of children's apparel that she would not have otherwise purchased. It was later determined that those prices were the regular prices for items at the store, according to the suit. The incident was not an isolated one, but part of a "systematic scheme of false and misleading advertising" the claim states. The companies could be responsible for refunding the total price for each discounted item sold in New Jersey during the six-year period, amount to $10 million in refunds. A representative from the company said the company does not comment on legal matters. [GN] TIRE DISCOUNTERS: Service Managers Class in "Lindsey" Decertified ----------------------------------------------------------------- In the case, JUSTIN LINDSEY, et al., Plaintiffs, v. TIRE DISCOUNTERS, INC., Defendant, Case No. 2:15-cv-3065 (S.D. Ohio), Judge George C. Smith of the U.S. District Court for the Southern District of Ohio, Eastern Division, granted Tire Discounters' Motion to Decertify, denied the Plaintiffs' Motion for Class Certification, denied Tire Discounters' Motion for Summary Judgment, granted in part and denied in part the Plaintiffs' Motion for Partial Summary Judgment, and denied the Plaintiffs' Motion for Leave to File a Supplemental Brief. The case arises out of Tire Discounters' classification of its Service Manager ("SM") position as exempt from the overtime provisions of the Fair Labor Standards Act ("FLSA") and the Ohio Minimum Fair Wage Standards Act. Named Plaintiffs Lindsey and Matthew Titus worked as SMs at various Tire Discounters locations for all or part of the period of Dec. 8, 2012 to Oct. 31, 2016. The Plaintiffs claim that Tire Discounters improperly classified them, and all other SMs employed by Tire Discounters around the country during this time period, as exempt under the executive exemption provided by 29 C.F.R. Section 541.100. The Plaintiffs filed their Complaint on Dec. 8, 2015. Soon after, and Tire Discounters did not contest, they sought conditional certification of a collective action pursuant to FLSA's provisions at 29 U.S.C. Section 216(b). On March 1, 2016, the Court conditionally certified the collective comprising all current and former SMs who work or worked for the Defendant, within the United States at any time since Dec. 8, 2012. The Plaintiffs then distributed Court-approved notice of the FLSA collective action to potential members of the Collective. The FLSA notice period has closed, and a total of 98 SMs, including the two Named Plaintiffs, who worked for Tire Discounters around the country have filed consent forms to join the FLSA collective action. Contemporaneously, the parties conducted discovery regarding Rule 23 class certification of an Ohio-only class, decertification of the nationwide collective action, and dispositive motions. The parties agreed that Tire Discounters would be entitled to take the depositions of the two Named Plaintiffs as well as eight other opt-in Plaintiffs who had consented to join the FLSA collective action. However, Tire Discounters chose to depose only the two Named Plaintiffs and three opt-in Plaintiffs (Scott Mustovich, Wesley Lowe, and Ronald Litton). Lindsey, Titus, and Mustovich worked at various Tire Discounters locations in Ohio; Lowe and Litton worked at locations in Kentucky. Tire Discounters' written discovery responses indicated that there are likely at least 124 current or former employees falling within the definition of the Plaintiff's proposed Rule 23 Ohio-only class. On March 1, 2017, Tire Discounters filed its Motion to Decertify the FLSA collective action. The same day, the Plaintiffs filed their Motion for Class Certification of the OMWA claims under Federal Rule of Civil Procedure 23(b)(3) on behalf of those SMs who had worked for Tire Discounters in Ohio. While those motions remained pending, both parties filed motions for summary judgment per the Court's scheduling order on April 24, 2017: Tire Discounters sought summary judgment on liability as to all issues and all the Plaintiffs, and the Plaintiffs sought partial summary judgment as to the method of calculating damages. Finally, after briefing was complete on both summary judgment motions, the Plaintiffs filed a motion on June 14, 2017, for Leave to file a Supplemental Brief in support of their Motion for Class Certification and in opposition to Tire Discounters' Motion to Decertify. Judge Smith finds that the Plaintiffs were clearly aware of Tire Discounters' summary judgment position while briefing the class- related motions and could have raised any inconsistency arguments at that time -- and, in fact, they did. The Plaintiffs have therefore not shown good cause for filing their supplemental brief. Therefore, the Plaintiffs' Motion for Leave to File a Supplemental Brief is denied. The Judge granted Tire Discounters' Motion to Decertify. He finds that the facts and circumstances of the SMs' employment, as it relates to the components of the executive exemption, are so varied that no judicial economy would be gained by proceeding as a collective action. Therefore, as all three components of the decertification standard weigh in Tire Discounters' favor. The claims of all the opt-in Plaintiffs, excluding Lead Plaintiffs Lindsey and Titus, are dismissed without prejudice. Since it is clear, following his determination that the SMs around the country are not "similarly situated," that the Plaintiffs also cannot satisfy the more stringent predominance requirement of Rule 23(b)(3), nor the typicality requirement of Rule 23(a)(3), Judge Smith denied the Plaintiffs' Motion for Class Certification. The Judge also denied Tire Discounters' Motion for Summary Judgment as to the Lead Plaintiffs, as well as the opt-in Plaintiffs in the FLSA collective action and the members of the putative Ohio-only Rule 23 class. He explains that while Tire Discounters has demonstrated with uncontroverted fact that both Lindsey and Titus met the salary basis test of the executive exemption, there are numerous disputed facts as to their relevant job duties. The Judge thus cannot conclude that Lindsey and Titus were properly classified as exempt from the overtime provisions of the FLSA and OMWA. Finally, the Judge granted in part and denied in part the Plaintiffs' Motion for Partial Summary Judgment. He is unable to resolve the precise number of hours that Lindsey and Titus expected to work each week at the summary judgment stage. And because SMs are not similarly situated, the Judge is not persuaded that evidence of SMs' schedules "generally" will be accurate as to Lindsey and Titus. Accordingly, to the extent the Plaintiffs seek a determination of the particular number of hours to be used as the divisor of Lindsey's and Titus's weekly compensation to determine their regular hourly rate, he denied the Plaintiffs' Motion for Partial Summary Judgment. However, Judge Smith agrees with Judge Economus' analysis in Snodgrass v. Bob Evans Farms, LLC that while recognizing that the fluctuating work week ("FWW") method may be agreed to between the employer and employee to calculate wages on a forward-looking basis, its retroactive application in misclassification cases is inappropriate as a matter of law. The FWW method sets forth a framework for calculating compensation for non-exempt employees. The Judge therefore holds that the FWW method may not be used to retroactively calculate damages for unpaid overtime wages in a misclassification case. To that extent, the Plaintiffs' Motion for Partial Summary Judgment is granted. Judge Smith further recommended that the parties engage in mediation to resolve the claims of Lindsey and Titus. If the parties wish to participate in mediation, they may contact Judge Jolson's chambers at (614) 719-3470 to schedule a mediation through the Court. He directed the Clerk to remove Documents 68, 69, 79, 80, and 95 from the Court's pending motions list. A full-text copy of the Court's Dec. 1, 2017 Opinion and Order is available at https://is.gd/FQ8O8w from Leagle.com. James D. Colner, Mediator, represented by James Douglas Colner -- jcolner@slk-law.com -- Shumaker Loop & Kendrick LLP. Justin Lindsey, Plaintiff, represented by Drew T. Legando -- drew@lgmlegal.com -- Landskroner - Grieco - Merriman, LLC, Gregg I. Shavitz -- gshavitz@shavitzlaw.com -- Shavitz Law Group P.A., Jack Landskroner -- jack@lgmlegal.com -- Landskroner - Grieco - Merriman, LLC & Paolo C. Meireles -- pmeireles@shavitzlaw.com -- Shavitz Law Group, P.A. Matthew Titus, Plaintiff, represented by Drew T. Legando, Landskroner - Grieco - Merriman, LLC, Gregg I. Shavitz, Shavitz Law Group P.A., Jack Landskroner, Landskroner Grieco Merriman, LLC & Paolo C. Meireles, Shavitz Law Group, P.A. Tire Discounters, Inc., Defendant, represented by Colleen P. Lewis -- colleen.lewis@dinsmore.com -- Dinsmore & Shohl & Jason Hilliard -- jason.hilliard@dinsmore.com -- Dinsmore & Shohl LLP. TIVITY HEALTH: Jan. 19 Lead Plaintiff Motion Deadline Set --------------------------------------------------------- Bronstein, Gewirtz & Grossman, LLC, notified investors that a class action lawsuit has been filed against Tivity Health, Inc. ("Tivity" or the "Company") (NASDAQ: TVTY) and certain of its officers, on behalf of shareholders who purchased Tivity securities between February 24, 2017, and November 3, 2017, both dates inclusive, (the "Class Period"). Such investors are encouraged to join this case by visiting the firm's site: http://www.bgandg.com/tvty Bronstein, Gewirtz & Grossman, LLC 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 Defendants issued materially false and/or misleading statements and/or failed to disclose that: (1) Tivity was aware that its customer United Healthcare, Inc. planned to expand its fitness benefit to seniors, (2) the abovementioned expansion would represent direct competition to Tivity's core program SilverSneaker, and (3) consequently, Tivity's financial statements, as well as Defendants' statements about the Company's business, operations, and prospects, were false and misleading and/or lacked a reasonable basis. 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: http://www.bgandg.com/tvtyor 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 Tivity you have until January 19, 2018 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. 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. [GN] TOLEDO TOOL: Court Denies Class Certification in "Marek" -------------------------------------------------------- In the case, Melvin Marek, Jr., Plaintiff. v. Toledo Tool & Die Co., Inc., Defendant, Case No. 3:16CV03005 (N.D. Ohio), Judge James G. Carr, Sr., of the U.S. District Court for the Northern District of Ohio, Western Division, denied without prejudice to refiling the Plaintiff's motion for conditional class certification. Toledo Tool & Die hired Marek as a maintenance technician in February 2012, and promoted him to maintenance supervisor a year later. Both before and after his promotion, the Plaintiff's primary job duties consisted of general maintenance. Despite his supervisory title, the Defendant consistently paid Marek on an hourly basis, and never on a salaried basis. Although Marek was a non-exempt hourly employee, the Defendant purportedly failed to pay him and others proper overtime wages for hours worked in excess of 40 in a workweek between 2014 and 2016. When Toledo Tool & Die later terminated his employment, he initiated the instant suit to recover the wages. Marek now moves to conditionally certify his Fair Labor Standards Act ("FLSA") claim as a collective action so that potential Plaintiffs can be notified of the suit's existence and of their right to participate. The class Marek seeks to certify consists of all current and former hourly, non-exempt employees of the Defendant, who worked in excess of 40 hours in a workweek, but were not paid their overtime rate for all such hours worked, resulting in unpaid overtime wages. The Defendant opposes the motion. While it concedes that the required showing is minimal, Toledo Tool & Die argues that Marek fails to meet even the lenient burden for conditional class certification. Judge Carr finds that Marek has provided little information in support of his motion. Nor does he describe the job duties of the other potential Plaintiffs -- all of the Defendant's current and former hourly, non-exempt employees. As for geographic location, Marek does not indicate whether Toledo Tool & Die has multiple locations, multiple work sites within a single location, or a single work site within a single location. Nor can the Judge adequately consider the different defenses to which the Plaintiffs may be subject on an individual basis. He says an individual claimant can speak to an employer's company-wide policy if he has personal knowledge of other employees' circumstances. But key to this strategy is articulating a "factual basis" for his personal knowledge, one from which the Court can conclude the Plaintiff and other employees were similarly situated and suffered from a common policy that violated the FLSA. In addition, although some courts credit employer-submitted evidence at the conditional-certification stage, Judge Carr is not inclined to do so. Weighing the Defendant's affidavits would require him to resolve factual disputes, decide substantive issues on the merits, or make credibility determinations -- tasks better left for after discovery, if he reached them at all. Moreover, form affidavits gathered by an employer from its current employees are of limited evidentiary value in the FLSA context because of the potential for coercion. However, excluding this evidence does not make the Plaintiff's case for conditional certification any stronger. The payroll records do not evince a FLSA violation in the first instance. This is where Marek's lack of personal knowledge makes all the difference. He does not have personal knowledge that Toledo Tool & Die denied other employees overtime compensation. Judge Carr therefore denied without prejudice to refiling the Plaintiff's motion for conditional certification. A full-text copy of the Court's Nov. 29, 2017 Order is available at https://is.gd/e96Set from Leagle.com. Melvin Marek Jr., Plaintiff, represented by Daniel I. Bryant. Melvin Marek Jr., Plaintiff, represented by Matthew J.P. Coffman. Toledo Tool & Die Company, Inc., Defendant, represented by James B. Yates -- jbyates@eastmansmith.com -- Eastman & Smith & Sarah E. Pawlicki -- sepawlicki@eastmansmith.com -- Eastman & Smith. TRACTOR SUPPLY: Faces "Johnson" Wage-and-Hour Suit -------------------------------------------------- TAMMY JOHNSON and VANESSA DETTWILER, individually and on behalf of all others similarly situated, the Plaintiffs, v. TRACTOR SUPPLY COMPANY, a Delaware Corporation, the Defendant, Case No. 3:17-cv- 06039 (W.D. Wash., Dec. 12, 2017), seeks to recover overtime pay and damages as a result of Defendant's systematic scheme of wage and hour violations. The scheme involves systemic miscalculation of overtime and failure to affirmatively provide meal and rest breaks. Plaintiffs bring their claims as a class action under Federal Rule of Civil Procedure on behalf of a Washington state class, and as a nationwide collective action under the Fair Labor Standards Act. The Plaintiff worked as both an exempt Acting Manager, as well as a non-exempt Assistant Manager. When she worked as a non-exempt Assistant Manager during the last three years, Plaintiff Johnson regularly worked pay periods in which she both worked overtime and earned a non-discretionary bonus, yet Defendant failed to pay her at the proper overtime rate by excluding the non-discretionary bonus from the regular rate of pay. Defendant also failed to affirmatively provide Plaintiff Johnson with 30-minute meal breaks when she worked as a non-exempt Assistant Manager during the last three years. Moreover, Defendant failed to affirmatively provide her with paid ten-minute rest breaks for every four hours of work and regularly required her to work more than three consecutive hours without a rest break. Tractor Supply Company is an American retail chain of stores that offers products for home improvement, agriculture, lawn and garden maintenance, and livestock, equine and pet care. It is a leading U.S. retailer in its market.[BN] The Plaintiff is represented by: Marc C. Cote, Esq. Michael C. Subit, Esq. FRANK FREED SUBIT & THOMAS LLP 705 Second Avenue, Suite 1200 Seattle, WA 98104 Telephone: (206) 682 6711 Facsimile: (206) 682 0401 E-mail: msubit@frankfreed.com mcote@frankfreed.com - and - Michael Malk, Esq. THE MALK LAW FIRM 1180 S. Beverly Drive, Suite 302 Telephone: (310) 203 0016 Facsimile: (310) 499 5210 E-mail: mm@malklawfirm.com UBER TECHNOLOGIES: City of Chicago Files Data Breach Suit --------------------------------------------------------- Hamza Shaban, writing for The Washington Post, reports that the city of Chicago and the Cook County state's attorney are suing Uber after the company revealed that it waited more than a year to disclose a massive data breach and, according to multiple reports, paid the hackers responsible $100,000 to stay quiet. The legal action by Illinois officials is the latest move in a mounting backlash against the company, which said that the personal information of 57 million customers and drivers had been stolen in October 2016. Uber now faces at least four lawsuits, including three seeking class-action status, prompted by the data breach. The attorneys general of five states have launched investigations, and the Federal Trade Commission said it is closely evaluating reports of the hack. The Chicago lawsuit alleges that Uber failed to safeguard the personal data of Illinois residents and further violated the law by withholding for an extended period of time the announcement of the data breach and concealing the hack through its ransom payment to the intruders. The lawsuit claims that Uber willfully exposed many Illinois residents to the risks of financial fraud, identity theft and tax scams. According to Uber chief executive Dara Khosrowshahi, the company identified the hackers and "obtained assurances that the downloaded data had been destroyed." But in the complaint, Illinois officials took aim at what they described as a deeply troubling arrangement between Uber and the people who stole personal data from the company. "Any agreement that Uber reached with the criminal hackers couldn't possibly be trusted to protect user data. Nor did Uber require any proof that the stolen data was, in fact, deleted," stated the suit. The officials added that in the digital age it is "impossible" for Uber to know whether the hackers still have copies of customer data. A spokesman for Uber did not immediately respond to a request for comment. The city seeks a declaration that Uber broke the law and a series of penalties that add up to hundreds of millions of dollars. The lawsuit asks the court to fine Uber $10,000 a day for every day the company failed to notify Chicago and Illinois residents of the data breach, which would amount to at least $3,650,000. Uber also faces penalties of up to $50,000 per individual violation, if the court finds that the company intended to defraud Illinois residents. Officials, however, do not yet know how many state residents were affected. The lawsuit was filed on the same day that a group of four Republican senators, including Orrin G. Hatch (Utah), chairman of the Finance Committee, and John Thune (S.D.), chairman of the Commerce Committee, sent a letter to Uber asking for more information about the hack. The lawmakers want to learn how Uber officials responded to the breach and the purpose of the reported payment to hackers. Sen. Mark R. Warner (D-Va.) also sent a letter to Uber describing "grave concerns" over the data breach and asking for more details of what took place. UBER TECHNOLOGIES: Faces Data Breach Class Action in Australia -------------------------------------------------------------- Robson Fletcher, writing for CBC News, reports that Uber is facing a potential class-action lawsuit in Alberta over a 2016 data breach that it initially tried to cover up. The ride-hailing company later admitted that personal information of tens of millions of customers and drivers had been stolen. The same law firm that won a Supreme Court decision granting the right to sue Facebook in a B.C. court has now launched a class- action lawsuit against Uber on behalf of Albertans whose personal information was compromised in the company's recently revealed data breach. The international ride-hailing company admitted that personal information belonging to 57 million of its customers had been stolen in 2016. Rather than disclose the breach, the company's new CEO said its former chief security officer -- who has since been fired -- agreed to pay the hackers who stole the data $100,000 to destroy it. Uber admits covering up 2016 hack that affected millions Uber's handling of the whole affair was "willful, reckless, wanton, negligent, callous and in total disregard for the security and rights of the plaintiff and class members," according to a statement of claim filed in Calgary by Branch MacMaster LLP. None of the allegations in the statement of claim has been proven in court. For now, the lawsuit names an Alberta woman who was affected by the data breach as the plaintiff and seeks to have the class action certified to apply to a broader group of people. "When there is an alleged wrong on the part of a defendant that affects a great number of people, it's typically ideal for prosecution as a class action," said Luciana Brasil, a partner with Branch MacMaster LLP. "If the court does certify the case, then everyone who is a member of the class, who fits in that definition, will be able to participate in the case," Brasil said. "And the rule, actually, is that they automatically participate unless they take steps to exclude themselves." Damages sought In addition to a host of general damages, the lawsuit seeks special damages for costs related to credit counselling, compensation for the plaintiffs' lost time and income, as well as costs for credit monitoring and other services to protect them against identity theft. The stolen data included customers' email addresses and mobile phone numbers as well as driver's licence numbers of some 600,000 Uber drivers in the United States. The lawsuit alleges Uber had a duty to inform both customers and regulators in Alberta. "At no time did Uber notify the Office of the Privacy Commissioner, the plaintiff, class members or other affected individuals," reads the statement of claim. "Had it not been for recent media exposure of the Uber hack, class members would to this day remain unaware that their personal information had been compromised." CBC News asked Uber for comment on Nov. 29 but has yet to receive a reply. Uber has not yet filed a statement of defence. Branch MacMaster LLP fought a high-profile, years-long battle on behalf of a B.C. woman who wanted to sue Facebook over its use of her name and photo in advertising for a company that she had "liked" on the social media service. Facebook argued the case should be heard in a California court but the Supreme Court ruled in June that the matter could proceed in B.C. Brasil expects it could take between six months and a year for an Alberta court to decide on class-action certification in the Uber case. [GN] UBER TECHNOLOGIES: Local Governments File Joint Data Breach Suit ---------------------------------------------------------------- Amanda Bronstad, writing for The Recorder, reports that in the race to hold Uber accountable for a massive data breach, consumer class actions might end up in the slow lane -- but government regulators have a chance to speed ahead. About a dozen class actions have been filed since Nov. 21, when Uber Technologies Inc. announced that hackers had stolen the personal information of 57 million drivers and riders back in 2016. Uber also admitted that it paid the hackers $100,000 to destroy the information. But the lawsuits face standing issues, which have plagued data breach class actions in the past. And Uber's hack involved names, email addresses and driver's licenses -- information that's replaceable and less lucrative to hackers than Social Security numbers or health information. As a result, lead plaintiffs could have a hard time establishing they were injured from the breach. That's left local governments -- many armed with new and amended data breach laws -- to step up. On Nov. 27, attorneys with the city of Chicago and Cook County, Illinois, filed a joint lawsuit against Uber alleging it failed to safeguard personal information and didn't disclose the breach promptly under Illinois data breach laws. Jay Edelson of Chicago's Edelson PC, who is working on the case on contingency, declined to comment. On Nov. 29, the state of Washington sued Uber. In a press release, Attorney General Bob Ferguson noted that the case, which seeks millions of dollars in penalties, was the first to be filed under the state's 2015 amendments to its data breach law. Those amendments now require that consumers and the attorney general in Washington be notified within 45 days of the breach. "Washington law is clear: When a data breach puts people at risk, businesses must inform them," Mr. Ferguson said in a statement. Attorneys general in a handful of other states are investigating Uber. "This is a company that is facing a lot of different litigation, a lot of different investigations by law enforcement, and they've been investigated by attorneys general and the FTC," said Cari Laufenberg -- claufenberg@kellerrohrback.com -- of Keller Rohrback, who filed a case on Nov. 22 in Northern California's federal district. "They don't have a good track record. They have a credibility problem already going into this. So I think everyone is going to look at this with a finer, granular microscope than they might with a company with an outstanding record." In a Nov. 21 statement, CEO Dara Khosrowshahi, who took over in August, insisted that more sensitive data like Social Security numbers, birth dates and credit card numbers hadn't been stolen. "None of this should have happened, and I will not make excuses for it," he said. "We are changing the way we do business, putting integrity at the core of every decision we make and working hard to earn the trust of our customers." The lawsuits against Uber allege negligence and violations of state data breach and consumer laws -- all claims that have been brought before in cybersecurity class actions. They face a common challenge in data breach cases: Establishing that the plaintiffs were injured from the hack. In 2015, U.S. Magistrate Judge Laurel Beeler of the Northern District of California dismissed a case over a similar 2014 breach at Uber, concluding that the lead plaintiff wasn't harmed in having his name and driver's license stolen. Even after Uber updated its notice to state that some Social Security numbers had been stolen, Judge Beeler dismissed the case on Nov. 25, concluding there wasn't enough evidence that Uber's breach had caused immediate harm to the plaintiffs. The plaintiffs attorney in that case, Tina Wolfson of Ahdoot & Wolfson in Los Angeles, who also filed a Nov. 21 class action over Uber's 2016 breach, did not respond to a request for comment. Not having more sensitive data stolen could threaten the new round of lawsuits, said Ed McAndrew -- mcandrewe@ballardspahr.com -- co-chairman of the privacy and data security group at Ballard Spahr in Philadelphia. "That's going to make it more difficult for the consumer plaintiffs to establish standing," he said. "There will be motions to dismiss filed in virtually all these consumer class actions, and a number of them will go the way of past class actions, where less permanent data elements have been involved in the theft." But he acknowledged that the cases could have a strong argument that Uber misrepresented its security procedures to consumers. "That misrepresentation cause of action is going to be much more appealing to certain judges in a case like this than it would be where you just said you misrepresented the facts based on your website privacy policy statement," he said. Ms. Laufenberg acknowledged the limitations the type of hacked data could have in the cases. But she said that could change. And there's another red flag that makes the Uber case different. "The big one that stands out of course is their having hid the breach for a year, having attempted to handle it on their own by paying a ransom to the hackers and supposedly having them attempt to destroy the data," she said. "That's a big outlier in terms of fact patterns of these cases." Uber also knew of the breach while resolving a Federal Trade Commission investigation into its 2014 hack. "This is perhaps the most problematic aspect for this for Uber," said Mr. McAndrew. Under an Aug. 15 consent decree, he said, Uber agreed not to make misrepresentations about its security. He predicted that Uber could be facing $100 million in FTC penalties. "I wouldn't be surprised if this wasn't the largest FTC penalty related to data security we've seen." It's unclear whether the FTC, now under the Trump administration, plans to take any action. An FTC spokesman told law.com: "We are aware of press reports describing a breach in late 2016 at Uber and Uber officials' actions after that breach. We are closely evaluating the serious issues raised." Congress also is digging in. On Nov. 27, four Republican U.S. senators and Sen. Mark Warner, D-Virginia, sent letters to Ms. Khosrowshahi asking for more information about the breach. "I have long championed the innovation and potential of the on- demand economy," Mr. Warner wrote. "However, Uber's conduct raises serious questions about the company's compliance with relevant state and federal regulations." [GN] UNITED STATES: Bernsen Named Lead Counsel in "Andrus" Suit ---------------------------------------------------------- In the case captioned ANDRUS, et al., Plaintiffs, v. THE UNITED STATES, Defendant, Case No. 17-1657 L (Fed. Cl.), Judge Susan G. Braden of the U.S. Court of Federal Claims entered an order regarding judicial assignment, appointment of the Plaintiffs' counsel for the purpose of pre-trial discovery, the government's motion to dismiss pursuant to rule of the U.S. Court of Federal Claims 12(b)(1)-(7), and scheduling. On Nov. 1, 2017, 81 Plaintiffs filed the Complaint alleging the United States Army Corps of Engineers' release of water from the Town Bluff Dam near Jasper, Texas in the wake of Hurricane Harvey resulted in a taking of their respective property, in violation of the Takings Clause of the Fifth Amendment to the United States Constitution. Judge Braden assigned Judge Lydia Kay Griggsby of the U.S. Court of Federal Claims to manage the jurisdictional discovery and adjudicate issues presented by any motion filed, pursuant to Rule of the United States Court of Federal Claims ("RCFC"). She appointed Mr. David E. Bernsen at Bernsen Law Firm as the Plaintiff's Lead Counsel. She ordered that all appointed counsel will be compensated for work on pre-trial discovery issues and dispositive motions, including any subsequent appeals. To ensure the expeditious and orderly management of jurisdictional discovery, the Judge established the following schedule: a. On or before Dec. 15, 2017, the Government will file any Motion For A More Definite Statement, pursuant to RCFC 12(e). b. On or before Dec. 22, 2017, the parties will exchange Mandatory Initial Disclosures, including lists of documents and tangible items. c. On or before Jan. 5, 2018, the parties will exchange electronically stored information and hard-copy documents. d. On or before Jan. 22, 2018, the Plaintiffs may file an Amended Complaint, consolidated or otherwise, in response to any motion filed on Dec. 15, 2017, pursuant to RCFC 12(e). e. On or before Feb. 22, 2018, the Government will file any Motion To Dismiss, pursuant to RCFC 12(b)(1)-(7). f. On or before March 22, 2018, the Plaintiffs will file any Response to the Government's Feb. 22, 2018 Motion To Dismiss. g. On or before April 9, 2018, the Government will file any Reply to the March 22, 2018 the Plaintiffs' Response. h. On or before July 20, 2018, the Court will convene an oral argument on the Government's Feb. 22, 2018 Motion To Dismiss. It will determine the date, time, and location of the oral argument in a separate Order. Page limitations for briefs and court filings, set forth in RCFC, are suspended. No extensions of time will be granted, but for extraordinary circumstances. Mr. Bernsen has filed a complaint on behalf of the Individual Plaintiffs. In the event that an indirectly related complaint is filed that seeks class action certification, the Court reserves the right to appoint the Co-Lead Counsel to represent the interests of property owners who may ultimately decide to opt-in to a certified class. A full-text copy of the Court's Nov. 29, 2017 Order is available at https://is.gd/NCUOQP from Leagle.com. MALCOLM ANDRUS, Plaintiff, represented by David Eric Bernsen, Bernsen Law Firm. JACKIE ANDRUS, Plaintiff, represented by David Eric Bernsen, Bernsen Law Firm. ELIZABETH ANN ABBOTT, Plaintiff, represented by David Eric Bernsen, Bernsen Law Firm. CARL ANDERSON, Plaintiff, represented by David Eric Bernsen, Bernsen Law Firm. JAIME ANDERSON, Plaintiff, represented by David Eric Bernsen, Bernsen Law Firm. CHAD ANDERSON, Plaintiff, represented by David Eric Bernsen, Bernsen Law Firm. MARISSA ANDERSON, Plaintiff, represented by David Eric Bernsen, Bernsen Law Firm. DARYL BELL, Plaintiff, represented by David Eric Bernsen, Bernsen Law Firm. TIFFANY BELL, Plaintiff, represented by David Eric Bernsen, Bernsen Law Firm. MARGARET BELL, Plaintiff, represented by David Eric Bernsen, Bernsen Law Firm. USA, Defendant, represented by Kristine Sears Tardiff, U. S. Department of Justice, ENRD Division Natural Resources Section. UNITED STATES: Stetson Named Lead Counsel in "Andrus" Suit ---------------------------------------------------------- In the case captioned ANDRUS, et al., Plaintiffs, v. THE UNITED STATES, Defendant, Case No. 17-1657 L (Fed. Cl.), Judge Susan G. Braden of the U.S. Court of Federal Claims entered an order regarding judicial assignment, appointment of the Plaintiffs' counsel for the purpose of pre-trial discovery, dispositive motions for partial or summary judgment and/or cross-motions pursuant to rule of the U.S. Court of Federal Claims 56 and/or trial on liability, and scheduling. On Nov. 1, 2017, 81 Plaintiffs filed the Complaint alleging the United States Army Corps of Engineers' release of water from the Town Bluff Dam near Jasper, Texas in the wake of Hurricane Harvey resulted in a taking of their respective property, in violation of the Takings Clause of the Fifth Amendment to the United States Constitution. Judge Braden assigned Judge Elaine D. Kaplan of the U.S. Court of Federal Claims is assigned to manage pre-trial discovery and adjudicate all pre-trial dispositive motions. She appointed Ms. Christine L. Stetson at Bernsen Law Firm as the Plaintiffs' Lead Counsel. She ordered that all appointed counsel will be compensated for work on pre-trial discovery issues and dispositive motions, including any subsequent appeals. To ensure the expeditious and orderly management of pre-trial jurisdictional discovery, dispositive motions, and/or a trial on liability, the Judge established the following schedule. a. On or before Feb. 6, 2018, all initial disclosures and electronically stored information and hard copy documents filed in the pre-trial phase of the case, will be provided to opposing counsel. b. On or before March 7, 2018, the Government will file an Answer, pursuant to RCFC 7(a)(2), in response to any Amended Complaint filed on or before Jan. 22, 2018. Thereafter, the parties may conduct discovery, subject to court Order, including any expert discovery, to conclude no later than June 7, 2018. c. On or before June 22, 2018, the Plaintiffs will file a Motion For Summary Judgment, pursuant to RCFC 56. d. On or before July 23, 2018, the Government may file a Response and/or Cross-Motion to Plaintiffs' June 22, 2018 Motion For Summary Judgment. e. On or before Aug. 7, 2018, the Plaintiffs may file a Response to the Government's July 23, 2018 Cross-Motion and/or a Reply to the Government's July 23, 2018 Response. f. On or before Aug. 21, 2018, the Government may file a Reply to Plaintiffs' Aug. 7, 2018 Response. g. On or before Nov. 5, 2018, the Court will convene an oral argument on any dispositive motions. It will determine the date, time, and location of the oral argument in a separate Order. If contested facts preclude disposition of the case on partial or summary judgment, pursuant to RCFC 56, the case will be set for a trial on liability by the assigned judge, at the earliest date available. The page limitations for briefs and court filings, set forth in RCFC, are suspended. No extensions of time will be granted, but for extraordinary circumstances. Ms. Stetson has filed a complaint on behalf of the Individual Plaintiffs. In the event that an indirectly related complaint is filed that seeks class action certification, the Court reserves the right to appoint the Co-Lead Counsel to represent the interests of property owners who may ultimately decide to opt-in to a certified class. A full-text copy of the Court's Nov. 29, 2017 Order is available at https://is.gd/6f3BgN from Leagle.com. MALCOLM ANDRUS, Plaintiff, represented by David Eric Bernsen, Bernsen Law Firm. JACKIE ANDRUS, Plaintiff, represented by David Eric Bernsen, Bernsen Law Firm. ELIZABETH ANN ABBOTT, Plaintiff, represented by David Eric Bernsen, Bernsen Law Firm. CARL ANDERSON, Plaintiff, represented by David Eric Bernsen, Bernsen Law Firm. JAIME ANDERSON, Plaintiff, represented by David Eric Bernsen, Bernsen Law Firm. CHAD ANDERSON, Plaintiff, represented by David Eric Bernsen, Bernsen Law Firm. MARISSA ANDERSON, Plaintiff, represented by David Eric Bernsen, Bernsen Law Firm. DARYL BELL, Plaintiff, represented by David Eric Bernsen, Bernsen Law Firm. TIFFANY BELL, Plaintiff, represented by David Eric Bernsen, Bernsen Law Firm. MARGARET BELL, Plaintiff, represented by David Eric Bernsen, Bernsen Law Firm. USA, Defendant, represented by Kristine Sears Tardiff, U. S. Department of Justice, ENRD Division Natural Resources Section. UNITED STATES: Filing of 1st Amended Suit Against HUD Partly OKd ---------------------------------------------------------------- In the lawsuit captioned ASSOCIATED MORTGAGE BANKERS INC., Plaintiff, v. BEN CARSON, et al., Defendants, Civil Action No. 17- 0075 (ESH) (D. D.C.), Judge Ellen Segal Huvelle of the U.S. District Court for the District of Columbia granted in part and denied in part the Plaintiff's motion for leave to file a first amended complaint. On Jan. 12, 2017, AMB filed its first complaint requesting the Court to (i) set aside the Administrative Judge ("AJ")'s decision as arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with the law in violation of the Administrative Procedure Act ("APA"); (ii) declare HUD to be in breach of the Indemnification Agreement; (iii) enjoin HUD from issuing any administrative offset or referring the debt to Treasury for collection; (iv) certify the matter as a class action with AMB representing a class of similarly-situated lenders; (v) issue a preliminary injunction restraining HUD and its agents from taking action against AMB or the proposed class; and (vi) award AMB attorney's fees and expenses, as well as granting any other proper relief. AMB pleaded two counts in support of its requested relief: (i) violation of the APA ("first APA claim") and (ii) breach of the covenant of good faith and fair dealing ("first contract claim"). On May 23, 2017, the Defendants moved to dismiss for lack of jurisdiction and for failure to state a claim. On Sept. 15, 2017, AMB moved to amend its first complaint, seeking to plead additional facts regarding its original claims. It also seeks to add two new legal claims. First, it wants to add a claim that the Defendants violated the APA by failing to promulgate rules governing the SFLS program and related programs by notice and comment ("notice-and-comment claim"). Second, the Plaintiff seeks to add a claim that HUD's AJs are inferior officers not appointed in accordance with the U.S. Constitution's Appointment Clause, and thus, HUD violated the Constitution and the statute governing administrative offsets by failing to provide review by a person within the agency legally allowed to do so ("Appointments Clause claim"). On Sept. 20, 2017, before ruling on the Plaintiff's motion for leave to file an amended complaint, the Court issued a Memorandum Opinion on the Defendants' motion to dismiss. The Court dismissed with prejudice the Plaintiff's first contract claim as within the Tucker Act's exclusive jurisdiction. It also denied the Defendants' motion to dismiss as to the Plaintiff's first APA claim challenging the AJ's administrative offset decision. However, the Court noted that its review on the first APA claim going forward would be confined to that issue: The action will not include discovery or class certification. After the administrative record is filed, the Court will decide whether the AJ reached her decision in an arbitrary and capricious manner, or otherwise violated an applicable statute or regulation. On Sept. 28, 2017, the Plaintiffs filed a motion for reconsideration of the Court's Memorandum Opinion. On Nov. 15, 2017, the Court issued an opinion denying the Plaintiff's motion, with the exception that it clarified that its dismissal of the contract claim for lack of jurisdiction was without prejudice to refiling in the Court of Federal Claims. Judge Huvelle granted the Plaintiff leave to amend its complaint to add factual allegations related to the first APA claim, the notice-and-comment claim, and the Appointments Clause claim. However, nothing in the Judge's opinion should be read as prejudging the merits of the Plaintiff's notice-and-comment claim or Appointments Clause claim for purposes of a motion to dismiss. She denied in part the Plaintiff's motion for leave to amend to the extent that the Plaintiff may not include its first contract claim, which the Court has already dismissed without prejudice to refiling in the Court of Federal Claims, and thus, Count IV of the proposed amended complaint is stricken. The Judge granted in part the Plaintiff's motion for leave to amend to the extent that the Plaintiff's amended complaint (minus Count IV) will be treated as filed this date. She directed the Defendants to file their responsive pleading consistent with Federal Rule of Civil Procedure 15 and D.C. Local Civil Rule 7(n), on or before Dec. 15, 2017. A full-text copy of the Court's Dec. 1, 2017 Memorandum Opinion and Order is available at https://is.gd/P9d7YK from Leagle.com. ASSOCIATED MORTGAGE BANKERS, INC., on behalf of itself and a class similarly-situated mortgage lenders, Plaintiff, represented by Brian Michael Serafin -- serafin@thewbkfirm.com -- WEINER BRODSKY KIDER PC. ASSOCIATED MORTGAGE BANKERS, INC., on behalf of itself and a class similarly-situated mortgage lenders, Plaintiff, represented by David M. Souders -- souders@thewbkfirm.com -- WEINER BRODSKY KIDER PC. JULIAN CASTRO, in his official capacity as Secretary of the U.S. Department of Housing And Urban Development, Defendant, represented by Kevin Paul VanLandingham, U.S. DEPARTMENT OF JUSTICE Civil Division, Commercial Litigation Branch. U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendant, represented by Kevin Paul VanLandingham, U.S. DEPARTMENT OF JUSTICE Civil Division, Commercial Litigation Branch. WAL-MART STORES: 5th Cir. Denies En Banc Rehearing Bid in "Odle" ---------------------------------------------------------------- In the case, STEPHANIE ODLE, on behalf of herself and all others similarly situated, et al; Plaintiffs, WAL-MART STORES, INCORPORATED, Defendant-Appellee, v. ORALIA FLORES; ROSIE LUJAN; ALICE BISCARDI; DEBBIE HAYWORTH; BRENDA HENDERSON; LINDA MCFADDEN; MARGARITA MURILLO; SANDRA PHELAN, on behalf of themselves and others similarly situated, Movants-Appellants, Case No. 16-10347 (5th Cir.), the U.S. Court of Appeals for the Fifth Circuit denied the Petition for Rehearing En Banc. In the case, the Court faced the issue of whether, following a Rule 41(a)(1)(A)(ii) stipulated dismissal with prejudice by a named plaintiff in a class action, a district court had jurisdiction to entertain a motion to intervene by absent class members seeking to appeal an earlier denial of class certification. It held only that the district court had jurisdiction to consider the motion. It did not express any opinion on whether intervention was warranted. In reaching that conclusion, the Court followed Sommers v. Bank of America. In Sommers, a shareholder sought to intervene in a lawsuit after entry of a stipulated dismissal. It affirmed the district court's denial of the motion to intervene, finding that the motion was untimely. However, it rejected the argument that intervention is always improper after a case has been dismissed. In a substantive footnote, the Court reconciled that conclusion with earlier cases. The Appellant timely filed a motion for rehearing en banc. Treating the Petition for Rehearing En Banc as a Petition for Panel Rehearing, the Court denied the Petition for Panel Rehearing. Having been polled at the request of one of the members of the Court and a majority of the judges who are in regular active service and not disqualified not having voted in favor, it denied the Petition for Rehearing En Banc. In the poll, five judges voted in favor of rehearing en banc, and nine voted against. The dissenting opinion criticized both Odle and Sommers, arguing that they are contrary to Supreme Court precedent, the Court's prior case law, a prominent treatise, and other circuits' decisions. With respect, the dissenting opinion failed to cite any precedent showing that either Sommers or Odle are error. The Appellate Court held that neither Sommers nor Odle is in conflict with any authority from either the Supreme Court, or the Appellate court, or its sister courts. To the contrary, overruling Odle and Sommers would create a circuit split on the issue presented. The Court respectfully declined the dissenting opinion's invitation to do so and concurs in the Court's denial of en banc review. A full-text copy of the Court's Dec. 1, 2017 Order is available at https://is.gd/Y877eP from Leagle.com. Hal K. Gillespie -- josephgillespie@grwlawfirm.com -- for Movant- Appellant. Theodore J. Boutrous, Jr. -- tboutrous@gibsondunn.com -- for Defendant-Appellee. Karl G. Nelson -- knelson@gibsondunn.com -- for Defendant- Appellee. Joseph M. Sellers -- jsellers@cohenmilstein.com -- for Movant- Appellant. Christine E. Webber -- cwebber@cohenmilstein.com -- for Movant- Appellant. Catherine Anne Conway -- cconway@gibsondunn.com -- for Defendant- Appellee. Mark Andrew Perry -- mperry@gibsondunn.com -- for Defendant- Appellee. Rachel Susan Brass -- rbrass@gibsondunn.com -- for Defendant- Appellee. Michelle L. Maryott -- mmaryott@gibsondunn.com -- for Defendant- Appellee. WELLS FARGO: Court Reserves Ruling Bid to Arbitrate "Mitchell" -------------------------------------------------------------- In the case, LAWRENCE J. MITCHELL, et al., Plaintiffs, v. WELLS FARGO BANK, et al., Defendants, Case No. 2:16-cv-00966-CW-DBP (D. Utah), Judge Clark Waddoups of the U.S. District Court for the District of Utah, Central Division, reserved ruling on Well Fargo's Motion to Compel Arbitration. In September 2016, news broke that Wells Fargo had entered into a consent order including penalties of $185 million with three governmental agencies, after investigations revealed that Wells Fargo had opened millions of unauthorized accounts and products without consumer knowledge. Investigations have concluded that sales practice violations were widespread and recognized within the company for many years. In August 2017, Wells Fargo announced that a third-party review had revealed more potentially unauthorized cases, bringing the total reported unauthorized accounts, credit cards, and other services between 2009 and 2016 to about 3.5 million. On Oct. 3, 2017, Wells Fargo's new CEO, Tim Sloan, testified in front of the Senate Banking Committee about this latest disclosure, as well as Wells Fargo's use of forced mandatory arbitration of these disputes. On Sept. 16, 2016, in the midst of the public scandal, individuals residing in Utah and many other states filed the action against Wells Fargo. Sixty-seven Plaintiffs have sued Wells Fargo Bank, N.A. and Wells Fargo & Co. for engaging in various unauthorized and fraudulent activities using their personal information. The Plaintiffs have amended their complaint three times, most recently their currently operative Third Amended Complaint on June 27, 2017. They pursue several legal theories against Wells Fargo, including violations of Utah law protecting privacy and personal information; the Stored Communications Act; the Gramm-Leach-Bliley Act; the Fair Credit Reporting Act; anti-tying violations; the Racketeer Influenced and Corrupt Organizations Act ("RICO"); electronic mail fraud; conversion; fraud and misrepresentation; unjust enrichment; intentional/negligent infliction of emotional distress; and declaratory and injunctive relief. The Plaintiffs seek class certification; an injunction enjoining Wells Fargo from further misconduct; compensatory, statutory, and punitive damages (in excess of $1 billion); and costs and attorneys' fees. They purport to represent a class of individuals who opened accounts with or purchased services from Wells Fargo, or a bank later acquired by Wells Fargo, and/or were notified that Wells Fargo had opened an account or service on their behalf without their knowledge or consent, and who thereby suffered damages from the unauthorized and fraudulent activities. On Nov. 23, 2016, Wells Fargo moved to compel arbitration as to 58 of the 80 Named Plaintiffs and sought to dismiss the Second Amended Complaint. In light of the amended pleading, the Court denied Wells Fargo's motions to compel and dismiss without prejudice and set a briefing schedule for refiling. It also facilitated the parties' efforts to identify information about 21 Named Plaintiffs whom Wells Fargo had not been able to identify, to determine whether these Plaintiffs were also potentially subject to arbitration agreements. On Sept. 18, 2017, Wells Fargo renewed its Motion to Compel Arbitration as to 65 out of the 67 Plaintiffs remaining in the case. The Court heard argument on Oct. 31, 2017. Judge Waddoups finds that a summary trial is necessary to resolve the disputes of fact identified as to the formation of agreements to arbitrate between Wells Fargo and the specific Plaintiffs identified, as well as the Plaintiffs who opened accounts prior to 2003 and who had accounts converted (excluding those Plaintiffs who opened newer accounts with Wells Fargo directly) and the Plaintiffs with business accounts. He recognizes that Wells Fargo drafted broad language in its CAAs attempting to submit arbitrability issues to the arbitrator, but viewing the principles articulated by the Supreme Court in the context of these facts, the Judge is not prepared to rule as a matter of law that the Plaintiffs agreed to delegate threshold questions. He concludes that factual questions exist regarding the formation of delegation agreements with the consumer account the Plaintiffs. In light of the many questions around the Plaintiffs' initial engagement and contracting with Wells Fargo, and the varied fraudulent conduct alleged, the case, according to the Judge, raises a question of fact on whether enforcing the delegation provision would be unconscionable in these circumstances. Regarding procedural unconscionability, courts acknowledge that standardized consumer contracts are generally adhesive, and that the adhesion contract drafter holds superior, if not all, bargaining power. Moreover, Mr. Sloan's testimony to Congress, given under oath, that Wells Fargo is no longer pursuing mandatory arbitration in these cases raises a question of fact as to whether the company made an intentional waiver in this matter. Wells Fargo does not argue that Mr. Sloan's statements could not have bound the company; it merely argues that they do not show a knowing waiver. This is a question of fact that can be resolved in a summary trial. For these reasons, Judge Waddoups reserved ruling on Well Fargo's Motion to Compel Arbitration. He will resolve material issues of fact regarding the existence of certain arbitration agreements, the parties' intent to delegate questions of arbitrability and the potential unconscionability of doing so in these circumstances, and the possibility that Wells Fargo intentionally waived its right to arbitrate through its CEO's statements under oath to Congress that it is no longer pursuing arbitration in these cases. Upon entry of the Order, the Judge will set a telephonic status conference with the parties for Dec. 1, 2017 at 2 p.m. to discuss the timing for the summary trial and procedures. In order to comply with Section 4 of the Act, he directed that the parties should come prepared to discuss the anticipated trial length and whether a jury is requested, as well as whether a trial date in early or mid-January would be feasible. Finally, if either party contends that the contract issues in the case are governed by some law other than Utah law, that party will file a supplemental brief citing the factual and legal basis for its position within 30 days of the order. A full-text copy of the Court's Nov. 29, 2017 Memorandum Decision and Order is available at https://is.gd/B0y7da from Leagle.com. Lawrence J. Mitchell, Plaintiff, represented by Zane L. Christensen, CHRISTENSEN YOUNG & ASSOCIATES. Lawrence J. Mitchell, Plaintiff, represented by Steven A. Christensen, CHRISTENSEN YOUNG & ASSOCIATES PLLC. Kay Mitchell, Plaintiff, represented by Zane L. Christensen, CHRISTENSEN YOUNG & ASSOCIATES & Steven A. Christensen, CHRISTENSEN YOUNG & ASSOCIATES PLLC. Matthew C. Bishop, Plaintiff, represented by Zane L. Christensen, CHRISTENSEN YOUNG & ASSOCIATES & Steven A. Christensen, CHRISTENSEN YOUNG & ASSOCIATES PLLC. Tracy Kilgore, Plaintiff, represented by Zane L. Christensen, CHRISTENSEN YOUNG & ASSOCIATES & Steven A. Christensen, CHRISTENSEN YOUNG & ASSOCIATES PLLC. Jennifer K. Zeleny, Plaintiff, represented by Zane L. Christensen, CHRISTENSEN YOUNG & ASSOCIATES & Steven A. Christensen, CHRISTENSEN YOUNG & ASSOCIATES PLLC. Joseph W. Steele, V, Plaintiff, represented by Zane L. Christensen, CHRISTENSEN YOUNG & ASSOCIATES & Steven A. Christensen, CHRISTENSEN YOUNG & ASSOCIATES PLLC. Scott Westin, Plaintiff, represented by Zane L. Christensen, CHRISTENSEN YOUNG & ASSOCIATES & Steven A. Christensen, CHRISTENSEN YOUNG & ASSOCIATES PLLC. Bruce Bird, Plaintiff, represented by Zane L. Christensen, CHRISTENSEN YOUNG & ASSOCIATES & Steven A. Christensen, CHRISTENSEN YOUNG & ASSOCIATES PLLC. Allen Roberts, Plaintiff, represented by Zane L. Christensen, CHRISTENSEN YOUNG & ASSOCIATES & Steven A. Christensen, CHRISTENSEN YOUNG & ASSOCIATES PLLC. Wells Fargo Bank, Defendant, represented by David H. Fry -- David.Fry@mto.com -- MUNGER TOLLES & OLSON LLP, pro hac vice, Elaina M. Maragakis -- emaragakis@rqn.com -- RAY QUINNEY & NEBEKER, Eric P. Tuttle -- Eric.Tuttle@mto.com -- MUNGER TOLLES & OLSON LLP, pro hac vice, Erin J. Cox -- Erin.Cox@mto.com -- MUNGER TOLLES & OLSON LLP, pro hac vice, James S. Jardine, RAY QUINNEY & NEBEKER & Michael D. Mayfield -- mmayfield@rqn.com -- RAY QUINNEY & NEBEKER. Wells Fargo & Company, Defendant, represented by David H. Fry, MUNGER TOLLES & OLSON LLP, pro hac vice, Elaina M. Maragakis, RAY QUINNEY & NEBEKER, Eric P. Tuttle, MUNGER TOLLES & OLSON LLP, pro hac vice, Erin J. Cox, MUNGER TOLLES & OLSON LLP, pro hac vice, James S. Jardine, RAY QUINNEY & NEBEKER & Michael D. Mayfield, RAY QUINNEY & NEBEKER. WESTMINSTER MANAGEMENT: Asks Judge to Hide Names of Investors ------------------------------------------------------------- Doug Donovan, writing for The Baltimore Sun, reports that the apartment company owned by Jared Kushner, senior advisor and son- in-law of President Donald J. Trump, has asked a federal judge in Maryland to hide the names of the firm's investors to protect them from what it says has been unfair media coverage of a lawsuit filed by Baltimore-area tenants. "Given the tenor of the media's reporting of this case, including politically-motivated innuendo no doubt intended to disparage the First Family, there is foreseeable risk of prejudice to the privacy rights and reputations of innocent private investors," Westminster Management wrote in court papers. Two tenants filed a class-action lawsuit in Baltimore Circuit Court in late September saying the firm has charged them improper fees and threatened eviction to force payment. A judge moved the case to the U.S. District Court of Maryland after Westminster invoked a rule that allows such a transfer if the defendants are not residents of or companies in Maryland. Westminster Management said in a court filing that four of its members reside in other states: Kushner, "a resident of New York, New York and Washington, D.C.," his parents, Charles and Seryl Kushner of New York, and Westminster MGT GP Corp. of New York. In a separate filing, Westminster says Jared Kushner and his brother, Josh, are members of another corporate entity, JK2 Westminster, and that all are based in New York. Another entity, Carroll Park Holdings LLC, has one member, Delaware-based Middle River JV LLC. Jared Kushner and Ivanka Trump moved to Washington this year after both became White House advisers for President Trump. Jared Kushner was CEO of the Kushner Cos., the parent company of Westminster Management, from 2008 until Jan. 19, when he stepped down to join the Trump administration. He retains ownership of the firm. The companies being sued by the tenants still need to prove to the court that none of their investors are Maryland residents or companies to keep the case in federal court. Westminster Management operates 17 apartment complexes in Maryland, mostly in Baltimore County. In its filing of Nov. 20, Westminster asked Chief Judge James K. Bredar to shield the identities of other investors because there is "unprecedented interest in this case." The media have been "making outrageous allegations, and assigning guilt and illegal conduct not only to the Defendants but to their investor members and the families of those members (including the Trump and Kushner families)," Westminster says. "There has been widespread coverage of those allegations as if fact, when they have not been substantiated." Westminster says publicly revealing the names of additional investors would deprive them of their privacy and of their right to an impartial decision by the court "versus the court of public opinion." The company says it can prove to the court, under seal, that none of the additional investors are residents or companies in Maryland. "Defendants' remote and private investors are understandably reticent to have their identities exposed to similar media disclosure, scrutiny, speculation, and scorn," Westminster says. The company included a Sept. 27 Baltimore Sun article about the lawsuit as an exhibit. Tenants Tenae Smith, who lives in Dutch Village apartments in Northeast Baltimore, and Howard Smith, who lives in the Carroll Park apartments in Middle River in Baltimore County, are seeking damages in excess of $75,000 and attorneys' fees. They want their lawsuit to be certified as a class action. An attorney for the plaintiffs, Andrew D. Freeman, said he had no comment about the Westminster filing. Westminster said the judge needs to rule on what right the public has to know the identities of "private investors/members of remote companies and partnerships not involved in the day-to-day operations," especially since no allegations have been made against them. "The identities of Defendants' private investors also has absolutely no bearing on the merits of the complaint before the Court in this case," the company says. The investors have the right "to be free from unfair sensationalism by journalists and entertainers." [GN] WILLIS TOWERS: Pension Fund Files Class Action Over 2016 Merger --------------------------------------------------------------- Rob Lenihan, writing for Business Insurance, reports that Willis Towers Watson CEO John Haley is named in a class action lawsuit over the 2016 merger. A Massachusetts city pension fund filed a class action lawsuit against Willis Towers Watson P.L.C., its chief executive and others, charging that investors were misled into accepting the massive 2016 merger deal that created the insurance broking giant. The case of Cambridge Retirement System vs. Willis Towers Watson & Co., Willis Group Holding plc, Towers Watson & Co., ValueAct Capital Management, John J. Haley, Dominic Casserley, and Jeffrey W. Ubben was filed on November 21 in the U.S. District Court for the Eastern District of Virginia and alleges the merger of Willis and Towers Watson violated the Securities Exchange Act of 1934. The $18 billion deal, which brought together London-based brokerage Willis Group Holdings P.L.C. and New York-based consulting firm Towers Watson & Co., was completed in January 2016. John Haley is the current CEO of Willis Towers Watson and Dominic Casserley was CEO of Willis from 2013 until his resignation in 2016. Jeffrey W. Ubben is the CEO of San Francisco-based investment company ValueAct Capital Management, the largest shareholder of Willis at the time of the merger, according to court documents. The complaint said that on June 30, 2015, Towers Watson and Willis announced the merger agreement, where Towers Watson stockholders would receive 2.649 shares of Willis stock and a $4.87 per share cash dividend in exchange for each Towers Watson share. Towers Watson shareholders would own 49.9% of the combined entity, with Willis shareholders owning the remaining majority. "The merger required the approval of a majority of Towers shareholders," the complaint said, "and it became immediately apparent that many Towers shareholders were dissatisfied with the consideration they would receive in the deal." The complaint said the Towers' board of directors saw the waning shareholder support for the originally agreed upon merger and authorized Mr. Haley, Towers chairman and CEO, to renegotiate the deal terms, including both the exchange ratio and the cash dividend "Haley, however," the complaint said, "had an economic incentive for the deal to be consummated and when he recognized that Towers shareholders would likely reject the deal, Mr. Haley conspired with Willis executives and a major Willis shareholder, ValueAct, to secretly help them execute this transaction." The complaint alleges that Mr. Haley decided to "sell out" Towers Watson shareholders in exchange for an undisclosed promise of a three-year, $165 million pay package when he became CEO of the merged company. In return, the complaint said, Mr. Haley did not negotiate to maximize the value of Towers shares and instead worked to persuade Towers' board and shareholders that "a meager $5 increase in the special dividend was the most he could extract from Willis." "As a result of Haley's disloyalty and self-dealing," the complaint said, "many of the representations made to investors in the Towers and Willis joint proxy materials were false and misleading." Among other things, the complaint said, the proxy materials omitted the fact that Mr. Haley negotiated his compensation as the future CEO of the combined entity, and that several statements made by Mr. Haley in support of the merger were secretly "ghostwritten" by ValueAct. A Willis Towers Watson spokesman declined to comment on the lawsuit and ValueAct did not respond to a request for comment. Mr. Casserly is a senior advisor with New York private equity firm Warburg Pincus and a spokeswoman for the firm declined to comment. The class action was brought on behalf of all Towers Watson shareholders of record as of October 2, 2015, the record date for shareholders to be eligible to vote on the merger between Towers and Willis. Cambridge Retirement System represents about 5,900 active and retired public employees from Cambridge, Massachusetts, and manages more than $1.2 billion in assets to provide for them in retirement, according to the complaint. WISCONSIN: CCI Inmates' Bid for Class Certification Denied ---------------------------------------------------------- In the case captioned EFRAIN CAMPOS, JUAN NIETO, and STANLEY NEWAGO, Plaintiffs, v. MICHAEL DITTMAN, LINDA ALSUM O'DONOVAN, DAVID KURKOWSKI, LUCAS M. WEBER, KEVIN W. PITZEN, BRAD HOMRE, and CINDY O'DONNELL, Defendants, Case No. 17-cv-545-jdp (W.D. Wis.), Judge James D. Peterson of the U.S. District Court for the Western District of Wisconsin denied Campos' motion for class certification and granted Nieto's motion for an extension. Pro se Plaintiffs Campos, Nieto, and Newago are inmates in the custody of the Wisconsin Department of Corrections ("DOC") currently housed at the Columbia Correctional Institution ("CCI"). They bring the proposed class action under 42 U.S.C. Section 1983 alleging that Defendants, CCI and DOC officials, terminated them from their prison work assignments in retaliation for their comments during a prison investigation and in violation of their procedural due process and equal protection rights. In an Oct. 31, 2017 order, Judge Peterson reviewed their complaint and concluded that it did not meet the pleading requirements of Federal Rule of Civil Procedure 8. He set a deadline of Nov. 21, 2017, for the Plaintiffs to file an amended complaint alleging facts showing each of the Defendant's retaliatory or improper purpose in terminating them. He also denied their motion for certification of a class action. Now Campos has filed an amended complaint and a renewed motion for class certification. Nieto has requested a 30-day extension of the deadline, explaining that he needs additional time to translate court documents into English. Judge Peterson already explained that each of the Plaintiffs must sign all papers submitted to the court when returning the initial complaint for the signatures of the other Plaintiffs. He says it appears that Campos intends to be the sole representative for the proposed class, including each of the Named Plaintiffs. But a pro se litigant cannot bring a class action on behalf of others. Nor can a pro se litigant represent another individual litigant. Therefore, the Judge denied Campos' motion for class certification, granted Nieto's motion for an extension, set Dec. 22, 2017 as a new deadline for them to file an amended complaint alleging facts that show that each of the Defendant acted with a retaliatory or improper purpose, and will delay screening the amended complaint until that deadline has passed. If the Judge has not received an amended complaint bearing Nieto's or Newago's signature by the deadline, he will dismiss them from the lawsuit and proceed solely with the signed Plaintiffs' claims. A full-text copy of the Court's Dec. 1, 2017 Opinion and Order is available at https://is.gd/Ul8zpg from Leagle.com. Efrain Campos, Plaintiff, Pro Se. Juan Nieto, Plaintiff, Pro Se. Stanley Newago, Plaintiff, Pro Se. Michael Dittman, Defendant, represented by Corey Francis Finkelmeyer -- federalorderscl@doj.state.wi.us -- Wisconsin Department of Justice. WOLFGANG'S STEAKHOUSE: N.Y. Court Dismisses FACTA Class Action -------------------------------------------------------------- David M. Poell, Esq. -- dpoell@sheppardmullin.com -- of Sheppard, Mullin, Richter & Hampton LLP, in an article for The National Law Review, wrote that in the latest installment of what has become a quickening trend, a New York federal court recently dismissed another yet putative FACTA class action for lack of Article III standing. On her fourth (and final) attempt, the court in the case (Fullwood v. Wolfgang's Steakhouse, Inc.) held the plaintiff once again failed to plead a concrete injury against a New York City steakhouse that provided her with a receipt displaying the full expiration date of her credit card in 2013. Although plaintiff did not allege that she had been a victim of identity theft or credit card fraud, she nonetheless sought statutory damages of "$100 to $1,000" on behalf of herself and a nationwide class of similar situated customers who had dined at a Wolfgang's steakhouse and received a credit card receipt with an expiration date. The district court had granted defendants' motion to dismiss plaintiff's third amended complaint after joining the chorus of other courts holding that a mere technical violation of FACTA -- without more -- does not result in any actionable harm. The fourth time around, plaintiff tried to salvage her case by alleging that she had used credit cards for previous purchases from defendants, received credit card receipts, and then threw out those earlier receipts "without burning them or otherwise destroying them." Relying on a trilogy of recent Supreme Court and Second Circuit cases, the court held that a bare procedural violation -- in the absence of allegations of concrete harm -- does not confer Article III standing. Finding that any attempt at amending her complaint would be futile considering controlling case law, the court dismissed plaintiff's case with prejudice. Putting it Into Practice: This case is a reminder that while plaintiffs may continue to bring FACTA cases when companies display a full expiration date on a credit card, courts are less willing to allow these cases to continue when plaintiffs cannot establish harm. For all intents and purposes, run-of-the-mill FACTA claims are now an extinct breed in the Second Circuit, as well as in the Seventh Circuit. XE SERVICES: Court Dismisses "Mercadante" ERISA Suit w/ Prejudice ----------------------------------------------------------------- Judge Colleen Kollar-Kotelly of the District Court for the District of Columbia dismissed with prejudice the case styled C.J. MERCADANTE, et al., Plaintiffs, v. XE SERVICES, LLC, et al., Defendants, Civil Action No. 11-1044 (CKK) (D. C.). Nearly three years ago, the Court ordered the Plaintiffs to pursue arbitration on the threshold issue of whether their claims are arbitrable. Since that time, the Plaintiffs have made only anemic attempts to initiate arbitral proceedings, and in their most recent communications with the Court, have admitted that they will not pursue arbitration any further. Although the Plaintiffs continue to represent that they oppose dismissal, there is no question that they have made the strategic decision to not pursue arbitration in order to compel dismissal of the lawsuit, so that they may pursue an appeal to the U.S. Court of Appeals for the District of Columbia Circuit. Presently before the Court are the Defendants' Motion to Dismiss and Motion to Reinstate the Motion to Dismiss. The Defendants seek dismissal of the lawsuit pursuant to Federal Rule of Civil Procedure 41(b) for the Plaintiffs' failure to prosecute the action in accordance with the Orders of the Court. In a prior Memorandum Opinion, the Court held the Motion to Dismiss in abeyance, providing the Plaintiffs with one final opportunity to move forward with the arbitration proceedings, despite concluding that they had failed to pursue their case with the requisite diligence. The Plaintiffs have intentionally squandered that opportunity. The Court has provided the Plaintiffs with every reasonable accommodation to comply with the Orders of the Court. The Plaintiffs have not done so, and by their own admission, will not do so. For these reasons, Judge Kollar-Kotelly concludes that the Plaintiffs have presented no adequate excuse for failing to comply with the Court's order that they proceed to arbitration. They have failed to prosecute their case and failed to comply with Court Orders. Accordingly, he granted the Defendants' Motion to Reinstate and Motion to Dismiss. The matter is dismissed with prejudice. An appropriate Order accompanies the Memorandum Opinion. A full-text copy of the Court's Nov. 29, 2017 Memorandum Opinion is available at https://is.gd/5IRxjy from Leagle.com. C. J. MERCADANTE, Plaintiff, represented by Scott J. Bloch, SCOTT J. BLOCH, PA. ROBERT BIDDLE, Plaintiff, represented by Scott J. Bloch, SCOTT J. BLOCH, PA. JOHNNY JEFFERSON, Plaintiff, represented by Scott J. Bloch, SCOTT J. BLOCH, PA. PHILLIP W. OHARA, Plaintiff, represented by Scott J. Bloch, SCOTT J. BLOCH, PA. XE SERVICES, LLC, Defendant, represented by Rene E. Thorne -- ThorneR@jacksonlewis.com -- JACKSON LEWIS LLP, pro hac vice, Charles F. Seemann, III -- Charles.Seemann@jacksonlewis.com -- JACKSON LEWIS LLP, pro hac vice & Matthew F. Nieman, JACKSON LEWIS P.C.. U.S. TRAINING CENTER, INC., Defendant, represented by Rene E. Thorne, JACKSON LEWIS LLP, pro hac vice, Charles F. Seemann, III, JACKSON LEWIS LLP, pro hac vice & Matthew F. Nieman -- NiemanM@jacksonlewis.com -- JACKSON LEWIS P.C.. BLACKWATER SECURITY CONSULTING, LLC, Defendant, represented by Rene E. Thorne, JACKSON LEWIS LLP, pro hac vice, Charles F. Seemann, III, JACKSON LEWIS LLP, pro hac vice & Matthew F. Nieman, JACKSON LEWIS P.C.. BLACKWATER WORLDWIDE, Defendant, represented by Rene E. Thorne, JACKSON LEWIS LLP, pro hac vice, Charles F. Seemann, III, JACKSON LEWIS LLP, pro hac vice & Matthew F. Nieman, JACKSON LEWIS P.C.. BLACKWATER TRUST AND PLAN TRUSTEES, Defendant, represented by Rene E. Thorne, JACKSON LEWIS LLP, pro hac vice, Charles F. Seemann, III, JACKSON LEWIS LLP, pro hac vice & Matthew F. Nieman, JACKSON LEWIS P.C.. XPO LOGISTICS: Faces "Alderson" Suit Over Failure to Pay Overtime ----------------------------------------------------------------- Gregory Alderson, individually and on behalf of all others similarly situated v. XPO Logistics Freight, Inc., Case No. 7:17- cv-09329-KMK (S.D.N.Y., November 28, 2017), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. XPO Logistics Freight, Inc. owns and operates a transportation and logistics company located at 99 Washington Avenue Suite 1008 Albany, New York, 12260. [BN] The Plaintiff is represented by: Benjamin D. Weisenberg, Esq. THE OTTINGER FIRM, P.C. 401 Park Avenue South New York, NY 10016 Telephone: (212) 571-2000 Facsimile: (212) 571-0505 E-mail: benjamin@ottingerlaw.com YELP INC: 9th Cir. Upholds Dismissal of Securities Class Action --------------------------------------------------------------- Shearman & Sterling LLP, in an article for Lexology, wrote that on November 21, 2017, the United States Court of Appeals for the Ninth Circuit affirmed a dismissal by Judge Jon S. Tigar of the United States District Court for the Northern District of California of a putative class action against Yelp, Inc. ("Yelp") and three of its senior executives. Curry, et al. v. Yelp, Inc., et al., Case No. 16-15104 (9th Cir. Nov. 21, 2017). Plaintiffs brought claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 ("Exchange Act"), alleging that Yelp made material misstatements regarding the authenticity and independence of the reviews posted by users on its website, and that those misstatements, when brought to light in media reports, caused Yelp's stock value to drop. The district court dismissed with prejudice plaintiffs' amended complaint, finding that plaintiffs failed to sufficiently allege material false statements, loss causation, and scienter. The Ninth Circuit affirmed the district court's decision, concluding that plaintiffs failed to adequately allege loss causation and scienter. And holding that the amended complaint fell short of the "demanding standards set for claims of federal securities law violations." Plaintiffs' allegations focused on statements made by Yelp -- over several months in late 2013 to early 2014 -- that the reviews on its website were "firsthand" and "authentic." On April 2, 2014, after the market had closed, The Wall Street Journal ("WSJ") reported on certain disclosures from the Federal Trade Commission ("FTC") that businesses had filed over 2,000 complaints against Yelp for tampering with reviews. According to plaintiffs, in some instances, these customer complaints contended that Yelp employees would remove good reviews, or promote bad reviews, depending on whether businesses agreed (or not) to advertise with Yelp. Plaintiffs alleged that the disclosure of these complaints and the release of the WSJ article had caused Yelp's stock price to drop 6% that day. As such, plaintiffs alleged that Yelp's statements that the reviews on its website were "authentic" and "independent" constituted material misstatements that were actionable under the Exchange Act. The district court held that plaintiffs did not sufficiently plead material falsity because Yelp had previously publicly acknowledged that its screening of reviews was imperfect, and therefore "no reasonable investor could have understood Defendants' statements to mean that all Yelp reviews were authentic. The district court further found plaintiffs' loss causation allegations lacking because plaintiffs did not allege that there was fraud on the market, but that there was only potential fraud, which does not meet the particularity requirements of the Private Securities Litigation Reform Act ("PSLRA"). In addition, the district court found plaintiffs' allegations were insufficient to connect the drop in price of Yelp's stock to the FTC disclosures that were reported by the WSJ--in part because the WSJ article was published after the market closed on the day that the alleged stock drop occurred--and that plaintiffs failed to sufficiently allege scienter against the individual defendants. Accordingly, because plaintiffs' Section 10(b) claim failed, the district court found that plaintiffs' derivative Section 20(a) claim similarly failed. On appeal, the Ninth Circuit affirmed the decision of the district court, concluding that plaintiffs did not adequately plead loss causation or scienter. Regarding loss causation, the Ninth Circuit reaffirmed that to prove loss causation, the plaintiff "must demonstrate a causal connection between the deceptive acts that form the basis for the claim of securities fraud and the injury suffered by the plaintiff." Here, plaintiffs alleged that the disclosure of the customer complaints and related WSJ article caused the drop in Yelp's stock price as reported by various sources. Citing its decision in Loos v. Immersion Corp., 762 F.3d 880 (9th Cir. 2014), the Ninth Circuit held that "[a]lthough a securities fraud plaintiff need not allege an outright admission of fraud to survive a motion to dismiss, the 'mere risk or potential for fraud is insufficient to establish loss causation.'" Accordingly, the customer complaints made to the FTC without a subsequent investigation fell short of "revealing" fraudulent practices to the market. The Court emphasized that under the PSLRA, "the element of loss causation cannot be adequately made out merely by resting on a number of customer complaints and asserting that where there is smoke, there must be fire." Therefore, the Court affirmed the district court's decision that the disclosure of customer complaints, some of which referred to allegations of fraud, were insufficient to allege loss causation. Turning to the issue scienter, the Ninth Circuit affirmed the district court's ruling for two separate reasons. First, in response to plaintiffs' contention that the individual defendants' high volume of insider sales supports a strong inference of scienter, the Court held that plaintiffs failed to produce any evidence of the individual defendants' prior trading history, which is necessary when pleading scienter based on individual defendants' stock trades during the putative class period. The Court emphasized that in order to support an inference of scienter, stock sales must be "dramatically out of line with prior trading practices at times calculated to maximize the personal benefit from undisclosed inside information." Therefore, because plaintiffs failed to produce any evidence of the individual defendants' prior stock sales, plaintiffs' allegations were insufficient to establish scienter. Notably, the Court cited the publicly-filed Form 4s in the record which indicated that "the vast majority" of the individual defendants' stock sales were made pursuant to a Rule 10b5-1 trading plan, which allows for stock sales over a predetermined period "without concern for the market." Second, the Court held that the individual defendants' alleged general awareness of the day-to-day business of the company, such as its advertisement sales practices, cannot, without more, establish scienter. In this regard, plaintiffs did not allege that any of the individual defendants had specific information regarding the alleged manipulation of reviews when they were trying to sell advertising and did not personally oversee reviews or have notice of how some advertising was garnered. The Court cited to the fact that the alleged 2,000 customer complaints represented a very small percentage of the 53 million reviews that Yelp maintained on its platform, which further undermined any inference of scienter. For these reasons, the Court found that plaintiffs did not meet the heightened pleading standards of the PSLRA. Because plaintiffs' Section 10(b) claim failed, the Ninth Circuit similarly affirmed the district court's dismissal of plaintiffs' derivative Section 20(a) claim against the individuals defendants. The Court also upheld the district court's denial of plaintiffs' request for leave to amend, holding that plaintiffs' first amended complaint failed to address the deficiencies in their original complaint despite explicit warnings from the district court, and that it was "clear that further amendment . . . would be futile." This decision serves as an important reminder that plaintiffs must meet the heightened specificity requirements of the PSLRA in support of securities fraud allegations. Allegations that amount to "where there is smoke, there must be fire," will not suffice. This decision also serves as a reminder that plaintiffs must specifically address the deficiencies found in prior pleadings when granted leave to amend and, when they fail to do so, courts often will not give them another bite at the apple. YUMS CHINESE: "Wei" Suit Seeks Unpaid Overtime Wages under FLSA --------------------------------------------------------------- Wei Guo Shi and Li Ming Yan individually and on behalf all other employees similarly situated, the Plaintiff, v. Yums Chinese Restaurant. d/b/a/ Yum's Subs, and Mei Ling Lin aka Mei Ling Chen, the Defendant, Case No. 2:17-cv-02900-JPM-cgc (W.D. Tenn., Dec. 14, 2017), seeks to recover unpaid wages and overtime compensation, liquidated damages, attorneys' fees, and costs, pursuant to the Fair Labor Standards Act of 1938. According to the complaint, Defendants own a chain of restaurants located in Memphis, Tennessee, violating the FLSA by forcing its employees to work a substantial amount of overtime without properly paying all compensation due, thus depriving them of rightful compensation for their work that Defendants are legally obligated to pay. The Plaintiffs worked for Defendants as cooks and restaurant workers at Yum's Subs located at Memphis, Tennessee and was damaged by their illegal policy and/or practices. The Plaintiffs bring this lawsuit on behalf of themselves and all others similarly situated current or former, hourly-paid Yum's Subs restaurant workers, including cooks and dishwashers, to recover owed to them individually and on behalf of all other similarly situated individuals.[BN] Attorneys for Plaintiffs: Jian Hang, Esq. HANG & ASSOCIATES, PLLC. 136-18 39th Ave., Suite 1003 Flushing, NY 11354 Telephone: (718) 353 8588 E-mail: jhang@hanglaw.com * Elmira Housing Authority Wins Class Action Against D.C. Firm -------------------------------------------------------------- Isabel Garcia, writing for WENY, reports that The Elmira Housing Authority (EHA) is expecting to get financial boost after finding the results of a class action lawsuit they were involved in for years. "Well, we won!" says Executive Director, James Mirando. In 2012 , the Elmira Housing Authority had about $400,000 taken from its reserve account to help fund the federal government. As a result of those depleted funds, the agency suffered in receiving subsidies in later years. Subsidies are typically granted to housing agencies based on a number of different factors, including bond ratings which are partially determined based on reserve funds. Mr. Mirando says EHA was downgraded from a AAA to an A, subsequently awarding EHA with less subsidies. "Back in 2014, we only got 60%. That's because we had some excess reserves, and the government -- at the time, the Secretary of Housing, whose name was Donovan, was looking at ways in order to get in tight with the President and he was trying to cut the deficit," Mr. Mirando says. That's when EHA entered into a class action lawsuit with hundreds of other New York housing agencies with a firm from Washington, D.C. After years of legal battle, a final decision was in their favor. "We were looking for approximately $200,000. We're only going to be getting $120,000. Well, $120,000 is better than nothing to be very honest with you! Right now, for the past four years, our subsidies haven't been more than 84%" Mr. Mirando explains. Mr. Mirando says the agency is in critical need of those funds for operational and maintenance costs. As far as when EHA will see it reflected in its bank account is yet to be determined. "We're constantly doing repairs, repairs and repairs. Whatever we get it goes back into the buildings. Our reserves are basically depleted," he says. "This last communication that I got from the Cohen & Lions Law- firm was back on August 31st, and they told us, 'Send us your bank account number and so forth, we're going to forward you the money'. . . Well, we haven't seen it yet," Mr. Mirando continues. Mr. Mirando explains that at this point and time, it's up to Congress to ensure those funds are given to the Elmira Housing Authority. [GN] * "Natural" Class Action Reflects Rise in Food Litigation --------------------------------------------------------- Charles Sipos and Mica Simpson, writing for The National Law Journal, report that scattered among the dictionary definitions for "natural," one reads: "formulated by human reason alone rather than revelation." This definition comes to mind when considering recent decisions in the proliferating world of food labeling class actions challenging use of the term "natural." In these cases, judicial "reason alone" is increasingly doing away with complaints alleging far-fetched notions of what the word "natural" means to consumers. The "natural" class action reflects the rise in litigation against food and beverage manufacturers over the past 10 years. In a typical case, plaintiffs allege the defendant misleadingly labels its product as "natural," despite the product containing something the plaintiff considers "unnatural." * Vaginal Mesh Products Banned in Australia After Class Action -------------------------------------------------------------- Kate Darvall, writing for Daily Mail Australia and Australian Associated Press, reports that vaginal mesh implants have been banned in Australia after more than 700 women who were left in horrific pain, launched a class action lawsuit. The medical watchdog found the risks of vaginal mesh implants far outweighed the benefits of the product, which was used to treat pelvic prolapse and urinary incontinence. Hundreds of Australian women claimed the mesh left them with debilitating, chronic pain and left them unable to have sex again. The Therapeutic Goods Administration decided to remove transvaginal mesh for the sole purpose of pelvic prolapse and single incision mini-slings from the Australian Register of Therapeutic Goods (ARTG) as a result of a review of the latest international studies. The review was conducted following dozens of complaints by women across Australia, saying the implants had left them with chronic, debilitating pain and unable to have sex. "Based on this new information, and since the publication by the TGA of the Results of review into urogynaecological surgical mesh implants, the TGA is of the belief that the benefits of using transvaginal mesh products in the treatment of pelvic organ prolapse do not outweigh the risks these products pose to patients," a TGA statement said. "The TGA also considers that there is a lack of adequate scientific evidence before the TGA for it to be satisfied that the risks to patients associated with the use of mesh products as single incision mini-slings for the treatment of stress urinary incontinence are outweighed by their benefits." The bans take effect from January 4. A Senate inquiry into transvaginal mesh products was launched in February after Senator Derryn Hinch labelled their use in Australia as one of the country's worst health scandals. The findings of the inquiry are due to be handed down in early 2018. The ruling of a class action launched in August by more than 700 Australians against manufacturer Johnson & Johnson is also expected to be handed down by the federal court next year. Hundreds of women launched a class action in the federal court earlier this year. The women claimed to have suffered horrific and chronic pain from the implants. Rebecca Jancauskas from Shine Lawyers said "many now live in excruciating pain, suffering terrible side effects that impact all aspects of their lives". "This class action is about righting the wrong against these women, who will suffer pain and complications for the rest of their lives," Ms Jancauskas said. Speaking to Daily Mail Australia in July, Louise King said the vaginal mesh left her with debilitating chronic pain. "I've had so much bad health since that operation. There are days that i can't get out of bed and there are days that i try to do things and i just can't," she said. Ms King said she was given "no choice" but to have the mesh implant when she suffered a vaginal prolapse in 2006. "I was told this was the only option," she said. Ms King also said she was unable to have sex with her husband after the operation. "Before he even entered me i was screaming, it was agonising," she said. "We tried a few times but he became really scared to touch me. He got to a point where he couldn't touch me." [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2017. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. * * * End of Transmission * * *