/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/180117.mbx C L A S S A C T I O N R E P O R T E R Wednesday, January 17, 2018, Vol. 20, No. 13 Headlines ABBOTT LABS: Faces Class Action Over Defective ICD Batteries ACOSTA INC: Can Compel Deposition Testimony in "Ezell" Suit ACUITY BRANDS: Sued in Delaware Over Misleading Financial Reports ALASKA: Court Hears Oral Arguments in Suit Over Seized Evidence ALCON LAB: 3rd. Cir. Refuses to Reconsider Ruling AMERICAN HONDA: "Preston" Suit Transferred to C.D. California AMERICAN RENEWABLE: Has Made Unsolicited Calls, "Bank" Suit Says ANNIE'S HOMEGROWN: "Campbell" Suit Moved to N.D. California APPLE INC: iPhone Battery Issue Lawsuits Likely in South Korea APPLE INC: Hakimi Class Action Over iPhone Battery Issue Filed APPLE INC: Sued in New York Over Slowing iPhone Battery Issue APPLE INC: Faces Class Action in Israel for Slowing Older iPhones APPLE INC: Faces "Gallman" Class Action Over iPhone Battery Issue APPLE INC: Faces 2 Suits in Calif., NY Over iPhone Battery Issue APPLE INC: Faces "Bogdanovich" Suit Over iPhone Battery Issue APPLE INC: Faces Class Action in Ill. Over iPhone Battery Issues APPLE INC: Court Orders iPhone Testing by Neutral Expert APPLE INC: Must Produce Docs Related to "BendGate" Press Release ARENA PHARMA: April 12 Settlement Fairness Hearing Set B & H EDUCATION: 9th Cir. Affirms Summary Judgment on FLSA Claim BATS GLOBAL: 2d Cir. Vacates Dismissal of Securities Suit BAY ALARM: "Villafuerte" Suit Seeks to Recover Unpaid OT BIG PHARMA: Sandusky County Joins Class Action Over Opioid Crisis BIG PHARMA: Walker County to Vote on Joining Opioid Class Action BIG PHARMA: Opioid Lawsuits Step in the Right Direction BULLITT COUNTY, KY: Court Narrows Doc Production in "Shadburne" CALL-A-HEAD: Class Certification Granted in Wage-and-Hour Case CANADA: Settles Student Loan Privacy Breach Class Action CANADA: Brothers Mull Suit Over Smallwood Resettlement CAPITAL ONE: Date to File Discovery Plan in "Porteous" Extended CATHOLIC HEALTH: Summary Judgment in "Medina" ERISA Suit Affirmed CDK GLOBAL: Faces Class Action Over Antitrust Violations CHAPARRO'S MEXICAN: Sued in Cal. Over Disability Discrimination CHESAPEAKE ENERGY: Settles Gas-Royalty Class Actions for $30MM CITY OF GARDEN, KS: Dismissal of DUI Suit Partly Affirmed CLARKSON & HALE: Illegally Collects Debt, "Erekson" Suit Claims COMPUWARE CORP: Mich. App. Affirms Shareholders Suit Settlement CONTINENTAL CASUALTY: 7th Cir. Affirms Dismissal of "Toulon" CREDIT SUISSE: Feb. 20 Lead Plaintiff Motion Deadline Set CREDIT SUISSE: Feb. 20 Lead Plaintiff Motion Deadline Set DELAWARE: Class Action Mulled on Behalf of Riot-Affected Inmates DELTA AIR: Court Tosses Class Action Over Excessive ERISA Fee DENKA PERFORMANCE: Seeks Dismissal of Chloroprene Class Action DEPOMED INC: Feb. 6 Deadline to File Amended "Huang" Suit DETROIT, MI: Faces Class Action Over Parking Meter Fines EI DUPONT: Deal in "Harrison" Antitrust Suit Has Prelim Approval EXPRESS SCRIPTS: "Brannon" Suit Transferred to Dist. Minnesota EZ-FLO INT'L: 9th Cir. Remands Insurers' Suit to State Court FACEBOOK INC: "Meyers" Class Suit Transferred to N.D. California FCA US: Court Denies Bid to Compel Arbitration in "Cerjanec" Suit FCA US: Court Narrows Claims in First Amended "Basnic" Suit FCA US: Court DQs Joseph White as Class Rep in Jeep Wrangler Suit FIAT CHRYSLER: Loses Bid to Dismiss Securities Fraud Suit FORD MOTOR: Plays Anti-Sexual Harassment Video Following Suits FRANKLIN COUNY, OH: Settles Class Action Over Taser Misuse GAP INC: March 8 Hearing on Bid to Dismiss "Pallagrosi" GENERAL NUTRITION: Underpaid Managers for Overtime, Court Rules GERMED INC: Has Sent Unsolicited Fax Advertisements, Suit Claims GLOBAL DIGITAL: Bids to Dismiss Amended Securities Suit OK'd GULF INTERSTATE: 6th Cir. Flips Summary Judgment in "Hughes" HITBTC: Customers Mull Class Action Over Withdrawal Delay HOME DEPOT: Illegally Obtains Consumer Reports, Action Claims INDIANA: Class Action Over Forfeiture Law Pending INVESTORS BANCORP: Court Reverses Dismissal of Stockholder Suit JIMMY JOHN'S: 7th Cir. Flips Injunction on Claims vs. Franchisee JPMORGAN CHASE: Former Call Center Worker Files Class Action KOBE STEEL: Wolf Popper Files Securities Class Action in New York KRAFT HEINZ: Partly Compelled to Reply to Discovery in "Vazquez" LIFE CARE: Class Certification Bid in "De Carrasco" Partly OK'd LOBLAW COS: Anti-Poverty Activist Files Price-Fixing Class Action LOS ANGELES, CA: LAUSD Sued Over Failure to Pay Minimum Wages LVNV FUNDING: Md. App. Flips $38MM Damages Award in MCALA Suit MAGNUS SECURITY: Faces Suit Over Failure to Properly Pay Workers MDL 2314: Court Orders Sentence-Redaction in Hearing Transcript MDL 2420: Ct. Grants Bid to Enforce Settlement in Antitrust Suit MDL 2492: "Lamountain" Suit v. Atlantic Transferred to Illinois MDL 2503: Court Certifies Direct Purchasers Class MDL 2719: Settlement in SLS Marketing Suit Has Final Approval MGT CAPITAL: Law Firm Probes Potential Fiduciary Duty Breach MICHIGAN: Court Enjoins Suspension of Driver's License MINNESOTA: Court Affirms Discovery Order in "Murphy" MOMENTA PHARMA: Court Allows Amendment to Antitrust Complaint MONTEREY FIN'L: Court Won't Take Back Bid to Dismiss "Brinkley" MORRIS COLLEGE: Responds to Students' Class Action Over Mold Risk MURRAY GOULBURN: Milk Price Class Action May Hamper Sale Bid MORRIS COLLEGE: Responds to Students' Class Action Over Mold Risk NATIONWIDE ENERGY: Class Action Over Submetering Woes Pending NEW LONDON, CT: Thames River Tenants Await Housing Vouchers NEW SOURCE: Court OKs $2.85MM Settlement in Shareholders' Suit NEVADA: J. Decker Reply Brief in Little Valley Fire Suit Extended NFL: MDL Panel to Take Up Hernandez's Daughter's Case NFL: 3rd Cir. Reverses Dismissal of 2nd Amended "Finkelman" Suit NORTHROP GRUMMAN: Contamination Suit Remains in Federal Court OKLAHOMA: Schultz & McCall Dismissed as Parties in "Hunsucker" PENNSYLVANIA LEADERSHIP: Denial of Class Certification Affirmed PEPPERMILL CASINOS: Bid to Dismiss "Abrams" Suit Partly Granted PHILIP MORRIS: Feb. 20 Lead Plaintiff Motion Deadline Set QUINCY BIOSCIENCE: Prevagen Consumers Class in "Racies" Certified RENT-A-CENTER INC: Loses Bid to Dismiss Securities Fraud Suit RJ REYNOLDS: Tort Exception Applies to Engle Progeny Cases ROARK CAPITAL: Class Action Over Workers' Severance Pay Settled SALAMANDER FIRE: Doesn't Properly Pay Workers, "Alvarez Suit Says SAN FRANCISCO: Wins Dismissal of Cellular Phone User Suit SIX FLAGS: Plaintiff Fails to Show Harm in BIPA Class Action SOUTHERN CALIFORNIA: Mandamus Bid in Gas Leak Suits OK'd STONE ENERGY: Faces "Heinrich" Class Suit Over Talos Merger Plans THERANOS INC: Gets $100MM Lifeline Amid Investor Class Actions THERANOS INC: Intends to Vigorously Defend Consumer Class Action TRAEGER PELLET: $2.85MM Settlement in "Leverage" Has Final OK TORONTO-DOMINION: Lead Plaintiff Named in Securities Suit UNIFUND CCR: Court Grants Bid to Dismiss "Livermore" Suit UNITED ASSOCIATION: $2MM Settlement in "Norris" Has Final OK UNITED HEALTH: Court Grants Bid to Dismiss PBM Suit UNITED STATES: $3.9MM Fees Award in "Sabo" Affirmed UNITED STATES: Court Hears Arguments in Iraqi Detainees' Case UNITED STATES: Calif. Governor Jerry Brown Pardons Two Immigrants USAA CASUALTY: Court Won't Stay Discovery in Billing Suit WATERLOO, ON: Regional Police Faces Class Action WEXFORD HEALTH: Court Narrows Claims in "Farmer" Suit ********* ABBOTT LABS: Faces Class Action Over Defective ICD Batteries ------------------------------------------------------------ Gordon Gibb, writing for LawyersandSettlements.com, reports that Chicago may be far removed from Alaska geographically, but Illinois serves as home base for a proposed St. Jude class action lawsuit brought by an Alaskan union-benefits fund against St. Jude manufacturer Abbott Laboratories (Abbott). According to a report carried by the Minneapolis Star Tribune in September, the Alaska State Employees Association/AFSCME Local 52 Health Benefits Trust is protesting the outlay of millions of dollars for what are alleged to be defective devices. Factor in other commercial insurance and self-insured providers and the stake escalates to hundreds of millions of dollars. Amongst unidentified damages, the St. Jude lawsuit is seeking punitive damages. St. Jude issued recall five years after first learning of problems It was in 2011, the lawsuit asserts, that St. Jude Medical (now owned by Abbott Laboratories), began receiving reports that the batteries in several units of their defibrillator line were depleting prematurely due to the formation of lithium crystals. Designed, under normal circumstances to provide ample warning of a battery nearing its end-of-life in order to facilitate battery replacement under optimum circumstances, defective batteries were seen to be failing prematurely and without warning, potentially leaving the patient in dire straits. The proposed class action notes that St. Jude received some 42 reports that demonstrated evidence of premature depletion in the three years ending in 2014, the year St. Jude -- according to the lawsuit -- received a report the battery problem had contributed to the death of a patient. According to the Star Tribune, St. Jude Medical undertook a change to its battery design as of May 23, 2015 in response to a problem St. Jude said it identified in 2014. And yet, according to the news report, the manufacturer continued to vend defective St. Jude cardiac defibrillators containing the problematic batteries until early October 2016. "If defendants had not omitted . . . or misrepresented the defects in the recalled devices, physicians would not have used the recalled devices," the lawsuit says. "Accordingly, plaintiff and the other nationwide class members would not have incurred costs for the recalled devices and the medical costs of device removal and replacement surgery and other related medical costs." The defective St. Jude devices were eventually recalled. However, according to the Star Tribune, some patients having received a St. Jude device would have received recall notices months, or even weeks after the initial implant procedure. The Star Tribune reported that St. Jude had characterized their change in battery design as making a well-performing device even better -- rather than an acknowledgement of a defect. The US Food and Drug Administration (FDA), in approving the battery design change in 2015, suggested it stopped short of issuing a recall after becoming aware of problems with the St. Jude batteries, because the rates for adverse events appeared low and consistent with failure rates associated with other devices on the market. Both the FDA and St. Jude Medical agree that replacements -- which will occur at no cost to the patient -- would only be considered on a case-by-case basis given the heightened risks and complexities with replacement procedures v. the initial implantation. "The rate of complications following replacement surgery are higher than those associated with premature battery depletion," according to an FDA safety communication released October 11 of 2016, revealed by the Star Tribune. "However, the FDA and St. Jude Medical recognize the need to weigh individual clinical considerations." The Star Tribune noted that Abbott Laboratories acquired the assets and operations of St. Jude Medical some three months after the St. Jude recall was released in October 2016, and thus has inherited the problem and respective St. Jude ICD and CRT-D device lawsuits. The proposed defective St. Jude cardiac defibrillators class action is ASEA/AFSCME Local 52 Health Benefits Trust et al., v. Abbott Laboratories et al., Case No. 1:17-cv-06704, filed September 19 of this year at US District Court for the Northern District of Illinois, Eastern Division. St. Jude Medical, Inc. is named as a co-defendant in the lawsuit. [GN] ACOSTA INC: Can Compel Deposition Testimony in "Ezell" Suit ----------------------------------------------------------- In the case, MARGUERITE EZELL and SHERILYN SILVER, on behalf of themselves and all others similarly situated, Plaintiffs, v. ACOSTA, INC., Defendant, Case No. 4:16CV870 RLW (E.D. Mo.), Judge Ronnie L. White of the U.S. District Court for the Eastern District of Missouri, Eastern Division, granted the Defendant's Motion to Compel Deposition Testimony and Motion for Sanctions, and denied the Defendant's Motions for Protective Order Limiting Rule 30(B)(6) Deposition Topics. The Plaintiffs filed the putative collective action under Section 216(b) of the Fair Labor Standards Act ("FLSA"), and a Rule 23 putative class action under Missouri state law against Acosta. Specifically, the Plaintiffs seek to represent other former and current Merchandisers employed by the Defendant across the United States. The Plaintiffs contend that Acosta has engaged in an unlawful pattern and practice of failing to pay Merchandisers minimum wage and overtime pay. They define the class as all individuals who are currently employed or formerly have been employed by Acosta as Merchandisers, or equivalent positions, in the United State within the last three years. Both Ezell and Silver were employed in Missouri as Retail Continuity Merchandisers on Acosta's dedicated Wal-Mart team. The action is currently in Phase I discovery, and discovery disputes have arisen. On Aug. 3, 2017, the Defendant filed a motion to compel the deposition testimonies of Ezell, Silver, and two opt-in Plaintiffs, Kay Mader and Shirley Ann Piercy regarding their knowledge of the work performed by other individuals who the Plaintiffs seek to represent. According to the Defendant, the Plaintiffs' counsel instructed the deponents not to answer questions about other types of merchandising positions with other retailers, and the Defendant seeks to compel further testimony. On Nov. 14, 2017, the Defendant filed a motion for protective order to limit the topics during the deposition of the Defendant's corporate representative scheduled for Dec. 20, 2017. It contends that the scope of deposition topics 2 through 7 should be limited to the Wal-Mart Continuity Associate position held by Ezell and Silver, not all Acosta Merchandisers and similarly situated current and former employees of the Defendant holding comparable positions but different titles and all of its current or former employees working at any and all of its branches in that position. The Defendant claims that the deposition topics are overbroad, unduly burdensome, and seek information that is not relevant to the claims or defenses and are not proportional to the needs of the case. Upon thorough consideration of the Defendant's motion and the responses thereto, Judge Moore finds that the Defendant has not established good cause for a protective order. The Defendant claims that the Plaintiffs are unable to bring an FLSA action on behalf the putative collection because, as Wal-Mart Continuity Associates, the named Plaintiffs are not similarly situated to other Merchandisers. However, the Second Amended Complaint purports to cover all nationwide Acosta employees in a "Merchandiser" position within the last three years. Both the named Plaintiffs testified that the Acosta Retail Coverage Merchandiser job description submitted by the Defendant's attorney accurately described the job duties the Plaintiffs performed for Wal-Mart. As the Plaintiffs seek information regarding allegations specifically plead in their Second Amended Complaint, the Judge finds that the Defendants are not entitled to a protective order limiting the deposition topics. The Judge also notes that the named Plaintiffs seek to represent all "similarly situated" Merchandisers and seek deposition testimony from the Defendant regarding the position, yet they refused to answer questions about their knowledge of other Merchandiser positions during their depositions. He says the Plaintiffs cannot have it both ways. Therefore, he will grant the Defendant's motion to compel testimony of the named Plaintiffs Ezell and Silver and the opt-in Plaintiffs Mader and Piercy regarding their knowledge about the work of other Merchandisers. The Defendants may re-depose the aforementioned Plaintiffs in St. Louis on the topic of their knowledge of other Merchandisers the Plaintiffs seek to represent. While he will grant the Defendant's motion to compel, he finds that sanctions, other than ordering the depositions of Mader and Piercy to occur in St. Louis, are not warranted. For these reasons, Judge Moore granted the Defendant's Motion to Compel Deposition Testimony and Motion for Sanctions as to the motion to compel and denied as to the motion for sanctions. He denied the Defendant's Motion for Protective Order Limiting Rule 30(B)(6) Deposition Topics. Lastly, he denied as moot the Defendant's Motion to Set Status Conference Prior to December 18 Regarding Defendant's Motion for Protective Order. A full-text copy of the Court's Dec. 15, 2017 Memorandum and Order is available at https://is.gd/A6UTCi from Leagle.com. Marguerite Ezell, Plaintiff, represented by Fran L. Rudich, KLAFTER AND OLSEN LLP. Marguerite Ezell, Plaintiff, represented by Jonathan E. Fortman, LAW OFFICE OF JONATHAN E. FORTMAN, LLC, Michael H. Reed, KLAFTER AND OLSEN LLP, Seth R. Lesser, KLAFTER AND OLSEN LLP, W. Christopher McDonough, THE MCDONOUGH LAW FIRM, LLC & Ryan A. Keane -- ryan@keanelawllc.com -- KEANE LAW LLC. Sherilyn Silver, Plaintiff, represented by Fran L. Rudich, KLAFTER AND OLSEN LLP, Jonathan E. Fortman, LAW OFFICE OF JONATHAN E. FORTMAN, LLC, Michael H. Reed, KLAFTER AND OLSEN LLP, Seth R. Lesser, KLAFTER AND OLSEN LLP, W. Christopher McDonough, THE MCDONOUGH LAW FIRM, LLC & Ryan A. Keane, KEANE LAW LLC. Acosta, Inc., Defendant, represented by Lisa A. Schreter -- lschreter@littler.com -- LITTLER MENDELSON, P.C., Patricia J. Martin -- pmartin@littler.com -- LITTLER MENDELSON, P.C. & Richard W. Black -- rblack@littler.com -- LITTLER MENDELSON, P.C. ACUITY BRANDS: Sued in Delaware Over Misleading Financial Reports ----------------------------------------------------------------- Jaheer Asanhussainsyedmohid, individually and on behalf of all others similarly situated v. Acuity Brands, Inc., Vernon J. Nagel and Richard K. Reece, Case No. 1:18-cv-00012-UNA (D. Del., January 3, 2018), alleges that the Defendants made false and misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, the Defendants: (i) concealed known trends negatively impacting sales of the Company's products; and (ii) overstated the Company's ability to achieve profitable sales growth. Acuity Brands, Inc. is a provider of lighting and building management solutions for commercial, institutional, industrial, infrastructure, and residential applications. [BN] The Plaintiff is represented by: P. Bradford de Leeuw, Esq. ROSENTHAL, MONHAIT & GODDESS, P.A. 919 N. Market Street, Suite 1401 Wilmington, DE 19801 Telephone: (302) 656-4433 Facsimile: (302) 658-7567 E-mail: bdeleeuw@rmgglaw.com ALASKA: Court Hears Oral Arguments in Suit Over Seized Evidence --------------------------------------------------------------- Joe Viechnicki, writing for KTOO, reports that attorneys made oral arguments in a Petersburg civil suit challenging sealed search warrants under Alaska court rules. The plaintiffs want to see the state institute some process for the target of a law enforcement investigation to regain property seized as evidence and in a "reasonable" period of time. Former Petersburg resident Danny Thompson and current resident Greg Richeson are suing the borough, a local police officer and the regional drug task force Southeast Alaska Cities Against Drugs, or SEACAD. The Alaska State Troopers also are named in the suit for their involvement with SEACAD. The two men say in separate investigations in 2013 Petersburg police officers obtained search warrants and seized property from their homes. The borough's attorney Timothy Bowman argued that there has been no constitutional violation. He said property belonging to Mr. Thompson has been returned, but acknowledged that law enforcement still held some belongings from Mr. Richeson. Superior Court Judge William Carey questioned Bowman on that point. "How long does an investigation take? There's no statutory limitation but my god, it has been kind of a long period of time," Judge Carey said. "Your honor I understand that," Mr. Bowman said. "I think that everybody realizes that it has been a long time and I think the issue has to do, well most of all, the investigation obviously started out as one for a marijuana grow operation." The hearing was held in the Petersburg courtroom with most of the participants on the phone from other locations. Mr. Bowman said the investigation of Mr. Richeson has been taken over by the Federal Bureau of Investigation and valid search warrants have allowed law enforcement to look at Mr. Richeson's phone and electronics. "I think we all probably can surmise that it's gone beyond just a marijuana grow or a controlled substances investigation," Mr. Bowman said. He thought lawsuits like this can be used to undermine a valid criminal investigation and he noted the investigation is out of the borough's hands. Judge Carey came back to his questioning and said in practicing criminal law for over three decades in Alaska he'd never seen an investigation taking this long. "There's some interest in sort of keeping, maintaining some confidentiality to some of the proceedings but I think ultimately what you're going to find is that it's a reflection to some extent the resources that are available to a small town police force in Southeast Alaska," Mr. Bowman said. The plaintiffs are not challenging law enforcement's use of the search warrants. However the suit challenges the procedure under the state's court rules that allow those warrants to remain sealed for four years in cases that do not result in criminal charges. Plaintiffs' attorney Fred Triem argued that seizure of property for years is a violation of the protection against unreasonable search and seizure prohibited in the fourth amendment of the U.S. constitutions, along with a similar provision in the state constitution. "The police and the SEACAD people take the plaintiffs stuff but they do not return it within a reasonable time," Mr. Triem said. He argued people impacted include Mr. Thompson, Mr. Richeson and others in Petersburg. He's hoping the case will be expanded into a class action to allow other plaintiffs. The men say the police seized coins, guns, computers, electronics, cameras, cell phones, personal papers, jewelry and other private property and did not return the items for years. Mr. Thompson's belongings have been returned but he argues he was still injured by the loss of his property during that time. Mr. Richeson is still waiting for the return of his possessions. Judge Carey questioned Mr. Triem on the issue of a reasonable amount of time. "What's reasonable to keep a cell phone?" Carey asked. "I think it should be measured in days, simply because the entire contents of a cell phone can be copied instantly," Mr. Triem said. The judge kept up with that line of questioning. "So you're asking the court to set a reasonable period of a few days?" Judge Carey wondered. "I'm asking the court to recognize first and foremost that the current scheme of indefinite seizures is unreasonable and therefore it violates the fourth amendment," Mr. Triem said. "Once we get past that point, there should be some mechanism for the aggrieved party, the target to complain, or to request the return of the stuff." Prosecutors opted not to bring charges against Mr. Thompson, but still could against Mr. Richeson. Assistant Attorney General Marianna Carpeneti is representing state law enforcement. She argued that the suit asked the judge to set a reasonable time for returning property without specifying what that meant. "It leaves law enforcement agencies in a position of saying you might be violating the fourth amendment by conducting a criminal investigating but you don't know when you're violating the fourth amendment," Ms. Carpeneti said. "You don't know if you're going to be responsible if another agency, a federal agency steps in and takes over an investigation. You don't know if you're going to be responsible if the district attorney's office is totally overwhelmed with cases and is not screening cases as quickly as they should be." Ms. Carpeneti argued that the two and a half years that Thompson's money and other property was held was not unreasonable and said the state had little involvement in the other investigation. Judge Carey pressed Mr. Treim, the plaintiff's attorney on the state's involvement in this lawsuit. "SEACAD is still aligned with, it's in alliance with the local police who are trained by the state agency," Mr. Triem argued. "That alliance is enough to impute liability?" Judge Carey asked. "Yes, yes absolutely," Mr. Triem responded. Attorneys for both the plaintiffs and defendants have filed motions seeking summary judgement in the case, or a decision in their favor, which would avoid a trial. He also has to rule on whether the case can be expanded into a class action. A trial in the case is scheduled for the week of Feb. 20. [GN] ALCON LAB: 3rd. Cir. Refuses to Reconsider Ruling ------------------------------------------------- Nate Raymond, writing for Reuters, reports that a divided federal appeals court has declined to reconsider a ruling that reinstated a lawsuit by consumers claiming the manufacturers of prescription eye drops were packaging them in a way that resulted in "wasted" medications. The 3rd U.S. Circuit Court of Appeals in Philadelphia on Dec. 22 split 3-3 on whether it should rehear the case, with some judges in a dissent saying they believed the consumers lacked standing to pursue the proposed class action. A tie on a motion for rehearing is counted as an affirmance. The appeals case is LEONARD COTTRELL; SANDRA HENON; WILLIAM REEVES; GEORGE HERMAN; SIMON NAZZAL; CAROL FREBURGER; JACK LIGGETT; PATRICIA BOUGH; MACK BROWN; DOLORES GILLESPIE; DEBORAH HARRINGTON; ROBERT INGINO; EDWARD ROGERS, JR.; DEBORAH RUSIGNULOLO; DOROTHY STOKES; JOSEPHINE TROCCOLI; HURIE WHITFIELD; THOMAS LAYLOFF; CAROLYN TANNER; PATSY TATE; JOHN SUTTON; JESUS RENTERIA; GLENDELIA FRANCO; NADINE LAMPKIN, on behalf of themselves and all others similarly situated, Appellants, v. ALCON LABORATORIES; ALCON RESEARCH LTD; FALCON PHARMACEUTICALS LTD; SANDOZ INC.; ALLERGAN INC, RP; ALLERGAN USA INC; ALLERGAN SALES LLC; PFIZER INC; VALEANT PHARMACEUTICALS INTERNATIONAL; BAUSCH & LOMB INC; ATON PHARMA INC; MERCK & CO INC; MERCK SHARP & DOHME CORP; PRASCO LLC; AKORN INC., No. 16-2015 (3d Cir.). [GN] AMERICAN HONDA: "Preston" Suit Transferred to C.D. California ------------------------------------------------------------- The class action lawsuit filed on May 11, 2017, styled as Michael Preston, and on behalf of all other similarly situated v. American Honda Motor Company, Inc., Case No. 1:17-cv-03549, was transferred on January 3, 2018, from the U.S. District Court for the Northern District of Illinois to the U.S. District Court for the Central District of California. The District Court Clerk assigned Case No. 2:18-cv-00038-RGK-MRW to the proceeding. The case arises out of the Defendant's warranty breaches and violations of the Magnuson-Moss Warranty Act. American Honda Motor Company, Inc. is a foreign corporation engaged in the manufacture, sale, supply and distribution of motor vehicles and related equipment and services. [BN] The Plaintiff is represented by: Larry Paul Smith, Esq. David M. Marco, Esq. SMITHMARCO, P.C. 55 W. Monroe Street, Suite 1200 Chicago, IL 60603 Telephone: (312) 324-3532 Facsimile: (888) 418-1277 E-mail: lsmith@smithmarco.com dmarco@smithmarco.com - and - Stacy Michelle Bardo, Esq. BARDO LAW, P.C. 22 West Washington Street, Suite 1500 Chicago, IL 60602 Telephone: (312) 219-6980 E-mail: stacy@bardolawpc.com The Defendant is represented by: Michael L. Mallow, Esq. Mark D. Campbell, Esq. SIDLEY AUSTIN LLP 555 West Fifth Street 40th Floor Los Angeles, CA 90013 Telephone: (213) 896-6666 Facsimile: (213) 896-6600 E-mail: mmallow@sidley.com mcampbell@sidley.com - and - Darlene M. Cho, Esq. SIDLEY AUSTIN LLP 1999 Avenue of the Stars, 17th Floor Los Angeles, CA 90067 Telephone: (310) 595-9500 Facsimile: (310) 595-9501 E-mail: dcho@sidley.com - and - Livia McCammon Kiser, Esq. SIDLEY AUSTIN LLP 1 S. Dearborn St. Chicago, IL 60603 Telephone: (312) 853-7000 E-mail: lkiser@sidley.com AMERICAN RENEWABLE: Has Made Unsolicited Calls, "Bank" Suit Says ---------------------------------------------------------------- Todd C. Bank, individually and on behalf of all others similarly situated v. American Renewable Energy Inc. and Amergy Solar Inc., Case No. 1:18-cv-00043 (E.D.N.Y., January 3, 2018), seeks to stop the Defendants' practice of using an artificial and prerecorded voice to deliver a message without prior express consent of the called party. The Defendants operate a solar company located at 100 Prospect Street, Metuchen, NJ 08840. [BN] The Plaintiff is represented by: Todd C. Bank, Esq. TODD C. BANK ATTORNEY AT LAW, P.C. 119-40 Union Turnpike Fourth Floor Kew Gardens, NY 11415 Telephone: (718) 520-7125 Facsimile: (856) 997-9193 E-mail: tbank@toddbanklaw.com ANNIE'S HOMEGROWN: "Campbell" Suit Moved to N.D. California ----------------------------------------------------------- In the case, JANELL JOHNSON CAMPBELL, individually and on behalf of all others similarly situated, Plaintiff, v. ANNIE'S HOMEGROWN, INC., et al., Defendants, Case No. 17cv1736-MMA (MDD) (S.D. Cal.), Judge Michael M. Anello of the U.S. District Court for the Southern District of California granted in part and denied in part the Defendants' motion to dismiss or, alternatively, transfer proceedings pursuant to the first-to-file rule. The case involves two overlapping class actions against Defendants Annie's and GM. On May 1, 2017, Lisa Rosillo and Jesse Kohn filed a class action against Annie's in the U.S. District Court for the Northern District of California. On July 12, 2017, Rosillo and Kohn filed an amended class action complaint, adding GM as a Defendant. Id., Doc. No. 25. The Northern District of California's Oct. 17, 2017, Order stayed the case and denied the Defendants' motion to dismiss. Rosillo and Kohn assert eleven causes of action: (1) Violation of the California Consumers Legal Remedies Act ("CLRA"); (2) violation of California's False Advertising Law ("FAL"); (3) violation of California's Unfair Competition Law ("UCL"); (4) violation of the Magnuson-Moss Warranty Act; (5) violation of New York General Business Law Section 349; (6) false advertising in violation of New York's General Business Law Section 350; (7) breach of express warranty; (8) breach of the implied warranty of merchantability; (9) unjust enrichment; (10) negligent misrepresentation; and (11) fraud. On Aug. 25, 2017, the Defendants filed a motion to dismiss the action, or in the alternative, stay the action under the primary jurisdiction doctrine, which Rosillo and Kohn opposed. The court agreed that the case should be stayed under the primary jurisdiction doctrine and declined to consider the Defendants' arguments relating to the merits of Rosillo's and Kohn's claims. The court ordered the parties to file a joint status report by Jan. 19, 2018 setting forth the parties' positions on whether the stay should continue in the event the FDA's rulemaking is not complete by Jan. 15, 2018. Campbell ("Plaintiff") filed a similar class action lawsuit against the Defendants in the District on Aug. 28, 2017. The Defendants Annie's and GM manufacture, distribute, and sell at retail to California consumers, and across the United States, Annie's Natural Products. They market Annie's Naturals salad dressings as "natural," leading the reasonable consumer to believe that the products are "all natural." The Plaintiff alleges that the products are not "natural" because they contain Xanthan Gum, which is a synthetic ingredient. In April 2017, the Plaintiff purchased a bottle of Annie's Naturals salad dressing at a Walmart. She alleges that as a health-conscious consumer, she was drawn to the representation that the dressing was a "natural" product, and that in her mind, she understood that there was no synthetic ingredient in the salad dressing, since it was represented as "natural." The Plaintiff asserts eight causes of action in her class action complaint: (1) violation of UCL and similar laws of other states; (2) violation of FAL; (3) negligent misrepresentation; (4) intentional misrepresentation; (5) breach of express warranty; (6) breach of the implied warranty of merchantability; (7) breach of the implied warranty of fitness of purpose; and (8) violation of the CLRA. On Oct. 20, 2017, the Defendants filed the instant motion to dismiss, or alternatively, to transfer the proceedings to the Northern District of California where the Rosillo action is pending. They argue that the Court should dismiss the Plaintiff's class action complaint based on the first-to-file rule because the Rosillo action was filed first, the parties in both cases are "exactly similar," and the class issues in the two cases are substantially similar. The Plaintiff argues that the first-to-file rule's rationale is inapplicable to this case and urges the Court to use its discretion to allow the case to proceed in the Court in the interest of a timely resolution of the controversy, and in light of ongoing harm to consumers in this district. Specifically, the Plaintiff contends that there exists no danger of a multiplicity of litigation because the Rosillo action is stayed, the Plaintiff will be prejudiced if this case is not permitted to proceed in the Court, and because "the cases could easily be later consolidated in this court. Judge Anello does not find these arguments persuasive. He says the overriding purpose of the first-to-file rule is to promote efficiency and prevent duplicity, and that goal would be frustrated were the Court to deny application of the rule because one action is stayed, the Plaintiff wishes to proceed in the Court, and because the cases could be consolidated at a later time. In addition, the Judge explains that three exceptions to the first-to-file rule exist: (i) bad faith; (ii) anticipatory suit; and (iii) forum shopping. The Plaintiff has neither argued nor shown that any of the three exceptions apply. Additionally, the Court finds no suggestion that the Rosillo case was brought in bad faith or as an anticipatory suit, and finds no evidence of forum shopping. As such, no exception to the first-to-file rule applies. Having found the first-to-file rule applicable, the Judge turns to whether to dismiss, transfer, or stay the case. He notes that the causes of action raised in the two cases are not identical, and for that reason, he declined to dismiss the case. He finds that a transfer is preferable to a stay because a transfer would better serve the first-to-file doctrine's objectives of efficiency and avoiding inconsistent judgments. Accordingly, he will transfer the action, rather than stay or dismiss the action. For the reasons he stated, Judge Anello granted in part and denied in part the Defendants' motion to dismiss or transfer. The Judge directed the Clerk of Court to transfer the matter to the U.S. District Court for the Northern District of California. A full-text copy of the Court's Dec. 15, 2017 Order is available at https://is.gd/pHXqmT from Leagle.com. Janell Johnson Campbell, individually, and on behalf of all others similarly situated, Plaintiff, represented by Charles M. Thompson, Charles M. Thompson, P.C., pro hac vice. Janell Johnson Campbell, individually, and on behalf of all others similarly situated, Plaintiff, represented by John W. Davis -- john@johnwdavis.com -- Law Office Of John W. Davis. Annie's Homegrown, Inc., Defendant, represented by Charles C. Sipos -- CSipos@perkinscoie.com -- Perkins Coie LLP, pro hac vice, David T. Biderman -- DBiderman@perkinscoie.com -- Law Office of David T Biderman, Mica D. Simpson -- MSimpson@perkinscoie.com -- Perkins Coie LLP, pro hac vice & Catherine N. Grech -- CGrech@perkinscoie.com -- Perkins Coie LLP. General Mills, Inc., Defendant, represented by Charles C. Sipos, Perkins Coie LLP, pro hac vice, David T. Biderman, Law Office of David T Biderman, Mica D. Simpson, Perkins Coie LLP, pro hac vice & Catherine N. Grech, Perkins Coie LLP. APPLE INC: iPhone Battery Issue Lawsuits Likely in South Korea -------------------------------------------------------------- Cho Jin-young, writing for Business Korea, reports that according to Patently Apple on December 26, two iPhone users living in Jaffa, Tel Aviv, Israel recently filed a class action suit against Apple, claiming that Apple should pay them US$125 million in damages. "Apple did not disclose the fact that our use of the iPhone is negatively affected by its software update, and this is a violation of its basic duty for customers," they said, adding, "After a recent software update, we had a hard time using even the basic features including Web search, email check and apps, and Apple slowed down our phones by means of software update in order to increase the sales of its new iPhone." This is just one example of class action suits against Apple spreading across the world from the United States. The same is expected to happen in South Korea as well. According to legal experts, iPhone users in South Korea have no reason not to file a suit. "They need to prepare sufficient evidence to prove the damage done to them, but evidence preparation in the country can be rather limited," one of them explained, adding, "Still, even though the calculation of damages and proof of the damage are not that easy, there is still a high chance that plaintiffs will be able to get at least some compensation." In the meantime, Sinolink Securities has adjusted its iPhone X shipments forecast for the first quarter of 2017 from 45 million units to 35 million units. This seems to be because of the intentional slowdown of older iPhones. [GN] APPLE INC: Hakimi Class Action Over iPhone Battery Issue Filed -------------------------------------------------------------- Patently Apple reports that the last of the first wave of Class Action lawsuits filed against Apple since Dec. 22 over the issue of purposely slowing iPhones has now risen to nine. This last lawsuit was filed in San Francisco by Michael Hakimi. His lawsuit's introduction states the following: "Plaintiff brings this action individually and on behalf of all similarly situated persons who purchased an iPhone 6, 6S, SE and 7 models ("Covered iPhones"). Apple has now conceded that it pushed out software updates to consumers' Covered iPhones that limit the speed and performance of these devices thereby causing significant slow performance , dropped calls, and excessive battery drain (the "Defect"). But this was never II disclosed to its consumers. As a result of Apple's conduct, millions of consumers may believe that the Covered iPhones have become obsolete and deceived into upgrading to the newest iPhone models -- the iPhone 8 and/or i Phone X. Mr. Hakimi's lists nine causes for their Class Action lawsuit, the most by any of the lawsuits to date, as follows: 01: Strict Products Liability 02: Negligence - Products Liability 03: Violation of the Consumers Legal Remedies Act (Cal. Civ. Code Sec. 1750 et seq.) 04: Unfair Competition (Bus. and Prof. Code Sec 17200 et seq.) 05: Breach of Express Warranty under the Magnuson-Moss Warranty Act (15 U.S.C. Sec 2301 et seq.) 06: Breach of Express Warranty 07: Breach of the Implied Warranty of Merchantability 08: Breach of Implied Warranty of Fitness for a Particular Purpose 09: Violation of California's False Advertising Laws 10: Fraud 11: Unjust Enrichment Unlike some of the cases that we've covered recently, the Hakimi lawsuit doesn't list a dollar amount that they're seeking from Apple. [GN] APPLE INC: Sued in New York Over Slowing iPhone Battery Issue ------------------------------------------------------------- Patently Apple reports that Eliezer Rabinovits and Victor Mazzeo of New York have filed a class action against Apple regarding the slowing iPhone battery issue. This is the fourth lawsuit filed against Apple and not exactly the publicity Apple wanted end 2017 with. The barrage of lawsuits comes after a brutal week of bad software problems that Apple's Phil Schiller tried to slough off as just a bad week. Summary of the Action The lawsuit begins with their Summary of the Action as follows: "This is a class action on behalf of owners of all versions of the iPhone 6 and/or iPhone 7 who were harmed when their devices' software was updated to any of the following: iOS 10.2.1 (released on January 23, 2017); iOS 10.3 (released on March 27, 2017); iOS 10.3.1 (released on April 3, 2017); iOS 10.3.2 (released on May 15, 207); iOS 10.3.3 (released on July 19, 2017) (collectively referred to as the "iOS 10 Update"); iOS 11.0.1 (released on September 26, 2017); iOS 11.0.2 (released on October 3, 2017); iOS 11.0.3 (released on October 11, 2017); iOS 11.1 (released on October 31, 2017); iOS 11.1.1 (released on November 9, 2017); iOS 11.1.2 (released on November 16, 2017); iOS 11.2 (released on December 2, 2017); and iOS 11.2.1 (released on December 13, 2017) (collectively referred to as "iOS 11 Update"). The iOS 10 and iOS 11 Updates caused Plaintiffs' and class members' devices to be significantly slower and interfered with the normal usage of the phones. Plaintiffs allege that Defendant Apple Inc. engaged in deceptive trade practices and false advertising in violation of New York General Business Law 349 and Sec 350 when it represented that the iOS 10 and iOS 11 Updates were compatible with and support iPhone 6s and iPhone 7s. Specifically, Apple failed to warn iPhone 6 and iPhone 7 owners that the iOS 10 and iOS 11 Updates could significantly and negatively interfere with their phones' performance. To the contrary, Apple specifically touted the increased phone performance that would result from the iOS 10 and iOS 11 updates. Apple has since admitted however that, through the iOS 10 and iOS 11 Updates, Apple deliberately prevents chips in iPhone 6s and iPhone 7s from reaching their full processing power. In other words, instead of enhancing the performance of iPhone 6s and iPhone 7s as Apple represented, the iOS 10 and iOS11 Updates were designed to limit the devices' performance in certain circumstances. Having updated their phones, Plaintiffs and owners of iPhone 6s and iPhone 7s must either continue using devices that experience significant lag time that interferes with their ordinary use, or purchase a new phone for hundreds of dollars." The First Cause of Action: Violation of New York General Business Law Sec. 349 The Second Cause of Action: Violation of New York General Business Law Sec. 350 [GN] APPLE INC: Faces Class Action in Israel for Slowing Older iPhones ----------------------------------------------------------------- Haaretz's Refaella Goichman and The Associated Press report that Apple was hit with a 500-million-shekel (about $125 million) class action lawsuit in Israel on Dec. 25, a week after the company admitted to deliberately slowing the performance of older iPhone models and some days after similar suits were filed in the United States. The two Israelis behind the suit argue that Apple breached its duty toward consumers by concealing information. Apple claimed that its intention in providing software updates that slowed the phones was to make aging batteries last longer. But the lawsuits filed in the U.S. charge that the company's silence led users to wrongly conclude that their only option was to buy newer, pricier iPhones. The Israeli class action filed in Tel Aviv says that Apple is known for its "closed" nature: The code of its system is not accessible, and users are entirely dependent on Apple's judgment regarding their use of the operating system and the device. The claim accuses Apple of breaching its basic duties toward users by failing to disclose that "innocent" software updates would have negative implications for their phone use. The claimants say that the software updates impaired their ability to browse the web, check email and use various applications. "There is no doubt that information about the device slowing is important, and cardinal, and users had the right to get [that information] from Apple before deciding whether to install the software updates," the lawsuit says. The lawsuit also alleges that although Apple says it had technical motives for releasing its slowing updates, it had a clear interest in hiding the information from users because it would prefer they replace old iPhones with new ones as soon as possible. On Dec. 22 a lawsuit against Apple was filed in Chicago federal court on behalf of five iPhone owners from Illinois, Ohio, Indiana and North Carolina. All claimants say they never would have bought new iPhones had Apple told them that simply replacing the batteries would have sped up their old ones. The suit alleges Apple violated consumer fraud laws. A similar lawsuit was also filed in Los Angeles. For years Apple enthusiasts have suspected that software updates actually impaired the performance of older generation phones. Apple never responded to these allegations until a post on the website Reddit raised the possibility that phone performance deteriorated after users updated their operating system. Apple subsequently announced that the software updates were intended as a fix to "smooth out" the phones' power consumption, preventing sudden phone shutdowns and as a fix for degraded lithium-ion batteries that could otherwise suddenly die. "Our goal is to deliver the best experience for customers, which includes overall performance and prolonging the life of their devices," the company said in a statement. It said it released the fix for iPhone 6, iPhone 6s and iPhone SE and later extended it to iPhone 7. The Chicago plaintiffs allege that Apple's motive may have been sinister, though no evidence for that is provided in the filing. "Apple's decision to purposefully . . . throttle down these devices was undertaken to fraudulently induce consumers to purchase the latest" iPhone, the claim says. [GN] APPLE INC: Faces "Gallman" Class Action Over iPhone Battery Issue ----------------------------------------------------------------- Olivia Tucker, writing for Version Weekly, reports that Apple has reportedly been hit with a fifth class action lawsuit by an individual named Nicole Gallman in the Northern District Court of California over slowing battery issue of iPhone devices. According to a report by Patently Apple, the complaint reads, "Plaintiff and Class Members are Apple iPhone users. May Class Members are not new to the iPhone franchise, but are loyal followers of Apple, having purchased various iterations of the mobile device. Because Apple failed to inform consumers that the performance issues were artificially caused by the IOS update in conjunction with an older (but still perfectly functional) battery, consumers were denied the opportunity to make an informed decision regarding whether to upgrade their device or instead merely replace the battery. Apple's failure to disclose the impact of the iOS update 10.2.1 (and the later iOS 11.1) and remedy the issues it produced (and purported to resolve) constitutes an unfair trade practice and breach of the covenant of good faith and fair dealing implied in Apple's contracts with Plaintiff and the class." The Plaintiff further went on to read, "This is a consumer protection action seeking injunctive relief and damages arising from Defendant's unlawful failure to inform consumers that updating their iPhone 6, 6S, SE or 7 (the "Legacy Devices") to iOS 10.2.1 (and/or later to iOS 11.2) would dramatically and artificially reduce the performance of the Legacy Devices." Apple has also been accused of not informing its consumers that the iPhone device's performance would be restored by as much as seventy percent if the affected individuals replaced the smartphone's lithium-ion batteries. The replacement of iPhone's battery at an Apple store would have cost somewhere around $100. However, if the individual goes on to purchase the new iPhone X, it would end up costing $1,000. [GN] APPLE INC: Faces 2 Suits in Calif., NY Over iPhone Battery Issue ---------------------------------------------------------------- Patently Apple reports that the eighth and ninth Class Action lawsuits have been filed against Apple in California and New York respectively for purposely slowing iPhones over the years. In the first class action filed by Violetta Mailyan and her lawyers, they're shooting for the moon by demanding the off-the-wall amount of $999,999,999,000. In the second class action that was filed in New York by Raisa Drantivy and her legal team, they're humbly demanding a mere $100,000,000. I mean in light of Violetta's $999 Billion, it's a bargain, right? Considering that Samsung will launching a new mid-class A8 series smartphone in January and their high-end Galaxy S9 in February, you could count on Samsung taking a couple of shots at Apple over this issue. It's just in their nature. Class Action Allegations The following is in-part from Violetta Mailyan's class action. It's from the segment of the lawsuit titled 'Class Action Allegations.' "There are substantial questions of law and fact common to the Class that predominate over questions affecting only individual Class members including, but not limited to, the following: whether Defendant intentionally slowed down the performance of older iPhone models through iOS updates or otherwise; whether Defendant intentionally concealed material information from Class members; whether Defendant's conduct was the direct and proximate cause of the damages suffered by Class members; whether the Plaintiff and Class suffered monetary damages as a result of Defendant's conduct; whether Defendant violated California Business and Professions Code Sec. 17200 et seq.; whether punitive damages should be awarded to Plaintiff and Class. Plaintiffs' claims are typical of the claims of the Class. Each member of the Class had to buy a newer iPhone model because the performance of their older iPhone model had slowed down as a result of Defendant's purposeful conduct. Each member of Class was denied the use, utility and value of the older iPhone model because of the slowdown of performance. The injuries of the Plaintiff and Class are identical, and Plaintiff's claims for relief are based upon the same legal theories as the claims of other Class members. Count 01: Fraud through Concealment Count 02: Unfair Competition under California Business and Professions Code Sec 17200 et seq. The ninth Class action lawsuit filed against Apple was filed by Raisa Drantivy in the Eastern District Court of New York with six causes listed: Cause 01: Breach of Implied Contract Cause 02: Trespass to Chattel Cause 03: Fraud Cause 04: Misrepresentation Cause 05: Deceptive Business Acts and Practices Cause 06: False Advertising The plaintiff in this case, as in all cases, recounts Apple's updates over the years that stated such things as follows: "Defendant's 'update' descriptions expressly specified and recommended that Plaintiff and other iPhone users should download and install the 'updates' to 'fix bugs and issues' as well as 'increase performance' on the iPhone 5." At a later point under the 'Substantive Allegations' segment it states: "Plaintiffs and Class Members have owned and used defendant Apple's product, iPhones, for a number of years. Defendant alleges that its battery may retain up to 80 percent of their original capacity at 500 complete charge cycles. Defendant alleges that it slows down iPhone processors when the battery is wearing out. Defendant never requested consent or did Plaintiffs at any time give consent for Defendant to slow down their iPhones. Plaintiffs and Class Members were never given the option to bargain or choose whether they preferred to have their iPhones slower than normal. Plaintiffs and Class Members suffered interferences to their iPhone usage due to the intentional slowdowns caused by Defendant. Defendant's wrongful actions directly and proximately caused the interference and loss of value to Plaintiffs and Class Members' iPhones causing them to suffer, and continue to suffer, economic damages and other harm for which they are entitled to compensation, including: a. Replacement of old phone; b. Loss of use; c. Loss of value; d. Purchase of new batteries; e. Ascertainable losses in the form of deprivation of the value of their iPhone; f. Overpayments to Defendant for iPhones in that a portion of the price paid for such iPhone by Plaintiff and Class Members to Defendant was for Defendant to purposefully not interfere with the usage of their iPhones, which Defendant and its affiliates purposefully interfered with in order to slow down its performance and, as a result, Plaintiffs and Class Members did not receive what they paid for and were overcharged by Defendant. [GN] APPLE INC: Faces "Bogdanovich" Suit Over iPhone Battery Issue ------------------------------------------------------------- PYMNTS reports that Apple's acknowledgment that it slows down older versions of its iPhone has prompted a lawsuit against the Cupertino, California company. According to a report in CNBC citing a court filing, shortly after Apple said it has an algorithm in place that slows down older iPhones to ensure they can run longer, Stefan Bogdanovich and Dakota Speas brought a class-action lawsuit against the company in California, where the two plaintiffs live. In the lawsuit, the two claimed Apple never got their consent to slow down their iPhone, with both owning an iPhone 7. The two claim they then faced interference in usage of their smartphones because of the intentional slowdowns. Both are also claiming damages in the lawsuit, contending that the slowdowns hurt them economically and that they are entitled to compensation from Apple. The two are seeking class-action status in the lawsuit, which would cover all the people in the U.S. who own an iPhone that is older than the iPhone 8. Apple told CNBC: "Our goal is to deliver the best experience for customers, which includes overall performance and prolonging the life of their devices. Lithium-ion batteries become less capable of supplying peak current demands when in cold conditions, have a low battery charge or as they age over time, which can result in the device unexpectedly shutting down to protect its electronic components." The lawsuit comes at a time when Apple is enjoying brisk sales of its latest iPhones. The iPhone X, which sells for $999 and up, has seen strong demand during the holiday season, boosting the company's stock price and its fortunes. Apple has also just inked a deal to acquire Shazam, in an effort to boost its music subscription business. [GN] APPLE INC: Faces Class Action in Ill. Over iPhone Battery Issues ---------------------------------------------------------------- Michael Tarm and Michael Liedtke, writing for The Associated Press, report that iPhone owners from several states sued Apple Inc. for not disclosing sooner that it issued software updates deliberately slowing older-model phones so aging batteries lasted longer, saying Apple's silence led them to wrongly conclude that their only option was to buy newer, pricier iPhones. The allegations were in a lawsuit filed on Dec. 21 in Chicago federal court on behalf of five iPhone owners from Illinois, Ohio, Indiana and North Carolina, all of whom say they never would have bought new iPhones had Apple told them that simply replacing the batteries would have sped up their old ones. The suit alleges Apple violated consumer fraud laws. A similar lawsuit was filed on Dec. 21 in Los Angeles. Both suits came a day after Apple confirmed what high-tech sleuths outside the company already observed: The company had deployed software to slow some phones. Apple said it was intended as a fix to deal with degraded lithium-ion batteries that could otherwise suddenly die. "Our goal is to deliver the best experience for customers, which includes overall performance and prolonging the life of their devices," an Apple statement said. It said it released the fix for iPhone 6, iPhone 6s and iPhone SE and later extended it to iPhone 7. Apple didn't respond to a message on Dec. 22 seeking comment. The Chicago lawsuit suggests Apple's motive may have been sinister, though it offers no evidence in the filing. "Apple's decision to purposefully . . . throttle down these devices," it says, "was undertaken to fraudulently induce consumers to purchase the latest" iPhone. Plaintiff Kirk Pedelty, of North Carolina, contacted Apple as his frustration grew. However, the lawsuit says: "Nobody from Apple customer support suggested that he replace his battery to improve the performance of his iPhone. . . . Frustrated by slowdowns and intermittent shutdowns of his iPhone 7, Pedelty purchased an iPhone 8." The lawsuit seeks class-action status to represent thousands of iPhone owners nationwide. Creative Strategies analyst Carolina Milanesi said she believes the tech giant was seeking to help consumers extend the lives of the older phones -- though it would have been better to disclose what it was doing and why right away. "Even if you are trying to do something good for your customers, it is going to be perceived as you are sneaking around behind their backs if you don't tell them about it first," she said. [GN] APPLE INC: Court Orders iPhone Testing by Neutral Expert -------------------------------------------------------- The United States District Court for the Northern District of California, San Jose Division, issued an Order on Discovery Dispute Joint Report in the case captioned THOMAS DAVIDSON, et al., Plaintiffs, v. APPLE INC., Defendant, Case No. 5:16-cv- 04942-LHK (HRL) (N.D. Cal.). This is a putative consumer class action against Apple alleging that its iPhone 6 and iPhone 6 Plus are defective. The alleged defect manifests itself when a user's touch or swipe on the touchscreen brings no response from the iPhone. Plaintiffs say that two touchscreen controller chips underneath the touchscreen convert touches of the user into instructions to the iPhone software to do what the user is ordering. Allegedly, through poor design, insufficient padding, or weak external casing, in normal use the solder joints of the touch IC chips become loose, and the electrical connectivity between the chips and the motherboard to which they are attached is interrupted. Discovery Dispute Joint Report #1 (DDJR #1) arises because the parties cannot agree on a protocol that Apple must follow in doing so. They hung up on three issues and came to the court to sort them out. First, the plaintiffs were concerned about maintaining the privacy of any user-created content on an iPhone. Apple addressed that concern by offering to allow plaintiffs to restore each iPhone to its factory default settings, which (they say) would wipe out all user-created content. Second, the plaintiffs are concerned about the possibility of destructive testing. They do not want their iPhones to be damaged, altered, or destroyed while undergoing Apple's tests. Apple tries to assuage those concerns by representing that it will do no destructive testing. The third issue, which overlaps the second, is the thorniest. Should plaintiffs receive the data or information obtained from the iPhones on account of Apple's tests? The court is not sure what tests the plaintiffs might wish to run, if any, but their request is that both sides simultaneously receive the data from both side's tests. Apple vigorously opposes that proposition. The court is not convinced that the work product doctrine is implicated in the testing of plaintiffs' iPhones. What the parties do with the results is probably work product, but what comes out of those instruments is just data or information. If the court is wrong, and it is deemed work product, then work product protection, which is not absolute, should give way to the exception in Fed. R. Civ. P. 26(b)(3)(A)(ii), because the court believes plaintiffs have a substantial need for the information to prepare their case and likely cannot get it by other means. Plaintiffs must arrange forthwith for delivery of their iPhones to the neutral expert. At least 48 hours before testing is to commence, both sides will simultaneously identify and describe with particularity to the other side each test they want to be run, which will give the other side the opportunity to object that a certain test may be destructive. Any test objected to shall not be run until the parties agree or the court orders it. All test results shall be given to both sides. Any test not objected to may be run. The neutral expert will agree to be bound by the protocol and keep all communications with each party's attorneys confidential, not to be disclosed to the other side. If an appeal is taken from this order, the order is stayed until the appeal is resolved. A full-text copy of the District Court's December 14, 2017 Order is available at https://tinyurl.com/y9rd34a5 from Leagle.com. Thomas Davidson, Plaintiff, represented by David Christopher Wright -- dcw@mccunewright.com -- McCune Wright Arevalo, LLP. Thomas Davidson, Plaintiff, represented by Gregory F. Coleman -- greg@gregcolemanlaw.com -- Greg Coleman Law PC, Adam A. Edwards - - adam@gregcolemanlaw.com -- Greg Coleman Law PC, pro hac vice, Joseph G. Sauder -- jgs@mccunewight.com -- McCuneWright, LLP, pro hac vice, Matthew David Schelkopf -- mds@mccunewright.com -- McCuneWright LLP, pro hac vice, Mitchell M. Breit -- mbreit@simmonsfirm.com -- SIMMONS HANLY CONROY, LLC, pro hac vice, Paul J. Hanly, Jr. -- phanly@simmonsfirm.com -- Simmons Hanly Conry LLC, pro hac vice & Richard D. McCune, Jr. -- rdm@mccunewright.com -- McCune Wright Arevalo, LLP. Todd Cleary, Plaintiff, represented by David Christopher Wright, McCune Wright Arevalo, LLP, Gregory F. Coleman, Greg Coleman Law PC, Adam A. Edwards, Greg Coleman Law PC, pro hac vice, Joseph G. Sauder, McCuneWright, LLP, pro hac vice, Matthew David Schelkopf, McCuneWright LLP, pro hac vice, Mitchell M. Breit, SIMMONS HANLY CONROY, LLC, pro hac vice, Paul J. Hanly, Jr., Simmons Hanly Conry LLC, pro hac vice & Richard D. McCune, Jr., McCune Wright Arevalo, LLP. Jun Bai, Plaintiff, represented by David Christopher Wright, McCune Wright Arevalo, LLP, Gregory F. Coleman, Greg Coleman Law PC, Adam A. Edwards, Greg Coleman Law PC, pro hac vice, Joseph G. Sauder, McCuneWright, LLP, pro hac vice, Matthew David Schelkopf, McCuneWright LLP, pro hac vice, Mitchell M. Breit, SIMMONS HANLY CONROY, LLC, pro hac vice, Paul J. Hanly, Jr., Simmons Hanly Conry LLC, pro hac vice & Richard D. McCune, Jr., McCune Wright Arevalo, LLP. William Bon, Plaintiff, represented by David Christopher Wright, McCune Wright Arevalo, LLP, Gregory F. Coleman, Greg Coleman Law PC, Stephen Gerard Larson, Larson O'Brien LLP, Adam A. Edwards, Greg Coleman Law PC, pro hac vice, Joseph G. Sauder, McCuneWright, LLP, pro hac vice, Matthew David Schelkopf, McCuneWright LLP, pro hac vice, Mitchell M. Breit, SIMMONS HANLY CONROY, LLC, pro hac vice, Paul J. Hanly, Jr., Simmons Hanly Conry LLC, pro hac vice, Richard Christian Harlan, Sidley Austin LLP & Richard D. McCune, Jr., McCune Wright Arevalo, LLP. Adam Benelhachemi, Plaintiff, represented by David Christopher Wright, McCune Wright Arevalo, LLP, Gregory F. Coleman, Greg Coleman Law PC, Adam A. Edwards, Greg Coleman Law PC, pro hac vice, Joseph G. Sauder, McCuneWright, LLP, pro hac vice, Matthew David Schelkopf, McCuneWright LLP, pro hac vice, Mitchell M. Breit, SIMMONS HANLY CONROY, LLC, pro hac vice, Paul J. Hanly, Jr., Simmons Hanly Conry LLC, pro hac vice & Richard D. McCune, Jr., McCune Wright Arevalo, LLP. Brooke Corbett, Plaintiff, represented by David Christopher Wright, McCune Wright Arevalo, LLP, Gregory F. Coleman, Greg Coleman Law PC, Adam A. Edwards, Greg Coleman Law PC, pro hac vice, Joseph G. Sauder, McCuneWright, LLP, pro hac vice, Matthew David Schelkopf, McCuneWright LLP, pro hac vice, Mitchell M. Breit, SIMMONS HANLY CONROY, LLC, pro hac vice, Paul J. Hanly, Jr., Simmons Hanly Conry LLC, pro hac vice & Richard D. McCune, Jr., McCune Wright Arevalo, LLP. Matt Muilenburg, Plaintiff, represented by David Christopher Wright, McCune Wright Arevalo, LLP, Gregory F. Coleman, Greg Coleman Law PC, Stephen Gerard Larson, Larson O'Brien LLP, Adam A. Edwards, Greg Coleman Law PC, pro hac vice, Joseph G. Sauder, McCuneWright, LLP, pro hac vice, Matthew David Schelkopf, McCuneWright LLP, pro hac vice, Mitchell M. Breit, SIMMONS HANLY CONROY, LLC, pro hac vice, Paul J. Hanly, Jr., Simmons Hanly Conry LLC, pro hac vice, Richard Christian Harlan, Sidley Austin LLP & Richard D. McCune, Jr., McCune Wright Arevalo, LLP. Kathleen Baker, Plaintiff, represented by David Christopher Wright, McCune Wright Arevalo, LLP, Gregory F. Coleman, Greg Coleman Law PC, Adam A. Edwards, Greg Coleman Law PC, pro hac vice, Joseph G. Sauder, McCuneWright, LLP, pro hac vice, Matthew David Schelkopf, McCuneWright LLP, pro hac vice, Mitchell M. Breit, SIMMONS HANLY CONROY, LLC, pro hac vice, Paul J. Hanly, Jr., Simmons Hanly Conry LLC, pro hac vice & Richard D. McCune, Jr., McCune Wright Arevalo, LLP. Taylor Brown, Plaintiff, represented by David Christopher Wright, McCune Wright Arevalo, LLP, Gregory F. Coleman, Greg Coleman Law PC, Adam A. Edwards, Greg Coleman Law PC, pro hac vice, Joseph G. Sauder, McCuneWright, LLP, pro hac vice, Matthew David Schelkopf, McCuneWright LLP, pro hac vice, Mitchell M. Breit, SIMMONS HANLY CONROY, LLC, pro hac vice, Paul J. Hanly, Jr., Simmons Hanly Conry LLC, pro hac vice & Richard D. McCune, Jr., McCune Wright Arevalo, LLP. Apple INC., Defendant, represented by Arturo J. Gonzalez -- agonzalez@mofo.com -- Morrison & Foerster LLP, David Ramraj Singh -- david.singh@weil.com -- Weil, Gotshal and Manges LLP, Alexandria Armida Amezcua -- aamezcua@mofo.com -- Morrison & Foerster LLP, Ashley K. Nakamura -- anakamura@mofo.com -- Morrison Foerster, LLP, Christopher Leonard Robinson -- christopherrobinson@mofo.com -- Morrison & Foerster LLP, Diane P. Sullivan -- diane.sullivan@weil.com -- Weil, Gotshal and Manges LLP, pro hac vice, Penelope Athene Preovolos -- ppreovolos@mofo.com -- Morrison & Foerster LLP, Sabrina Larson -- slarson@mofo.com -- Morrison and Foerster, LLP & Tiffany Cheung - - tcheung@mofo.com -- Morrison & Foerster LLP. APPLE INC: Must Produce Docs Related to "BendGate" Press Release ---------------------------------------------------------------- The United States District Court for the Northern District of California, San Jose Division, issued an Order to produce all documents related to "BendGate" Press Release in the case captioned THOMAS DAVIDSON, et al., Plaintiffs, v. APPLE INC., Defendant, Case No. 5:16-cv-04942-LHK (HRL) (N.D. Cal.). In Discovery Dispute Joint Report #2, the plaintiffs seek an order compelling Apple to produce certain documents and, then, a Fed. R. Civ. P. 30(b)(6) witness to testify about them. Apple argues the documents are irrelevant and resists producing them. The putative consumer class action is on behalf of purchasers of Apple's iPhone 6 and 6 Plus. Plaintiffs claim these iPhones have a hardware defect that causes their touchscreens to become unresponsive to commands on account of the cracking or dislodging of certain soldered connections which, as a result, interrupts the electrical connectivity between the touchscreens and the rest of the device. This so-called touchscreen defect is caused, they say, because Apple failed to provide a sufficiently robust external casing, or adequate shielding or padding, to protect the solder connections during normal usage of the iPhone. The plaintiffs served document requests seeking information about the bending and flexing of the iPhone cases. When Apple pushed back, plaintiffs dialed back the requests to just the BendGate documents. Defendant still said "No" because the presiding judge has tossed the claim for affirmative fraud based on BendGate. Plaintiffs counterargument is that BendGate is relevant to support their fraud-by-omission cause and action, and the court agrees with plaintiffs. The fact that no mention is made in the press release of the touchscreen defect is relevant to their fraud-by-omission claim. Internal Apple discussions or communications about what to say or not say in the press release are fair game for discovery as to what Apple knew and when did it learn it. The Court orders that Apple must produce all documents related to (including leading up to) the BendGate press release, including, without limitation all ESI, reports, memos, meeting minutes, studies, discussion points, and drafts of the press release. If anything is withheld on the basis of attorney-client privilege or work product doctrine, simultaneously submit a privilege log. Apple will also produce a 30(b)(6) witness to testify about the production. A full-text copy of the District Court's December 14, 2017 Order is available at https://tinyurl.com/ydce5zmj from Leagle.com. Thomas Davidson, Plaintiff, represented by David Christopher Wright -- dcw@mccunewright.com -- McCune Wright Arevalo, LLP. Thomas Davidson, Plaintiff, represented by Gregory F. Coleman -- greg@gregcolemanlaw.com -- Greg Coleman Law PC, Adam A. Edwards - - adam@gregcolemanlaw.com -- Greg Coleman Law PC, pro hac vice, Joseph G. Sauder -- jgs@mccunewight.com -- McCuneWright, LLP, pro hac vice, Matthew David Schelkopf -- mds@mccunewright.com -- McCuneWright LLP, pro hac vice, Mitchell M. Breit -- mbreit@simmonsfirm.com -- SIMMONS HANLY CONROY, LLC, pro hac vice, Paul J. Hanly, Jr. -- phanly@simmonsfirm.com -- Simmons Hanly Conry LLC, pro hac vice & Richard D. McCune, Jr. -- rdm@mccunewright.com -- McCune Wright Arevalo, LLP. Todd Cleary, Plaintiff, represented by David Christopher Wright, McCune Wright Arevalo, LLP, Gregory F. Coleman, Greg Coleman Law PC, Adam A. Edwards, Greg Coleman Law PC, pro hac vice, Joseph G. Sauder, McCuneWright, LLP, pro hac vice, Matthew David Schelkopf, McCuneWright LLP, pro hac vice, Mitchell M. Breit, SIMMONS HANLY CONROY, LLC, pro hac vice, Paul J. Hanly, Jr., Simmons Hanly Conry LLC, pro hac vice & Richard D. McCune, Jr., McCune Wright Arevalo, LLP. Jun Bai, Plaintiff, represented by David Christopher Wright, McCune Wright Arevalo, LLP, Gregory F. Coleman, Greg Coleman Law PC, Adam A. Edwards, Greg Coleman Law PC, pro hac vice, Joseph G. Sauder, McCuneWright, LLP, pro hac vice, Matthew David Schelkopf, McCuneWright LLP, pro hac vice, Mitchell M. Breit, SIMMONS HANLY CONROY, LLC, pro hac vice, Paul J. Hanly, Jr., Simmons Hanly Conry LLC, pro hac vice & Richard D. McCune, Jr., McCune Wright Arevalo, LLP. William Bon, Plaintiff, represented by David Christopher Wright, McCune Wright Arevalo, LLP, Gregory F. Coleman, Greg Coleman Law PC, Stephen Gerard Larson, Larson O'Brien LLP, Adam A. Edwards, Greg Coleman Law PC, pro hac vice, Joseph G. Sauder, McCuneWright, LLP, pro hac vice, Matthew David Schelkopf, McCuneWright LLP, pro hac vice, Mitchell M. Breit, SIMMONS HANLY CONROY, LLC, pro hac vice, Paul J. Hanly, Jr., Simmons Hanly Conry LLC, pro hac vice, Richard Christian Harlan, Sidley Austin LLP & Richard D. McCune, Jr., McCune Wright Arevalo, LLP. Adam Benelhachemi, Plaintiff, represented by David Christopher Wright, McCune Wright Arevalo, LLP, Gregory F. Coleman, Greg Coleman Law PC, Adam A. Edwards, Greg Coleman Law PC, pro hac vice, Joseph G. Sauder, McCuneWright, LLP, pro hac vice, Matthew David Schelkopf, McCuneWright LLP, pro hac vice, Mitchell M. Breit, SIMMONS HANLY CONROY, LLC, pro hac vice, Paul J. Hanly, Jr., Simmons Hanly Conry LLC, pro hac vice & Richard D. McCune, Jr., McCune Wright Arevalo, LLP. Brooke Corbett, Plaintiff, represented by David Christopher Wright, McCune Wright Arevalo, LLP, Gregory F. Coleman, Greg Coleman Law PC, Adam A. Edwards, Greg Coleman Law PC, pro hac vice, Joseph G. Sauder, McCuneWright, LLP, pro hac vice, Matthew David Schelkopf, McCuneWright LLP, pro hac vice, Mitchell M. Breit, SIMMONS HANLY CONROY, LLC, pro hac vice, Paul J. Hanly, Jr., Simmons Hanly Conry LLC, pro hac vice & Richard D. McCune, Jr., McCune Wright Arevalo, LLP. Matt Muilenburg, Plaintiff, represented by David Christopher Wright, McCune Wright Arevalo, LLP, Gregory F. Coleman, Greg Coleman Law PC, Stephen Gerard Larson, Larson O'Brien LLP, Adam A. Edwards, Greg Coleman Law PC, pro hac vice, Joseph G. Sauder, McCuneWright, LLP, pro hac vice, Matthew David Schelkopf, McCuneWright LLP, pro hac vice, Mitchell M. Breit, SIMMONS HANLY CONROY, LLC, pro hac vice, Paul J. Hanly, Jr., Simmons Hanly Conry LLC, pro hac vice, Richard Christian Harlan, Sidley Austin LLP & Richard D. McCune, Jr., McCune Wright Arevalo, LLP. Kathleen Baker, Plaintiff, represented by David Christopher Wright, McCune Wright Arevalo, LLP, Gregory F. Coleman, Greg Coleman Law PC, Adam A. Edwards, Greg Coleman Law PC, pro hac vice, Joseph G. Sauder, McCuneWright, LLP, pro hac vice, Matthew David Schelkopf, McCuneWright LLP, pro hac vice, Mitchell M. Breit, SIMMONS HANLY CONROY, LLC, pro hac vice, Paul J. Hanly, Jr., Simmons Hanly Conry LLC, pro hac vice & Richard D. McCune, Jr., McCune Wright Arevalo, LLP. Taylor Brown, Plaintiff, represented by David Christopher Wright, McCune Wright Arevalo, LLP, Gregory F. Coleman, Greg Coleman Law PC, Adam A. Edwards, Greg Coleman Law PC, pro hac vice, Joseph G. Sauder, McCuneWright, LLP, pro hac vice, Matthew David Schelkopf, McCuneWright LLP, pro hac vice, Mitchell M. Breit, SIMMONS HANLY CONROY, LLC, pro hac vice, Paul J. Hanly, Jr., Simmons Hanly Conry LLC, pro hac vice & Richard D. McCune, Jr., McCune Wright Arevalo, LLP. Apple INC., Defendant, represented by Arturo J. Gonzalez -- agonzalez@mofo.com -- Morrison & Foerster LLP, David Ramraj Singh -- david.singh@weil.com -- Weil, Gotshal and Manges LLP, Alexandria Armida Amezcua -- aamezcua@mofo.com -- Morrison & Foerster LLP, Ashley K. Nakamura -- anakamura@mofo.com -- Morrison Foerster, LLP, Christopher Leonard Robinson -- christopherrobinson@mofo.com -- Morrison & Foerster LLP, Diane P. Sullivan -- diane.sullivan@weil.com -- Weil, Gotshal and Manges LLP, pro hac vice, Penelope Athene Preovolos -- ppreovolos@mofo.com -- Morrison & Foerster LLP, Sabrina Larson -- slarson@mofo.com -- Morrison and Foerster, LLP & Tiffany Cheung - - tcheung@mofo.com -- Morrison & Foerster LLP. ARENA PHARMA: April 12 Settlement Fairness Hearing Set ------------------------------------------------------ The following statement is being issued by Kaplan Fox & Kilsheimer LLP regarding the Arena Securities Litigation. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA TODD SCHUENEMAN, on behalf of himself and all others similarly situated, Plaintiff, v. ARENA PHARMACEUTICALS, INC., JACK LIEF, ROBERT E. HOFFMAN, DOMINIC P. BEHAN, WILLIAM R. SHANAHAN, and CHRISTY ANDERSON, Defendants. Case No. 3:10-cv-01959-CAB (BLM) CONSOLIDATED CLASS ACTION SUMMARY NOTICE TO: ALL PERSONS WHO PURCHASED THE COMMON STOCK OF ARENA PHARMACEUTICALS, INC. ("ARENA" OR THE "COMPANY") FROM MARCH 17, 2008 THROUGH JANUARY 27, 2011, INCLUSIVE, AND WERE DAMAGED THEREBY, YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States District Court for the Southern District of California, that a hearing will be held on April 12, 2018, at 10:00 a.m., before the Honorable Cathy Ann Bencivengo, United States District Judge, at the United States District Court for the Southern District of California, Courtroom 4C, 221 West Broadway, San Diego, CA 92101, for the purpose of determining: (1) whether the proposed settlement of the claims in the Action for $24,000,000 ($12,025,000.00 in cash, plus interest, and $11,975,000 in Arena common stock ("Settlement Shares") (Arena has the option to pay all or part of the Settlement Shares in cash at the time Arena is to issue the Settlement Shares)), should be approved by the Court as fair, just, reasonable, and adequate; (2) whether a Final Judgment and Order of Dismissal with Prejudice should be entered by the Court dismissing the Action with prejudice; (3) whether the Plan of Allocation is fair, reasonable, and adequate and should be approved; and (4) whether the application of Lead Counsel for the payment of attorneys' fees and expenses, and Lead Plaintiff's award in connection with the Action should be approved. IF YOU PURCHASED ARENA COMMON STOCK BETWEEN MARCH 17, 2008 AND JANUARY 27, 2011, INCLUSIVE, YOUR RIGHTS MAY BE AFFECTED BY THE SETTLEMENT OF THIS LITIGATION. If you have not received a detailed Notice of Pendency and Proposed Settlement of Class Action ("Notice") and a copy of the Proof of Claim and Release form, you may obtain copies by writing to Arena Securities Litigation, c/o GCG, P.O. Box 10526, Dublin, OH 43017-0526, or at www.ArenaPharmaceuticalsClassActionSettlement.com. If you are a Settlement Class Member, in order to share in the distribution of the Net Settlement Fund, you must submit a Proof of Claim and Release by mail (postmarked no later than April 13, 2018) or submitted electronically no later than April 13, 2018, establishing that you are entitled to recovery. If you are a Settlement Class Member and you desire to be excluded from the Class, you must submit a request for exclusion such that it is postmarked no later than February 12, 2018, in the manner and form explained in the detailed Notice, referred to above. All Settlement Class Members who do not timely and validly request exclusion from the Settlement Class in response to the Notice will be bound by any judgment entered in the Action pursuant to the Stipulation. If you are a Settlement Class Member, you have the right to object to the Settlement, the Plan of Allocation, or the fee and expense applications, or otherwise request to be heard. To object, you may submit a written objection in accordance with the procedures described in the more detailed Notice, referred to above, and/or you may appear at the hearing described above. Any written objection must be delivered to the Clerk of the Court, United States District Court, Southern District of California, 333 West Broadway, Suite 420, San Diego, CA 92101, such that it is postmarked no later than March 22, 2018. Note that the Court can only approve or deny the settlement, not change the terms of the settlement. PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING THIS NOTICE. If you have any questions about the Settlement, you may contact Lead Counsel at the addresses listed below: Jeffrey P. Campisi KAPLAN FOX & KILSHEIMER LLP 850 Third Avenue, 14th Floor New York, NY 10022 (212) 687-1980 (800) 290-1952 jcampisi@kaplanfox.com www.kaplanfox.com Laurence D. King KAPLAN FOX & KILSHEIMER LLP 350 Sansome Street, Suite 400 San Francisco, CA 94104 (415) 772-4700 lking@kaplanfox.com www.kaplanfox.com DATED: November 30, 2017 BY ORDER OF THE COURT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA [GN] B & H EDUCATION: 9th Cir. Affirms Summary Judgment on FLSA Claim ---------------------------------------------------------------- In the case, JACQUELINE BENJAMIN, individually and on behalf of all others similarly situated; BRYAN GONZALEZ, individually and on behalf of all others similarly situated; TAIWO KOYEJO, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. B & H EDUCATION, INC., Defendant- Appellee, Case No. 15-17147 (9th Cir.), Judge Mary M. Schroeder of the U.S. Court of Appeals for the Ninth Circuit affirms the District Court's order granting summary judgment for B&H on the FLSA claim and claims under the California and Nevada state law. Marinello Schools of Beauty is a for-profit school that offers discounted cosmetology services to the public through salons staffed by vocational students who do not receive compensation. Students at Marinello attend lectures, review course materials, take tests, and practice cosmetology on customers in the clinic under some instructor supervision, thereby allowing them to earn academic credit toward qualifying them to take the state licensing exam. The Plaintiffs in the case are Benjamin and Taiwo Koyejo, cosmetology students at Marinello in California, and Gonzalez, a hair design student at Marinello in Nevada. In January 2015, they filed a Second Amended Collective and Class Action Complaint in the District Court for the Northern District of California. They claimed that, rather than properly educate and train them in cosmetology, B&H exploited them for their unpaid labor. B&H did this, the Plaintiffs claimed, by not paying them for their work in Marinello's salons, by leaving them unsupervised in the salon, and by requiring them to perform services that they already could do as opposed to services that they needed to learn for the licensing exams. They also claimed B&H unlawfully kept the salon's profits, their tuition fees, the money they spent when required to purchase Marinello's salon supplies to service paying customers, as well as heavy fines that B&H imposed on them for tardiness and absences during scheduled salon shifts. The Plaintiffs sought payment for minimum and overtime wages, premium wages for missed meal and rest breaks, civil penalties for violating wage laws, restitution of fines, and reimbursement for supply purchases. They also requested declaratory judgment that B&H's practices violated federal and state law. The Plaintiffs moved for summary judgment, asserting that the students were employees under federal and state law. B&H filed a cross-motion for summary judgment, contending the Plaintiffs were students, not employees. In response to B&H's cross-motion for summary judgment and to support the allegations of the complaint, the Plaintiffs relied in part on witness declarations from three individuals who they had not disclosed to B&H pursuant to Federal Rule of Civil Procedure 26. The District Court therefore ordered the declarations stricken pursuant to Rule 37. The District Court then granted B&H summary judgment and denied the Plaintiffs' motion for summary judgment. Applying the primary beneficiary test set forth in Glatt v. Fox Searchlight Pictures, Inc., and Schumann v. Collier Anesthesia, P.A., the District Court held that the Plaintiffs were not employees under federal or state law because they were the primary beneficiaries of the educational program and they had not shown that Marinello subordinated the educational function of its clinics to its own profit-making purposes. The Plaintiffs appeal, challenging the District Court's rulings under both federal and state law, as well as the Rule 37 ruling. Judge Schroeder agrees with those decisions that the primary beneficiary test best captures the Supreme Court's economic realities test in the student/employee context and that it is therefore the most appropriate test for deciding whether students should be regarded as employees under the FLSA. Under the DOL test as applied to the facts before the Court, the Judge would similarly conclude the Plaintiffs are not employees. The Judge recognizes that the Plaintiffs are doubtless unhappy with the quality of the education they received. The appropriate remedy, however, is not for courts to order students to be paid as employees. The state boards in Nevada and California provide their own mechanisms for disciplining schools for unsatisfactory performance. There may also be remedies under state tort or contract law for recovery of improper fees, tuition, or penalties paid to the schools. The Appellate Court's role in the appeal is only to determine under applicable federal or state law whether the Plaintiffs are employees, and they are not. Finally, the Judge finds that there was no error in the District Court's refusal to consider the three declarations to support the Plaintiffs' motion for summary judgment that came from witnesses who had not been listed as witnesses pursuant to Rule 26. Even if the stricken witness declarations had been considered, they would in all likelihood have made no material difference to the District Court's ruling on the summary judgment motions. The information contained in the witness declarations added little more than colorful illustration to the allegations of the complaint that were inadequate as a matter of law to make out an employment relationship. Judge Schroeder concludes that the District Court correctly determined that the Plaintiffs were not employees of the schools in which they enrolled for training as cosmetologists. The Plaintiffs are not entitled to recover wages, the only relief they seek. Further, the District Court did not err in its handling of discovery issues. Accordingly, the Judge affirmed the judgment. A full-text copy of the Ninth Circuit's Dec. 19, 2017 Opinion is available at https://is.gd/XDUB6m from Leagle.com. Bryan J. Schwartz -- Bryan@BryanSchwartzLaw.com -- (argued) and Logan Talbot, Bryan Schwartz Law, Oakland, California; Leon Greenberg -- leongreenberg@overtimelaw.com -- and Dana Sniegocki , Law Office of Leon Greenberg, Las Vegas, Nevada; Chaya M. Mandelbaum and Michelle G. Lee, Rudy Exelrod Zieff & Lowe LLP, San Francisco, California; for Plaintiffs-Appellants. Robert Lane Morris (argued), Soltman Levitt Flaherty & Wattles LLP, Thousand Oaks, California, for Defendants-Appellees. BATS GLOBAL: 2d Cir. Vacates Dismissal of Securities Suit --------------------------------------------------------- Judge John M. Walker, Jr., of the U.S. Court of Appeals for the Second Circuit vacated the district court's dismissal of the case, CITY OF PROVIDENCE, RHODE ISLAND, EMPLOYEES' RETIREMENT SYSTEM OF THE GOVERNMENT OF THE VIRGIN ISLANDS, PLUMBERS AND PIPEFITTERS NATIONAL PENSION FUND, Lead Plaintiffs-Appellants, STATE-BOSTON RETIREMENT SYSTEM, Plaintiff-Appellant, GREAT PACIFIC SECURITIES, on Behalf of Itself and All Others Similarly Situated, Plaintiff, AMERICAN EUROPEAN INSURANCE COMPANY, JAMES J. FLYNN, HAREL INSURANCE COMPANY LTD., DOMINIC A. MORELLI, Consolidated-Plaintiffs, v. BATS GLOBAL MARKETS, INC., CHICAGO STOCK EXCHANGE INC., DIRECT EDGE ECN, LLC, NYSE ARCA, INC., NASDAQ OMX BX INC., NEW YORK STOCK EXCHANGE LLC, NASDAQ STOCK MARKET, LLC, Defendants-Appellees, BARCLAYS CAPITAL INC., BARCLAYS PLC, AND DOES, 1-5, INCLUSIVE, Defendants, Case No. 15- 3057-cv (2d Cir.). On April 18, 2014, the City of Providence filed a putative class action against the exchanges under Sections 6(b) and of the Exchange Act and SEC Rule 10b-5. The Lead Plaintiffs, institutional investors who traded on the Defendant stock exchanges during the class period, allege that the exchanges misled them about certain products and services that the exchanges sold to high-frequency trading firms, which purportedly created a two-tiered system that favored those firms at the Plaintiffs' expense. The district court consolidated the action with several related cases and appointed several institutional investors as the Lead Plaintiffs. On Jan. 12, 2015, the Judicial Panel on Multidistrict Litigation combined the consolidated action with other similar cases. The exchanges then moved to dismiss the Plaintiffs' complaint, arguing that (i) the district court lacked jurisdiction; (ii) the exchanges were absolutely immune from suit; and (iii) the Plaintiffs had failed to state a claim under the Exchange Act. On Aug. 26, 2015, the district court determined that it had subject matter jurisdiction over this case. It held that the exchanges were absolutely immune from the Plaintiffs' allegations concerning the proprietary data feeds and complex order types, but not co-location services. The district court further concluded that, even if the exchanges were not absolutely immune, the Plaintiffs had failed to state a claim for a violation of Sections 10(b) and Rule 10b-5 based on a manipulative scheme. The district court therefore granted the exchanges' motion and dismissed the complaint. The Plaintiffs timely filed the appeal. Judge Walker explains that when an exchange engages in conduct to operate its own market that is distinct from its oversight role, it is acting as a regulated entity -- not a regulator. Although the latter warrants immunity, the former does not. Accordingly, he concludes that the exchanges, in providing these challenged products and services, did not effectively stand in the shoes of the SEC and therefore are not entitled to the same protections of immunity that would otherwise be afforded to the SEC. He also find that the Plaintiffs have sufficiently pled that the exchanges misled investors by artificially affecting market activity and that the district court erred in dismissing this action on that basis. They've sufficiently pled that the exchanges created a fraudulent scheme that benefited HFT firms and the exchanges, sold the products and services at rates that only the HFT firms could afford, and failed to fully disclose to the investing public how those products and services could be used on their trading platforms. Judge Walker concludes that the Defendant exchanges are not entitled to absolute immunity, and the district court erred in dismissing the complaint under Federal Rule of Civil Procedure 12(b)(6). He therefore vacated the district court's judgment entered in favor of the Defendants-Appellees and remanded for proceedings consistent with the opinion. The district court did not reach the exchanges' other arguments for dismissal, such as that the Plaintiffs had failed to adequately allege statutory standing, loss causation, and scienter. On appeal, the parties cursorily address these issues, but without the benefit of the district court's consideration, the Judge declines to address them. On remand, they should be determined by the district court in the first instance. A full-text copy of the Court's Dec. 19, 2017 Opinion is available at https://is.gd/m4WjVP from Leagle.com. JOSEPH D. DALEY -- joed@rgrdlaw.com -- (Andrew J. Brown , David W. Mitchell -- davidm@rgrdlaw.com -- Samuel H. Rudman -- srudman@rgrdlaw.com -- Patrick J. Coughlin -- patc@rgrdlaw.com -- Vincent M. Serra -- vserra@rgrdlaw.com -- on the brief), Robbins Geller Rudman & Dowd LLP, San Diego, CA and Melville, NY; Joseph F. Rice -- jrice@motleyrice.com -- William H. Narwold -- bnarwold@motleyrice.com -- Ann K. Ritter -- aritter@motleyrice.com -- David P. Abel , Donald A. Migliori -- dmigliori@motleyrice.com -- Rebecca Katz, Motley Rice LLC, Mount Pleasant, SC and New York, NY; Christopher J. Keller -- ckeller@labaton.com -- Joel H. Bernstein -- jbernstein@labaton.com -- Michael W. Stocker -- mstocker@labaton.com -- Labaton Sucharow LLP, New York, NY for Lead Plaintiffs-Appellants. DOUGLAS R. COX -- dcox@gibsondunn.com -- (Scott P. Martin, Michael R. Huston, Alex Gesch -- agesch@gibsondunn.com -- Rajiv Mohan -- rmohan@gibsondunn.com -- on the brief), Gibson, Dunn & Crutcher LLP, Washington, DC for Defendants-Appellees NASDAQ OMX BX Inc. and Nasdaq Stock Market, LLC; Douglas W. Henkin -- douglas.henkin@bakerbotts.com -- J. Mark Little -- mark.little@bakerbotts.com -- Baker Botts LLP, New York, NY and Houston, TX for Defendants-Appellees New York Stock Exchange LLC and NYSE Arca, Inc.; Seth L. Levine -- slevine@levinelee.com -- Christos G. Papapetrou -- cpapapetrou@levinelee.com -- Levine Lee LLP, New York, NY for Defendant-Appellee Chicago Stock Exchange Inc.; James A. Murphy -- jmurphy@mmlawus.com -- Theodore R. Snyder -- tsnyder@mmlawus.com -- Joseph Lombard -- jlombard@mmlawus.com -- Murphy & McGonigle, P.C., New York, NY and Washington, DC for Defendants-Appellees BATS Global Markets, Inc. and Direct Edge ECN, LLC. Sanket J. Bulsara, Deputy General Counsel, Michael A. Conley, Solicitor, Dominick V. Freda, Assistant General Counsel, Jacob R. Loshin, Securities and Exchange Commission, Washington, DC, for amicus curiae Securities and Exchange Commission. BAY ALARM: "Villafuerte" Suit Seeks to Recover Unpaid OT -------------------------------------------------------- Michael Villafuerte, on behalf of himself and all others similarly situated v. Bay Alarm Company and Does 1 through 100, inclusive, Case No. BC689110 (Cal. Super. Ct., January 3, 2018), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. Bay Alarm Company owns and operates a home security systems company located at Concord, California. [BN] The Plaintiff is represented by: David D. Bibiyan, Esq. Diego Aviles, Esq. BIBIYAN LAW GROUP, P.C. 1801 Century Park East, Suite 2600 Los Angeles, CA 90067 Telephone: (310) 438-5555 Facsimile: (310) 300-1705 E-mail: david@tomorrowlaw.com diego@tomdrrowlaw.com BIG PHARMA: Sandusky County Joins Class Action Over Opioid Crisis ----------------------------------------------------------------- Craig Shoup, writing for The News-Messenger, reports that Sandusky County has joined nearly a dozen Ohio counties and municipalities seeking compensation from opiate manufacturers and distributors as part of a class action lawsuit. As part of the agreement, the county will pay for legal services of private law firms pursuing the case against pharmaceutical manufacturers and distributors, but will not have to provide any additional personnel or support, according to Sandusky County Commissioner Charlie Schwochow. "We thought it was time to jump on board with this," Mr. Schwochow said. "I think it follows through with what we are doing with our drug task force in the county and that it is important to helping our residents." The lawsuit will not target doctors prescribing the medication, but rather the people making and distributing the medication. "This is mostly against the wholesalers," commissioner Scott Miller said on Dec. 26. Sandusky County Commissioner Kay Reiter said she hopes the lawsuit brings more awareness to the opiate crisis. Other government entities involved in the class-action suit include the cities of Toledo and Dayton, Cuyahoga County, and the Richland County Department of Jobs and Family Services. Sandusky County Prosecutor Tim Braun told The News-Messenger that adding the county to the lawsuit was the "right thing to do." "We are dealing with this crisis on a daily basis, and it has cost the county a lot of money," Mr. Braun said on Dec. 26. Among the added costs, Mr. Braun noted, were monthly payments from the general fund to the Department of Jobs and Family Services totally $620,000 in 2015 for taking more children from drug addicted parents since the opiate epidemic began flooding Sandusky County about two years ago. In the past two years, the Sandusky County Jail has often been overcrowded due to the local drug crisis, costing the county hundreds of thousands of dollars. In 2016, that cost has been reduced to zero, thanks to a jail pod switch initiated by Sandusky County Sheriff Chris Hilton, but the county's general fund still suffered in many areas because of added costs associated with the drug epidemic. And some costs to the county have yet to be quantified as families are torn apart by the drug epidemic, leading to emotional stress for people dealing with addiction. Economically, local industries have struggled to hire residents, with many good-paying jobs going unfilled jobs because prospective workers can't pass a drug test. "We have to see it for what it is," Braun said. "This is the biggest healthcare crisis in the United States right now and these people (pharmaceutical companies) made billions on it." Ohio Attorney General Mike DeWine said four out of every five heroin addicts began their addiction by taking prescription pain medication. Mr. DeWine announced in May the state would sue drug manufacturers he believed "fueled the drug epidemic" because they misled doctors as to the addictive nature of opiates. In the lawsuit, Mr. DeWine wants the drug companies to admit that their marketing was illegal. DeWine also seeks an injunction to stop future fake claims by the pill manufacturers, and said he wants them to pay customers who were deceived. Mr. Braun said he hopes the county and state will benefit from the results of the class-action suit, which is expected to be filed in the spring. "Hopefully it will change the way (pharmaceutical firms) do business," Mr. Braun said. Legal services for the county are being provided by law firms Napoli, Shkolni PLLC, Plevin and Galluci Company LPA, Thrasher, Dinsmore and Dolan LPA, Scott Elliot Smith LPA and Pasternack, Tilker, Ziegler, Walsh Stanton and Romano LLP. [GN] BIG PHARMA: Walker County to Vote on Joining Opioid Class Action ---------------------------------------------------------------- Ed Howell, writing for Daily Mountain Eagle, reports that an official with a trade association representing drug distributors issued a response to a proposed opioid lawsuit that may involve Walker County, saying distributors are not "willing to be scapegoats." The Walker County Commission has delayed a vote until Jan. 4 on whether to join a class action lawsuit against opioid manufacturers and distributors. A number of counties, county hospitals and municipalities in the state have joined the suit already, which is being consolidated with others across the nation. John Parker, senior vice president of the Healthcare Distribution Alliance (hda.org) in Arlington, Va., responded to actions at the commission meeting after association officials read coverage in the Daily Mountain Eagle of the commission's Dec. 18 discussion on the suit A spokeswoman said the alliance is a "national trade association representing distributors, including AmerisourceBergen, Cardinal Health and McKesson." All three companies are listed among the dozen corporate defendants in the suit. Birmingham attorney Jeff Friedman -- jfriedman@friedman- lawyers.com -- of Friedman, Dazzio, Zulanas and Bowling, who is helping spearhead the suit, spoke to the commission on Dec. 18, urging it to join the suit, which would seek damages for the parties. The suit claims some companies since the late 1990s have marketed the drugs in a way to create a false sense of safety that would encourage patients and doctors to use them for longer periods of time. The suit claims that has led to disorders and deaths, noting warnings from the National Institute of Health and the Food and Drug Administration. Reports from "60 Minutes" were also by quoted Mr. Friedman in his presentation, pointing out McKesson Corporation was heavily fined for failing to put controls on distributions. McKesson said in a statement that the accusations against them in the "60 Minutes" report were unsubstantiated and denied criminal behavior or intent, adding it is investing millions to improve monitoring controlled substances and was working to improve communications with the Drug Enforcement Administration and in warning pharmacists as they fill prescriptions for people at risk for abuse. "As distributors, we understand the tragic impact the opioid epidemic has on communities across the country," Mr. Parker said in his statement. "We are deeply engaged in the issue and are taking our own steps to be part of the solution -- but we aren't willing to be scapegoats. "Distributors are logistics companies that arrange for the safe and secure storage, transport, and delivery of medicines from manufacturers to pharmacies, hospitals, long-term care facilities, and others based on prescriptions from licensed physicians. We don't make medicines, market medicines, prescribe medicines, or dispense them to consumers. "Given our role, the idea that distributors are solely responsible for the number of opioid prescriptions written defies common sense and lacks understanding of how the pharmaceutical supply chain actually works and how it is regulated. "We are ready to have a serious conversation about solving a complex problem and are eager to work with political leaders and all stakeholders in finding forward-looking solutions." The trade association earlier in the year published a fact sheet that noted, "Distributors fulfill orders only from entities that are registered with the DEA and licensed by state regulatory authorities. Further, these orders are for prescriptions written by medical professionals licensed by state medical boards. A distributor only knows what it ships to a particular dispenser. It does not know what that particular dispenser may also be receiving from other wholesalers nor does it know the full scope, or total volume, of the medicine supply for a city, county or state." "Wholesalers devote millions of dollars to state-of-the-art, anti-diversion monitoring programs and processes. Distributors regularly report suspicious activity and -- when appropriate -- cut off the supply of products to customers when 'red flags' of possible drug diversion or other illegal activity are observed." The alliance also said a "public-private partnership between distributors and the DEA could help IMPROVE distributors' monitoring systems." The fact sheet stated debate about the opioid crisis "often include a narrow, distorted view of the prescription drug supply chain and, in many cases, overstate pharmaceutical wholesale distributors' role in this serious public health issue. Many stakeholders in the supply chain -- including physicians, pharmacists, manufacturers, distributors, federal and state regulators, law enforcement, and others -- share responsibility for opioid abuse and misuse in our country. It is important to understand the role each stakeholder plays as we work to end the current opioid epidemic." The Healthcare Distribution Alliance represents primary pharmaceutical distributors, who link pharmaceutical manufacturers and more than 200,000 pharmacies, hospitals, long- term care facilities, clinics and others nationwide. [GN] BIG PHARMA: Opioid Lawsuits Step in the Right Direction ------------------------------------------------------- Tuscaloosanews.com reports that for the past few years, NFL football players have worn pink during the month of October in an effort to raise awareness of breast cancer. The league moved in 2016 to end the practice, but you still see players wearing the color. It is a worthwhile cause that has led to increased donations. But breast cancer, as bad as it is, now kills fewer Americans each year than opioids. In 2016, there were 41,070 Americans who died from breast cancer, but there were 42,249 overdose deaths involving opioids that same year. Opioids were involved in the majority of the more than 63,600 overdose deaths in 2016. And, as pharmaceutical companies get richer, the problem is only getting worse. U.S. deaths from drug overdoses increased a whopping 21 percent in 2016. Preliminary 2017 data shows that the rise in overdose deaths is continuing. It is such a problem that it is dragging down the overall life expectancy of Americans for the second straight year. While the problem is nationwide, it is especially troubling in Alabama, where we have more opioid painkiller prescriptions than people. A recent study by Quintiles IMS found earlier in 2017 that there are 1.18 opioid prescriptions per person in Alabama, which was the worst ratio of all states. There's no way that pharmaceutical companies don't know that they are shipping more of these drugs than are needed in Alabama. There's no way that doctors prescribing these highly addictive drugs at such a remarkable rate are unaware they are being abused. Back in June, the New York Times reported that overdoses are now the leading cause of death of Americans under the age of 50, outpacing disease, car crashes or gun violence. That same month Tuscaloosa County Sheriff's Office Chief Loyd Baker told a local meeting of the League of Women Voters that "drugs are the underlying current, affecting everything we do." He said about 21 to 23 people die from opioid overdoses in Tuscaloosa County each year. It's time to address this incredibly serious problem in a serious way, a way that gets results, so we're heartened to hear that Tuscaloosa County's largest local governments are considering participating in a class-action lawsuit against manufacturers and distributors of opioid drugs. Tuscaloosa County, the city of Tuscaloosa and the city of Northport are all in the process of doing due diligence and researching which law firm they should choose. While joining the lawsuits isn't a panacea that will make this problem go away, it is a step in the right direction. Settlements have already been reached in other cases brought against the pharmaceutical companies. And Mississippi, Ohio, West Virginia, along with other counties and cities, such as Chicago, have also started litigation. These companies have enriched themselves while our citizens are addicted and dying. They've wreaked havoc in our communities and depleted resources and we're all paying a steep cost. [GN] BULLITT COUNTY, KY: Court Narrows Doc Production in "Shadburne" --------------------------------------------------------------- The United States District Court for the Western District of Kentucky, Louisville Division, issued a Memorandum Opinion and Order granting in part and denying in part Defendant's Motion to Compel Production in the case captioned TABATHA LYNN SHADBURNE, Plaintiff, v. BULLITT COUNTY, KENTUCKY, and MARTHA KNOX, in her capacity as the Bullitt County Jailer, Defendants, Civil Action No. 3:17CV-00130-DJH (W.D. Ky.). Before the Court is the motion of Plaintiff Tabatha Lynn Shadburne, individually and on behalf of all others similarly situated, to compel discovery responses from Defendants Bullitt County, Kentucky, and Martha Knox, Bullitt County Jailer. Shadburne alternatively seeks discovery sanctions against Defendants in the same motion. Shadburne was arrested on December 8, 2016, on a bench warrant issued by Bullitt County Family Court for failure to appear in a domestic violence case. Upon arrest, Ms. Shadburne was taken to the Bullitt County Detention Center and was strip-searched at booking. As a result of these events, Ms. Shadburne brought the instant action against Defendants Bullitt County, Kentucky, and Martha Knox, Bullitt County Jailer, alleging that the strip search violated her civil rights under 42 U.S.C. Section 1983, including her rights under the Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments. The Court grants in part and denies in part Shadburne's Motion to Compel. Defendants are required to provide supplemental responses to Shadburne's Request for Production of Documents No. 1, Interrogatory Nos. 4 and 8, and Request for Admission No. 3. Shadburne's Request for Production of Documents No. 1 stated: "Please produce a complete version of the rules, regulations, and policies of the Bullitt County Detention Center, which, according to the open records request previously provided, would seem to be 129 pages." Defendants originally objected to the request as overbroad and burdensome in that it seeks documents unrelated to Shadburne's allegations that her rights were violated when she was strip-searched. Defendants assert that public release of their policies and procedures could affect the safety and security of the Jail, especially if it were shared with inmates. This Manual, Defendants explain Includes sections related to weapons and their storage, transport procedures, and location of keys and common sense dictates that this information should not be made available to the public because of the risk that such information would be shared with the individuals incarcerated at the Jail. Defendants' reasoning is compelling. Federal courts have repeatedly found good cause to limit discovery or disclosure of information implicating the safety and security of prisons and jails. Despite the presumption in favor of public access, the Court finds here that good cause has been shown to permit the designation of the Jail Policy and Procedures Manual as confidential. The Jail Manual must be produced and maintained pursuant to the terms of a protective order. Defendants are directed to file a proposed protective order with the Court, indicating that the documents shall be marked as Confidential and shall not be disclosed to unauthorized individuals or used for any purpose other than the preparation of the case. Interrogatory No. 4 deals with Shadburne's Requests for Admissions. Interrogatory No. 4 states: "For all Requests for Admission you have answered with other than an unqualified Admit, please fully explain all facts that made admitting the request impossible." Defendants state that all of their denials of Requests for Admission were explained by reference to the detailed answers to Interrogatories or by a simple statement following the denial. Defendants have neither challenged Interrogatory No. 4 on numerosity grounds nor as being unduly burdensome. In fact, Defendants do not object to Interrogatory No. 4 at all but instead assert that their answer stating see responses to Plaintiff's Requests for Admissions" is sufficient. The Defendants' position is not persuasive. While the Court agrees that no further explanation of their unequivocal denials of Shadburne's Requests for Admissions is necessary, the same cannot be said of the Defendants' answer to Interrogatory No. 4. By merely referencing their answers to the Requests for Admissions, which the Court has found do not require a detailed explanation, Defendants fail to answer the Interrogatory.5 Since an interrogatory of this nature is generally permissible and Defendants have not otherwise objected, the Court finds Defendants did not answer this interrogatory fully and will order a more complete answer. Interrogatory No. 8 reads: "From 1-1-08 to 1-1-17, please state any and all claims made against the Bullitt County Detention Center in which strip searches were part; for each state whether there was a money payment made to settle that claim; for each state the money payment respectively paid; for each state whether a court case was filed, for each state the style of the case." In objecting to this Interrogatory, Defendants argued it was overly broad and unduly burdensome "in that it seeks information that is irrelevant to any claim in this case and will not lead to the discovery of admissible evidence." The Court finds Interrogatory No. 8 to be relevant because the requested information might reveal other instances of alleged illegal conduct by Defendants. Specifically, Defendants must identify other claims made against the Bullitt County Detention Center in which strip searches were apart, whether a court case was filed for such claims, and, if so, the style of each court case. Further, whether these other claims and cases involving strip searches against the Bullitt County Detention Center reached monetary settlement and the amounts of these settlements is also relevant and discoverable because the Kentucky Open Records Act provides that all public records including settlements of civil lawsuits whereby a government entity pays public funds to compensate for an injury it inflicted, are open for inspection by the public The Defendants, accordingly, must provide a supplemental answer to Interrogatory No. 8, which identifies (1) all claims made against the Bullitt County Detention Center from January 1, 2008 to January 1, 2017 involving allegedly illegal strip searches; (2) whether a court case was filed on these claims; (3) the style of each case; and (4) the disposition of each claim including the amount of any settlement or judgment. Request for Admission No. 3 seeks Defendants admit that the Bullitt County Detention Center regulations relating to strip searches, require a Deputy to have reasonable suspicion that the inmate to be searched has contraband that poses a threat to the public, safety, institutional safety, or the behalf of persons in custody, and that 'Strip searches must be approved by the on duty shift leader.' Defendants responded with: "Objection, the policy speaks for itself." A party's objection that a document speaks for itself, therefore, does not sufficiently meet the requirements of Rule 36. Because Defendants here neither admitted nor denied the request and instead relied on the unacceptable speaks for itself" objection, the Court finds the appropriate remedy is to have Defendants amend their answer to Request for Admission No. 3. Shadburne, in the alternative, seeks sanctions be imposed on Defendants for their incomplete discovery responses. The Court finds Shadburne's request for sanctions is unavailing. While the Court finds four of Defendants' discovery responses must be supplemented, it is inappropriate to award sanctions for these deficient responses, let alone the most severe sanction available, because Defendants' deficient responses were harmless. Shadburne's request for sanctions is denied. A full-text copy of the District Court's December 14, 2017 Memorandum Opinion and Order is available at https://tinyurl.com/y84wkuer from Leagle.com. Tabatha Lynn Shadburne, Individually and on behalf of all others similarly situated, Plaintiff, represented by Gregory W. Butrum, Gregory Ward Butrum, PLLC, 121 S. 7th, Third Floor, Louisville, Kentucky, 40202 Bullitt County, Kentucky, Defendant, represented by Kristen N. Worak -- kworak@kkhblaw.com -- Keuler Kelly Hutchins & Blankenship, LLP & Stacey A. Blankenship -- sblankenship@kkhblaw.com -- Keuler Kelly Hutchins & Blankenship, LLP. Martha Knox, in her capacity as the Bullitt County Jailer, Defendant, represented by Kristen N. Worak, Keuler Kelly Hutchins & Blankenship, LLP & Stacey A. Blankenship, Keuler Kelly Hutchins & Blankenship, LLP. CALL-A-HEAD: Class Certification Granted in Wage-and-Hour Case -------------------------------------------------------------- Judge Gregory Woods, Southern District of New York, granted class certification in a wage and hour action against Call-A-Head Corp., which sells port-o-potty services throughout the New York area. Slater Slater Schulman LLP, together with its co-counsel, The Marlborough Law Firm, P.C. were named class counsel. A copy of the Order is available at: http://d.classactionreporternewsletter.com/u?f=0XBY2ay4 Background New York Daily News's Stephen Rex Brown reported the city's top porta-potty company treats its workers like crap. That's the allegation of a new class-action lawsuit charging Callahead ("We're #1 at picking up #2") fails to pay workers any money at all for hours of overtime. The company, which says it commands 70% of New York's portable toilet market, cheats laborers out of as much as 30 hours of overtime a week, according to papers to be filed on June 30, 2017, in Manhattan Federal Court. "The job is really gross. It's nasty. It's hard," said Jeury Marte, 30, of Queens. "I worked every Friday and I didn't get paid a dime for it over 10 years." Callahead and its president, Charles Howard, have been sued at least six times in the past seven years for failing to pay OT, according to the suit. In each case, the company settled with individual plaintiffs but continued to maintain the same policies, papers charge. "Unfortunately, defendants do not treat their service technicians like number one," the suit reads. Callahead employs about 100 workers servicing the portable toilets, the suit says. Their duties include delivering, cleaning and picking up the portable johns in the five boroughs and Nassau, Suffolk and Westchester counties. The case is JUAN VARGAS, individually and on behalf of all others similarly situated, Plaintiffs, v. CHARLES W. HOWARD and CALL-A- HEAD CORP., Defendants, 1:15-cv-5101-GHW (S.D.N.Y.). CANADA: Settles Student Loan Privacy Breach Class Action -------------------------------------------------------- VOCM reports that a settlement has been reached for those who took out student loans between 2000 and 2006, and may have had their privacy breached. A notice of a proposed settlement for the Canada Student Loans privacy breach has been given. More than 580,000 people potentially had their information breached after a hard drive with sensitive personal and financial information went missing from a federal government facility on November 5, 2012. The proposed settlement is for $17.5-million, and an unlimited amount for actual losses to settle the claims. $5.25-million would go to the lawyers involved in the case, plus $350,000 in disbursements, the administration costs and the costs for advertising. The proposal also says Class Members will receive $60 for the inconvenience associated with the loss of their personal information. The federal court will hold a hearing at a courthouse in Ottawa on February 22, 2018 to consider whether or not the proposal is fair, reasonable and in the best interests of the Class, and whether to approve Class Counsel fees. [GN] CANADA: Brothers Mull Suit Over Smallwood Resettlement ------------------------------------------------------ Ramona Dearing, writing for CBC News, reports that two brothers want the prime minister and the premier of Newfoundland and Labrador to apologize to people who resettled between the 1950s and 1970s, as the government of the day tried to centralize services. Raymond and Hayward Blake also want compensation. "You know, I don't think they really understood what the people were actually going through. And there should be some recognition, perhaps, for the harm that was done to people," said Raymond Blake. Electric lights, flush toilets The brothers started life in Pushthrough, on the south coast of Newfoundland. In 1969, they moved 10 kilometres across the bay to Hermitage with their mother and siblings. While the Joey Smallwood government did not force people to leave Pushthrough, Raymond Blake said the community was struggling to find teachers who would stay. His mother signed the petition to resettle, just like everyone else. In July, 1969, a schooner carried the family's possessions from the old house in Pushthrough to their new home. Raymond Blake was 10, Hayward 13. The new place came equipped with running water, a flush toilet, and a television. Raymond Blake said it was very exciting for children who were used to kerosene lamps whenever the generator back in Pushthrough didn't work, as it often didn't. "In the evenings you could go anywhere in the house and push a switch and the light would come on," said Blake. "Simply amazing." Blake says resettlement was in many ways a good thing, but he adds he's come to understand that it was traumatic for some. Debt and heartache Raymond Blake says his mother was stoic, but he wondered what it was like for her as a widow with six children. She was separated from her friends and relatives, and was an outsider in her new community. Minnie Blake received just under $2,500 to help with the move, but her son said the only house she could find in Hermitage cost twice that, leaving the family in debt. His grandmother moved in with the family but Raymond Blake said she deeply missed her old garden in Pushthrough. "We don't think that she was ever happy, ever again," said Blake. He remembers that even the annual flower service at the cemetery in Hermitage was painful for the newcomers because they could not visit the graves of their own loved ones. His father's grave is in Pushthrough. Children mocked, bullied Blake said some resettled children faced ridicule for the way they talked, and playground fights were common. His brother said some young people paid a life-altering price. "I've heard from a number of people who said they dropped out of school, people who said they were bullied when they went to their new communities," said Hayward Blake. "So, you know, this is an untold story." He said one woman contacted him recently and told him that after her family resettled, other students made her the laughingstock of the school. Some students also stole her lunch money. The woman said she quit school and went to work at the local fish plant. While the Blake brothers said they were not bullied, they're taking action so others can have a voice. Plaque or scholarship, to remember Today, Hayward Blake works at Memorial University in St. John's, in the department of education. Raymond Blake is the head of the history department at the University of Regina. He calculates that around 30,000 people moved between the mid-'50s and the mid-'70s. Pushthrough cemetery The two men have drafted letters to Prime Minister Justin Trudeau as well as Premier Dwight Ball, calling for them to apologize for the resettlement program. They also want compensation and redress. Raymond Blake said he's not looking to get any money for himself. Instead, he'd like to see something like a plaque at a museum or a scholarship at Memorial University. "The apology is first and foremost what we're looking for," added his brother, Hayward Blake. "And we're looking for a recognition that the resettlement of the '50s and '60s was not done in the manner that it should have been." The brothers said their goal is to open up a dialogue about resettlement. However, they said if there's no formal apology they'll look into the possibility of a class-action lawsuit. The brothers pointed out that governments in Canada have offered apologies for injustices including residential schools, discrimination against gay and transgender civil servants and the head tax for immigrants. Raymond Blake was careful to say he's not comparing those experiences to what people went through in resettlement. But the brothers said resettled people are also victims. "The state has recognized how it has harmed people in different ways," he said. [GN] CAPITAL ONE: Date to File Discovery Plan in "Porteous" Extended --------------------------------------------------------------- In the case, NATASHA PORTEOUS, on behalf of herself and all others similarly situated, Plaintiff, v. CAPITAL ONE SERVICES II, LLC; and DOES 1 through 50, inclusive, Defendant(s), Case No. 2:17-CV-02866-JDM-GWF (D. Nev.), Magistrate Judge George Foley, Jr. of the U.S. District Court for the District of Nevada directed the Parties to file their Proposed Discovery Plan and Scheduling Order no later than Jan. 9, 2018; and withdrew without prejudice the Defendant's Motion To Dismiss and granted the Defendant leave to file responsive pleadings, including a motion to dismiss, to the operative First Amended Complaint. The Plaintiff filed her original complaint against Capital One in the District Court, Clark County Nevada, on Oct. 5, 2017, for alleged unpaid wages on behalf of herself and similarly situated individuals as a collective action pursuant to the federal Fair Labor Standards Act ("FLSA") and a class action pursuant to Federal Rule of Civil Procedure ("FRCP") 23 under various Nevada wage and hour laws and Nevada contract law for alleged failure to pay for computer log in/boot up and log out/boot down time, failure to include nondiscretionary bonuses into the calculation of the regular rate of pay for overtime premium, and breach of contract. Capital One removed the action to the Court on Nov. 15, 2017. Capital One filed its Motion to Dismiss Plaintiff's Complaint in its entirety on Nov. 22, 2017. The Plaintiff filed her FAC and operative complaint on Dec. 6, 2016. She alleges seven causes of action on behalf of herself and those similarly situated: (1) failure to pay overtime in violation of 29 U.S.C. Section 207; (2) failure to pay the correct overtime rate in violation of 29 U.S.C. Section 207(e); (3) failure to compensate for all hours worked in violation of NRS 608.140 and 608.106; (4) failure to pay minimum wages in violation of the Nevada Constitution; (5) failure to pay overtime in violation of NRS 608.140 and 608.018; (6) failure to timely pay all wages due and owing in violation of NRS 608.140 and 608.020-.050; and (7) breach of contract. The Plaintiff also included a jury demand. The Parties are scheduled to hold an in-person 26(f) conference on Dec. 19, 2017. They request relief from FRCP 26(f)(4) and leave from the Court to file their proposed Discovery Plan and Scheduling Order on or before Jan. 9, 2018 (21 days after the Parties' 26(f) conference due to the end of the year Holidays and previously scheduled counsel and staff vacations). The Defendant filed its Motion to Dismiss Plaintiff's Complaint on Nov. 22, 2017. In lieu of a response to the Defendant's Motion to Dismiss, the Plaintiff filed her FAC on Dec. 6, 2017. The Parties request that the Defendant's Motion To Dismiss currently before the Court be withdrawn without prejudice and that the Defendant be granted leave to file responsive pleadings, including a motion to dismiss, to the operative FAC. There are no other actions required by the Court at the time. A full-text copy of the Court's Dec. 15, 2017 Order is available at https://is.gd/LMMLBJ from Leagle.com. Natasha Porteous, Plaintiff, represented by Joshua D. Buck -- josh@thiermanbuck.com -- Thierman Buck, LLP. Natasha Porteous, Plaintiff, represented by Leah Lin Jones -- leah@thiermanbuck.com -- Thierman Buck, LLP & Mark R. Thierman -- mark@thiermanbuck.com -- Thierman Buck, LLP. CATHOLIC HEALTH: Summary Judgment in "Medina" ERISA Suit Affirmed ----------------------------------------------------------------- In the case, JANEEN MEDINA, individually, and on behalf of all others similarly situated, and on behalf of the CHI Plans, Plaintiff-Appellant, v. CATHOLIC HEALTH INITIATIVES; GERALDINE BEDNASH; MAUREEN COMER; RICHARD CORRENTE; DAVID R. EDWARDS; KATHERINE GRAY; BARBARA HAGEDORN; JAMES HAMILL; ANTOINETTE HARDY- WALLER; PHYLLIS HUGHES; DONALD JONES; ANDREA J. LEE; DAVID R. LINCOLN; KEVIN E. LOFTON; CHRISTOPHER R. LOWNEY; ELEANOR F. MARTIN; MARY MARGARET MOONEY; LILLIAN MURPHY; MARY JO POTTER; PATRICIA SMITH; EDWARD SPEED; DEAN SWINDLE; PATRICIA G. WEBB; JOHN AND JANE DOES, 1-10, whose true names are unknown, Defendants-Appellees. AMERICAN ASSOCIATION OF RETIRED PERSONS; FREEDOM FROM RELIGION FOUNDATION; PENSION RIGHTS CENTER; AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE; AMERICAN CIVIL LIBERTIES UNION; GUIDESTONE FINANCIAL RESOURCES OF THE SOUTHERN BAPTIST CONVENTION; THE PENSION BOARDS-UNITED CHURCH OF CHRIST, INC.; CHURCH ALLIANCE; THE CATHOLIC HEALTH ASSOCIATION OF THE UNITED STATES, Amici Curiae, Case No. 16-1005 (10th), Judge Timothy Tymkovich of the U.S. Court of Appeals for the Tenth Circuit affirmed the district court's grant of summary judgment. CHI is a Denver-based nonprofit organization created to carry out the Roman Catholic Church's healing ministry. To do so, CHI operates 92 hospitals and numerous other healthcare facilities in 18 states. It offers a retirement plan for its employees, with more than 90,000 participants and beneficiaries, and nearly $3 billion in plan assets. The CHI plan is administered by the CHI and Affiliates Defined Benefit Plan Subcommittee, whose members are appointed and removed by CHI's Board of Stewardship Trustees. Medina, a CHI employee, filed a class action, alleging that CHI's retirement plan fails to satisfy the statutory criteria for the church-plan exemption. She contends that, since the plan does not qualify for the exemption, CHI should have complied with the reporting and funding requirements of the Employee Retirement Income Security Act of 1974 ("ERISA"). Medina also argues the individual defendants who administer the plan breached their fiduciary duties by failing to comply with ERISA. And, Medina argues, even if the CHI plan did qualify as a church plan, the exemption would violate the Establishment Clause of the United States Constitution. The district court concluded CHI's plan satisfied the criteria for ERISA's church-plan exemption and dismissed her other statutory and constitutional claims. While the appeal was pending, the Supreme Court resolved one of the issues before the Court, holding that an employee-benefit plan need not be established by a church to qualify for ERISA's church-plan exemption, provided it satisfies the other statutory criteria. According to the Supreme Court, because Congress expanded the category of plans `established and maintained by a church' to 'include' plans 'maintained by' principal-purpose organizations, those plans are exempt from ERISA's requirements. The fact that CHI's plan was not established by a church therefore does not preclude its eligibility for the church-plan exemption. Two issues remain for the Tenth Circuit's consideration. First, Medina contends CHI's plan is not a church plan because it fails to satisfy the statutory criteria, which require the plan to be maintained by a principal-purpose organization associated with a church, for the employees of an organization associated with a church. She also argues the district court erred in concluding there were no genuine disputes of material fact on this point. Second, Medina contends applying the exemption to CHI's plan would violate the Establishment Clause of the United States Constitution. Judge Tymkovich affirmed the district court's grant of summary judgment. He finds that CHI's plan satisfies the relevant statutory criteria and qualifies as a church plan, and the district court did not err in concluding there were no genuine disputes of material fact. Nor does applying the exemption to CHI's plan violate the Establishment Clause. The Supreme Court precedent allows Congress to provide a religious accommodation by exempting religious organizations from regulatory schemes, especially where subjecting the religious organization to the regulatory scheme would raise constitutional questions. A full-text copy of the Tenth Circuit's Dec. 19, 2017 Order is available at https://is.gd/PkDRxo from Leagle.com. Ron Kilgard -- rkilgard@KellerRohrback.com -- Keller Rohrback L.L.P., Phoenix, Arizona (Lynn Lincoln Sarko -- lsarko@KellerRohrback.com -- Laura R. Gerber -- lgerber@KellerRohrback.com -- Havila C. Unrein -- hunrein@kellerrohrback.com -- and Matthew M. Gerend -- mgerend@KellerRohrback.com -- Keler Rohrback L.L.P., Seattle, Washington, and Laurie B. Ashton -- lashton@KellerRohrback.com -- Keller Rohrback L.L.P., Phoenix, Arizona, and Karen L. Handorf -- khandorf@cohenmilstein.com -- Michelle C. Yau -- myau@cohenmilstein.com -- and Mary J. Bortscheller -- mbortscheller@cohenmilstein.com -- Cohen Milstein Sellers & Toll, PLLC, Washington, D.C., with him on the briefs), Phoenix, Arizona, for Plaintiff-Appellant Lars C. Golumbic -- lgolumbic@groom.com -- (Sarah M. Adams -- sadams@groom.com -- and Sean C. Abouchedid -- sabouchedid@groom.com -- with him on the brief), Groom Law Group, Chartered, Washington, D.C., for Defendants-Appellees. William Alvarado Riveria and Mary Ellen Signorille, AARP Foundation Litigation, Washington, D.C., on the brief for Amicus Curiae AARP. Andrew L. Seidel, Freedom from Religion Foundation, Madison, Wisconsin, on the brief for Amicus Curiae Freedom from Religion Foundation. Curtis L. Kennedy, Denver, Colorado, Norman P. Stein , Philadelphia, Pennsylvania, and Karen W. Ferguson, Pension Rights Center, Washington, D.C. on the brief for Amicus Curiae Pension Rights Center. Daniel Mach, American Civil Liberties Union Foundation, Washington, D.C., and Richard B. Katskee and Bradley Girard, Americans United for Separation of Church and State, Washington, D.C., on the brief for Amici Curiae Americans United for Separation of Church and State and American Civil Liberties Union. G. Daniel Miller -- dmiller@cwlaw.com -- Conner & Winters, LLP, Washington, D.C., and Laurence A. Hansen -- lhansen@lockelord.com -- and Hugh S. Balsam -- hbalsam@lockelord.com -- Locke Lord LLP, Chicago, Illinois, on the brief for Amici Curiae GuideStone Financial Resources of the Southern Baptist Convention, The Pension Boards-United Church of Christ, Inc., and The Church Alliance. Mark E. Chopko -- mchopko@stradley.com -- Marissa Parker -- mparker@stradley.com -- and Brandon Riley -- briley@stradley.com -- Stradley Ronon Stevens & Young, LLP, Washington, D.C., and Lisa J. Gilden -- LGILDEN@chausa.org -- The Catholic Health Association of the United States, Washington, D.C., on the brief for Amicus Curiae The Catholic Health Association of the United States. CDK GLOBAL: Faces Class Action Over Antitrust Violations -------------------------------------------------------- Vince Bond Jr., writing for Automotive News, reports that in three years as a stand-alone company, dealership software giant CDK Global Inc. has produced some eye-popping numbers for investors, who in turn pushed CDK's stock to a record high in December. The company's adjusted profit margin hit 32 percent in its 2017 fiscal year, and it's targeting 40 percent for 2019, continuing a growth rate that its CEO has called "almost unprecedented" for a business of its size and type. But CDK's fast climb hasn't been smooth. Its pursuit of splashy results has driven some customers into the arms of competitors. Four rival vendors, including the powerful Cox Automotive conglomerate, have sued CDK, accusing it of anti-competitive business practices. At least five dealers or dealership groups have filed class-action lawsuits against the company this year, alleging antitrust violations. "They're making it easier for us to win their business," said Autosoft CEO Bryce Veon, whose company has signed more than 30 customers away from CDK in each of the last two years. "A lot of [dealers] call us, and they're like, 'We just want off of them as fast as we can.'" CDK officials acknowledge the company needs to improve in some areas but insist that it has made big strides in many others and is making the right moves to prepare for radical changes in the automotive retailing business. "Our customer service has gotten better," CDK CEO Brian MacDonald told Automotive News. "Our investment in r&d continues to be $200 million a year. We're investing in the future; we're investing in products; we're investing in service." Mr. MacDonald laid out three pillars after he became CEO in March 2016 -- "straight talk," a "need for speed" and "results" -- aimed at creating a productive flow of ideas within the company, better service for customers and prosperity for employees and shareholders. Since its spinoff from Automatic Data Processing Inc. in 2014, CDK has brought in other fresh faces and invested big money in its infrastructure, but some rivals and dealers question whether the company has been too focused on building margins at the expense of customers. CDK provides end-to-end retail services to support dealerships from the digital advertising phase to the moment shoppers are ready to buy -- and even later, when it's time for those buyers to come through the service lane. With more than 9,000 stores using its dealership management systems, CDK controls a huge chunk of the market. The company, in this northwest Chicago suburb, also is planting its stake in the digitized future of car sales. Websites built on CDK's platform, which draw 14 million monthly visitors, are becoming digital commerce hubs. Through its Connected Store platform that was developed in-house, consumers can get accurate price quotes and structure deals before going to dealerships, thus streamlining the buying process. The websites, which have around 7,000 users, have 12 endorsements from manufacturers such as Ford and Nissan. The positives are there, but Mr. MacDonald says the company is realistic about where it falls short. CDK's customer service has been maligned by its vocal customer base. Mr. MacDonald, who came to CDK from Hertz Corp., admits the company's billing system is overly complicated and inefficient. The company had too many offices operated by workers who had been dispersed throughout the country because of acquisitions during the ADP years. Plus, CDK has been losing DMS business among operations with one or two stores -- and a top executive at one competitor says it's not just small groups jumping ship. "They're definitely a better-run company" since the spinoff, said the executive, who spoke on condition of anonymity. "But I believe their strategies are too short-term focused." Straight talk Mr. MacDonald has attempted to foster more open communication at CDK, encouraging staffers to approach him in the hallway or email him with suggestions to make the company better. Mr. MacDonald also holds "straight talk" sessions with employees. Early in his tenure, MacDonald said, he got feedback on CDK's customer-service pain points through this straight-talk atmosphere. He dug into the data and tasked his crew with making improvements. Now, CDK gives dealers a monthly report on all of their service interactions, including how long they had to wait and resolution times. Mr. MacDonald also has leveraged CDK's chat-based Service Connect for dealers in need of help. The technology was there before MacDonald arrived, but he said the company wasn't taking advantage of it. In his time there, Mr. MacDonald says, the company has improved customer service wait times by 90 to 95 percent and problem resolution times by 50 percent. This progress plays into his "need for speed" objective, too. "In corporate America, they'll tell you it's a political environment. We don't have honest conversations," Mr. MacDonald said. "What straight talk does is it creates an environment to have honest conversations about where we have shortcomings as a company, what we need to be better at and which people aren't living up to their expectations." Mr. MacDonald is upfront about another issue frustrating some dealerships: CDK's billing system. Dealers said billing has been too complicated, so CDK has invested more than $30 million into a new setup that MacDonald said generates bills that are easier to understand and have a more modern look. The system began rolling out in October. Shannon Harper, COO of Harper Auto Square in Knoxville, Tenn., said billing issues were one of his gripes with CDK. The six- store group, which had been a CDK/ADP client for 35 years, in December switched its two remaining CDK DMS stores to Dealertrack. The other stores -- three of which were former CDK DMS users -- already were on Dealertrack. "They have consistently overcharged through complex billing schemes that are too cumbersome to even attempt to understand," Harper wrote Automotive News in an email. "So the average dealer just pays it because they're apathetic to it and they have zero other choices." Speed and results In Mr. MacDonald's 30 years of business experience, he said, most problems were caused by issues not being fixed quickly enough. To keep up with a rapidly changing world, MacDonald believed CDK needed to move faster. "It took us a long time to get product out of the door. Took us a long time to implement new technologies," Bob Karp, CDK's former president of retail solutions in North America, said in an October interview at the company's headquarters. He left CDK on Dec. 1 after more than 20 years. "Part of being a stand-alone public company is you have to stand behind your commitments to your investors," Mr. Karp said. "You can't hide. You have this sense of urgency that I think became an integral part of our culture." Then there's Mr. MacDonald's third point of emphasis, the one its investors like best: results. He set the tone upfront that employees are there to get results for customers, shareholders and one another. Mr. Karp said the spinoff gave CDK the chance to expand its "experiential diversity" by bringing in outsiders. For example, it hired a chief strategy officer, Ron Frey, who served in the same role at AutoNation Inc. and helped the nation's largest dealership group develop sales initiatives outside the traditional store environment as part of AutoNation Direct. Executives said the meshing of new voices with the company's legacy knowledge has been a powerful combination. After the spinoff, "We had the opportunity to take a fresh look at what we wanted to be, what we wanted our culture to be," said Tony Graham, CDK's chief customer experience officer. "We found we needed to bring in some new perspective." Margin debate Despite criticism from competitors and customers, CDK isn't hiding the fact that it wants to increase margins. MacDonald said in November that CDK, just like dealers, aims to be more efficient and profitable. Speaking at a Robert W. Baird & Co. technology conference in June 2016, Mr. MacDonald laid out CDK's financial goals. Through the 2018 fiscal year, he said, the company wanted to increase its adjusted annual revenue growth by 4 to 5 percent. In the same span, CDK said, it was targeting a 130 percent increase in its margins. Among the ways to hit those goals was to lower headcount and operate fewer offices. The company closed 20 sites from September 2015 to June 2017. Some of the employees at the shuttered locations were engineers while others worked in customer service. CEO Brian MacDonald says CDK is realistic about where it falls short, including complaints about customer service. MacDonald said a lot of those staffers were offered the chance to relocate or work from home in areas besides customer service with career paths. "We're all in business to make money," Mr. MacDonald told Automotive News. "I tell dealers, 'Look, I'm making the company more efficient through reducing overhead functions and administrative functions and improving processes and systems in things that should matter to dealers.'" More competitive? As CDK streamlines operations and shores up weak spots, it has made an aggressive move to expand its reach among smaller dealerships with a deal to buy Auto/Mate, a DMS company that found its niche among operations with one or two stores. For its fiscal first quarter that ended Sept. 30, net income rose 5.7 percent to $81.3 million as revenue increased 2.7 percent to $565.7 million. Amid the financial gains, some DMS competitors assert CDK is providing openings for them to snag customers. That's partly due to CDK charging higher vendor integration fees, which often are passed along to dealers, as part of its third- party DMS data access program. Reliability also has been an issue for some dealers. Michael Alf, general manager of St. Charles Toyota near Chicago, said he's shopping for a provider to replace CDK after six system outages from June through October and several payroll delays. He said three nearby Toyota stores quit CDK recently. "It's hard to get ahold of people to get something fixed," Alf said. "When we go down, I have a lot of customers outside the door. I can't tell them my computers are down, go home. Having your DMS down is like one hand tied behind your back." CDK has said that most of its DMS customer defections have been smaller operations with one or two dealerships. Smaller rivals have said they aren't concerned about CDK's Auto/Mate deal. They believe the acquisition could prompt existing Auto/Mate users to look at other providers. In their eyes, Auto/Mate's 1,200-plus clients signed with that company to get away from a provider as big as CDK or Reynolds and Reynolds Co. But some rivals -- Cox, Authenticom and Motor Vehicle Software Corp. -- are upset with CDK over what they say is collusion with Reynolds to destroy competition in the data integration services market. The lawsuits filed by those companies and some dealerships argue that CDK has unreasonably restricted dealership data to maintain its dominance and deter other service providers. Changing industry Mr. MacDonald said CDK is a "critical part of a critical industry." He believes it's CDK's responsibility to help the car business transform as technology changes. CDK says it has evolved with the industry. The consumer experience used to be confined to brick-and-mortar showrooms, but as more of the shopping process shifted to the digital space, CDK has had to expand its capabilities as well. CDK's Connected Store, for instance, is a reaction to more customers wanting to handle much of the buying process online. CDK has high hopes, but it knows it can't offer best-in-class options for every dealership task out there. So it will pick the spots where it wants to compete, such as websites and CDK Service, a suite of tools that allows consumers to set appointments online and enables service managers to do walkarounds with tablets as the customer looks on, said Mr. Frey, the chief strategy officer. CDK wants to bring more services for dealers into its ecosystem through the CDK Partner Program, a marketplace of approved companies that can integrate with its DMS and websites. "We're listening; we're in tune; we are shifting with a changing marketplace, and we're here to enable automotive commerce," Mr. Frey said, "and I think we're doing it in unique and powerful ways." [GN] CHAPARRO'S MEXICAN: Sued in Cal. Over Disability Discrimination --------------------------------------------------------------- Jesse Anderson, on behalf of himself and all others similarly situated v. Chaparro's Mexican Food, Inc. d/b/a Alberto's Mexican Food, Case No. BC688936 (Cal. Super. Ct., January 3, 2018), arises out of the Defendant's discriminatory practices on the basis of disability. Chaparro's Mexican Food, Inc. owns and operates a restaurant located at 2595 Commerce Way, Vista, California 92081. [BN] The Plaintiff is represented by: Evan J. Smith, Esq. BRODSKY & SMITH, LLC 9595 Wilshire Blvd., Ste. 900 Beverly Hills, CA 90212 Telephone: (877) 534-2590 Facsimile: (310) 247-0160 E-mail: esmith@brodskysmith.com CHESAPEAKE ENERGY: Settles Gas-Royalty Class Actions for $30MM -------------------------------------------------------------- Andrew Maykuth, writing for Pittsburgh Post-Gazette, reports that Chesapeake Energy Corp. has agreed to pay Pennsylvania landowners $30 million to settle federal lawsuits over its disputed gas- royalty payments. But the deal hinges on state Attorney General Josh Shapiro also resolving a lawsuit against the shale-gas producer. Chesapeake's lawyers told a federal judge in Scranton that they had reached a deal to settle several longstanding class-action suits, according to a transcript of the status meeting. The settlement would provide payments to all 14,000 Chesapeake gas leaseholders, and the landowners would also be allowed to "reset" their leases to clarify the terms under which they are paid royalties, or their share of gas sales. But the Oklahoma City gas producer said it won't go forward with the deal unless it also resolves a lawsuit filed in Pennsylvania in 2015 by former state Attorney General Kathleen G. Kane that alleged Chesapeake cheated landowners by making large deductions from their royalty payments. "We want global peace," said Daniel T. Donovan, a Chesapeake lawyer with the firm Kirkland & Ellis in Washington. "We want to move forward for a better relationship, different relationships with the lessors, but we need global peace." Representatives of the Pennsylvania Attorney General's Office told U.S. District Judge Malachy E. Mannion that it and Chesapeake are still far apart in negotiations to settle the state's suit over unfair trade practices, which also names Anadarko Petroleum Corp. "At this point in time, our major divide is on money," said Joseph S. Betsko, a senior deputy attorney general. Mr. Mannion encouraged the state to press forward to resolve its case, which is being heard in Bradford County Court. "We all know, I will tell you, that these cases are going to resolve, and they aren't going to go to trial," said Mr. Mannion. "It's going to be a question of whether or not we spend significant amounts of money and time, or whether we kind of get on the real-life practical train on both sides and find a way to get to the end." The litigation against Chesapeake encapsulates long-standing complaints by many landowners about the practice by Marcellus gas producers of deducting post-production costs from royalties. The complaints escalated after gas prices fell and the amount of the deductions were magnified. The state's Guaranteed Minimum Royalty Act of 1979 provides that owners of mineral rights receive a minimum one-eighth share, or 12.5 percent, of the sale price of their oil and gas. The Pennsylvania Supreme Court ruled in 2010 that the royalty is based on the price at the gas well, which allowed producers to subtract the "post-production" costs of moving gas to market. Chesapeake, the state's largest producer, has been the most aggressive about billing landowners for costs. The lawsuits alleged Chesapeake charged landowners high costs by overpaying affiliated companies for services, reducing some royalty payments below zero, and essentially docking landowners for the gas produced on their properties. The proposed settlement, which was negotiated over four years before a federal mediator by representatives of 12 law firms, would provide the average Chesapeake leaseholder with about $2,140, adjusted according to the size of the property. But perhaps of greater value to aggrieved landowners is Chesapeake's agreement to amend existing leases to more clearly spell out the terms under which landowners would be paid. "Every Chesapeake lessor will get to pick how their royalties are paid going forward," said Mr. Donovan. "This is the big issue." Landowners could opt to be paid royalties based on a local published "in-basin" gas price, with no deductions. Or they could choose to allow Chesapeake to market the gas, at potentially higher prices, but pay a proportionate share of the post-production costs. Such a "net-back" arrangement is similar to the disputed method the company now uses to calculate payments. "This is a reset for each royalty owner," Mr. Donovan said. Chesapeake could pull out of the deal if Shapiro's office does not settle the state lawsuit, essentially creating political pressure on the state by landowners who may be eager to accept the gas company's offer. "Probably the biggest challenge from Chesapeake's point of view is that someone would need to convince the Chesapeake board of directors that they should authorize payment of $30 million to settle the alleged royalty practice claims and still face the risk of continued litigation with the Pennsylvania Office of Attorney General," said Daniel T. Brier, a Scranton attorney representing Chesapeake. The state's attorneys argued that their case is different than the landowners' lawsuits and involves the state's role in policing the marketplace and punishing wrongdoing. The attorney general's case got a boost on Dec. 15, when Senior Judge Kenneth Brown in Bradford County rejected some crucial preliminary objections filed by the gas producers and allowed the case to proceed under the state's Unfair Trade Practices and Consumer Protection Law. But the Bradford County judge also ruled that the Attorney General's Office could not recoup its legal costs in the state action, nor damages for the landowners. The gas companies could face state fines if they lose. In addition, the judge certified the state case could be immediately appealed to Commonwealth Court to settle some novel questions of law, which means the Bradford County case could drag on for years before it is resolved. [GN] CITY OF GARDEN, KS: Dismissal of DUI Suit Partly Affirmed --------------------------------------------------------- The United States Court of Appeals, Tenth Circuit, issued an Order and Judgment affirming the portions of the district court's opinion dismissing Market's claim for lack of jurisdiction but vacating the portions of its opinion dismissing for failure to state a claim and remand with instructions to dismiss for lack of jurisdiction in the case captioned JADA J. MARKET, individually, and on behalf of a class of others similarly situated, Plaintiff- Appellant, v. CITY OF GARDEN CITY, KANSAS, Defendant-Appellee, No. 16-3293 (10th Cir.). Jada Market was twice convicted and jailed for driving under the influence of alcohol (DUI) in Garden City, Kansas. For her first DUI conviction, Market spent four days in jail, and for her second conviction, fourteen days. The incarceration imposed for both convictions was the mandatory-minimum jail time required by the municipal ordinances. For DUI offenses charged in state court, the Kansas statute set lesser mandatory minimum incarceration for first and second convictions (two days and five days). Years after serving her sentences, Market filed a claim against Garden City under 42 U.S.C. Section 1983, alleging that enforcement of the municipal ordinances violated her constitutional due-process rights. She claimed that the Garden City ordinances were illegal because a charter ordinance is needed to override a state statute. Market never contested the legality of the ordinance in municipal court or appealed to the state district court for de novo review. The federal district court dismissed her claim under Fed. R. Civ. P. 12(b)(1) for lack of subject-matter jurisdiction, concluding that the Rooker-Feldman doctrine barred federal review of the municipal-court judgment. The Rooker-Feldman doctrine establishes that only the United States Supreme Court has appellate authority to review a state- court decision. Market argues that her claim survives the Rooker-Feldman doctrine because she is challenging an enforcement procedure (jail time for her DUI convictions), not the convictions themselves, and so no appellate-style review is needed. Market is right that Rooker-Feldman is a narrow doctrine. But cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments lie at the doctrine's core. Market lost in state court and wants a second bite at the apple. Rooker-Feldman says no: A loss in state court precludes a second round in federal court. The district court thus lacked jurisdiction over Market's Section 1983 claim based on the Rooker-Feldman doctrine. But it dismissed her damages claim for a non-jurisdictional defect failure to state a claim. The Tenth Circuit therefore affirmed the portions of the district court's opinion dismissing Market's claim for lack of jurisdiction, but vacated the portions of its opinion dismissing for failure to state a claim and remanded with instructions to dismiss for lack of jurisdiction. A full-text copy of the Tenth Circuit's December 14, 2017 Order and Judgment is available at https://tinyurl.com/y8g9x4w2 from Leagle.com. CLARKSON & HALE: Illegally Collects Debt, "Erekson" Suit Claims --------------------------------------------------------------- Gale Erekson, on behalf of herself and all others similarly situated v. Clarkson & Hale, LLC, Case No. 3:18-cv-00032-CMC (D.S.C., January 4, 2018), seeks to stop the Defendant's unfair and unconscionable means to collect a debt. Clarkson & Hale, LLC operates a law firm that focuses on consumer and commercial debt collections. [BN] The Plaintiff is represented by: Holly E. Dowd, Esq. THOMPSON CONSUMER LAW GROUP, PLLC 822 Camborne Place Charlotte, NC 28210 Telephone: (888) 332-7252 ext. 260 Facsimile: (866) 317-2674 E-mail: hdowd@consumerlawinfo.com COMPUWARE CORP: Mich. App. Affirms Shareholders Suit Settlement --------------------------------------------------------------- The Court of Appeals of Michigan issued an Opinion affirming the circuit court's approval of the settlement agreement in the case captioned SHELLEY ADELMAN, SHARON KLEIN, JONATHAN WARES, ANKUR SAGGAR, SHIVA Y. STEIN, JOHN URBONAS, and JEFFREY BUSHMAN, Plaintiffs-Appellees, and DAVID ESSIG and CITY OF SUNRISE POLICE DEPARTMENT, Intervening Plaintiffs-Appellants, v. COMPUWARE CORPORATION, GURMINDER S. BEDI, ROBERT C. PAUL, JEFFREY J. CLARKE, JOHN G. FREELAND, DAVID G. FUBINI, WILLIAM O. GRABE, FREDERICK A. HENDERSON, FAYE ALEXANDER NELSON, JENNIFER J. RAAB, LEE D. ROBERTS, STEPHEN F. SCHUCKENBROCK, THOMA BRAVO, LLC, PROJECT COPPER HOLDINGS, LLC, PROJECT COPPER MERGER CORP, ELLIOTT MANAGEMENT CORPORATION, ELLIOTT CAPITAL ADVISORS, LP, ELLIOTT INTERNATIONAL CAPITAL ADVISORS INC., ELLIOTT INTERNATIONAL, LP, ELLIOTT SPECIAL GP, LLC, HAMBLEDON INC., and PAUL E. SINGER, Defendants-Appellees, No. 333209 (Mich. App.). The current dispute relates to the acquisition of Compuware Corporation by Thoma Bravo. The intervening plaintiffs are shareholders who objected to a proposed settlement agreement in a class action suit brought by a representative group of shareholders. The Objectors believed that a group owning 8% of Compuware's shares (the Elliott defendants) engaged in underhanded tactics to force the Compuware Board of Directors into the sale, that the board received secret benefits from selling Compuware below its share value, and that the release of damages claims in the settlement agreement lacked consideration. The Objectors claim, the court improperly presumed the settlement was fair, reasonable, and adequate. It compounded that error, the Objectors insist, by shifting to them the burden to prove that the settlement did not meet the requisite criteria, thereby relieving plaintiffs of their burden. The Objectors assert that the court should not have approved the settlement agreement given plaintiffs' meager investigation into the allegations of wrongdoing by the Elliott defendants to influence the board members to accept the settlement. Contrary to the argument of the Objectors, the court did not shift the burden of proof with regard to approval of the settlement. The proponent of a settlement has the burden of showing its fairness. In reviewing the factors relevant to a fairness determination reasonableness and adequacy of the settlement the trial court focused on the proofs and evidence submitted by plaintiffs. The court's recognition and discussion of the concerns expressed by the Objectors did not shift the burden. Rather, the Objectors' allegations and concerns forced the court to more deeply consider the sufficiency of plaintiffs' proofs. The trial court's effort to secure greater detail or evidence regarding the allegations set forth by the Objectors was intended to evaluate whether plaintiffs had fulfilled their burden to demonstrate the adequacy of the settlement and benefit to the shareholders. The Objectors' allegations were speculative in nature and neither contradicted nor outweighed the proofs provided by plaintiffs. The Objectors also fail to recognize certain legal precepts in their claim of error. Preliminary approval of a class action settlement renders that settlement presumptively reasonable. The objecting class members must then meet the heavy burden of proving otherwise. The trial court granted preliminary approval of the proposed settlement and undertook a separate assessment for final approval, specifically considering the Objectors' expressed concerns. The court explicitly ruled that Plaintiffs have met the burden of showing that the disclosures were material and that the disclosure-only settlement with releases was fair and reasonable. As such, the Objectors' claim that the court improperly shifted the burden is not supported by the record. The Objectors also challenge the propriety of approving the disclosure-only settlement agreement. The Objectors contend that the disclosures obtained by plaintiffs were not material and provided no substantive value in exchange for the releases obtained The Mich. App. noted at the outset that the Objectors filed a proposed amended complaint prior to Compuware's supplemental disclosures. Through several allegations in that complaint, the Objectors implicitly recognized the materiality of the content of certain of these disclosures. Whether the Elliott defendants were partnered with Thoma Bravo was a key issue in this case, according to the Objectors' own proposed complaint. The Objectors accused Elliott of partnering with Thoma Bravo in the past as well as in the current matter to influence the sale, as part of the purchasing group. The Objectors further asserted that the initial proxy statement omitted material information concerning Elliott's impact and involvement in the Buyout, expressly admitting that additional information was necessary and would be material to the voting decision. It therefore was material and relevant for Compuware to disclose that Elliott was not partnered with Thoma Bravo in the current transaction. Disclosures may be deemed immaterial because they only provide extraneous details [that] do not contribute to a fair summary and do not add value for stockholders. For example, when the company's board relied on the advice of a financial advisor, here Goldman Sachs, the stockholders are entitled to receive in the proxy statement a fair summary of the substantive work performed by the investment bankers whose advice as to how to vote on a merger or tender they rely. A fair summary is defined as a summary that need not contain all information underlying the financial advisor's opinion or contained in its report to the board. The essence of a fair summary is not a cornucopia of financial data, but rather an accurate description of the advisor's methodology and key assumptions. The trial court did not err in finding that the supplemental disclosures could be construed as material. The revised financial projections regarding the company's anticipated future performance and the actual decreasing growth rate of certain of its subsidiaries in determining the valuation of the company supplied valuable information of precisely the sort that the Objectors claimed necessary. The Objectors assert that the trial court erred in finding the settlement agreement fair, reasonable and adequate as it failed to conduct an independent assessment of the costs and benefits given and received by all of the litigants. The Objectors' challenge to the trial court's approval of the settlement agreement reduces to an argument regarding the likelihood of the Objectors' success on their claims on the merits. The Mich. App. has previously recognized the proposition that the nature and extent of the objections raised by a minority group of shareholders should be considered among other factors by the trial court in deciding whether to approve a proposed settlement that is acceptable to the majority of the class. However, when the trial court reviews the fairness of a settlement, it must evaluate all of the circumstances of the settlement by using its own business judgment. The trial court is deemed to be in the best position to evaluate the factors that support a settlement, and this Court should not second-guess its business judgment on appeal. Rather, if there is evidence in the record to support the court's findings and if its conclusions are not the product of errors of law, the settlement approval should be affirmed. The trial court clearly undertook an independent analysis in approving the settlement. The court recognized its obligations and the standards to be applied, before engaging in a thorough analysis of the applicable factors in determining the propriety of approving the settlement agreement. Given the content of the pleadings, briefs and evidence provided, the court did not abuse its discretion in approving the settlement agreement, having found it to be fair, reasonable and adequate. There is a presumption in favor of the settlement when there has been arm's length bargaining among the parties, sufficient discovery has taken place to enable class counsel to evaluate accurately the strengths and weaknesses of the plaintiff's case, only a few members of the class object and their relative interest is small. Even if the terms of a settlement agreement are not ideal, approval should not be withheld if they are fair and reasonable. Accordingly, the Mich. App. affirmed. A full-text copy of the Mich. App.'s December 14, 2017 Opinion is available at https://tinyurl.com/ycm877zt from Leagle.com. BRIAN D. O'KEEFE, bokeefe@lippittokeefe.com for SHELLEY ADELMAN, Plaintiff-Appellee. MARC L. NEWMAN -- mln@miller.law -- for DAVID ESSIG, Intervening Plaintiff-Appellant. LORI M. McALLISTER lmcallister@dykema.com -- for COMPUWARE CORPORATION, Defendant-Appellee. TODD A. HOLLEMAN -- holleman@millercanfield.com -- for THOMA BRAVO LLC, Defendant-Appellee. DAVID F. DUMOUCHEL -- dumouchd@butzel.com -- for ELLIOTT MANAGEMENT CORPORATION, Defendant-Appellee. CONTINENTAL CASUALTY: 7th Cir. Affirms Dismissal of "Toulon" ------------------------------------------------------------ The United States Court of Appeals, Seventh Circuit, issued an Opinion affirming the District Court's dismissal of the Second Amended Complaint in the case captioned SOPHIE P. TOULON, Plaintiff-Appellant, v. CONTINENTAL CASUALTY COMPANY, Defendant- Appellee, No. 16-1510 (7th Cir.). Toulon sued Continental, on behalf of herself and all others who had purchased the Policy, claiming that Continental had engaged in a scheme to lure elderly people into purchasing the Policy by offering artificially low premiums for the first ten years and by not disclosing that Continental would raise its rates substantially just at the time when elderly insureds would likely need to make claims. Toulon amended her complaint twice, ultimately asserting claims for fraudulent misrepresentation, fraudulent omissions, unjust enrichment, and violation of the consumer fraud and deceptive trade practices acts of all fifty states and the District of Columbia. Continental moved to dismiss the Second Amended Complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim, and the district court granted the motion. Continental filed a motion to dismiss the Complaint for failure to state a claim. The district court granted the motion and dismissed the Complaint with prejudice. On appeal, Toulon challenges the district court's dismissal and maintains that the Complaint adequately states claims for fraudulent misrepresentation, fraudulent omissions, unjust enrichment, and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA). The Seventh Circuit agreed with the district court that Toulon has failed to adequately explain the first element of her claim because she does not allege how the statements in the Worksheet or the Policy are false. She does not and cannot challenge the accuracy of the statements in the Worksheet that Continental (1) had the right to increase premiums in the future; (2) offered the Policy since 1998; (3) had not yet raised its rates on the Policy; and (4) in 1995 had raised its rates on a similar long- term care policies by 15%. Toulon does not and cannot explain how a question regarding whether the applicant can afford the Policy if rates are raised by, for example, 20% is false. A question, by its very nature, cannot be a false statement of material fact. This is especially true here since the question Toulon identifies as false or fraudulent came directly from the Illinois regulation that dictates that content of the Worksheet. In addition, Toulon does not explain how the statement that Continental may change rates is false. She asserts that because Continental knew that it would increase premiums after the rate- stabilization period ended, it misrepresented a certainty that rates would change by stating that there was only a mere possibility that rates may change. Like the district court, we are not convinced that stating that the rates may change, meaning they might or might not change, would be a falsehood, even if Continental knew the rates would change. Even if Continental did not make any explicit false statements of material fact, Toulon maintains that her claim for fraudulent misrepresentation should survive because Continental falsely implied that that the likelihood and extent of future premium rate increases was unknown, but if necessary would fall in a range of 15 to 20%. She bases this assertion on the Worksheet's statement that in 1995 Continental had raised its rates by 15% on similar long-term care policies and it included in the Worksheet the question, Have you considered whether you could afford to keep this policy if the premiums were raised, for example, by 20%? This statement and question, whether considered separately or together, cannot be interpreted as a promise that Continental would not raise its premium rates by more than 20%. If Toulon or others who purchased the Policy mistakenly interpreted the statements to be an implied promise to not raise premiums more than 20%, reliance on such an implied promise would not be justified since the Worksheet stated that the company has a right to increase premiums in the future" and it did not state that this right was limited to only 20%, the Seventh Circuit held. Similarly, the Policy stated "Premiums Subject to Change and We may change the premium rates, without putting a limitation of 20%, or any other percentage," on either statement. Given the many statements that premiums were subject to change without limitation, neither Toulon nor any class members could have justifiably relied on an allegedly implied promise to not raise premium rates more than 20%, the Seventh Circuit said. Because Toulon failed to adequately allege a false representation of material fact and justifiable reliance, the district court was correct to dismiss her claim for fraudulent misrepresentation. In Count II, Toulon attempts to state a claim for fraudulent omissions (also known as fraudulent concealment), alleging that Continental fraudulently failed to disclose that it was going to raise premium rates on the Policy far in excess of 20% after the rate-stabilization period ended. The Seventh Circuit agreed with the district court that if Toulon's allegations were sufficient to support a claim of a special relationship that resulted in a duty to disclose, then any insurer that complied with Illinois's disclosure requirements would find itself in such a relationship with every elderly insured who had been unsophisticated in the ways of insurance at the time of purchase. Such a holding would contradict Illinois's rule against insurers being fiduciaries as a matter of law. Toulon asserts that an alternative reason why Continental had a duty to disclose is because by stating that it may impose a rate increase, Continental told a half-truth that then imposed on it a duty to tell the whole truth that Continental definitely would impose a rate increase. The Seventh Circuit said it does not believe that the sentence, however, the Seventh Circuit may change the premium rates means that it is possible that Continental will change the premium rates. The Seventh Circuit thought it means Continental has the right to change the premium rates, which cannot be deemed to be a half-truth. For this reason, Continental had no duty to disclose their alleged knowledge that they would increase premium rates substantially at the end of the rate-stabilization period. Based on the same allegations that she used to support her claims for fraudulent misrepresentation and fraudulent omissions, Toulon alleges that Continental violated ICFA by failing to disclose that premiums would definitely increase after the rate- stabilization period ended and that the increase would be far in excess of 20%. The elements of a claim under ICFA are: (1) the defendant undertook a deceptive act or practice; (2) the defendant intended that the plaintiff rely on the deception; (3) the deception occurred in the course of trade and commerce; (4) actual damage to the plaintiff occurred; and (5) the damage complained of was proximately caused by the deception. A complaint made pursuant to the ICFA must be pled with the same specificity as that required under common law fraud. The Seventh Circuit concurred with the district court that Toulon failed to adequately allege that Continental engaged in a deceptive act or practice. Toulon again asserts that Continental's statements that it may change the premium rates and that it previously raised rates on similar long-term care policies by 15%, combined with the question in the Worksheet asking if applicants could afford the policy if premiums were raised, for example, by 20%, created a false impression that it was uncertain whether Continental would raise rates and, if it did, it would raise rates by no more than 15 or 20%. The Seventh Circuit disagreed. The Seventh Circuit does not believe the statements and question can be interpreted as a promise that rates would not be raised more than 15 or 20%. In addition, the statement Premiums Subject to Change from the Policy and the explicit statement in the Worksheet, The company has a right to increase premiums in the future, should have made clear to applicants that Continental could change the premium rates without limitation. Similarly, Toulon did not adequately allege that Continental violated ICFA by failing to disclose a material fact. Toulon asserts that Continental concealed, suppressed and omitted that it would significantly increase premium rates after the expiration of the rider period. First, the Seventh Circuit is not convinced that Toulon alleged sufficient facts to support her contention that Continental knew that more than ten years in the future it would seek to, and be able to raise rates far in excess of 20%. Second, Continental never stated that it would not raise premium rates or that it would not raise premium rates more than 20%. Toulon also asserts that Continental violated ICFA because, by failing to disclose the substantial premium increase that would take place more than ten years in the future, Continental engaged in an unfair practice. When assessing whether a practice is unfair under ICFA, the following factors are considered: (1) whether the practice offends public policy; (2) whether it is immoral, unethical, oppressive, or unscrupulous; and (3) whether it causes substantial injury to consumers. Toulon does not adequately allege that Continental caused her substantial injury under the law. She claims that the 76.5% increase in her premium significantly harmed her because it cost her thousands of dollars. Although the Seventh Circuit recognized that the increase in the premium was significant, under Illinois law, charging an unconscionably high price generally is insufficient to establish a claim for unfairness. Moreover, to establish harm under ICFA, a plaintiff must show "that [s]he suffered substantial injury, and that [s]he could not avoid this injury." Like the plaintiff in Siegel, Toulon cannot establish substantial injury because she could have avoided the harm by purchasing a different long-term care insurance policy from another company. For all these reasons, the district court was correct to dismiss Toulon's claim purporting to allege a violation of ICFA. Toulon alleged that Continental obtained contracts for insurance that allowed Continental to raise premiums by more than 15% through fraudulent misrepresentations. Toulon asserted that because Continental procured the insurance contracts "through illegal and improper means, Continental has been unjustly enriched by the premium payments made by Toulon and others in the class she seeks to represent. The reason why Toulon's claim for unjust enrichment was properly dismissed was because there was an actual contract that governed her relationship with Continental. A claim for unjust enrichment is 'based upon an implied contract; where there is a specific contract that governs the relationship of the parties, the doctrine has no application. There is no question that a contract for insurance governs the relationship between Toulon and Continental. Toulon refers to the Policy throughout the Complaint including within the unjust enrichment count, and attached it as an exhibit to the Complaint. The district court was correct to dismiss her claim for unjust enrichment. A full-text copy of the Seventh Circuit's December 14, 2017 Opinion is available at https://tinyurl.com/y796bmgx from Leagle.com. Michael L. McCluggage, I -- mmccluggage@eimerstahl.com -- for Defendant-Appellee. Thomas C. Cronin -- tcc@cronincoltd.com -- for Plaintiff- Appellant. Frank H. Tomlinson, 15 Richard Arrington Jr Blvd S # 302, Birmingham, AL 35203, for Plaintiff-Appellant. Brent Robert Austin -- baustin@eimerstahl.com -- for Defendant- Appellee. Robert R. Duncan, for Plaintiff-Appellant. Richard J. Street, for Defendant-Appellee. CREDIT SUISSE: Feb. 20 Lead Plaintiff Motion Deadline Set --------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on Dec. 23 announced the filing of a class action lawsuit on behalf of purchasers of the securities of Credit Suisse Group AG (NYSE: CS) from March 20, 2015 through February 3, 2016, inclusive (the "Class Period"). The lawsuit seeks to recover damages for Credit Suisse investors under the federal securities laws. To join the Credit Suisse class action, go to http://rosenlegal.com/cases-1260.htmlor call Phillip Kim, Esq. or Kevin Chan, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or kchan@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. According to the lawsuit, defendants during the Class Period made materially false and/or misleading statements and/or failed to disclose that: (1) Credit Suisse's risk protocols and control systems were routinely disregarded; (2) Credit Suisse was amassing billions of dollars of risky, highly illiquid securities, in violation of those risk protocols; and (3) as a result, defendants' statements about Credit Suisse's business, operations, and risk controls were false and misleading and/or lacked a reasonable basis. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than February 20, 2018. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to http://rosenlegal.com/cases-1260.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim, Esq. or Kevin Chan, Esq. of Rosen Law Firm toll free at 866- 767-3653 or via e-mail at pkim@rosenlegal.com or kchan@rosenlegal.com Rosen Law Firm -- http://www.rosenlegal.com-- represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. [GN] CREDIT SUISSE: Feb. 20 Lead Plaintiff Motion Deadline Set --------------------------------------------------------- Bronstein, Gewirtz & Grossman, LLC, on Dec. 26 notified investors that a class action lawsuit has been filed against Credit Suisse Group A.G. ("Credit Suisse" or the "Company") (NYSE: CS) and certain of its officers, on behalf of shareholders who purchased Credit Suisse securities between March 20, 2015 through February 3, 2016, both dates inclusive ("Class Period"). Such investors are encouraged to join this case by visiting the firm's site: http://www.bgandg.com/cs 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 Defendants made false and/or misleading statements and failed to disclose that: (1) Credit Suisse's risk protocols and control systems were routinely disregarded; (2) Credit Suisse was amassing billions of dollars of risky, highly illiquid securities, in violation of those risk protocols; and (3) consequently, defendants' statements about Credit Suisse's business, operations, and risk controls 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/csor 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 Credit Suisse you have until February 20, 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. Its primary expertise is the aggressive pursuit of litigation claims on behalf of its clients. In addition to representing institutions and other investor plaintiffs in class action security litigation, the firm's expertise includes general corporate and commercial litigation, as well as securities arbitration. [GN] DELAWARE: Class Action Mulled on Behalf of Riot-Affected Inmates ---------------------------------------------------------------- Ian Gronau, writing for Delaware State News, reports that Correctional Officers Association of Delaware (COAD) president Geoff Klopp said the only thing the union cares about at the end of the day is that its members are satisfied. While Mr. Klopp still has strong reservations about perceived systemic ills with the state's prison system, specifically with understaffing, he wished the deadly Feb. 1 Vaughn prison uprising survivors the best in the wake of the settlement of the lawsuit they brought against the state. "The whole COAD wishes them well and hopes that the settlement brings them some measure of peace and closure," said Mr. Klopp. The historic, record-breaking $7.55 million state-paid settlement was announced Dec. 15 in a joint news release from former federal Judge Joseph J. Farnan, Jr., who mediated the agreement. The funds are to be paid out to 11 claimants including the estate of Lt. Steven Floyd, the correction officer killed in the riot, his widow and three children, and to five other officers and a counselor who were held hostage during the riot. The lawsuit was filed by Wilmington lawyers Thomas Neuberger and Tom Crumplar in April. Much of the complaint rested on the state's alleged failure to provide a safe working environment for its employees and long ignored staffing issues within the DOC and how these failures led to the prisoner uprising on Feb. 1. Though the case has been closed, Mr. Klopp does hold on to hope that an ongoing DOC internal affairs investigation will address any administrative failings that may have taken place during and in the run up to the riot. "We hope that those, internally, that made mistakes are held responsible," Mr. Klopp said earlier this year. "We haven't been given any hard dates on when that'll be; 'soon' is all we've heard." The DOC has not responded to questions about when their investigation is expected to be complete -- only noting that it is currently in progress. "The internal investigation into the incident on Feb. 1-2 is ongoing so the DOC cannot provide comment," said DOC spokeswoman Jayme Gravell. Dover lawyer Stephen A. Hampton, who is preparing a class-action lawsuit against the state on behalf of inmates affected by riot, holds no hope whatsoever for a DOC-led investigation. "I've always been very underwhelmed by DOC internal affairs investigations," he said. "I've seen them play out firsthand, and there is no real motivation for them to find out anything. I've seen this in cases where I've represented inmates who were beaten severely and internal affairs comes back and says, 'well, we couldn't figure out what happened, so no one gets punished.' But, during depositions I made the people sit down under oath and answer the questions and very easily found the answers." Furthermore, Mr. Hampton is suspicious about the motives behind the recent large settlement. "It's interesting that the state is paying this much money on a case they've said in the past has no legal merit," he said. Earlier in July, lawyers representing state officials filed a brief that argued for dismissing the case, claiming there's no constitutional right to workplace safety. An oral argument had been scheduled for Nov. 20 so U.S. District Court Judge Richard Andrews could review the claims and decide whether or not the lawsuit should be allowed to proceed. However, the state requested the argument be postponed on Nov. 16, and settled out of court about a month later -- choosing not to wait for the opportunity to lay the case before the judge. "It just seems like this settlement is an awful lot of money to spend," said Mr. Hampton. "I'm not begrudging the plaintiffs, for the number of them and the severity of the injuries and loss they've suffered, this might be an appropriate amount to pay them for their damages. But, in my experience, the state doesn't usually pay -- especially this kind of money -- if they don't think there is some liability." The state has claimed that the settlement was made to "avoid the burden and expense that comes with protracted litigation, and to bring closure to the matter." But the state's attorneys maintain that the claims against all the defendants lacked legal merit. "I think they owe it to the public to explain why they're spending that much public money if they actually think there is no liability," said Mr. Hampton. "There's something else going on. I don't know if it's cost of litigation or not really wanting to delve into the discovery that would be inevitable in a case like that. It's curious that the state doesn't want to admit that it did anything wrong, yet it's paying $7.55 million. "I always tell my clients, if they're paying that much, it's tantamount to an admission that they did something wrong. But, quite clearly, they don't admit that in the documents." Mr. Hampton hopes a lawsuit on behalf of allegedly injured inmates in connection with the riot would uncover more information. After receiving hundreds of letters from inmates after the uprising, Mr. Hampton wrote a letter to Gov. Carney in late March. He asked that the DOC end its retaliatory "brutalization" and "torture" of the prison population. Shortly afterward, the governor's office chief legal counsel responded by referring the letter to the DOC as it is "completely responsible for the maintenance, supervision and administration of adult detention and correctional services and facilities of the state." Currently, Mr. Hampton hopes to file his lawsuit before the one- year anniversary of the uprising. ACLU: Hold state responsible Kathleen MacRae, executive director of the American Civil Liberties Union (ACLU) of Delaware, thinks the historic settlement is a grim reminder that the state must be held responsible for meeting their "constitutional obligations." "There are definitely safety issues with how the prison is run," she said. "They are very well documented in the independent review that Governor John Carney commissioned. There are management problems. "The death of Lt. Floyd was a horrible tragedy, but there was no other way except for a lawsuit or settlement, in addition to the coming criminal trials for the convicted inmates, that the state was to be held responsible for the administration of the DOC." The independent review, conducted by a former Family Court Judge William Chapman, Jr. and former U.S. Attorney Charles Oberly III, was completed in early September. They produced a 159-page final report based on interviews with DOC correctional, educational, mental health and medical staff, including correctional supervisors, Vaughn administrators and executive administrators past and present. It also took into account letters from inmates and family members, interviews with community and inmates' rights groups and other agency representatives. Issues cited in the review included communication problems between management and staff, low morale and fatigue among correctional officers, chronic correctional officer understaffing and a lack of focus on rehabilitating prisoners. Shortly after the uprising the COAD made claims that the terms of an ACLU and Community Legal Aid Society (CLASI) settlement with the DOC in 2016 contributed directly to the Feb. 1 uprising. To be in compliance with the settlement terms, Mr. Klopp claimed that inmates known for being violent were "down flowed" to make room for inmates with special mental health needs. The lower security buildings they were being "down flowed" to included C Building, the site of the uprising, he said. At the time, the DOC and ACLU refuted the claims. Later, the governor's independent review team also examined the claim and found it to lack merit. It was suggested that the settlement terms themselves weren't at fault, but rather the implementation of those terms were. The team noted also that the terms had already been implemented without issue at all the other prisons in the state. "We need to acknowledge the prison management conditions in Vaughn have existed for years and years," said Ms. MacRae. "The Feb. 1 riot was not a result of ACLU and CLASI settlement and the changes it imposed, that's the excuse that was used by some to try cast blame on those outside the prison system. But it's been well established by many reports and studies that there are historical problems in the prison management system. The riot was the result of those long standing problems and we need to hold administrators accountable." [GN] DELTA AIR: Court Tosses Class Action Over Excessive ERISA Fee ------------------------------------------------------------- Paula Aven Gladych, writing for ebn, reports that the District Court for the Northern District of Georgia dismissed an excessive fee ERISA lawsuit against Delta Air Line's Delta Family Care Savings Plan in December. The proposed class action lawsuit, which was filed a year ago by two Delta Air Lines employees, accused the 401(k) plan's fiduciaries of breaching their fiduciary duty to participants by not searching for lower cost investment options. In their filing, plaintiffs pointed out that the defendants selected certain funds that had higher expense ratios when equivalent lower cost funds were available. One of the examples used was that the plan selected the Janus Forty S, with an expense ratio of 1.00, as an investment option, when the equivalent Janus Forty I, with an expense ratio of 0.60, was available. The complaint alleged that these decisions cost plaintiffs millions of dollars in excessive fees and costs. The lawsuit also accused Delta of paying excessive administrative costs to the 401(k) plan's record keeper. Delta Air Lines filed a motion to dismiss due to the lack of subject matter jurisdiction, stating that "the person seeking to invoke the court's jurisdiction must establish the requisite standing to sue" and that to qualify as a case or controversy, "the plaintiff must have suffered an injury in fact that is fairly traceable to the challenged conduct of the defendant and is likely to be redressed by a favorable judicial decision," according to the motion to dismiss the Plaintiffs' amended class action complaint. The defendants in the case argued that the plaintiffs "failed to demonstrate that they suffered a 'concrete and particularized' injury because the amended complaint does not allege that they were invested in the criticized investment funds or paid the recordkeeping fees they contend were excessive." The court agreed and dismissed the case, saying that the "plaintiffs have not alleged that they were invested in the criticized funds or paid the allegedly excessive fees. Therefore, plaintiffs do not have standing." According to the lawsuit, filed Dec. 20, 2016, Delta's 401(k) plan had nearly $5.7 billion in net assets and 83,012 participants as of Dec. 31, 2012. The plan is among the largest defined contribution plans in the country. [GN] DENKA PERFORMANCE: Seeks Dismissal of Chloroprene Class Action -------------------------------------------------------------- Della Hasselle, writing for The New Orleans Advocate, reports that lawyers for a chemical company accused of releasing what environmentalists say are "dangerous" amounts of a chemical called chloroprene into the air in St. John the Baptist Parish say that a lawsuit against the company should be dismissed because local residents have failed to show the chemical is harmful. Attorneys for Denka Performance Elastomer made the argument in a legal filing on Dec. 22, the first time that the company has responded to the suit brought over the summer by 13 St. John residents who live near the chemical plant. The residents sued both Denka and E.I. du Pont de Nemours and Co., the previous owner of the LaPlace facility, in an effort to reduce or stop production of what the U.S. Environmental Protection Agency considers a "likely carcinogen." The lawsuit, which includes St. John the Baptist Parish Councilman Larry Sorapuru as a plaintiff, seeks class-action status. It asks that U.S. District Judge Martin Feldman order the plant to stop or reduce production until emissions reach levels deemed safe by the EPA. The residents are not asking for compensation for physical injury, in part because the evidence linking various concentrations of chloroprene emissions and physical harm to humans is "undeveloped," their lawyers say. However, they do seek damages for various other issues, including lost property value and "emotional distress" resulting from "release of excessive concentrations" of the chemical. Lawyers for the plant, on the other hand, want the judge to throw out the entire suit because they say the residents have failed to show that the chemical has caused any of them "irreparable injury," or that any alleged injury to them outweighs the damage an injunction would cause the chemical plant. Forcing the plant to dramatically reduce or halt production would be so costly that it "could ultimately result in the shuttering of the . . . facility," the filing says. Justin Marocco, a lawyer for Denka, said the plaintiffs can't prove any "ruin, vice or defect" in the plant and haven't shown how the chemical company has been negligent. The company also says the plaintiffs filed their lawsuit too late for the court to entertain it, as the vast majority of Louisiana personal injury claims have a one-year statute of limitations. Denka took over the plant in November 2015. It had been operating for nearly half a century before then, with little scrutiny. It wasn't until 2010 that the EPA reclassified chloroprene as a "likely carcinogen," saying that exposure to quantities above 0.2 micrograms per cubic meter of air puts people at increased risk. Then, in December 2016, the EPA released its National Air Toxic Assessment, which found that, because of the Denka plant's emissions, residents of St. John the Baptist Parish have the highest potential risk of cancer from airborne pollutants of any community in the country. Since then, EPA data have shown that chloroprene levels in St. John have at times reached up to 765 times the agency's risk threshold. Denka pledged to reduce airborne emissions of chloroprene by 85 percent by the end of 2017. The company is wrapping up a $25 million retrofitting project designed to achieve that. In the meantime, residents, state regulators, scientists, company officials and lawyers have all engaged in intense debate over the health ramifications of chloroprene exposure. Dr. Jimmy Guidry, the state health officer, has said that measuring the risk has been difficult, largely because "there's not a whole lot of science about chloroprene." Variables include the proximity of the exposed person to the site, the amount of time chloroprene stays in the body and the tendency for chloroprene levels in the air to spike and dip over time. The lawsuit was initially filed in July in Louisiana's 40th Judicial District Court, but it was moved to federal court in New Orleans in August. It's unclear when the judge will rule on Denka's motion. The affected area laid out in the petition is bounded by Interstate 10 on the north, the St. James Parish line on the west, La. 3127 on the south and the community of Killona and the Bonnet Carre Spillway on the east. That's the area where St. John residents and their lawyers see "a pattern of excessive measurements of chloroprene in the air," lawyer Eberhard Garrison said in July. [GN] DEPOMED INC: Feb. 6 Deadline to File Amended "Huang" Suit --------------------------------------------------------- In the case, INCHEN HUANG, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. DEPOMED, INC., ARTHUR JOSEPH HIGGINS, JAMES A. SCHOENECK, and AUGUST J. MORETTI, Defendants, Case No. 3:17-cv-04830-JST (N.D. Cal.), Judge Jon S. Tigar of the U.S. District Court for the Northern District of California, San Francisco Division, has entered an order regarding the deadline for filing amended complaint, and briefing schedule for anticipated motion(s) to dismiss. On Aug. 18, 2017, Inchen Huang filed a federal securities class action lawsuit against the Defendants. The Case Management Conference is currently scheduled for Jan. 31, 2018 at 2:00 p.m. On Dec. 8, 2017, the Court entered an Order appointing the Depomed Investor Group as the Lead Plaintiff, and approving Levi & Korsinsky, LLP to serve as the Lead Counsel. The Lead Plaintiff anticipates filing an amended complaint and the Defendants anticipate moving to dismiss the anticipated amended complaint. The parties have met and conferred regarding a schedule for the filing of an amended complaint and a briefing schedule for the Defendants' anticipated motion(s) to dismiss. Having met and conferred the Lead Plaintiff and the Defendants have agreed to and respectively submit, and Judge Tigar approved, the following schedule for the filing of and responding to an amended complaint: 1. The Lead Plaintiff will file an amended complaint by Feb. 6, 2018; 2. The Defendants will answer or otherwise respond to the amended complaint by April 9, 2018; c. If the Defendants move to dismiss the amended complaint, the Lead Plaintiff will file its opposition(s) by June 8, 2018; d. The Defendants will file their replies in support of any motion(s) to dismiss by July 23, 2018; e. The Counsel for the parties will meet and confer to agree on a proposed hearing date in connection with the motion to dismiss the consolidated amended complaint, subject to the Court's availability; and f. The Case Management Conference will be postponed until a decision on the anticipated motion(s) to dismiss. A full-text copy of the Court's Dec. 15, 2017 Order is available at https://is.gd/EYFEod from Leagle.com. Inchen Huang, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Jennifer Pafiti -- jpafiti@pomlaw.com -- Pomerantz LLP. Inchen Huang, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by J. Alexander Hood, II -- ahood@pomlaw.com -- Pomerantz LLP, pro hac vice, Jeremy A. Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP, pro hac vice & Patrick V. Dahlstrom -- pdahlstrom@pomlaw.com -- Pomerantz LLP. Depomed Investor Group, "Lead Plaintiff", Plaintiff, represented by Adam Christopher McCall -- amccall@zlk.com -- Levi & Korsinsky, LLP, Adam Marc Apton -- aapton@zlk.com -- Levi & Korsinsky LLP, Nicholas Ian Porritt -- nporritt@zlk.com -- Levi & Korsinsky, LLP, pro hac vice & Rosemary M. Rivas -- rrivas@zlk.com -- Levi & Korsinsky LLP. Depomed, Inc., Defendant, represented by Michael A. Mugmon -- michael.mugmon@wilmerhale.com -- Wilmer Cutler Pickering Hale & Dorr LLP & Rebecca A. Girolamo -- becky.girolamo@wilmerhale.com - - Wilmer Cutler Pickering Hall & Dorr LLP. Arthur Joseph Higgins, Defendant, represented by Michael A. Mugmon, Wilmer Cutler Pickering Hale & Dorr LLP & Rebecca A. Girolamo, Wilmer Cutler Pickering Hall & Dorr LLP. James A. Schoeneck, Defendant, represented by Michael A. Mugmon, Wilmer Cutler Pickering Hale & Dorr LLP & Rebecca A. Girolamo, Wilmer Cutler Pickering Hall & Dorr LLP. August J. Moretti, Defendant, represented by Michael A. Mugmon, Wilmer Cutler Pickering Hale & Dorr LLP & Rebecca A. Girolamo, Wilmer Cutler Pickering Hall & Dorr LLP. City of Pontiac General Employees' Retirement System, Movant, represented by Michael A. Mugmon, Wilmer Cutler Pickering Hale & Dorr LLP & Rebecca A. Girolamo, Wilmer Cutler Pickering Hall & Dorr LLP. Brian Shrader, Movant, represented by Laurence M. Rosen -- lrosen@rosenlegal.com -- The Rosen Law Firm, P.A.. John Lucas, Movant, represented by Robert Vincent Prongay -- RProngay@glancylaw.com -- Glancy Prongay & Murray LLP & Lesley F. Portnoy -- lportnoy@glancylaw.com -- Glancy Prongay & Murray LLP. Joe Bojues, Movant, represented by Robert Vincent Prongay, Glancy Prongay & Murray LLP & Lesley F. Portnoy, Glancy Prongay & Murray LLP. Thomas J. Bruch, Movant, represented by Jennifer Pafiti, Pomerantz LLP. Steven Robert Farrar, Movant, represented by Jennifer Pafiti, Pomerantz LLP. Dennis J. Seltzer, Movant, represented by Jennifer Pafiti, Pomerantz LLP. David Weinstein, Movant, represented by Jennifer Pafiti, Pomerantz LLP. Gerald Ross, Interested Party, represented by Benjamin Heikali -- bheikali@faruqilaw.com -- Faruqi & Faruqi LLP. DETROIT, MI: Faces Class Action Over Parking Meter Fines -------------------------------------------------------- Robert Snell, writing for The Detroit News, reports that the city of Detroit is wrongfully collecting parking meter fines and late fees and violating the constitutional rights of motorists, according to a class-action lawsuit filed in federal court. The lawsuit threatens to plug a revenue stream that has generated millions of dollars for Detroit since it emerged from bankruptcy three years ago but could provide financial relief for thousands of motorists. The lawsuit seeks to block the city from issuing tickets and collecting fines and fees that exceed authorized amounts, and accuses Detroit of failing to provide a $10 early payment discount. The motorists who filed the class-action lawsuit want Chief U.S. District Judge Denise Page Hood to declare the city's parking fines and late fees excessive and rule that it violates constitutional protections against excessive fines. "Millions of dollars in unlawful and unauthorized fines have been assessed and collected by the Defendants as a result of their wrongful actions and to the detriment of tens of thousands of car owners (if not more) who were assessed excessive fines for alleged parking violations," lawyer Shaun Godwin wrote in the lawsuit. A city spokesman declined to comment. The lawsuit was filed by Detroit resident Kayla Friess, 25, and West Bloomfield Township resident Issa Haddad, both of whom have received at least one $45 parking ticket. The complaint names parking meter contractor Duncan Solutions Inc., Detroit parking director Norman White and James Canty, who manages the city's parking violations bureau. The city unveiled a new $3.5 million on-street parking system in 2015 called ParkDetroit, which offers "pay-by-plate" kiosks, rather than individual meters. Drivers can use a mobile app or pay at meter kiosks in specific zones. The city initially wrote only courtesy tickets in neighborhoods as it piloted the system to remind drivers to make parking payments. They also had enforcement officers serving as ambassadors to assist motorists in using the kiosks. The overhaul included new enforcement vehicles equipped with license plate-reader technology that quickly scans license plates to determine whether motorists have paid to park in the area. If there is a violation, a ticket is processed and printed from a hand-held device. In July 2015, the City Council voted to revise Detroit's parking ordinance, a move that established varying zones throughout the city, most with steeper rates. As a revenue-generating initiative, former emergency manager Kevyn Orr approved a new rate schedule for parking fines. The increase -- Detroit's first in more than a decade -- bumped tickets from $30, $50 and $80 to $45, $65 and $95, respectively, for parking violations and late fees. The new schedule also eliminated a $10 rate for early payment. Detroit had been paying $32 to issue and process a $30 parking violation. The city is assessing parking fines at rates higher than those allowed by city ordinance and failing to provide early-payment discounts, according to the lawsuit. The lawsuit seeks to stop the practice and correct what the motorists call an "unlawful scheme." Duncan, meanwhile, is being unlawfully enriched by collecting the illegal fines and committing common law fraud, according to the lawsuit. A spokesman for the Wisconsin company did not respond to a message seeking comment on Dec. 22. [GN] EI DUPONT: Deal in "Harrison" Antitrust Suit Has Prelim Approval ---------------------------------------------------------------- In the case, JAN HARRISON; LEE RANALLI; MORGAN TANNER; SPENCER HATHAWAY; TODD TURLEY; DEBBIE HALE; KELI ANNO; JOHN ZULLO; CHRISTOPHER KUON-TSEN LEE; JIM BUCKINGHAM; TANDA SAXTON; JOHN WOZNIAK; JEROME SHERMAN; BEVERLY JENKINS; DAVID PETERSEN; TOM STEVER; BRIAN BAWOL; RANSOME FOOSE; and, STACY FRANKLIN. Plaintiffs, v. E.I. DUPONT DE NEMOURS AND COMPANY; HUNTSMAN INTERNATIONAL, LLC; KRONOS WORLDWIDE, INC.; and, MILLENNIUM INORGANIC CHEMICALS, INC.; Defendants, Case No. 5:13-cv-01180-BLF (N.D. Cal.), Judge Beth Labson Freeman of the U.S. District Court for the Northern District of California, San Jose Division, granted the Plaintiffs' Unopposed Motion for Preliminary Approval of Class Action Settlement. Judge Freeman preliminarily approved the Settlement Agreement and the settlement set forth therein, subject to further consideration at a final approval hearing. A Fairness Hearing will be held before the Court on Aug. 16, 2018, at 1:30 p.m. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Judge preliminarily certified, for purposes of effectuating the settlement, two subclasses as follows: a. Damages Settlement Class means all purchasers who either (i) purchased Architectural Paint from a seller in a Damages State, or (ii) who reside in a Damages State and purchased Architectural Paint in the United States, provided that in either case the Architectural Paint purchased was for personal use and not for resale containing, in some form, Titanium Dioxide manufactured by one or more of the Defendants or co-conspirators, or any predecessors, parents, subsidiaries, or affiliates thereof from Jan. 1, 2002 until the date notice of the settlement is first distributed to the Damages Settlement Class, who do not timely opt out pursuant to Paragraphs 12 and 19 of the Settlement Agreement. b. Injunctive Relief Settlement Class means all purchasers in the United States of Architectural Paint for personal use and not for resale containing, in some form, Titanium Dioxide manufactured by one or more of the Defendants or co-conspirators, or any predecessors, parents, subsidiaries, or affiliates thereof from Jan. 1, 2002 until the date notice of this settlement is first distributed to the Injunctive Relief Settlement Class. Judge Freeman approved, as to form and content, the notice of the proposed Settlement Agreement outlined in the Motion for Preliminary Approval of Class Action Settlement. She appointed Digital Settlement Group to supervise and administer the notice procedure as well as the processing of claims. The Notice and Claims Administrator will commence all aspects of the approved notice campaign, including notice by print publication, Internet notice, and dedicated website and press releases, in accordance with the schedule set forth The Judge also approved, as to form and content, the Distribution Plan outlined in the Settlement Agreement. She designated the following as the class representatives for the Settlement Classes: Jan Harrison, Lee Ranalli, Morgan Tanner, Spencer Hathaway, Todd Turley, Debbie Hale, Keli Anno, John Zullo, Christopher Kuon-Tsen Lee, Jim Buckingham, Tanda Saxton, John Wozniak, Jerome Sherman, Beverly Jenkins, David Petersen, Tom Stever, Brian Bawol, Ransome Foose, and Stacy Franklin. She also designated the following as the Class Counsel for the Settlement Class: Barrett Law Group and Cuneo Gilbert & LaDuca, LLP. The Class Counsel will file their motion for attorneys' fees, costs, and service awards, and all supporting documentation and papers, no later than May 24, 2018. Any person who desires to file an objection to the Settlement or request exclusion from the Settlement Class will do so by June 15, 2018, in conformance with the provisions of the settlement notice as approved. The Class Counsel will file their motion for final approval of Settlement, and all supporting documentation and papers, no later than July 19, 2018. The Class Counsel may file a written response to any objections to the Settlement Agreement, or to the application for attorneys' fees, reimbursement of expenses, and class representative service awards, no later than 14 days before the final Fairness Hearing, or by Aug. 2, 2018. At the Fairness Hearing, the Class Counsel will provide the Court with any updated information available as of that date concerning any requests for exclusion received from the Settlement Classes, any objections received from the Settlement Classes, or any other communications received in response to the notice of settlement. At or after the Fairness Hearing, the Court will determine whether the Settlement Agreement, the motion for attorneys' fees and expenses, and any service awards will be finally approved. All reasonable expenses incurred in notifying the Settlement Classes and administering the settlement will be paid as set forth in the Settlement Agreement. Judge Freeman adopted the following schedule proposed in the motion: i. Notice campaign to begin, including Internet and publication notice, dedicated website, and press release - 80 days from preliminary approval order ii. Last day for motion for attorneys' fees, costs, expenses, and service awards - 3 weeks before claims and objection deadline iii. Last day to file claims and objections to the requests for exclusion from Classes Settlement - 15 weeks from beginning of notice or the campaign iv. Last day for motion in support of final approval of Settlement - 5 weeks after claims and objections deadline v. Final Fairness Hearing - 4 weeks after motion for final approval, unless otherwise ordered by the Court The members of the Settlement Classes are advised to confirm the date of the Fairness Hearing as set forth in the settlement notice. The Court may approve the Settlement Agreement, with such modifications as may be agreed to by the settling parties, if appropriate, without further notice to the Settlement Classes. A full-text copy of the Court's Dec. 13, 2017 Order is available at https://is.gd/BWBOcG from Leagle.com. Morgan Tanner, Plaintiff, represented by Ben F. Pierce Gore, Pratt & Associates. Morgan Tanner, Plaintiff, represented by Brian K. Herrington, Don Barrett, P.A., Jonathan W. Cuneo -- JonC@cuneolaw.com -- Cuneo Gilbert & LaDuca, LLP, Katherine Van Dyck -- kvandyck@cuneolaw.com -- Cuneo Gilbert & LaDuca, LLP & Sandra Watson Cuneo, Cuneo Gilbert and LaDuca, LLP. Jan Harrison, Plaintiff, represented by Ben F. Pierce Gore, Pratt & Associates, Jonathan W. Cuneo, Cuneo Gilbert & LaDuca, LLP & Katherine Van Dyck, Cuneo Gilbert & LaDuca, LLP. Lee Ranalli, Plaintiff, represented by Ben F. Pierce Gore, Pratt & Associates, Jonathan W. Cuneo, Cuneo Gilbert & LaDuca, LLP & Katherine Van Dyck, Cuneo Gilbert & LaDuca, LLP. Spencer Hathaway, Plaintiff, represented by Ben F. Pierce Gore, Pratt & Associates, Jonathan W. Cuneo, Cuneo Gilbert & LaDuca, LLP & Katherine Van Dyck, Cuneo Gilbert & LaDuca, LLP. Todd Turley, Plaintiff, represented by Ben F. Pierce Gore, Pratt & Associates, Jonathan W. Cuneo, Cuneo Gilbert & LaDuca, LLP & Katherine Van Dyck, Cuneo Gilbert & LaDuca, LLP. Debbie Hale, Plaintiff, represented by Ben F. Pierce Gore, Pratt & Associates, Jonathan W. Cuneo, Cuneo Gilbert & LaDuca, LLP & Katherine Van Dyck, Cuneo Gilbert & LaDuca, LLP. Kelli Anno, Plaintiff, represented by Ben F. Pierce Gore, Pratt & Associates, Jonathan W. Cuneo, Cuneo Gilbert & LaDuca, LLP & Katherine Van Dyck, Cuneo Gilbert & LaDuca, LLP. Christopher Kuan-Tsen Lee, Plaintiff, represented by Ben F. Pierce Gore, Pratt & Associates, Jonathan W. Cuneo, Cuneo Gilbert & LaDuca, LLP & Katherine Van Dyck, Cuneo Gilbert & LaDuca, LLP. Jim Buckingham, Plaintiff, represented by Ben F. Pierce Gore, Pratt & Associates, Jonathan W. Cuneo, Cuneo Gilbert & LaDuca, LLP & Katherine Van Dyck, Cuneo Gilbert & LaDuca, LLP. E.I DuPont De Nemours and Company, Defendant, represented by Beatrice B. Nguyen -- bbnguyen@crowell.com -- Crowell & Moring LLP, Lucy Grace Dearce Noyola, Crowell and Moring LLP, pro hac vice & Shari Ross Lahlou -- slahlou@crowell.com -- Crowell & Moring LLP, pro hac vice. Huntsman International, LLC,, Defendant, represented by Christopher Walter James -- cjames@velaw.com -- Vinson and Elkins LLP, Erica L. Krennerich -- ekrennerich@velaw.com -- Vinson Elkins LLP, pro hac vice, James A. Reeder, Jr. -- jreeder@velaw.com -- Vinson and Elkins LLP Litigation, pro hac vice, Matthew J. Jacobs -- mjacobs@velaw.com -- Vinson & Elkins LLP & Michael L. Charlson -- mcharlson@velaw.com -- Vinson & Elkins L.L.P.. Kronos Worldwide, Inc, Defendant, represented by Paul Edward Coggins -- pcoggins@lockelord.com -- Locke Lord LLP, pro hac vice, Kelly Rothermel Vickers -- kvickers@lockelord.com -- Locke Lord LLP, pro hac vice, Regina Jill McClendon -- rmcclendon@lockelord.com -- Locke Lord LLP & Timothy G. Cameron - - tcameron@cravath.com -- Cravath, Swaine and Moore LLP, pro hac vice. Millennium Inorganic Chemicals, Inc, Defendant, represented by Anne Davis -- anne.davis@apks.com -- Arnold and Porter LLP, pro hac vice, James L. Cooper -- james.cooper@apks.com -- Arnold and Porter, Ryan Z. Watts -- ryan.watts@apks.com -- Arnold and Porter LLP & Sean Michael Callagy -- sean.callagy@apks.com -- Arnold & Porter Kaye Scholer LLP. EXPRESS SCRIPTS: "Brannon" Suit Transferred to Dist. Minnesota -------------------------------------------------------------- The class action lawsuit filed on August 29, 2017, captioned Traci Brannon, Lindsey Rizzo, and, Jamie Herr, individually and on behalf of all others similarly situated v. Express Scripts Holding Company, Express Scripts, Inc., Unitedhealth Group, Inc., Optumrx, Inc., and Prime Therapeutics, LLC, Case No. 2:17-cv- 02497, was transferred on January 3, 2018, from the U.S. District Court for the District of Kansas to the U.S. District Court for the District of Minnesota. The District Court Clerk assigned Case No. 0:18-cv-00018-JNE-TNL to the proceeding. The case asserts labor-rated claims. The Defendants operate a pharmacy benefit management organization in the United States. [BN] The Defendant is represented by: Nicholas J. Bullard, Esq. DORSEY & WHITNEY LLP 50 South Sixth Street, Suite 1500 Minneapolis, MN 55402-1498 Telephone: (612) 492-6733 E-mail: bullard.nick@dorsey.com - and - Stephen P. Lucke, Esq. DORSEY & WHITNEY LLP 50 S 6th St Ste 1500 Minneapolis, MN 55402-1498 Telephone: (612) 343-7947 Facsimile: (612) 340-2868 E-mail: lucke.steve@dorsey.com EZ-FLO INT'L: 9th Cir. Remands Insurers' Suit to State Court ------------------------------------------------------------ The United States Court of Appeals, Ninth Circuit issued an Opinion affirming the judgment of the District Court remanding the case captioned LIBERTY MUTUAL FIRE INSURANCE COMPANY, as Subrogee of Alexander Zahri; AUTO CLUB INDEMNITY COMPANY; CALIFORNIA CAPITAL INSURANCE COMPANY; THE CINCINNATI INSURANCE COMPANY; CSAA INSURANCE EXCHANGE; ERIE INSURANCE COMPANY; FIRST AMERICAN SPECIALTY INSURANCE COMPANY; INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB; LIBERTY INSURANCE CORPORATION; LIBERTY LLOYDS OF TEXAS INSURANCE COMPANY; LIBERTY MUTUAL MID-ATLANTIC INSURANCE COMPANY; LM INSURANCE CORPORATION; MERCURY CASUALTY COMPANY; RESIDENCE MUTUAL INSURANCE COMPANY; SAFECO INSURANCE COMPANY OF AMERICA; SAFECO INSURANCE COMPANY OF ILLINOIS; SAFECO INSURANCE COMPANY OF INDIANA; SAFECO INSURANCE COMPANY OF OREGON; THE FIRST LIBERTY INSURANCE CORPORATION; UNITED SERVICES AUTOMOBILE ASSOCIATION; USAA CASUALTY INSURANCE COMPANY; USAA GENERAL INDEMNITY COMPANY; USAA TEXAS LLOYDS COMPANY; WESTFIELD INSURANCE COMPANY; WESTFIELD NATIONAL INSURANCE COMPANY, Plaintiffs-Appellees, v. EZ-FLO INTERNATIONAL INC., Defendant- Appellant. No. 17-56523. (9th Cir.) The case presents the narrow question of whether a lawsuit filed by 26 insurance companies, in their capacity as subrogees of 145 insured homeowners, qualifies as a mass action. The Plaintiffs filed suit in the Superior Court of California, County of San Bernardino. When they amended their complaint to seek over $5,000,000 in damages allegedly suffered by their 145 insureds, EZ-FLO filed a notice of removal pursuant to the Class Action Fairness Act. The Plaintiffs then moved to remand. In granting that motion, the district court held that it lacked jurisdiction under 28 U.S.C. Section 1332(d) because the amended complaint does not include more than 100 named plaintiffs. EZ- FLO then filed a petition for leave to appeal pursuant to 28 U.S.C. Section 1453(c), which a prior panel of the court granted. Under Mississippi ex rel. Hood v. AU Optronics Corp., 134 S.Ct. 736 (2014), the word "persons" in CAFA's phrase "100 or more persons" is synonymous with named plaintiffs. The Supreme Court, in Hood, unanimously disagreed, holding that the suit was not a mass action because a mass action' must involve monetary claims brought by 100 or more persons who propose to try those claims jointly as named plaintiffs. From this parallel use of the term persons, the Court reasoned that, just as it is used in Rule 20, the term "persons" in Section 1332(d)(11)(B)(i) refers to the individuals who are proposing to join as plaintiffs in a single action. The Supreme Court concluded that the "100 or more persons" and the proposed 'plaintiffs' are one and the same. Plaintiffs means parties who actually bring suit; it does not mean real parties in interest. The Ninth Circuit's conclusion that the insureds are not plaintiffs follows inexorably from the fact that they have not brought this lawsuit. Nor have they filed, served, or been served with any papers in this case. The insureds also have made no arguments and taken no positions, and there is no indication in the record that they have any right to control the lawsuit's prosecution. Moreover, EZ-FLO's counsel readily conceded at oral argument that the only plaintiffs in the lawsuit are the 26 insurance companies. The fact that the insureds are not named plaintiffs is dispositive. Nonetheless, EZ-FLO argues in its brief that the insureds should be considered as plaintiffs for the purpose of analyzing jurisdiction under CAFA's mass action provision because, in subrogation suits, the insurance companies depend upon [the insureds'] rights and stand in their shoes. But the dynamic in which one party figuratively stands in the shoes of another is hardly unique to subrogation suits, the Ninth Circuit held. It is, in fact, a defining feature of ex rel. suits as well the context in which Hood arose. Based on Hood, the Ninth Circuit concluded that CAFA's numerosity requirement is not satisfied in the present case. A full-text copy of the Ninth Circuit's December 14, 2017 Opinion is available at https://tinyurl.com/ybbyef7c from Leagle.com. Michael J. Hassen -- MHassen@jmbm.com -- (argued), and Christopher H. Doyle -- CDoyle@jmbm.com -- Jeffer Mangels Butler & Mitchell LLP, San Francisco, California; Michael Phillips, EZ- FLO International Inc., Ontario, California; for Defendant- Appellant. Timothy E. Cary -- CaryT@StutmanLaw.com -- (argued), Law Offices of Robert A. Stutman P.C., Corona, California; Hal J. Kleinman -- KleinmanH@StutmanLaw.com -- Law Offices of Robert A. Stutman P.C., Fort Washington, Pennsylvania; for Plaintiffs-Appellees. FACEBOOK INC: "Meyers" Class Suit Transferred to N.D. California ---------------------------------------------------------------- The class action lawsuit filed on October 3, 2017 captioned James Meyers, on behalf of himself and all others similarly situated v. Facebook, Inc., Case No. 5:17-cv-02029 was transferred on January 4, 2018 from the U.S. District Court for the Central District of California to the U.S. District Court for the Northern District of California. The District Court Clerk assigned Case No. 3:18- cv-00062-JCS to the proceeding. The case arises out of the Defendant's violation of the Telephone Consumer Protection Act. Facebook, Inc. operates a social media and social networking site located at Menlo Park, California. [BN] The Plaintiff is represented by: Lawrence Timothy Fisher, Esq. BURSOR & FISHER, P.A. 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E-mail: ltfisher@bursor.com - and - Reuben D. Nathan, Esq. NATHAN & ASSOCIATES, APC 600 W. Broadway, Suite 700 San Diego, CA 92101 Telephone: (619) 272-7014 Facsimile: (619) 330-1819 E-mail: rnathan@nathanlawpractice.com - and - Scott A. Bursor, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Telephone: (212) 989-9113 Facsimile: (212) 989-9163 E-mail: scott@bursor.com The Defendant is represented by: Elizabeth Lee Deeley, Esq. LATHAM AND WATKINS LLP 505 Montgomery Street Suite 2000 San Francisco, CA 94111-6538 Telephone: (415) 391-0600 Facsimile: (415) 395-8095 E-mail: elizabeth.deeley@lw.com FCA US: Court Denies Bid to Compel Arbitration in "Cerjanec" Suit ----------------------------------------------------------------- In the case, DAN CERJANEC, RODRIGO BRAVO, MARK MODLIN, and WILLIAM WINFREY, on behalf of themselves and all others similarly situated; Plaintiffs, v. FCA US, LLC, Defendant, Case No. 17- 10619 (E.D. Mich.), Judge Laurie J. Michelson of the U.S. District Court for the Eastern District of Michigan, Southern Division, denied FCA's Motion to Compel Arbitration, and granted and denied in part FCA's Motion to Dismiss and Motion to Strike Class Allegations. The Plaintiffs are current and former employees of FCA. As a class, they seek relief from an employee-evaluation policy they allege has a disparate impact on employees aged 55 and older. The Plaintiffs allege that as a result of this policy, they received lower evaluation scores which resulted in missed career advancements, bonuses, and other employment opportunities. Two Plaintiffs additionally bring individual claims of intentional age discrimination. Defendant FCA seeks to compel arbitration. FCA asserts that the Plaintiffs assented to arbitration when they continued to work at FCA after receiving notice of the arbitration policy. In the alternative, it moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), and to strike the class allegations for failure to meet Rule 23 prerequisites. The parties submitted extensive briefing and the Court heard oral argument on Nov. 8, 2017. Judge Michelson finds that in the absence of any signed agreement or any FCA-distributed materials expressly telling the Plaintiffs that they would accept the terms of the Employment Dispute Resolution Process ("EDRP") by continuing their employment, she cannot find that there was an agreement to arbitrate. Accordingly, the Court denies FCA's motion to compel arbitration with respect to Cerjanec, Modlin, and Winfrey. She also finds that FCA has failed to produce an employment application for Bravo or any other documentation pertaining to his hire or how he came to agree to the EDRP. So he, too, will not be compelled to arbitrate his claims. Additionally, given his 1980s hire date, the Judge sees no reason to treat him differently from the other employees hired prior to 1995. With respect to FCA's Motion to Dismiss and Motion to Strike Class Allegations, the Judge first finds that by specifically mentioning the Performance and Leadership Management ("PLM") and PLM Rating, and its alleged adverse effects on older workers, it is reasonable to construe Cerjanec's EEOC complaint as raising a complaint about the process that produced those ratings. The EEOC could reasonably interpret this charge as involving a discriminatory effect based upon the referenced PLM process, and not merely discriminatory intent. In other words, an EEOC investigation into potential liability based on disparate impact could have been "reasonably expected to grow out of" Cerjanec's EEOC charge. Thus, while close, the Judge finds that Cerjanec exhausted the class disparate-impact claim. She will enforce the six-month statute of limitations on Cerjanec's claims. And like the continuing violation argument, the current record is inadequate for the Judge to determine whether equitable tolling applies and will permit discovery on this issue. Next, Judge Michelson will dismiss the claims brought pursuant to Rule 23. FCA also seeks dismissal of the class allegations. FCA asserts that ADEA claims may not be brought as a Rule 23 class action. The Plaintiffs concede this point in their response. Lastly, the Judge will allow the Plaintiffs to file another amendment complaint. FCA is correct that an ADEA claim cannot be brought in federal court until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission. Cerjanec filed his complaint with the EEOC on March 1, 2017. He then filed his amended complaint on March 20, 2017 -- still within the 60-day window. In a similar situation, at least one other court in the Circuit allowed the plaintiff to amend the complaint, finding this the most efficient and best course. Although FCA makes other arguments for dismissal, the Court pauses at this point, the Judge says. The complaint needs to be amended to address this timing issue and for the Plaintiffs to plead a collective (as opposed to a class) action. As a result, before addressing the other pleading deficiencies raised in FCA's motion to dismiss, she will allow the Plaintiffs to submit one final amended complaint to address all alleged deficiencies. She will therefore deny the remainder of FCA's motion to dismiss and strike without prejudice to refiling. For the reasons given, Judge Michaelson denied FCA's Motion to Compel Arbitration, and granted in part and denied in part FCA's Motion to Dismiss and Motion to Strike Class Allegations. The Rule 23 ADEA claims are dismissed, but the Plaintiffs may submit one final amended complaint addressing the issues raised and any pleading deficiencies identified in FCA's motion to dismiss. A full-text copy of the Court's Dec. 15, 2017 Opinion and Order is available at https://is.gd/OkZwHJ from Leagle.com. DAN CERJANEC, Plaintiff, represented by Beth M. Rivers -- brivers@pittlawpc.com -- Pitt, Dowty. DAN CERJANEC, Plaintiff, represented by Cary S. McGehee -- cmcgehee@pittlawpc.com -- Pitt, McGehee, Megan Bonanni -- mbonanni@pittlawpc.com -- Pitt, McGehee, Michael L. Pitt -- mpitt@pittlawpc.com -- Pitt, McGehee, Robert W. Palmer -- rpalmer@pittlawpc.com -- Pitt, McGehee, Palmer & Rivers & Shereef H. Akeel, Akeel & Valentine. GLENN LUKAS, Plaintiff, represented by Beth M. Rivers, Pitt, Dowty, Cary S. McGehee, Pitt, McGehee, Megan Bonanni, Pitt, McGehee, Michael L. Pitt, Pitt, McGehee, Robert W. Palmer, Pitt, McGehee, Palmer & Rivers & Shereef H. Akeel, Akeel & Valentine. RODRIGO BRAVO, Plaintiff, represented by Beth M. Rivers, Pitt, Dowty, Cary S. McGehee, Pitt, McGehee, Megan Bonanni, Pitt, McGehee, Michael L. Pitt, Pitt, McGehee, Robert W. Palmer, Pitt, McGehee, Palmer & Rivers & Shereef H. Akeel, Akeel & Valentine. WILLIAM WINFREY, Plaintiff, represented by Beth M. Rivers, Pitt, Dowty, Cary S. McGehee, Pitt, McGehee, Megan Bonanni, Pitt, McGehee, Michael L. Pitt, Pitt, McGehee, Robert W. Palmer, Pitt, McGehee, Palmer & Rivers & Shereef H. Akeel, Akeel & Valentine. MARK MODLIN, Plaintiff, represented by Beth M. Rivers, Pitt, Dowty, Cary S. McGehee, Pitt, McGehee, Megan Bonanni, Pitt, McGehee, Michael L. Pitt, Pitt, McGehee, Robert W. Palmer, Pitt, McGehee, Palmer & Rivers & Shereef H. Akeel, Akeel & Valentine. FCA US LLC, Defendant, represented by Daniel E. Turner -- dturner@littler.com -- Littler Mendelson, P.C., Jacqueline Phipps Polito -- jpolito@littler.com -- Littler Mendelson P.C., Jerome R. Watson -- watson@millercanfield.com -- Miller, Canfield, Muhammad Misbah Shahid -- shahid@millercanfield.com -- Miller Canfield Paddock & Stone & Tasha Inegbenebor -- tinegbenebor@littler.com -- Littler Mendeslon P.C.. FCA US: Court Narrows Claims in First Amended "Basnic" Suit ----------------------------------------------------------- In the case, LAWRENCE RASNIC, et al., Plaintiffs, v. FCA US LLC f/k/a CHRYSTLER GROUP LLC, Defendant, Civil Action No. 17-2064- KHV (D. Kan.), Judge Kathryn H. Vratil of the U.S. District Court for the District of Kansas sustained in part FCA's Motion To Dismiss First Amended Complaint, Or, Alternatively, To Strike Nationwide Class Allegations. On June 17, 2013, the Plaintiffs purchased a 2013 Dodge Dart -- a car that the Defendant manufactured. Their car came with a "Uconnect" infotainment system and a Basic Limited Warranty. The Plaintiffs do not allege that before purchasing their car, they had seen or heard Defendant's advertisements or visited its web site. In approximately April of 2016, the Plaintiffs' Uconnect system began to freeze and then shut off, leaving a blank, black screen which did not function. On April 23, 2016, they took their car to a service dealership for repair. At this time, the warranty had not expired. The dealership could not repair the system, however, it replaced the Uconnect system on May 14, 2016. That same day, the replacement system began to randomly black out. On June 1, 2016, the dealership replaced the system's module; after this, the screen began to flash back and forth from black to white. Throughout the next few months, the problems persisted as the dealership and the Defendant tried and failed to repair the Uconnect system three more times. Since 2013, the Defendant has issued 45 Technical Service Bulletins ("TSBs") to authorized technicians. The Plaintiffs allege that three TSBs concerned the Uconnect in their car. The Defendant issued its first Uconnect-related TSB in July of 2014. On Jan. 12, 2017, the Plaintiffs filed a class action complaint against the Defendant in the 29th Judicial District of Kansas, Wyandotte County. On Feb. 2, 2017, the Defendant removed the case to the Court. On March 31, 2017, the Plaintiffs filed an amended complaint, asserting that by providing defective Uconnect systems, the Defendant violated the Magnuson-Moss Warranty Act ("MMWA")(Claim 1), the implied warranty of merchantability (Claim 2), and the Kansas Consumer Protection Act ("KCPA")(Claim 3). The Plaintiffs propose to represent statewide and/or national classes of individuals who purchased or leased cars with an 8.4- inch Uconnect infotainment system on or after Jan. 12, 2013. Before the Court is FCA's Motion To Dismiss First Amended Complaint, Or, Alternatively, To Strike Nationwide Class Allegations filed April 24, 2017. First, it asserts that the Court should dismiss all of the Plaintiffs' claims because they fail to allege a specific defect. Second, it contends that the Plaintiffs' MMWA claim fails because they did not allege breach of an express warranty. Third, the Defendant argues that the alleged Uconnect malfunctions do not breach the Kansas implied warranty of merchantability. Fourth, the Defendant seeks dismissal of the KCPA claim because the Plaintiffs filed it after the statute of limitations had expired and fail to allege the necessary elements of a valid claim. It also asks the Court to strike all nationwide allegations because the Plaintiffs base their claims on Kansas law, which cannot govern out-of-state transactions. Judge Vratil finds that the Plaintiffs' allegations provide defendant sufficient notice of the purported defect. Although these allegations do not identify the cause of these issues, they give the Defendant fair notice of the grounds upon which their claims rest. Because Rule 8, Fed. R. Civ. P., only requires fair notice, the Plaintiffs do not need to identify the cause of a "specific defect" in their complaint. The Judge will overrule the Defendant's motion on this ground. Viewing the facts in the light most favorable to the Plaintiffs, the Judge finds that they sufficiently allege that the Defendant breached the warranty by failing to adequately repair the car. Further, the Defendant fails to establish that, as a matter of Kansas law, material and workmanship warranties exclude design defects. Finally, at this early stage of the proceedings, she cannot resolve questions of fact concerning what caused the Uconnect malfunctions and whether the warranty covers that type of defect. Thus, the Judge will overrule the Defendant's motion on the ground that the Plaintiffs fail to allege sufficient facts to support a claim under the MMWA. Although the Defendant contests the relevance of some TSBs, when determining a motion to dismiss, Judge Vratil accepts all facts alleged as true and does not resolve questions of fact. Thus, viewing the facts in the light most favorable to the Plaintiffs, she finds that the Plaintiffs sufficiently allege a breach of the implied warranty of merchantability claim. The Judge overrules the Defendant's motion on express warranty grounds because it is not "apparent" that the statute of limitations bars the Plaintiffs' claim. And since Plaintiffs do not allege that they saw or were aware of the Defendant's advertisements before they purchased their car, they have not sufficiently alleged reliance on the supposedly false statements. The Judge will dismiss the Plaintiffs' KCPA claims based on the Defendant's nationwide advertising claim, namely Claims 3(a)-(d), (f). She will also dismiss Claims 3(g) through 3(i) because the Plaintiffs fail to allege unconscionability. Finally, Judge Vratil finds that the Plaintiffs do not explain how delaying the decision and allowing further discovery could remedy the defects in their nationwide allegations. Further, the Plaintiffs' reliance on a general presumption against striking class allegations at the pleadings stage does not justify the additional expense of discovery concerning nationwide claims unsupported by law. Accordingly, she will strike the Plaintiffs' their nationwide allegations, namely those set forth through proposed Classes C and D. Therefore, Judge Vratil sustained in part FCA' Motion To Dismiss First Amended Complaint, Or, Alternatively, To Strike Nationwide Class Allegations. She dismissed the Plaintiffs' Claims 3(a) through (d) and 3(f) through (i) and stuck their nationwide complaints. FCA's Motion is overruled as to all remaining claims. The following claims remain: Claim 1, Claim 2 and Claim 3(e). A full-text copy of the Court's Dec. 15, 2017 Order is available at https://is.gd/D6xOpy from Leagle.com. Lawrence Rasnic, Plaintiff, represented by Ashley Scott Waddell, Waddell Law Firm LLC. Lawrence Rasnic, Plaintiff, represented by Bryce B. Bell -- Bryce@belllawkc.com -- Bell Law, LLC, Larkin E. Walsh -- lwalsh@midwest-law.com -- Rex A. Sharp, PA, Mark W. Schmitz, Bell Law, LLC, Reagan E. Bradford , The Lanier Law Firm, PC, pro hac vice, Rex A. Sharp -- rsharp@midwest-law.com -- Rex A. Sharp, PA, Ryan C. Hudson -- rhudson@midwest-law.com -- Rex A. Sharp, PA & W. Mark Lanier, The Lanier Law Firm, PC, pro hac vice. Rebeca Lopez-Rasnic, Plaintiff, represented by Ashley Scott Waddell, Waddell Law Firm LLC, Bryce B. Bell, Bell Law, LLC, Larkin E. Walsh, Rex A. Sharp, PA, Mark W. Schmitz, Bell Law, LLC, Reagan E. Bradford, The Lanier Law Firm, PC, pro hac vice, Rex A. Sharp, Rex A. Sharp, PA, Ryan C. Hudson, Rex A. Sharp, PA & W. Mark Lanier, The Lanier Law Firm, PC, pro hac vice. FCA US LLC, Defendant, represented by Craig S. Laird -- claird@kuminlaw.com -- Robert A. Kumin, PC, Kathy A. Wisniewski, Thompson Coburn LLP, pro hac vice, Sharon Rosenberg -- srosenberg@thompsoncoburn.com -- Thompson Coburn LLP, pro hac vice & Stephen A. D'Aunoy -- sdaunoy@thompsoncoburn.com -- Thompson Coburn LLP, pro hac vice. FCA US: Court DQs Joseph White as Class Rep in Jeep Wrangler Suit ----------------------------------------------------------------- The United States District Court for the Northern District of Ohio disqualified Joseph White as class representative in the case captioned DONNA MOORADIAN, ET AL., Plaintiffs, v. CA US, LLC, Defendant, Case No. 1:17-cv-1132 (N.D. Ohio), for spoliating evidence. In this case, the Plaintiffs allege that casting sand used in creating Jeep Wrangler engine parts seeps into those vehicles' radiators, causing heating and cooling issues. Perhaps the most important piece of evidence in this case, then, is the fluid in a Wrangler's radiator. Plaintiffs allege casting sand settles in some Wrangler radiators causing a type of sludge. Plaintiff White and his attorneys' (mis)handling of that fluid is the reason for the Order. Between FCA's request and Plaintiff White's response, however, Plaintiff White took his vehicle to an unaffiliated automobile service location at his counsel's behest. White and White's attorney gave FCA's counsel no notice. White took his vehicle to Finish Line Performance LLC and had the coolant in his radiator flushed. What may be even more concerning, however, is what White says happened after he picked up his vehicle and the jugs of liquid from Finish Line. White says that he took the unlabeled and unsealed jugs, purportedly containing the casting-sand filled liquid drained from his radiator, and sat them in his car during his twelve-hour shift at work. When White got off work, he put the jugs in the breezeway at his mother's house. He left them there, seemingly unattended, for about three weeks, until he picked them up and brought them to his deposition. Plaintiff White is wrong with his contention that spoliation sanctions are based on state and not federal law. The Sixth Circuit has held that the authority to impose sanctions for spoliated evidence arises not from substantive law but, rather, from a court's inherent power to control the judicial process. Plaintiff White contends, however, that there is no spoliation because he and his counsel found FCA's request for a private inspection ambiguous, because FCA also extracted fluid from Plaintiff Mooradian's radiator, and because they did not destroy or alter evidence. This is plainly sanctionable conduct. Regardless of White and his counsel's motivations, they plainly knowingly acted at a time when they knew that they had a duty to preserve this evidence. The Court will sanction them by prohibiting Plaintiffs from supporting their motion for class certification with any evidence stemming from the liquids drained from White's vehicle, or any other work done on White's vehicle during his September 2017 trip to Finish Line. Plaintiffs also may not present any of this evidence in their dispositive briefing or at trial. The Court grants in part Defendant's motion for sanctions for spoliation of evidence. The Court prohibits Plaintiffs from using any evidence obtained from the events described in this opinion in their motions for class certification, dispositive motions, or at trial. The Court disqualifies Plaintiff White from serving as a class representative. A full-text copy of the District Court's December 14, 2017 Opinion and Order is available at https://tinyurl.com/y7yf5n4g from Leagle.com. Donna Mooradian, on behalf of herself and all others similarly situated, Plaintiff, represented by Adam A. Edwards -- adam@gregcolemanlaw.com -- Law Office of Greg Coleman, pro hac vice. Donna Mooradian, on behalf of herself and all others similarly situated, Plaintiff, represented by Daniel K. Bryson -- dan@wbmllp.com -- Whitfield Bryson & Mason, Drew T. Legando -- drew@lgmlegal.com -- Landskroner Grieco Merriman, Gregory F. Coleman -- greg@gregcolemanlaw.com -- Law Office of Greg Coleman, pro hac vice, J. Hunter Bryson -- hunter@wbmllp.com -- Whitfield Bryson & Mason, Jack Landskroner -- jack@lgmlegal.com. -- Landskroner Grieco Merriman & Mark E. Silvey -- mark@gregcolemanlaw.com -- Law Office of Greg Coleman, pro hac vice. William Mooradian, on behalf of himself and all others similarly situated, Plaintiff, represented by Adam A. Edwards, Law Office of Greg Coleman, pro hac vice, Daniel K. Bryson, Whitfield Bryson & Mason, Drew T. Legando, Landskroner Grieco Merriman, Gregory F. Coleman, Law Office of Greg Coleman, pro hac vice, J. Hunter Bryson, Whitfield Bryson & Mason, Mark E. Silvey, Law Office of Greg Coleman, pro hac vice & Jack Landskroner, Landskroner Grieco Merriman. Joseph White, Plaintiff, represented by Adam A. Edwards, Law Office of Greg Coleman, pro hac vice, Daniel K. Bryson, Whitfield Bryson & Mason, Drew T. Legando, Landskroner Grieco Merriman, Gregory F. Coleman, Law Office of Greg Coleman, pro hac vice, J. Hunter Bryson, Whitfield Bryson & Mason, Mark E. Silvey, Law Office of Greg Coleman, pro hac vice & Jack Landskroner, Landskroner Grieco Merriman. Brian Frey, on behalf of himself and all others similarly situated, Plaintiff in Member Case 5:17cv2154, Plaintiff, represented by Adam A. Edwards, Law Office of Greg Coleman, pro hac vice, Benjamin P. Lemly, Law Office of Greg Coleman, Daniel K. Bryson, Whitfield Bryson & Mason, Drew T. Legando, Landskroner Grieco Merriman, Gregory F. Coleman, Law Office of Greg Coleman, pro hac vice, J. Hunter Bryson, Whitfield Bryson & Mason, Jack Landskroner, Landskroner Grieco Merriman & Mark E. Silvey, Law Office of Greg Coleman. FCA US LLC, also known as Fiat Chrysler also known as Chrysler, Defendant, represented by Denise A. Dickerson, Sutter O'Connell, Kathy A. Wisniewski, Thompson Coburn, pro hac vice, Kevin W. Kita, Sutter O'Connell, Scott H. Morgan, Thompson Coburn, Stephen A. D'Aunoy, Thompson Coburn, pro hac vice & Thomas L. Azar, Jr., Thompson Coburn, pro hac vice. FIAT CHRYSLER: Loses Bid to Dismiss Securities Fraud Suit --------------------------------------------------------- The United States District Court for the Eastern District of Michigan, Southern Division, issued an Opinion and Order denying Defendants' Motion to Dismiss the Consolidated Class Action Complaint in the case captioned CARL PALAZZOLO and ALBERT FERRANDI, Individually and On Behalf of All Others Similarly Situated, Plaintiffs, v. FIAT CHRYSLER AUTOMOBILES N.V., SERGIO MARCHIONNE, RICHARD K. PALMER, and REID BIGLAND, Defendants, Civil Case No. 16-12803 (E.D. Mich.). The matter presently is before the Court on Defendants' motion to dismiss, filed pursuant to Rules 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure and the Private Securities Litigation Reform Act of 1995 (PSLRA). Lead Plaintiffs allege that Defendants made materially false and misleading statements and/or omissions concerning a streak of increased monthly year-over-year United States retail sales by FCA during the Class Period, which Lead Plaintiffs claim was based on fake sales. Lead Plaintiffs further allege that Defendants' statements or omissions resulted in the artificial inflation of the price of FCA common stock, which declined when the truth about FCA's U.S. sales emerged. Contending that Plaintiffs' claims are premised on FCA US LLC's publication of a new methodology for compiling and reporting monthly vehicle sales to end users and that the newly calculated U.S. sales represent a tiny adjustment from the originally stated figures (0.2% over a period of five and a half years and 0.04% during the 21-month putative class period), Defendants argue that the alleged false statements are not material as a matter of law. Defendants contend that FCA's restatement of its sales figures had little impact on FCA's stock price, which actually increased by 1.16% on July 26, 2016, from $6.92 to $7.00. Only by misconstruing the gist of Lead Plaintiffs' claims, however, can Defendants realistically challenge Lead Plaintiffs' ability to satisfy the materiality requirement. The restatement of FCA US's sales may have been quantitatively insignificant. Nevertheless, the previously stated sales figures enabled FCA to maintain the perception of a consecutive streak of year-over-year sales growth for over six years. Lead Plaintiffs' Complaint reflects that this streak was qualitatively material to investors. In other words, the public, media, and investors were not focused on the specifics of FCA US' monthly sales figures, but rather on the fact (or purported fact) that those figures led to a continuation of FCA's growth streak. The Court cannot find that Defendants' purported false statements or omissions were immaterial as a matter of law. Defendants argue that Lead Plaintiffs do not plead facts giving rise to the required strong inference that they acted with scienter. According to Defendants, because FCA US would have reported more sales from January 2011 through June 2016 under its new methodology, its growth was real and thus there could have been no scheme to create the perception of growth. Defendants also maintain that Lead Plaintiffs' allegations of scienter are insufficient because they are based almost exclusively on conclusory and unsubstantiated assertions from two confidential witnesses, media reports and unproven allegations lifted from a single unverified complaint in a separate action filed by two FCA US dealerships. The information provided by two confidential witnesses who worked at different FCA business centers further supports an inference of scienter. These witnesses indicate that FCA US headquarters imposed minimum monthly sales targets for its franchise dealers and solicited, encouraged, and bribed dealers through its business centers to submit fake NVDRs during the last few days of each sales month to meet or exceed those sales goals. The confidential witnesses' statements reflect that this occurred in most, if not all, of FCA's nine business centers. As such, unlike a case cited by Defendants, these witnesses do not describe the anomalies of a rogue fiefdom, but rather company-wide practices hat rise to the level of a core operation, contributing to a strong inference that the individual Defendants were aware of the fraud. Contrary to Defendants' assertions, the allegations in Lead Plaintiffs' Complaint are sufficient in terms of detail to give weight to these witnesses' statements. The statements are not vague and conclusory and provide sufficient particularity as to what, when, where, and how these complaining witnesses knew the alleged facts. Lead Plaintiffs' further allegations concerning the structure of FCA and Marchionne's, Bigland's, and Palmer's central roles within the corporate structure and involvement in day-to-day operations add to the totality of circumstances suggesting that they would have been aware of if not played a role in the alleged fraudulent scheme. The Court finds that the Lead Plaintiffs allege sufficient facts in their Complaint to give rise to a strong inference that Defendants acted with the required state of mind. Accordingly, the Defendants' Motion to Dismiss the Consolidated Class Action Complaint is denied. A full-text copy of the District Court's December 14, 2017 Opinion and Order is available at https://tinyurl.com/ycox4d6c from Leagle.com. Carl Palazzolo, Plaintiff, represented by Naumon A. Amjed- namjed@ktmc.com -- Kessler Topaz Meltzer & Check, LLP. Carl Palazzolo, Plaintiff, represented by Ryan T. Degnan -- rdegnan@ktmc.com -- Kessler Topaz Meltzer & Check LLP, Dennis A. Lienhardt -- dal@miller.law -- The Miller Law Firm, P.C. & E. Powell Miller -- epm@miller.law -- The Miller Law Firm. Albert Ferrandi, Plaintiff, represented by Naumon A. Amjed, Kessler Topaz Meltzer & Check, LLP, Ryan T. Degnan, Kessler Topaz Meltzer & Check LLP, Dennis A. Lienhardt, The Miller Law Firm, P.C. & E. Powell Miller, The Miller Law Firm. Fiat Chrysler Automobiles N.V., Defendant, represented by Darrell S. Cafasso -- cafassod@sullcrom.com -- Sullivan & Cromwell LLP, Jessica Vartanian Currie -- bspadmin@bsplaw.com -- Bush Seyferth and Paige PLLC, Patrick G. Seyferth -- seyferth@bsplaw.com -- Bush, Seyferth & Paige, Robert J. Giuffra, Jr. -- giuffrar@sullcrom.com -- Sullivan & Cromwell LLp, Roger P. Meyers -- Meyers@bsplaw.com -- Bush Seyferth & Paige, PLLC & William B. Monahan -- monahanw@sullcrom.com -- Sullivan & Cromwell LLp. Sergio Marchionne, Defendant, represented by Darrell S. Cafasso, Sullivan & Cromwell LLP, Jessica Vartanian Currie, Bush Seyferth and Paige PLLC, Patrick G. Seyferth, Bush, Seyferth & Paige, Robert J. Giuffra, Jr., Sullivan & Cromwell LLp, Roger P. Meyers, Bush Seyferth & Paige, PLLC & William B. Monahan, Sullivan & Cromwell LLp. Richard K. Palmer, Defendant, represented by Darrell S. Cafasso, Sullivan & Cromwell LLP, Jessica Vartanian Currie, Bush Seyferth and Paige PLLC, Patrick G. Seyferth, Bush, Seyferth & Paige, Robert J. Giuffra, Jr., Sullivan & Cromwell LLp, Roger P. Meyers, Bush Seyferth & Paige, PLLC & William B. Monahan, Sullivan & Cromwell LLp. Reid Bigland, Defendant, represented by David A. Shargel -- david.shargel@bracewell.com -- Bracewell LLP, Keefe A. Brooks -- brooks@bwst-law.com -- Brooks Wilkins Sharkey & Turco, PLLC & Michael T. Price -- price@bwst-law.com -- Brooks Wilkins Sharkey & Turco PLLC. FORD MOTOR: Plays Anti-Sexual Harassment Video Following Suits -------------------------------------------------------------- Joseph Pete, writing for Nwi, reports that Ford is now showing an anti-sexual harassment video on a loop 24/7 at all of its plants, including the Chicago Assembly Plant and the Chicago Stamping Plant, encouraging victims to report any abuse and warning supervisors retaliation will not be tolerated. The Dearborn, Michigan-based automaker launched the national campaign against sexual harassment after a high-profile New York Times expose that recapped sexual harassment charges at the factories in Hegewisch and Chicago Heights that had been widely reported by Chicago-area media outlets for decades. It had previously agreed in August to do more to combat sexual harassment at its factories in the Calumet Region. Ford has settled two class action lawsuits from female workers at the Chicago Assembly Plant, including a 2014 suit in which female workers alleged they were groped, subjected to unwanted requests for sexual favors, harassed by male colleagues who exposed their genitals or shown cellphone pictures of their genitals, and even had crudely hand-carved phallic symbols thrown at them while they were on break. Ford paid $10.1 million to resolve the latest suit earlier in 2017, before the #MeToo campaign made such workplace harassment a topic of national conversation, and also agreed to conduct more training and distribute copies of anti-harassment and anti- discrimination policies among the workforce. Now all Ford plants, including those in the Calumet Region, are showing a 2-minute, 40-second video on video monitors that are visible across the plant. Bruce Hettle, group vice president of global manufacturing and labor affairs, and Jimmy Settles, United Auto Workers vice president, explain Ford's policy on harassment and what to do to report it. "We want our employees to understand that we will not tolerate sexual harassment or discrimination," said Kelli Felker, a spokeswoman for Ford. She said the video, which features closed captioning so it can be read if the din of the assembly line drowns it out, will run indefinitely. Anyone who has experienced harassment at a Ford plant is encouraged to report it via the hotline at 888-735-6650, through a phone app that can be downloaded, by emailing activity@ford.com or by talking to a union representative. "We want to be very clear: We do not and we will not tolerate harassment or discrimination in any way, shape or form," Mr. Hettle said in the video. "We take all reports very seriously, and investigate each and every report. Jim Hackett, Ford president and CEO, plans to visit the Chicago Assembly Plant in Hegewisch to tell its employees the company "has learned" from decades of sexual harassment allegations at its plants and "will do better." "I will be in front of our employees in Chicago when everyone is back from the holidays to let them know that when they leave for work in the morning, they and their families can expect that they are coming to an environment that is safe, respectful and motivating them to do the best job possible," he said in a letter. "I want to take this opportunity to say that I am sorry for any instance where a colleague was subjected to harassment or discriminatory conduct. On behalf of myself and the employees of Ford Motor Company, who condemn such behavior and regret any harassment as much as I do, I apologize." [GN] FRANKLIN COUNY, OH: Settles Class Action Over Taser Misuse ---------------------------------------------------------- Sara E. Teller, writing for Legal Reader, reports that Sergeant Mychal Turner's misuse of a Taser on multiple occasions violated the Franklin County Jail's Taser policy and his actions were cited in a class action lawsuit recently settled by the county accusing jail guards of "sadistic" use of Tasers over a two-year period, from 2008 to 2010. One incident captured on video involved Sergeant Turner stunning a mentally ill inmate multiple times after the inmate refused to stand in his cell. In another incident, Turner fired the Taser into the chest of an inmate refusing to remove a piece of jewelry. The third time, Turner pulled the trigger five times on a handcuffed inmate who wouldn't sit on a bench. The Sergeant was never disciplined for any of this -- instead, he was promoted to major. And, he's now commander of Franklin County Corrections Center II. In court, Turner defended his actions. He said he feared for his safety and wanted to avoid dangerous physical struggles. Democratic Ohio State Senator Charleta Tavares, disturbed by the video footage, said she planned to call on the county prosecutor's office to investigate. "Do I believe those who are responsible should be held accountable? Absolutely," she said. "Whether it's today or whether it was back in 2009. Any time a stun gun is used inappropriately -- particularly in the video, where it looks as though it is just used over and over and it's more like a prod that people would use on animals -- that is criminal in my opinion." Ohio Democratic State Representative Kristin Boggs also stated that a criminal investigation would be appropriate if an officer was found to have used excessive force that violated jail policy. "I certainly think it's worth investigating to determine what we can be doing to make our system better," Boggs said. Turner's Taser misuse is part of a larger investigation into the appropriateness of Taser use on inmates initiated by Reuters in August 2017. Reuters' investigation discovered there have been 1,005 deaths due to Taser use since the stun gun was first introduced in 1993. 104 of those deceased were inmates. Reporters obtained autopsy reports covering 84 of those incidents and concluded the use of a stun gun caused, or was at least a contributing factor to, an inmate's death in over a quarter. U.S. Justice Department consultant Steve Martin, a former general counsel for the Texas Department of Corrections, added that Tasers have "high potential" for misuse behind bars. "When you inflict pain, serious pain, for the singular purpose of inflicting pain, not to accomplish a tactical objective, what is that? It meets the definition of the legal standard of excessive force, but it's also torturous," he said. Some officers acknowledge the potential for overuse. However, they say an officer would be disciplined. "If an officer was using it too often or inappropriately, there would be disciplinary action," Waco police Sgt. W. Patrick Swanton said. And, each Taser contains a data port chip which tracks each shock, its duration, and its voltage. According to authorities, this helps to safeguard against excessive use. [GN] GAP INC: March 8 Hearing on Bid to Dismiss "Pallagrosi" ------------------------------------------------------- The United States District Court for the Northern District of California issued an order granting the stipulation on the Continuance of Hearing and Briefing Schedule for Defendants' Motion to Dismiss Plaintiff's Class Action Complaint in the case captioned MICHAEL PALLAGROSI, on behalf of himself and all others similarly situated, Plaintiffs, v. THE GAP INC.; GAP (APPAREL) LLC; GAP INTERNATIONAL SALES INC.; BANANA REPUBLIC, LLC; and BANANA REPUBLIC (APPAREL) LLC, Defendants, Case No. 4:17-cv- 05905-HSG (N.D. Cal.). The hearing on Gap's Motion is continued to March 8, 2018 at 2:00 p.m. The last day for Plaintiff to file an opposition to Gap's Motion is January 11, 2018; and the last day for Gap to file a reply in support of their Motion is January 25, 2018. A full-text copy of the District Court's December 14, 2017 Order is available at https://tinyurl.com/yad79kft from Leagle.com. Michael Pallagrosi, on behalf of himself and all others similarly situated, Plaintiff, represented by Todd Michael Friedman -- tfriedman@toddflaw.com -- Law Offices of Todd M. Friedman, P.C.. The Gap Inc., Defendant, represented by Esther Kyungmin Ro -- ero@morganlewis.com -- Morgan, Lewis & Bockius LLP. Gap (Apparel), LLC, Defendant, represented by Esther Kyungmin Ro, Morgan, Lewis & Bockius LLP. Gap International INC., Defendant, represented by Esther Kyungmin Ro, Morgan, Lewis & Bockius LLP. Banana Republic, LLC, Defendant, represented by Esther Kyungmin Ro, Morgan, Lewis & Bockius LLP. Banana Republic (Apparel), LLC, Defendant, represented by Esther Kyungmin Ro, Morgan, Lewis & Bockius LLP. GENERAL NUTRITION: Underpaid Managers for Overtime, Court Rules --------------------------------------------------------------- Matt Miller, writing for PennLive, reports that General Nutrition Centers Inc. violated Pennsylvania law and underpaid its store managers and assistant managers for overtime, a state Superior Court panel has ruled. Pittsburgh-based GNC did not break the law in using an unusual method for calculating overtime, however, the appeals judges found. The Superior Court decision means a class-action lawsuit against GNC must go back to Allegheny County Court for more numbers crunching. GNC appealed to the state court after county Senior Judge R. Stanton Wettick Jr. issued a $1.74 million judgment against GNC and in favor of the salaried employees who sued the company. There were two major questions GNC asked the Superior Court to address. The first was whether the company was violating the Pennsylvania Minimum Wage Act with the method it used to calculate the rate of overtime pay for its managers. The other issue was whether it was paying the managers enough for the extra hours they worked between 2009 and 2011. In the majority opinion by Judge H. Geoffrey Moulton Jr., the state court found that GNC's method for calculating overtime pay rates is legal. Under that "fluctuating work week method," GNC divided the normal weekly pay of the salaried workers by the actual hours worked to calculate a base pay rate on which to pay overtime. As an example, Moulton used the case of a worker whose base pay for a 40-hour week is $1,000. If that employee worked 50 hours in one week, GNC divided the $1,000 figure by 50, arriving at an hourly rate of $20 on which to base that worker's overtime pay. As Moulton noted, the employee would have been due $100 in overtime for that 50-hour stint under GNC's calculation. The employees challenged that method, arguing that their overtime rate should have been based on dividing the $1,000 by a regular work week of 40 hours. Under that system, the regular pay rate would have been $25 and the worker would have been owed $375 in overtime for the 50-hour week. Judge Wettick found that GNC's calculation method was illegal. Although it overruled the county judge and upheld GNC's method of calculating overtime, the Superior Court found the firm's system for actually paying the overtime premium fell afoul of the law. State law requires employers to pay overtime at a rate of 1.5 times regular pay for every hour worked over 40. However, Moulton noted, GNC was paying overtime at a rate of only 1/2 the rate of regular pay. The state judges rejected GNC's argument that the salaried managers deserved only overtime at the half-pay rate because they had already received their regular pay for the extra hours they worked. Given the partial voiding of Judge Wettick's ruling, the Superior Court sent the case back to county court to recalculate how much GNC must pay the managers for overtime. The GNC case is the latest in a parade of pay-based lawsuits filed against employers nationwide. Several snack food firms, for example, have agreed to pay out millions of dollars to settle complaints that they misclassified workers to avoid having to pay them overtime. [GN] GERMED INC: Has Sent Unsolicited Fax Advertisements, Suit Claims ---------------------------------------------------------------- Shaun Fauley, individually and as the representative of a class of similarly situated persons v. Germed Inc. and Germed Ltd, Case No. 1:18-cv-00065 (N.D. Ill., January 4, 2018), seeks to put an end to the Defendants' practice of sending fax advertisements without the recipient's prior express invitation or permission. The Defendants are manufacturers of surgical, veterinary surgical, and dental surgical instruments. [BN] The Plaintiff is represented by: Ryan M. Kelly, Esq. Ross M. Good, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: (847) 368-1500 Facsimile: (847) 368-1501 E-mail: rkelly@andersonwanca.com rgood@andersonwanca.com GLOBAL DIGITAL: Bids to Dismiss Amended Securities Suit OK'd ------------------------------------------------------------ In the case, JEFF HULL, on behalf of himself and all those similarly-situated, Plaintiff, v. GLOBAL DIGITAL SOLUTIONS, INC., et al., Defendants, Civ. Action No. 16-5153(FLW) (D. N.J.), Judge Freda L. Wolfson of the U.S. District Court for the District of New Jersey granted the Moving Defendants' motions to dismiss the Amended Complaint. Lead Plaintiff Michael Perry brings the putative securities-class action, on behalf of himself and all other similarly situated individuals, against GDS, a specialty-vehicle manufacturing company, as well as GDS' former Chief Executive Officer Richard J. Sullivan, former CFO David Loppert, former director and Executive VP William J. Delgado, and former directors Arthur F. Noterman and Stephanie C. Sullivan, alleging violations under, inter alia, various provisions of the Securities Exchange Act of 1934, and the rules promulgated thereunder. The Plaintiff accuses the Defendants of making false representations and omissions to artificially raise GDS's stock price in an effort to finance specific acquisitions and raise cash using the inflated stock. During all relevant periods, GDS's stock traded on the over-the- counter exchange, OTCQB, under the ticker symbol "GDSI." The class period is Oct. 8, 2013 through Aug. 11, 2016. The Plaintiff alleges that based on the Individual Defendants' roles in the Company, they participated in the day-to-day management and operations of GDS at the highest level, were privy to confidential information, and were directly or indirectly involved in drafting, producing, reviewing, approving, and/or disseminating false and misleading statements to deceive investors. More specifically, the Plaintiff alleges that during the class period, unbeknownst to investors, GDS's stock was "worthless." In that regard, he accuses Defendants of disseminating false and misleading statements, and participating in several schemes designed to artificially inflate the price of GDS's common stock. In his Amended Complaint, Plaintiff sets forth various alleged "schemes" perpetuated by the Defendants: (i) by way of press releases, the Defendants misrepresented a failed merger with Airtronic USA, Inc.; (ii) the Defendants issued a misleading press release announcing that GDS expects to announce several agreements regarding potential acquisitions, when in reality, they knew GDS had neither the cash nor credible financing to acquire any company; and (iii) the Defendants falsely issued press releases in March 2014, announcing an unsolicited bid to acquire, inter alia, Remington Outdoor Company, Inc. for over $1 billion in cash and stock, when, in fact, GDS had very little cash on hand, and no credible financing options. Defendants GDS and Delgado move for dismissal. In addition, Defendant Loppert separately moves to dismiss the Amended Complaint. The Moving Defendants argue that the Plaintiff fails to state a claim for securities fraud under section 10(b) because: (a) the Plaintiff's claims are time barred; (b) the Plaintiff has not adequately alleged the requisite elements of economic loss, causation, reliance, or scienter; and (c) some of the challenged statements are forward-looking, and therefore, are protected by the Securities Exchange Act's safe harbor provision. Taking all scienter-related allegations together, i.e., recklessness and motive, Judge Wolfson finds that the Plaintiff has sufficiently alleged a strong inference of scienter. However, while he finds that the Plaintiff has sufficiently alleged the elements of material misrepresentations, scienter, economic loss and loss causation, the Plaintiff has failed to allege reliance. Therefore, he has not stated a claim under Section 10(b). Because the Plaintiff fails to sufficiently plead a claim under Section 10(b), it is impossible to hold the Individual Defendants liable under Section 20(a). The Section 20(a) claims against the Individual Defendants Delgado and Loppert are therefore also dismissed without prejudice. For the foregoing reasons, Judge Wolfson granted the Moving Defendants' Motions to Dismiss. In lieu of dismissal, however, the Plaintiff is given leave to amend his Amended Complaint within 30 days from the date of the Order accompanying the Opinion, in accordance with the rulings. A full-text copy of the Court's Dec. 19, 2017 Opinion is available at https://is.gd/dQLfbE from Leagle.com. Gary Blum, Movant, represented by ALEXANDER H. SCHMIDT, WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP. Marjorie Berg, Movant, represented by ALEXANDER H. SCHMIDT, WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP. Debbie Campbell, Movant, represented by EDUARD KORSINSKY -- ek@zlk.com -- LEVI & KORSINSKY LLP. Michael Perry, Movant, represented by LAURENCE M. ROSEN -- lrosen@rosenlegal.com -- THE ROSEN LAW FIRM, PA. Jonathan Cox, Lead Plaintiff, represented by NEIL GROSSMAN -- neil@bgandg.com -- BRONSTEIN, GEWIRTZ & GROSSMAN, ESQS.. David Beasley, Lead Plaintiff, represented by NEIL GROSSMAN, BRONSTEIN, GEWIRTZ & GROSSMAN, ESQS.. BETTY CAM LITTLE, Lead Plaintiff, represented by NEIL GROSSMAN, BRONSTEIN, GEWIRTZ & GROSSMAN, ESQS.. MICHAEL PERRY, Lead Plaintiff, represented by GONEN HAKLAY -- ghaklay@rosenlegal.com -- THE ROSEN LAW FIRM, P.A. & LAURENCE M. ROSEN, THE ROSEN LAW FIRM, PA. JEFF HULL, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiff, represented by LAURENCE M. ROSEN, THE ROSEN LAW FIRM, PA. GLOBAL DIGITAL SOLUTIONS, INC., Defendant, represented by JOSHUA D. BRINEN, BRINEN & ASSOCIATES, LLC. DAVID A. LOPPERT, Defendant, represented by BRUCE E. REINHART, Bruce E. Reinhart, P.A. WILLIAM J. DELGADO, Defendant, represented by JOSHUA D. BRINEN, BRINEN & ASSOCIATES, LLC. GULF INTERSTATE: 6th Cir. Flips Summary Judgment in "Hughes" ------------------------------------------------------------ In the case, TOM HUGHES and DESMOND MCDONALD, on behalf of themselves and others similarly situated, Plaintiffs-Appellants, v. GULF INTERSTATE FIELD SERVICES, INC., Defendant-Appellee, Case No. 17-3112 (6th Cir.), Judge Karen Nelson Moore of the U.S. Court of Appeals for the Sixth Circuit reversed the district court's grant of summary judgment to Gulf Interstate and remanded for further proceedings. Hughes and McDonald began working for Gulf Interstate as welding inspectors in January and June 2013, respectively, on a pipeline project in Ohio for a Gulf Interstate client called MarkWest. Prior to beginning their work, they each received an offer letter from Gulf Interstate stating that they were entitled to, in addition to a weekly per diem and computer stipend, a salary of "$337/Day Worked." Rate sheets exchanged between Gulf Interstate and MarkWest regarding the project also listed, among various "Cost Components," a "Daily Rate," with a note appended clarifying that the day rate would be paid on days worked. Over the course of their employment, Hughes and McDonald earned an annualized rate of more than $100,000 per year. Along with others similarly situated, they received pay for at least six days of 10-hour shifts per week, they earned pay for holidays (some worked, some unworked), and McDonald (again, along with others similarly situated) received pay on days that he was out sick. In May 2014, Hughes and McDonald brought suit on behalf of themselves and others similarly situated under the Fair Labor Standards Act ("FLSA"), and the Ohio Minimum Fair Wage Standards Act ("OMFWSA"). They assert that they were entitled to overtime pay for weeks in which they worked more than 40 hours. In January 2015, they moved to certify an FLSA collective action and an OMFWSA class action under 29 U.S.C. Section 216(b) and Federal Rule of Civil Procedure 23, respectively. In July 2015, the district court granted Hughes and McDonald's motion for FLSA conditional certification but denied their motion for OMFWSA class certification. In November 2015, Gulf Interstate moved for summary judgment, arguing that "undisputed evidence establishes each element of the highly compensated employee exemption to overtime pay under the Fair Labor Standards Act and analogous Ohio state law. The district court granted Gulf Interstate's motion, concluding that Hughes and McDonald were exempt on the grounds that actual payment practice -- regardless of the existence of guarantee -- controlled the question and there was no dispute that the Plaintiffs were actually paid the requisite amount. After a successful motion for clarification, a successful motion to sever and stay, and an entry of final judgment under Rule 54(b) as to Hughes and McDonald, the appeal followed. Judge Moore finds that payment on an hourly basis without an operative salary guarantee does not qualify as a 'salary basis' of payment within the meaning of the regulations. That guidance applies just as well here, where Hughes and McDonald have introduced evidence to suggest that their pay was not calculated hourly, but daily. He says if Hughes and McDonald are to qualify as exempt under Section 541.601, in short, it matters whether their minimum weekly salary was in fact guaranteed, or whether it was simply something that Gulf Interstate had not so far availed itself of its right to reduce. He also finds that because a reasonable trier of fact could conclude that Hughes and McDonald received no such guarantee from Gulf Interstate, Gulf Interstate cannot prevail on summary judgment. The Judge holds that it may seem strange on its face that employees who earned an annualized rate of more than $100,000 did not necessarily qualify as highly compensated employees. But regardless of whether good reasons exist, he says he must follow the legal meaning of the terms rather than one's intuitive sense of the meaning of the words. Because Section 541.602(a) and Section 541.604(b) make clear that it matters whether Hughes and McDonald were guaranteed a qualifying weekly salary, and because a reasonable trier of fact could find that there was no guarantee, he reversed the district court's grant of summary judgment and remanded for further proceedings. A full-text copy of the Sixth Circuit's Dec. 19, 2017 Opinion is available at https://is.gd/3iOJwT from Leagle.com. ARGUED: Richard J. Burch, BRUCKNER BURCH PLLC, Houston, Texas, for Appellants. James J. Swartz, Jr. , POLSINELLI PC, Atlanta, Georgia, for Appellee. ON BRIEF: James A. Jones , BRUCKNER BURCH PLLC, Houston, Texas, Robert E. DeRose -- bderose@barkanmeizlish.com -- Robi J. Baishnab , BARKAN MEIZLISH HANDELMAN GOODIN DEROSE WENTZ, LLP, for Appellants. James J. Swartz, Jr. -- jswartz@polsinelli.com -- J. Stanton Hill -- jshill@polsinelli.com -- POLSINELLI PC, Atlanta, Georgia, Mark A. Knueve -- maknueve@vorys.com -- VORYS, SATER, SEYMOUR AND PEASE LLP, Columbus, Ohio, for Appellee. HITBTC: Customers Mull Class Action Over Withdrawal Delay --------------------------------------------------------- Arnab Shome, writing for Finance Magnates, reports that people all around the world are wishing each other Merry Christmas, but this Christmas is not going to be that happy for a many users of the HitBTC crypto exchange. A large number of customer complaints have been surfacing recently around the internet claiming withdrawal delays lasting weeks, and also accusing the exchange of stealing their money. With such outcry, it is strange that no official statement has been released by HitBTC, nor is it replying to any of the complaints. For instance, a French man is claiming that his $55,000 fund withdrawal request has been stuck on the platform since December 17th and upon enquiring, there was no response from customer support. He is joined by a fleet of distressed customers -- one is claiming $400,000 in stuck funds. One of the worried customers also dug out an account at Poloniex which has received all of HitBTC's XRP, which amounts to nearly $15 million. A group of angry users are planning to file a class action lawsuit and is claiming to have reported the fraudulent activity to the UK police and FBI. HitBTC is among the ten largest exchanges worldwide and if any of the accusations are true, it will be a huge blow to the crypto market. The operations of the exchange are also very opaque. No details about the physical location of the company are provided on its website. According to some sources, the exchange is based in Hong Kong, while some have reported that it is based in Europe. Anyway, this is not the first time that HitBTC has been charged with such allegations. Users have complained of frozen funds in the past amounting to hundreds of thousands of dollars. The complaints were eventually resolved, which took months. The mammoth exchange Bitfinex has also had to handle similar complaints. The unregulated nature of crypto exchanges makes them very risky for customers. Because they are not dealing with fiat currencies, they need to provide very minimal information to the authorities. These exchanges handle millions of dollars in funds daily and if any of them actually turn out to be scams, it will impact the entire crypto economy. [GN] HOME DEPOT: Illegally Obtains Consumer Reports, Action Claims ------------------------------------------------------------- Katherine Saltzberg, on behalf of herself and all others similarly situated v. Home Depot U.S.A., Inc. and Does 1 through 50, Inclusive, Case No. BC688946 (Cal. Super. Ct., January 3, 2018), is an action for damages as a result of the Defendants' unlawful practice of obtaining consumer reports without proper authorization from the Plaintiff. Home Depot U.S.A., Inc. owns and operates home improvement retail stores which offer building materials, home improvement, lawn and garden, kitchen, lighting, storage, and flooring design products. [BN] The Plaintiff is represented by: Norman B. Blumenthal, Esq. Kyle R. Nordrehaug, Esq. Aparajit Bhowmik, Esq. BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP 2255 Calle Clara La Jolla, CA 92037 Telephone: (858)551-1223 Facsimile: (858) 551-1232 E-mail: norm@bamlawca.com kyle@bamlawca.com aj@bamlawca.com INDIANA: Class Action Over Forfeiture Law Pending ------------------------------------------------- Fatima Hussein, writing for IndyStar, reports that the topic of government seizure of personal assets has piqued the nation's interest. And Marion County is no different. Last November, Jeff Cardella, an adjunct professor at Indiana University's Robert H. McKinney School of Law, filed a federal class-action lawsuit on behalf of Leroy Washington, whose vehicle was taken by police in September. Mr. Washington was arrested and charged with resisting law enforcement, dealing in marijuana and obstruction of justice. Mr. Cardella argues that the state should allow criminal defendants a hearing before an official forfeiture action. In August U.S. District Chief Judge Jane Magnus-Stinson ruled that Indiana's forfeiture law violates the due process clause of the Fifth and 14th Amendments of the U.S. Constitution. Stinson issued an order that partially halts the police seizure of vehicles in Indiana drug cases and other related crimes, calling the seizure of vehicles before an official forfeiture action unconstitutional. Hill appealed the case to the 7th Circuit Court of Appeals in Chicago. [GN] INVESTORS BANCORP: Court Reverses Dismissal of Stockholder Suit --------------------------------------------------------------- Judge Collins J. Seitz, Jr. of the Supreme Court of Delaware reversed the Court of Chancery's decision dismissing the case, IN RE INVESTORS BANCORP, INC. STOCKHOLDER LITIGATION, Case No. 169, 2017 (Del.) and remanded for further proceedings consistent with his Opinion. The Plaintiffs are stockholders of Investors Bancorp and were stockholders at the time of the awards challenged in the case. The Defendants fall into two groups -- 10 non-employee director Defendants and two executive director Defendants. The board sets director compensation based on recommendations of the Compensation and Benefits Committee ("Committee"), composed of seven of the 10 non-employee directors. As the Court of Chancery noted, the annual compensation for all non-employee directors ranged from $97,200 to $207,005, with $133,340 as the average amount of compensation per director. In 2014, Cummings, the Company's President and CEO, received (i) a $1,000,000 base salary; (ii) an Annual Cash Incentive Award of up to 150% of his base salary contingent on certain performance goals; and (iii) perquisites and benefits valued at $278,400, which totaled $2,778,700. Cama, the Company's COO and Senior Executive Vice President, received annual compensation consisting of (i) a $675,000 base salary; (ii) an Annual Cash Incentive Award of up to 120% of his base salary; and (iii) perquisites and benefits valued at $180,794, which totaled $1,665,794.7or. At the end of 2014, following completion of the conversion plan, the Committee met to review 2014 director compensation and set compensation for 2015. Gregory Keshishian, a compensation consultant from GK Partners, Inc., presented to the board a study of director compensation for 18 publicly held peer companies. The Committee also reviewed the compensation package for executive officers. After GK Partners reviewed peer-average figures with the committee, the committee unanimously recommended no changes to Cummings' or Cama's annual salary, but recommended an increase in the 2015 Annual Cash Incentive Award from 150% to 200%, and 120% to 160% of their base salaries, respectively. The Committee did not discuss any additional equity awards at the December or February meetings. Just a few months after setting the 2015 board compensation, in March, 2015, the board proposed the 2015 EIP. The EIP was intended to provide additional incentives for the Company's officers, employees and directors to promote the Company's growth and performance and to further align their interests with those of the Company's stockholders and give the Company the flexibility needed to continue to attract, motivate and retain highly qualified officers, employees and directors. The Company reserved 30,881,296 common shares for restricted stock awards, restricted stock units, incentive stock options, and non-qualified stock options for the Company's 1,800 officers, employees, non-employee directors, and service providers. The EIP has limits within each category. Of the total shares, a maximum of 17,646,455 can be issued for stock options or restricted stock awards and 13,234,841 for restricted stock units or performance shares. Those limits are further broken down for employee and non-employee directors. Three days after stockholders approved the EIP, the Committee held the first of four meetings and eventually approved awards of restricted stock and stock options to all board members. According to the complaint, these awards were not part of the final 2015 compensation package nor discussed in any prior meetings. The board awarded themselves 7.8 million shares. Non-employee directors each received 250,000 stock options -- valued at $780,000 -- and 100,000 restricted shares -- valued at $1,254,000; Cashill and Dittenhafer received 150,000 restricted shares -- valued at $1,881,000 -- due to their years of service. The non-employee director awards totaled $21,594,000 and averaged $2,159,400. Peer companies' non-employee awards averaged $175,817. Cummings received 1,333,333 stock options and 1,000,000 restricted shares, valued at $16,699,999 and alleged to be 1,759% higher than the peer companies' average compensation for executive directors. Cama received 1,066,666 stock options and 600,000 restricted shares, valued at $13,359,998 and alleged to be 2,571% higher than the peer companies' average. According to the complaint, the total fair value of the awards was $51,653,997. After the Company disclosed the awards, stockholders filed three separate complaints in the Court of Chancery alleging breaches of fiduciary duty by the directors for awarding themselves excessive compensation. Following the filing of a consolidated complaint, the Defendants moved to dismiss under Court of Chancery Rule 12(b)(6) for failure to state a claim and under Court of Chancery Rule 23.1 for failure to make a demand before filing suit. The Court of Chancery granted both motions and dismissed the Plaintiffs' complaint. Relying on the court's earlier decisions in In re 3COM Corp. and Calma on Behalf of Citrix Systems, Inc. v. Templeton, the court dismissed the complaint against the non- employee directors because the EIP contained meaningful, specific limits on awards to all director beneficiaries like the 3COM plan, as opposed to the broad-based plan in Citrix that contained a generic limit covering director and non-director beneficiaries. The court also dismissed the claims directed to the executive directors because the Plaintiffs failed to make a pre-suit demand on the board. Judge Seitz finds that the Investors Bancorp stockholders approved the general parameters of the EIP. The Plaintiffs have properly alleged, however, that the directors, when exercising their discretion under the EIP, acted inequitably in granting themselves unfair and excessive awards. Because the stockholders did not ratify the specific awards under the EIP, the Judge says, the affirmative defense of ratification cannot not be used to dismiss the complaint. The Plaintiffs have also demonstrated that demand would be futile as to all directors. Thus, the Judge reversed Court of Chancery's decision, and remanded the case for further proceedings consistent with his Opinion. A full-text copy of the Court's Dec. 19, 2017 Opinion is available at https://is.gd/JpigBT from Leagle.com. Steve J. Purcell, Esquire -- spurcell@pjlfirm.com -- (Argued), Purcell Julie & Lefkowitz LLP, New York, New York; David A. Jenkins, Esquire -- DJENKINS@SKJLAW.COM -- Neal C. Belgam, Esquire -- NBELGAM@SKJLAW.COM -- and Clarissa R. Chenoweth, Esquire -- CCHENOWETH@SKJLAW.COM -- Smith Katzenstein & Jenkins LLP, Wilmington, Delaware, for Plaintiffs-Below, Appellants Robert Elburn and Dieter Soehnel. Kenneth J. Nachbar, Esquire -- knachbar@mnat.com -- (Argued) and Zi-Xiang Shen, Esquire -- zshen@mnat.com -- Morris, Nichols, Arsht & Tunnell LLP, Wilmington, Delaware, for Defendants-Below, Appellees Robert C. Albanese, Dennis M. Bone, Doreen R. Byrnes, Domenick A. Cama, Robert M. Cashill, William V. Cosgrove, Kevin Cummings, Brian D. Dittenhafer, Brendan J. Dugan, James J. Garibaldi, Michele N. Siekerka, and James H. Ward III, and Nominal Defendant-Below, Appellee Investors Bancorp, Inc. JIMMY JOHN'S: 7th Cir. Flips Injunction on Claims vs. Franchisee ---------------------------------------------------------------- The United States Court of Appeals, Seventh Circuit, issued an Opinion reversing District Court's judgment enjoining the assistant store managers from pursuing lawsuits against Franchisee Employers until their claims against Jimmy John's were resolved in the case captioned IN RE: JIMMY JOHN'S OVERTIME LITIGATION, No. 17-1655 (7th Cir.). Plaintiff Emily Brunner filed a complaint in the Northern District of Illinois against Jimmy John's and her franchisee employer for violations of the Fair Labor Standards Act and Illinois state wage and hour laws. Brunner, an assistant store manager at a Jimmy John's sandwich shop, alleged that she was misclassified as exempt from federal and state wage-and-hour laws and sought unpaid overtime. Brunner brought the suit as a putative class and collective action on behalf of all assistant store managers who worked at both franchisee owned and corporate- owned Jimmy John's restaurants nationwide. Shortly after the close of joint-employer discovery, three opt-in plaintiffs filed collective action lawsuits against their franchisee employers in other federal district courts, asserting the same misclassification claims. Jimmy John's moved to enjoin those three plaintiffs from pursuing their lawsuits against the franchisee employers until their claims against Jimmy John's were resolved. The district court granted Jimmy John's motion for an antisuit injunction from the bench. The district judge reasoned that an anti-suit injunction would be fair because if he ordered the plaintiffs in this case to stay any proceeding in some other jurisdiction, their interests are protected here. He acknowledged that he did not have the power to tell other Article III judges how to run their shop. However, he concluded that he did have the power to prevent the plaintiffs in front of him from staying any actions in another jurisdiction, in the interest of harmony and delaying expense and overlapping work for judges doing the same kind of thing. He further noted that there are all kinds of reasons that justify the stay as to the parties before him. One week later, the district court issued an order enjoining the three plaintiffs from pursuing their cases in other jurisdictions until further order of the court. The Seventh Circuit pointed out that the district court never identified the source of its authority to issue the anti-suit injunction. Nevertheless, Jimmy John's claims that the district court had authority to enjoin the franchisee cases pursuant to its inherent equitable powers, the All Writs Act, or both. In some circumstances, however, a district court may enjoin parties from pursuing duplicative litigation in another district court. The Court explained that such discretion is necessary because wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation, does not counsel rigid mechanical solution of such problems. Instead, the Court held that the factors relevant to wise administration are equitable in nature. The All Writs Act also allows district courts to enjoin parallel litigation in both federal and state courts under certain circumstances. The statute provides that courts may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. It is more common for district courts to invoke the All Writs Act to enjoin litigants from pursuing parallel litigation in a state court. However, there are additional limitations on a district court's ability to enjoin state court proceedings. Specifically, an injunction that halts state litigation is permissible only if it satisfies the Anti-Injunction Act. That statute provides that federal courts may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments. Jimmy John's argues that the anti-suit injunction was authorized under the district court's inherent equitable powers and/or the All Writs Act because it was necessary to prevent duplicative litigation, avoid inconsistent rulings, and protect the district court's pre-trial orders regarding discovery and notice procedures. These arguments are unavailing. In contrast, Jimmy John's is not a party to the enjoined franchisee cases. Although those lawsuits involve the same legal claims, they were brought against different defendants: the franchisee employers. Plaintiffs contend, and Jimmy John's does not dispute, that the franchisee defendants cannot be joined in this case because the Northern District of Illinois lacks personal jurisdiction over the out-of-state franchisee defendants and lacks venue over the out-of-district franchisee defendants. Thus, it is not possible to resolve the litigation against Jimmy John's and the franchisee employers in a single forum. As a result, this case does not raise the same concerns about efficiency and conservation of judicial resources. Moreover, the Seventh Circuit has previously suggested that an anti-suit injunction is not warranted in these circumstances. The district judge had no possible ground for enjoining the suit in California from proceeding against a defendant over which the district court in Illinois might not be able to obtain jurisdiction. In short, the franchisee suits are not duplicative. While it is true that plaintiffs could proceed directly to merits discovery in the franchisee cases, it is unclear how this would interfere with the district court's discovery rulings in this case. The district court ordered the parties to focus solely on information relevant to the joint employer issue for the first phase of discovery ending on December 2, 2016. However, that deadline had passed by the time the district court issued the anti-suit injunction, and the district court has not made any rulings as to how merits discovery should proceed. Moreover, the district court has numerous case management tools at its disposal to prevent inconsistent discovery orders in the future. Thus, an anti-suit injunction is not necessary or appropriate to protect the district court's discovery orders. Nor will allowing the franchisee lawsuits to proceed interfere with the notice process in this case. Plaintiffs are not barred from suing their franchisee employers under the FLSA simply because they have also sued Jimmy John's as the franchisor. Indeed, plaintiffs frequently sue both their franchisee employer and the franchisor for FLSA violations under a joint employer theory. Moreover, even if plaintiffs who are participating in the franchisee cases give notice to additional assistant store managers regarding their claims against the franchisee employers, that will not interfere with the notice process in this case because the notice period has closed. In sum, the district court lacked authority to enjoin plaintiffs from pursuing their claims against the franchisee defendants in other district courts. Even if the district court had authority to issue the antisuit injunction under the All Writs Act or its inherent equitable powers, that would not end our inquiry. A district court must still determine whether an injunction is an appropriate exercise of its authority. Power alone is insufficient to sustain the entry of an injunction. Plaintiffs argue that the district court abused its discretion by failing to consider the traditional factors for granting an injunction and failing to make the requisite findings of fact and conclusions of law. The Seventh Circuit agreed. As a general rule, a plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, there is no adequate remedy at law, he is likely to suffer irreparable harm absent such relief, the balance of equities tips in his favor, and an injunction is in the public interest. Moreover, under Rule 65(d), every order granting an injunction must state the reasons why it issued. Finally, just as the court must find the facts specially and state its conclusions of law separately when it presides over a bench trial, the court must similarly state the findings and conclusions that support its action when it grants or refuses an interlocutory injunction. The district judge's reasoning for the anti-suit injunction was insufficient. He pointed to harmony and delaying expense and overlapping work for judges doing the same kind of thing. He said, "there are all kinds of reasons that justify the stay as to the parties before me," but did not further elaborate on those reasons. Moreover, he did not state the legal conclusions supporting the injunction or identify the relevant legal standard. And Jimmy John's concedes that the district court did not mention or otherwise address the traditional injunction factors. A full-text copy of the Seventh Circuit's December 14, 2017 Opinion is available at https://tinyurl.com/yayzwg2o from Leagle.com. Gerald Leonard Maatman, Jr., 131 S. Dearborn Street, Suite 2400. Chicago, IL 60603, for Defendant-Appellee. Andrew Kopon, Jr. -- Akopon@koponairdo.com -- for Defendant. Paul W. Mollica, P 203 North LaSalle Street, Suite 2100 Chicago, IL 60601, for Plaintiff-Appellant. Douglas M. Werman -- dwerman@flsalaw.com -- for Plaintiff- Appellant. Seth R. Lesser, Two International DriveSuite 350Rye Brook, NY 10573, for Plaintiff-Appellant. Justin M. Swartz, 3 Park Avenue, 29th Floor. New York, New York 10016, for Plaintiff-Appellant. Matthew J. Gagnon -- mgagnon@seyfarth.com -- for Defendant- Appellee. Kimberly A. Yourchock -- kyourchock@honigman.com -- for Defendant-Appellee. Peter John Wozniak -- pwozniak@seyfarth.com -- for Defendant- Appellee. Matthew S. Disbrow -- mdisbrow@honigman.com -- for Defendant- Appellee. JPMORGAN CHASE: Former Call Center Worker Files Class Action ------------------------------------------------------------ L.M. Sixel, writing for Chron, reports that a former call center employee for JPMorgan Chase & Co. sued the New York-based bank for allegedly forcing her and her colleagues to work off the clock up to five hours each week. Shannon Rivenbark, a former fraud analyst, alleged in a federal lawsuit filed in federal court in Houston earlier in December that the bank does not pay call center employees for the time it takes each day to log on to their computers, open up to 10 different JPMorgan Chase programs and make sure each one is running properly. The preparation must be done in advance, according to the lawsuit, because bank policies require employees to be ready to take their first call the moment their official shift begins. JPMorgan Chase would not comment. The company has not filed a response in court. Call center workers in a variety of industries have filed similar wage cases against employers for not compensating them for the time it takes to prepare for calls, an electronic version of "donning and doffing," referring to the time it takes slaughterhouse, construction and other blue collar employees to suit up and then clean off from their jobs. Companies must typically pay employees for that time. "If you operate a lathe or a drilling press and you have to get there early to oil, grease or clean the machine, all that time must be paid," said Houston employment lawyer Rex Burch. "The fact you are getting a computer ready instead of a lathe is no different, in terms of the law." Lawsuits over uncompensated preparation time and the back wage bills companies have had to pay have prompted many call centers to provide dedicated time each time day for prep work, said Mr. Burch. The U.S. Department of Labor instructs call center employees in an online bulletin that they must be paid from the beginning of the first principal activity of the workday to the last. A typical example of the first principal activity of the day is starting a computer to download work instructions, computer applications and work-related emails, according to the Labor Department. Ms. Rivenbark worked full-time as a fraud analyst from 2010 and 2016, court records show. Ms. Rivenbark is seeking class action status to represent all Chase fraud call center employees who have worked for the bank since Dec. 14, 2014. The suit is seeking back wages for all employees plus an equal amount in damages. [GN] KOBE STEEL: Wolf Popper Files Securities Class Action in New York ----------------------------------------------------------------- Wolf Popper LLP on Dec. 26 disclosed that it has filed a class action lawsuit against Kobe Steel, Ltd. (OTC:KBSTY) (OTC:KBSTF) and certain of its officers, in the United States District Court for the Southern District of New York (17-cv-10085), on behalf of all persons who purchased or acquired American Depositary Receipts ("ADRs") of Kobe Steel on the open market in the U.S., during the period May 29, 2013 through October 12, 2017, and were damaged thereby. This action alleges claims for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. If you are a member of the Class, you may file a motion no later than February 26, 2018 to be appointed lead plaintiff. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Investors who purchased Kobe Steel ADRs during the Class Period and suffered losses are urged to contact Wolf Popper to discuss their rights. Kobe Steel is one of Japan's largest steel manufacturers and a major supplier of aluminum and copper products. During the Class Period, Kobe Steel repeatedly misrepresented the quality of its products and the integrity of its operations by emphasizing that it offers "excellent products and services" with "special attention to product safety" as it has "an organizational culture that is highly sensitive to compliance issues." Defendants' statements pertaining to Kobe Steel's products and performance of its operations were materially false and misleading because the company had intentionally falsified data on many of its aluminum, copper, iron and steel products, and knowingly sold products that failed quality control tests. During the week of October 13, 2017, Kobe Steel admitted to falsifying inspection certificates on its core products in its aluminum and copper and iron and steel segments and not complying with customer standards. As a result, Kobe Steel ADRs cumulatively declined $2.37 or approximately 40% during that week. For more information, please contact: Robert C. Finkel, Esq. Tel.: 877.370.7703 Fax: 877.370.7704 Email: irrep@wolfpopper.com Website: www.wolfpopper.com [GN] KRAFT HEINZ: Partly Compelled to Reply to Discovery in "Vazquez" ---------------------------------------------------------------- Magistrate Judge Barbara L. Major of the U.S. District Court for the Southern District of California granted in part and denied in part the Plaintiffs' Nov. 10, 2017 motion to compel further discovery in the case captioned ENRIQUE VAZQUEZ, SERGIO ALFONZO LOPEZ, and MARIA VIVEROS, individually and on behalf of themselves and others similarly situated, Plaintiffs, v. KRAFT HEINZ FOOD COMPANY, et al., Defendants, Case No. 16cv2749-WQH (BLM) (S.D. Cal.). The instant class action matter was removed to the Court on Nov. 7, 2016 from the San Diego Superior Court. On May 1, 2017, District Court Judge William Q. Hayes ordered the instant class action to be consolidated with Lopez v. H.J. Heinz Company, L.P., et al., case number 17cv77-WQH (AGS), and the instant action was designated the lead case. On May 9, 2017, the Plaintiffs filed a consolidated class action complaint ("Complaint") pursuant to Judge Hayes' Order. Of the three Named Plaintiffs, Vazquez and Lopez worked at a Kraft Heinz location in San Diego, and Plaintiff Viveros worked at a Kraft Heinz location in Fullerton. The Plaintiffs, non- exempt employees of Defendant Kraft Heinz in California, allege that they and those similarly situated: (i) were underpaid overtime wages owed to them, due to an improper calculation of their regular rate of pay, during the time period of Sept. 8, 2012 to the present; (ii) were underpaid all wages owed to them, due to a rounding mechanism with the Defendant's time-keeping system, which systematically favored the employer, during the time period of Sept. 8, 2012 to the present; (iii) were underpaid all wages owed to them, due to donning and doffing protective gear, during the time period of Sept. 8, 2012 to the present; (iv) were underpaid all overtime wages when employees who worked pursuant to an Alternative Workweek Schedule worked more than eight hours in a day, but were required to work less hours than provided for by the Alternative Workweek Schedule, during the time period of Sept. 8, 2012 to the present; (v) were not provided with all legally required meal periods, or paid any Labor Code section 226.7 premium payments in lieu thereof, when a legally required meal period was not provided, during the time period of September 8, 2012 to the present; (vi) were not authorized or permitted to take all legally required rest periods, or paid any Labor Code section 226.7 premium payments in lieu thereof, when a legally required rest period was not provided, during the time period of Sept. 8, 2012 to the present; and (vii) who worked for Defendant during the time period of Sept. 8, 2012 to the present and who separated their employment with the Defendant from Sept. 8, 2013 to the present, and were issued inaccurate wage statements in violation of Labor Code section 226 and were not paid all wages owed upon their separation of employment from Defendant in violation of Labor Code sections 201-203. Currently before the Court is the Plaintiffs' motion to compel further discovery, the Defendant's Nov. 17, 2017 opposition to the Plaintiffs' motion to compel, and the Plaintiffs' Nov. 22, 2017 reply to the Defendant's response. The Plaintiffs claim that Defendant Kraft Heinz operates eight locations throughout California that employ putative class members. The three Named Plaintiffs worked at two of the eight locations, and the Defendant has refused to respond to any discovery beyond those two locations. The Plaintiffs seek to conduct discovery regarding all of Kraft Heinz's California locations. Specifically, they seek an order from the Court requiring: (i) deposition testimony from the Defendant's Rule 30(b)(6) witness as to the relevant policies and practices at all eight California locations; (ii) a sampling of putative class member contact information for the Defendant's eight California locations that employed putative class members; and (iii) a sampling of putative class member timekeeping and payroll records for the Defendant's eight California locations that employed putative class members. In sum, Magistrate Judge Major finds that the Plaintiffs have not provided evidence making a prima facie showing that the Rule 23 class requirements are satisfied for California employees working outside of the San Diego or Fullerton locations. The Plaintiffs provide no testimony, declarations, or discovery responses that indicate company-wide violations or support their contention that the provided policies are in conflict with the law. For these reasons, the Magistrate Judge granted in part and denied in part the Plaintiffs' motion. She denied the Plaintiffs' motion to compel deposition testimony from the Defendant's Rule 30(b)(6) witness as to the relevant policies and practices at all eight California locations. In light of the evidence set forth by the Plaintiffs that three of the Defendant's locations (San Diego, Chatsworth, and Irvine) may have uniform payroll policies and practices, she granted the Plaintiffs' motion to compel deposition testimony from the Defendant's Rule 30(b)(6) witness on the issue of whether Defendant Kraft Heinz has centralized payroll for its California locations. She denied the Plaintiffs' motion to compel a sampling of putative class member contact information for the Defendant's eight California locations that employed putative class members. She also denied the Plaintiffs' motion to compel a sampling of putative class member timekeeping and payroll records for the Defendant's eight California locations that employed putative class members. On or before Jan. 5, 2018, the Plaintiffs may serve a Rule 30(b)(6) deposition notice on the Defendant on the issue of whether Defendant Kraft Heinz has centralized payroll for its California locations. A full-text copy of the Court's Dec. 13, 2017 Order is available at https://is.gd/1wua8x from Leagle.com. Enrique Vazquez, individually and on behalf of himself and others similarly situated, Plaintiff, represented by Janine R. Menhennet, Cohelan Khoury & Singer. Enrique Vazquez, individually and on behalf of himself and others similarly situated, Plaintiff, represented by Michael D. Singer - - msinger@ckslaw.com -- Cohelan, Khoury & Singer. Sergio Alfonzo Lopez, as an individual and on behalf of all others similarly situated, Plaintiff, represented by Paul K. Haines -- phaines@haineslawgroup.com -- Haines Law Group, APC, Sean M. Blakely, Haines Law Group, APC & Tuvia Korobkin -- tkorobkin@haineslawgroup.com -- Haines Law Group, APC. Maria Viveros, individually and on behalf of himself and others similarly situated, Plaintiff, represented by Janine R. Menhennet, Cohelan Khoury & Singer & Paul K. Haines, Haines Law Group, APC. Kraft Heinz Foods Company, a Pennsylvania Corporation, Defendant, represented by Daniel B. Chammas -- dchammas@venable.com -- Ford & Harrison LLP, Alexandria Marie Witte -- awitte@fordharrison.com -- Ford & Harrison LLP & David Lishian Cheng -- cheng@fordharrison.com -- Ford & Harrison LLP. H.J. Heinz Company, L.P., a Delaware Limited Partnership, Defendant, represented by Alexandria Marie Witte, Ford & Harrison LLP & Daniel B. Chammas, Ford & Harrison LLP. H.J. Heinz Operation Partnership, Defendant, represented by Alexandria Marie Witte, Ford & Harrison LLP & Daniel B. Chammas, Ford & Harrison LLP. LIFE CARE: Class Certification Bid in "De Carrasco" Partly OK'd --------------------------------------------------------------- In the case captioned CARMEN RODRIGUEZ DE CARRASCO, individually and on behalf of all other persons similarly situated, Plaintiffs, v. LIFE CARE SERVICES, INC. d/b/a "Life Care," ROSELYN ZELMAN and JOHN DOES #1-10, Defendants, Case No. 17-cv- 5617 (KBF) (S.D. N.Y.). Judge Katherine B. Forrest of the U.S. District Court for the Southern District of New York granted in part and denied in part the Plaintiffs' motion to conditionally certify a collective action under 29 U.S.C. Section 216(b) and also for class certification of her NYLL claims pursuant to Rules 23(a) and 23(b)(2) and (3). On July 24, 2017, Carrasco brought the action against Life Care and Zelman, Life Care's Executive Director and CEO, for violations of the Fair Labor Standards Act of 1938 ("FLSA"), and the New York Labor Laws Section 663(1) et seq., Section 198(1-a), breach of contract, and unjust enrichment. The Plaintiff is a Home Healthcare Aid ("HHA") employed by Defendant Life Care. She has been employed by Life Care from about July 28, 2009 until about Jan. 8, 2016. In her capacity as an HHA, the Plaintiff was sent to clients' homes to provide care, and frequently worked 24-hour shifts. She alleges that during her 24-hour shifts, she often did not receive meal breaks or get five hours of uninterrupted sleep. She also alleges that she frequently worked more than 40 hours a week, and that when she worked more than 40 hours, she was not always paid time and one half the minimum wage or time and one half her standard rate after Jan. 1, 2015. Carrasco states that her duties included inter alia, cleaning, cooking, laundry, taking out the garbage, and cleaning the refrigerator; she alleges 30% of her work was household work. She alleges that the Defendants hired at least 40 similar HHAs, who were also not paid proper overtime, or properly compensated for 24-hour shifts. The Plaintiff seeks to certify two FLSA collective actions and five New York State classes as follows: i. FLSA Collective One: Employees Not Paid Time and One Half for Overtime after Jan. 1, 2015 ("FLSA Overtime Collective"); ii. FLSA Collective Two: Employees Paid Less than the Legally Required Minimum of 13 Hours for their 24-Hour Shifts ("FLSA under 13 Collective"); iii. New York State Class One: Employees Not Paid Time and One Half for Overtime after Jan. 1, 2015 ("NY Overtime Class"); iv. New York State Class Two: Employees Paid Less than the Legally Required Minimum of 13 Hours for their 24-Hour Shifts ("NY under 13 Class"); v. New York State Class Three: Employees Not Paid a Full 24 Hours for 24-Hour Shifts ("New York 24 Class"); vi. New York State Class Four: Employees Paid Less than Minimum Wages under the Wage Parity Act ("New York Wage Parity Class"); vii. New York State Class Five: Employees who did not Receive Proper Wage Theft Prevention Act Notices ("New York Wage Theft Prevention Class"). The Judge does not find by a preponderance of the evidence that the Defendants had a policy to pay less than the required 13 hours for 24-hour shifts. Accordingly, she denied the Plaintiff's motion to certify a FLSA collective and New York state class of those paid less than 13 hours. She also finds no support for the claim that the Defendants were not in compliance with the WPA. Therefore, the certification on this issue is denied. For the New York Wage Theft Prevention Class, Judge Forrest did not conclude that the Wage Theft Prevention Act ("WTPA") notices were incorrectly provided as a policy based on a single notice given more than a year before any attached pay stubs, particularly when such notices are required to be given on an annual basis. Rodriguez and Bellegarde neither confirmed nor denied that English was their primary language, at least on the exhibits that the Defendants have offered. On this scant evidentiary showing, the Judge did not conclude that the Defendants had a policy of incorrectly providing WTPA notice. Judge Forrest granted both the conditional certification of an FLSA collective and the class certification of a New York state class on the overtime issue alone. She denied the collective and the class certification on any other issue. In sum, Judge Forrest (i) conditionally certified a FLSA collective of employees not paid time and one half for overtime after Jan. 1, 2015; and (ii) certified a New York state Rule 23(b)(3) class of employees not paid time and one half for overtime after Jan. 1, 2015. She denied certification to any other proposed classes and collectives. The Judge ordered that, consistent with the rulings, the parties confer on two forms of notice: (i) one for the class pursuant to section 216(b); and (ii) for the class pursuant to Rule 23, not later than Dec. 22, 2017. The Defendants will provide the names, addresses, and emails of all current and former employees (of which they are aware) within the classes as indicated. Following the Court's approval of the notices, notice will be sent not later than Jan. 4, 2018 and will run for a period of 45 days, or until Feb. 20, 2018. A full-text copy of the Court's Dec. 15, 2017 Opinion and Order is available at https://is.gd/4dxAa8 from Leagle.com. Carmen Rodriguez De Carrasco, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiff, represented by William Coudert Rand -- wcrand@wcrand.com -- Law Office of William Coudert Rand. Marie F. Bellegarde, Plaintiff, represented by William Coudert Rand, Law Office of William Coudert Rand. Life Care Services, Inc., doing business as Life Care, Defendant, represented by Aaron C. Schlesinger -- aschlesinger@pecklaw.com - - Peckar & Abramson, P.C. & Shannon Danielle Azzaro -- sazzaro@pecklaw.com -- Peckar & Abramson, P.C.. Roselyn Zelman, Defendant, represented by Aaron C. Schlesinger, Peckar & Abramson, P.C. & Shannon Danielle Azzaro, Peckar & Abramson, P.C.. LOBLAW COS: Anti-Poverty Activist Files Price-Fixing Class Action ----------------------------------------------------------------- Fakiha Baig and Jenna Moon, writing for Toronto Star, report that a 71-year-old anti-poverty activist has filed a $1-billion class- action lawsuit against several grocers after Loblaw Companies Ltd. and George Weston Ltd. revealed on Dec. 19 that they participated in an industry-wide bread price-fixing arrangement for more than a decade. Irene Breckon, president of the Anti-Poverty Coalition in Elliot Lake, Ont., regularly bought loaves of Country Harvest bread at a No Frills grocery store. When she heard that Loblaws was offering their customers a $25 gift card as a gesture of goodwill, Ms. Breckon said she was outraged. "When I first thought about it, I thought a $25 gift card for 14 years . . . is nothing," Ms. Breckon told the Star on Dec. 20. "My biggest concern is that these people have been overcharged for all those years for such a basic necessity in life. Bread is a staple and many people need it. I'm hoping these corporations get punished and I'm hoping that people will receive better reimbursement." None of the allegations have been proven in court and the class- action lawsuit would have to be certified by a judge to proceed. The suit names grocers Canada Bread, Walmart, Sobeys, Giant Tiger and Metro as well as Loblaw Companies Ltd. and George Weston Ltd. as defendants, according to a statement of claim filed by Toronto-based law firm Sotos LLP. Ms. Breckon is the lead plaintiff in the lawsuit, filed on behalf of all Canadians who purchased bread at their stores starting in January 2001. Jean-Marc Leclerc -- jleclerc@sotosllp.com -- a lawyer with Sotos LLP and co-counsel to the case told the Star on Dec. 24 that he cannot yet confirm whether accepting the $25 gift card will have an effect on someone's ability to claim damages. "We will argue to the court that this is a gratuitous offer that is being made by Loblaw, and does not represent in any way an adequate award of damages," Mr. Leclerc said in a phone interview. If the defendants attempt to argue that gift card recipients can't participate in the suit, Mr. Leclerc said Sotos LLP will "go to the court on very short order to say that is improper, and that we want relief from the court relating to that issue." Mr. Leclerc stressed that the matter remains before the court, which will ultimately decide whether the gift card will impact damages awarded to participants of the suit. Loblaw Cos. chairman and chief executive officer Galen G. Weston described the bread price-fixing scheme -- from 2001 to 2015 -- as an industry-wide issue. But Giant Tiger and Metro Inc. issued releases saying they had no reason to believe or evidence to suggest that any of their employees had been engaged in the scheme. Marie-Claude Bacon, senior director corporate affairs for Metro Inc., told the Star via email that the company would not be commenting on the class action lawsuit. "Giant Tiger has no reason to believe at this time that we, or any of our employees has been involved with a price fixing scheme or has violated the Competition Act. We are continuing to cooperate with the Competition Bureau during their investigation and look forward to reviewing their findings once complete," Alison Scarlett, a spokesperson for Giant Tiger, said via email. Sobey's took its response to the allegations a step further. "Although Loblaw and George Weston have admitted wrongdoing by their companies and certain of their employees, it is important to note that their reckless assertion of industry-wide price- fixing has not been proven," according to the Sobey's release. Ms. Breckon said she's hoping to use part of the money she receives to give back to food banks and families living in her community. "I want to see families benefit from this. I definitely want to see that these corporations don't take advantage again." [GN] LOS ANGELES, CA: LAUSD Sued Over Failure to Pay Minimum Wages ------------------------------------------------------------- Victoria Tantsioura, an individual, on behalf of herself and all others similarly situated v. Los Angeles Unified School District and Does 1 to 10 inclusive, Case No. BC688922 (Cal. Super. Ct., January 3, 2018), seeks to recover unpaid minimum wages and damages pursuant to the California Labor Code. Los Angeles Unified School District is a public entity under the laws of California. [BN] The Plaintiff is represented by: Paul T. Cullen, Esq. THE CULLEN LAW FIRM, APC 19360 Rinaldi Street, Box 647 Porter Ranch, CA 91326 Telephone: (818) 360-2529 Facsimile: (866) 794-5741 E-mail: paul@cullenlegal.com LVNV FUNDING: Md. App. Flips $38MM Damages Award in MCALA Suit -------------------------------------------------------------- The Court of Special Appeals of Maryland issued an Opinion affirming the trial court's entry of judgment against LVNV Funding, LLC, for violating the Maryland Consumer Debt Collection Act (MCDCA) and for unjust enrichment, but vacating the jury's monetary award for the appellees in the case captioned LVNV Funding, LLC, v. LARRY FINCH, et al., No. 1075, September Term, 2016 (Md. Spec. App.). The Court's previous ruling reversed the circuit court's decision dismissing the class action against LVNV, which was brought by consumers whom LVNV sued as an assignee for debts that it purchased in the course of its business. The Court's emphasis in that ruling was on the licensing requirements of the Maryland Collection Agency Licensing Act (MCALA). In this case, the named appellees are Ronald Jackson (Jackson) and Larry Finch (Finch). After a jury trial on the merits, the jury returned a verdict finding LVNV liable for (1) violating a provision of the MCDCA, a protective statute designed to protect Maryland consumers; and (2) unjust enrichment as a result of its violation of the MCDCA. As restitution for LVNV's unjust enrichment, the jury returned a verdict of $38,630,344 for the members of the subclass. LVNV raises numerous questions and challenges as follows: -- Whether the circuit court erred in granting partial summary judgment in favor of the appellees in which the court determined that LVNV is a collection agency subject to the requirements of the MCALA. -- Whether the circuit court erred in declaring that all judgments obtained by LVNV in the district court during the period in which it was not licensed under the MCALA are void and unenforceable. -- Whether there was insufficient evidence to support the jury's verdict of liability, such that the trial court erred in denying LVNV's motion for judgment and motion for judgment notwithstanding the verdict. -- Whether the trial court erred by excluding evidence proffered by LVNV on the issues of its liability for violating the MCDCA and for unjust enrichment. -- Whether the trial court erred in omitting any instruction to the jury on the proper method of determining a monetary award for unjust enrichment. -- Whether the circuit court erred in certifying the Class and Subclass pursuant to Maryland Rule 2-231. -- Whether the circuit court relied on the appropriate limitations period in defining the Class and the Subclass. -- Whether the circuit court erred in granting a remittitur and reducing the jury's monetary award to $25,000,000. To succeed on a claim that LVNV violated the MCDCA, under C.L. Section 14-202(8), the appellees must demonstrate sufficient evidence that LVNV claimed, attempted, or threatened to enforce a right with knowledge that the right does not exist. The Court finds that there was sufficient evidence for the jury to find that LVNV attempted or claimed to enforce a right. LVNV filed judgments against the appellees in district court and collected on those judgments. The jury was presented with evidence by several witnesses that LVNV had enforced a right to file and collect on the district court judgments against the appellees. An LVNV representative testified that LVNV was named as a plaintiff on the district court complaints. LVNV's representative admitted that LVNV had claimed that it had a right to file lawsuits against the appellees, and the right to collect on those judgments. Further, the jury heard testimony that LVNV garnished Jackson's and Finch's wages. Based on the quantum of evidence provided to the jury, a rational mind could infer, that LVNV claimed, attempted, or threatened to enforce a right against the appellees. Viewing this evidence in the light most favorable to the non- moving party, the appellees, a reasonable juror could conclude that LVNV attempted to enforce a right that did not exist with knowledge that the right did not exist. The trial court, therefore, did not err in excluding evidence that LVNV held a mistaken belief that the law did not require it to be licensed prior to engaging in collections activity. The Court finds that the appellees established and LVNV does not dispute that the appellees paid money to LVNV based on the district court judgments in question. LVNV's representative testified that LVNV collected approximately 3.5 million dollars from the appellees including prejudgment interest. Further, the representative from LVNV, when asked about the amount collected from Finch, confirmed that LVNV benefitted from that amount. This evidence is more than sufficient for a rational juror to find that the appellees conferred a benefit upon LVNV. The appellees introduced testimony that LVNV sued Jackson twice and garnished his wages. In addition, the appellees adduced testimony that LVNV garnished Finch's electronic banking account. The jury was also presented with testimony from several witnesses that LVNV did not have the required license to collect judgments from the appellees when it engaged in those actions, and that the judgments LVNV collected were declared void and unenforceable. Indeed, the jury heard testimony that an agent of LVNV continued to collect on the void judgments, or at least, that the agent had not been notified by LVNV to stop its collection activities until about a week before trial. Considering the evidence as a whole, a rational juror could conclude that LVNV's retention of funds that it obtained from the appellees while it was unlicensed as a result of void judgments was unjust. The evidence was more than legally sufficient on each element for a rational juror to conclude that LVNV violated the MCDCA, as well as to find that LVNV was unjustly enriched as a result of collecting money from the appellees on the void judgments. We, therefore, affirm the circuit court's decision to allow those factual issues to be decided by the jury as well as to deny LVNV's motion for judgment notwithstanding the verdict. Most of LVNV's evidentiary challenges emanate from the trial court's decisions to preclude LVNV from introducing certain evidence. Regarding LVNV's liability under the MCDCA, LVNV contends that the circuit court's evidentiary rulings resulted in prejudicial error because the court prevented LVNV from presenting evidence of LVNV's lack of knowledge. Evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Unlike the Court's review of the relevance of evidence, if the trial court excludes evidence for any of these other reasons, the Court will not reverse the court's decision without a clear showing of abuse of discretion. The Court has previously held that a trial court abused its discretion when no reasonable person would share the view taken by the trial judge. An abuse of discretion occurs when a decision is well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable. Even when a trial court's decision to admit or exclude evidence is erroneous, it has long been the settled policy of this Court not to reverse for harmless error. An error is not harmless, and thus prejudicial, if it is likely to have affected the verdict. In this case, the MCDCA required the appellees to prove that LVNV acted with either actual knowledge or reckless disregard as to the falsity of the existence of the right. Notably, the letter proffered by LVNV did not address whether filing a collection action in the district court constituted a collection activity, and other documents issued by the same office clarified the licensing requirements. More importantly, as the circuit court had previously determined that LVNV was a collection agency subject to the licensing requirements of the MCALA, the circuit court did not err in precluding LVNV from arguing that it was unaware that it was required to be licensed. Indeed, evidence of LVNV's mistaken belief could have caused confusion of the issues the jury was tasked with deciding. The Court will not reverse a trial court's decision to exclude evidence on the basis that the evidence could be misleading for the jury without a clear showing of abuse of discretion. In short, the trial court did not abuse its discretion by excluding evidence that could have led the jury to believe that a mistake of law could account for LVNV's lack of knowledge or reckless disregard" that it was not entitled to sue the appellees or to enforce the judgments it obtained without a license. In this case, the trial court provided only a description of the claims and of the questions on the verdict sheet. The court instructed the jury on what it must find for the appellees to prevail on their claim for unjust enrichment including that under the circumstances, LVNV, is unjust to retain the benefit from that which it has received from the appellees. The court informed the jury that the appellees seek damages for their claims for unjust enrichment under the Maryland Consumer Debt Collection Act. Although the trial court provided the jury with the elements of unjust enrichment, it stopped short of providing the proper measure of restitution upon a finding of unjust enrichment. The trial court's instructions did not provide an appropriate guide in determining LVNV's profits, and they permitted the jury to speculate about inapplicable legal principles of law. The absence of any guidance for calculating an appropriate monetary award, particularly under these circumstances, resulted in an award that was inconsistent with the tenets of unjust enrichment. The trial court's error, therefore, was clearly prejudicial to LVNV. The named appellees' and the Subclass members' essential factual claims are substantially the same, namely that LVNV engaged in collection activities without the required license when it obtained judgments against the appellees, and that each individual appellee or Subclass member paid money to LVNV as a result of a void district court judgment. All of the appellees in this case seek the same relief and their cases rely on the same legal arguments. The named appellees' cases, therefore, are typical of those of the Subclass they represent, and the appellees have demonstrated adequately the common issues of law or fact across all of the Subclass members' claims. Based on the parameters of the Subclass defined by the circuit court, none of the questions that LVNV poses on appeal differentiate the Subclass members from one another, extinguish the presence of typicality, or bear any import on the common questions of fact or law in this case. The circuit court, therefore, did not err in its determination that the Subclass met all of the prerequisites to class certification. As we explain below, however, we hold that the circuit court erred in its definition of the class by applying an incorrect limitations period. The appellees argue that the statute of limitations was tolled based on the date that a separate, but related, class action was filed. Although the circuit court provided that it had not based its denial of LVNV's motion to dismiss on the doctrine of tolling, the dates the circuit court incorporated into its definition of the Class appear to coincide with the filing date of the prior, separate class action. As the Court provided in Hecht v. Resolution Trust Corp., it has long maintained a rule of strict construction concerning the tolling of the statute of limitations. Absent legislative creation of an exception to the statute of limitations, the Court will not allow any 'implied and equitable exception to be engrafted upon it. The Court, therefore, declined to rely on the doctrine of tolling to extend the statute of limitations in this case. Accordingly, the circuit court erred when it defined the Class beyond three years prior to November 9, 2011,22 the date upon which the complaint was filed in Finch I. The appropriate limitations period in this case began on November 9, 2008. On remand the circuit court should redefine the scope of the class consistent with this opinion. The Court affirms the trial court's entry of the jury's verdict in favor of the appellees as to LVNV's liability for violating the MCDCA and for unjust enrichment. The Court vacated the trial court's entry of the jury's verdict on damages and restitution, and we remand to the circuit court for a new trial on damages consistent with this opinion. A full-text copy of the Court of Special Appeals' December 14, 2017 Opinion is available at https://tinyurl.com/y7sex6qu from Leagle.com. MAGNUS SECURITY: Faces Suit Over Failure to Properly Pay Workers ---------------------------------------------------------------- Yusuf Tillmon, individually, and on behalf of all others similarly situated v. Magnus Security and Does 1 through 10, inclusive, Case No. BC688932 (Cal. Super. Ct., January 3, 2018), is brought against the Defendants for failure to provide meal periods, failure to authorize and permit rest periods, failure to pay minimum and straight time wages, failure to pay overtime wages, failure to maintain accurate records of hours worked, failure to timely pay all wages to terminated employees, and failure to furnish accurate wage statements. Magnus Security operates a private security services company in San Diego, California. [BN] The Plaintiff is represented by: Kane Moon, Esq. Justin F. Marquez, Esq. MOON & YANG, APC 1055 W. Seventh St., Suite 1880 Los Angeles, CA 90017 Telephone: (213)232-3128 Facsimile: (213) 232-3125 E-mail: kane.moon@moonyanglaw.com justin.marquez@moonyanglaw.com MDL 2314: Court Orders Sentence-Redaction in Hearing Transcript --------------------------------------------------------------- The United States District Court for the Northern District of California, San Jose Division, issued an Order for One Sentence Redaction contained in the Hearing Transcript in the case captioned In re: Facebook Internet Tracking Litigation, Case No. 12-md-02314 EJD (N.D. Cal.). Plaintiffs Perrin Davis, Cynthia Quinn, Brian Lentz, and Matthew Vickery and Defendant Facebook Inc., stipulated a request for an order redacting one sentence in the Transcript from the November 16, 2017 Hearing on Facebook's Motion to Dismiss. The Court has considered the Stipulation by which the Parties request the limited redaction of one sentence contained in the November 16, 2017 Hearing Transcript at page 25, lines 20-21 (as indicated in Exhibits A and B to the Declaration of Kyle Wong filed concurrently with the Stipulation). For the reasons set forth in the Stipulation and in the Court's Orders of July 5, 2017, and November 8, 2017, the Court ordered that that sentence will be redacted from any publicly available version of the Hearing Transcript including, but not limited to, any electronic version of the transcript available to public terminal users at the courthouse or through the ECF or PACER systems. The unredacted version of the Hearing Transcript must be placed under seal. A full-text copy of the District Court's December 14, 2017 Order is available at https://tinyurl.com/ybe5985j from Leagle.com. Alexandria Parrish, Plaintiff, represented by Edward D. Robertson, III -- krobertson@bflawfirm.com -- BARTIMUS FRICKLETON ROBERTSON GORNY. Alexandria Parrish, Plaintiff, represented by Edward D. Robertson, Jr. -- crobertson@bflawfirm.com -- Bartimus Frickleton Robertson and Gorny, James Patrick Frickleton -- jimf@bflawfirm.com -- BARTIMUS FRICKLETON ROBERTSON GORNY, Jennifer L. Harwood, Keefe Bartels, 170 Monmouth Street, Red Bank, NJ 07701, pro hac vice, Mary Doerhoff Winter, Bartimus Frickleton Robertson and Gorny, 715 Swifts Hwy, Jefferson City, MO 65109-2545, Paul R. Kiesel -- kiesel@kiesel.law -- Kiesel Law LLP, Peter F. Burns -- PFBurns@BCMLawyers.com -- Peter S. Mackey -- psmackey@bcmlawyers.com -- Stephen M. Gorny -- steve@gornylawfirm.com -- The Gorny Law Firm, LC & William Mitchell Cunningham, Jr. -- WMCunningham@BCMLawyers.com - Sharon Beatty, Plaintiff, represented by David A. Straite -- dstraite@kaplanfox.com -- Kaplan Fox & Kilsheimer LLP, Edward D. Robertson, Jr., Bartimus Frickleton Robertson and Gorny, James Patrick Frickleton, BARTIMUS FRICKLETON ROBERTSON GORNY, Paul R. Kiesel, Kiesel Law LLP, Edward D. Robertson, III, BARTIMUS FRICKLETON ROBERTSON GORNY, Jennifer L. Harwood, Keefe Bartels, pro hac vice, Joel Grant Woods, Grant Woods PC, Mary Doerhoff Winter, Bartimus Frickleton Robertson and Gorny & Stephen M. Gorny, The Gorny Law Firm, LC. Brooke Rutledge, Plaintiff, represented by David Shelton, David Shelton, PLLC, 1223 Jackson Avenue East, Ste. 202, PO Box 2541 Oxford, MS 38655, Edward D. Robertson, III, BARTIMUS FRICKLETON ROBERTSON GORNY, Edward D. Robertson, Jr., Bartimus Frickleton Robertson and Gorny, James Patrick Frickleton, BARTIMUS FRICKLETON ROBERTSON GORNY, Jennifer L. Harwood, Keefe Bartels, pro hac vice, Mary Doerhoff Winter, Bartimus Frickleton Robertson and Gorny, Paul R. Kiesel, Kiesel Law LLP & Stephen M. Gorny, The Gorny Law Firm, LC. Michael Singley, Plaintiff, represented by Alice London, Daniel W. Bishop, II, Bishop London & Dodds PC,, 3701 Bee Caves Rd Ste 200, Austin, TX 78746, Edward D. Robertson, III, BARTIMUS FRICKLETON ROBERTSON GORNY, Edward D. Robertson, Jr., Bartimus Frickleton Robertson and Gorny, James Patrick Frickleton, BARTIMUS FRICKLETON ROBERTSON GORNY, Jennifer L. Harwood, Keefe Bartels, pro hac vice, Mary Doerhoff Winter, Bartimus Frickleton Robertson and Gorny, Paul R. Kiesel, Kiesel Law LLP & Stephen M. Gorny, The Gorny Law Firm, LC. Dana Howard, Plaintiff, represented by Edward D. Robertson, III, BARTIMUS FRICKLETON ROBERTSON GORNY, Edward D. Robertson, Jr., Bartimus Frickleton Robertson and Gorny, James Patrick Frickleton, BARTIMUS FRICKLETON ROBERTSON GORNY, Jennifer L. Harwood, Keefe Bartels, pro hac vice, Mark Chandler Goldenberg, Goldenberg Heller Antognoli and Rowland, Mary Doerhoff Winter, Bartimus Frickleton Robertson and Gorny, Paul R. Kiesel, Kiesel Law LLP, Stephen M. Gorny, The Gorny Law Firm, LC & Thomas P. Rosenfeld, Goldenberg Heller Antognoli and Rowland, P.C.. John Graham, Plaintiff, represented by Edward D. Robertson, III, BARTIMUS FRICKLETON ROBERTSON GORNY, Edward D. Robertson, Jr., Bartimus Frickleton Robertson and Gorny, James Patrick Frickleton, BARTIMUS FRICKLETON ROBERTSON GORNY, Jennifer L. Harwood, Keefe Bartels, pro hac vice, Mary Doerhoff Winter, Bartimus Frickleton Robertson and Gorny, Michelle L. Marvel, Bartimus, Frickleton, Robertson & Gorny, Paul R. Kiesel, Kiesel Law LLP &Stephen M. Gorny, The Gorny Law Firm, LC. David Hoffman, Plaintiff, represented by Edward D. Robertson, III, BARTIMUS FRICKLETON ROBERTSON GORNY, Edward D. Robertson, Jr., Bartimus Frickleton Robertson and Gorny, Emily Ward Roark, Bryant Law Center, James Patrick Frickleton, BARTIMUS FRICKLETON ROBERTSON GORNY, Jennifer L. Harwood, Keefe Bartels, pro hac vice, Mark P. Bryant, Bryant Law Center, Mary Doerhoff Winter, Bartimus Frickleton Robertson and Gorny, Paul R. Kiesel, Kiesel Law LLP & Stephen M. Gorny, The Gorny Law Firm, LC. Janet Seamon, Plaintiff, represented by Edward D. Robertson, III, BARTIMUS FRICKLETON ROBERTSON GORNY, Edward D. Robertson, Jr., Bartimus Frickleton Robertson and Gorny, James Patrick Frickleton, BARTIMUS FRICKLETON ROBERTSON GORNY, Jennifer L. Harwood, Keefe Bartels, pro hac vice, L.J. Hymel, Mary Doerhoff Winter, Bartimus Frickleton Robertson and Gorny, Michael Reese Davis, Hymel Davis and Petersen, LLC, Paul R. Kiesel, Kiesel Law LLP, Richard P. Ieyoub, Ieyoub Law Firm, LLC, Stephen M. Gorny, The Gorny Law Firm, LC & Tim P. Hartdegen. Chandra L. Thompson, Plaintiff, represented by Andrew Stephan Lyskowski, Edward D. Robertson, III, BARTIMUS FRICKLETON ROBERTSON GORNY, Edward D. Robertson, Jr., Bartimus Frickleton Robertson and Gorny, James Patrick Frickleton, BARTIMUS FRICKLETON ROBERTSON GORNY, Jennifer L. Harwood, Keefe Bartels, pro hac vice, Mary Doerhoff Winter, Bartimus Frickleton Robertson and Gorny, Paul R. Kiesel, Kiesel Law LLP & Stephen M. Gorny, The Gorny Law Firm, LC. Facebook Inc., Defendant, represented by Jeffrey Gutkin -- jgutkin@cooley.com -- Cooley LLP, Kyle Christopher Wong -- kwong@cooley.com -- Cooley LLP, Matthew Dean Brown -- brownmd@cooley.com -- Cooley LLP & Adam Christopher Trigg -- atrigg@be-law.com -- Cooley LLP. MDL 2420: Ct. Grants Bid to Enforce Settlement in Antitrust Suit ---------------------------------------------------------------- In the case, IN RE: LITHIUM ION BATTERIES ANTITRUST LITIGATION. This Order Relates to: Flextronis International USA v. LG Chem, Ltd., et al, Case No. 13-md-02420 YGR, Related Case No. 16-cv- 4018 YGR (N.D. Cal.), Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of N.D. California granted Settling Defendants' Enforce Settlement and Enjoin Prosecution of Claims by Plaintiff Flextronics International USA, Inc. ("Flex USA"); denied Flex USA's Cross-Motion for An Order Excluding Flex USA from Settlements between the Direct Purchaser Class and Settling Defendants; and denied as moot the Settling Defendants' Motion for Stay Pending Resolution of Certain Defendants' Motion to Enforce Settlement Agreements and Enjoin Prosecution of Claims. Defendants Panasonic Corp., Panasonic Corporation of North America, SANYO Electric Co., Ltd. and SANYO North America Corp., Maxell, Ltd. and Maxell Corporation of America, NEC Corp., and Toshiba Corp. ("Settling Defendants")'s motion seeks to enforce the terms of their class action settlement agreements with the Direct Purchaser Plaintiffs ("DPPs") in the multi-district litigation, which were finally approved by the Court, and judgments entered thereon, on Sept.r 5, 2017. Specifically, they seek to enjoin Flex USA, as a member of the DPP class, from prosecuting claims that were released by those settlement agreements. The settlement agreements, and final approval orders, provide that any member of the settlement class who failed to make a valid, timely request to be excluded is bound by the provisions of the settlement agreement. The judgments entered were final judgments as to all claims within the scope of the releases in the settlement agreements. Flex USA offers two arguments in opposition: (i) its tardy request for exclusion from the class settlements should be permitted based upon its excusable neglect; and (ii) even if it is not excluded from the settlements, not all of its claims are covered by the releases in those settlement agreements paragraphs consistently preclude claims: (a) based upon foreign law for (b) purchases of products not billed to or shipped to (or sold in) the United States. Judge Rogers finds that Flex USA's argument that the class action settlement was not properly determined to be fair and reasonable under Rule 23 because the Court did not consider the value of the foreign purchase claims the settlement extinguishes, does not persuade. He says no objections to the settlement were made on this basis, though presumably many other class members would have had claims based upon foreign purchases falling into one of the FTAIA exceptions as well. The operative complaint included claims based upon a "direct, substantial and reasonably foreseeable effect" on domestic or import commerce, mirroring the FTAIA's language about claims covered by the Sherman Act. The settlement agreement apparently was drafted to include viable Sherman Act claims, including those permitted under the FTAIA amendments' import commerce and "domestic effects" exceptions. Based on the record at the time of the settlement, the Court had no reason to believe that the settlement terms and amount for these defendants were not fair and reasonable, nor does it have reason to doubt the fairness and reasonableness now. The Judge also finds that when the Court denied the Defendants' motion to dismiss Flex USA's complaint for failure to allege purchases cognizable under the FTAIA, it did so based on Flex USA's allegations and arguments that a substantial portion of the purchases at issue for Flextronics and its affiliates were shipped to the United States or otherwise met the definition of import trade or commerce, and thus were cognizable under the Sherman Act. Moreover, the Court denied the motion to dismiss Flex USA's claims based upon purchases made outside the United States on timeliness grounds, accepting Flex USA's argument that the statute of limitations on those claims was tolled under American Pipe & Construction Co. v. Utah. The operative DPP complaint included allegations regarding purchases under the FTAIA's import and domestic effects exceptions. That these same claims would now be released in conjunction with the class settlement of DPPs' Sherman Act claims follows logically. Based on this, Judge Rogers granted the Settling Defendants' motion to enforce the settlement. Flex USA is enjoined from further prosecution of its claims against the Settling Defendants in the action. The Judge denied Flex USA's cross-motion and denied as moot the Settling Defendants' motion for a stay pending decision on the motion to enforce the settlement. A full-text copy of the Court's Dec. 19, 2017 Order is available at https://is.gd/mlm0BD from Leagle.com. Kevin Young, Plaintiff, represented by Jeff D. Friedman -- jefff@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP. Kevin Young, Plaintiff, represented by George W. Sampson, Hagens Berman Sobol Shapiro LLP, Jason Allen Zweig -- jasonz@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Shana E. Scarlett -- shanas@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP & Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice. Bradley Seldin, Plaintiff, represented by Jeff D. Friedman, Hagens Berman Sobol Shapiro LLP, George W. Sampson, Hagens Berman Sobol Shapiro LLP, Jason Allen Zweig, Hagens Berman Sobol Shapiro LLP, Shana E. Scarlett, Hagens Berman Sobol Shapiro LLP & Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice. Bruce Sterman, Plaintiff, represented by Jeff D. Friedman, Hagens Berman Sobol Shapiro LLP & Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice. Charles Carte, Plaintiff, represented by Guido Saveri -- guido@saveri.com -- Saveri & Saveri, Inc., Brian P. Murray -- bmurray@glancylaw.com -- Glancy Prongay & Murray LLP, Cadio R. Zirpoli -- cadio@saveri.com -- Saveri & Saveri, Inc., David Yau- Tian Hwu -- dhwu@saveri.com -- Saveri and Saveri Inc., Geoffrey Conrad Rushing -- mheaphy@saveri.com -- Saveri & Saveri Inc., Gregory Bradley Linkh -- glinkh@glancylaw.com -- Glancy Prongay & Murray LLP, Lee Albert -- lalbert@glancylaw.com -- Glancy Prongay & Murray LLP, Lisa Maria Saveri -- lisa@saveri.com -- Saveri & Saveri Inc., Richard Alexander Saveri -- rick@saveri.com -- Saveri and Saveri Inc, Richard Alexander Saveri, Saveri & Saveri, Inc., Susan Gilah Kupfer -- skupfer@glancylaw.com -- Glancy Prongay & Murray LLP & Todd Anthony Seaver, Berman Tabacco. Brian Hanlon, Plaintiff, represented by Brent W. Johnson -- bjohnson@cohenmilstein.com -- Cohen Milstein Sellers and Toll PLLC, Jeff D. Friedman, Hagens Berman Sobol Shapiro LLP, Kit A. Pierson -- kpierson@cohenmilstein.com -- Cohen Milstein Sellers and Toll PLLC & Laura M. Alexander -- lalexander@cohenmilstein.com -- Cohen Milstein Sellers and Toll. Nichole M. Gray, Plaintiff, represented by Guido Saveri, Saveri & Saveri, Inc., Aaron James Broussard, Broussard and Hart LLC, David Yau-Tian Hwu, Saveri and Saveri Inc., Douglas A. Millen -- dmillen@fklmlaw.com -- Freed Kanner London & Millen LLC, Lisa Maria Saveri, Saveri & Saveri Inc., Richard Alexander Saveri, Saveri and Saveri Inc, Richard Kirchner, Bonsignore & Brewer, Richard Alexander Saveri, Saveri & Saveri, Inc., Robert J. Bonsignore -- rbonsignore@class-actions.us ---, Bonsignore Trial Lawyers, PLLC & Todd Anthony Seaver -- tseaver@bermantabacco.com -- Berman Tabacco. Woodrow Clark, II, Plaintiff, represented by Brian Joseph Barry - - bribarry1@yahoo.com -- Law Offices of Brian Barry, James E. Cecchi, Carella Byrne, Lindsey H. Taylor -- LTaylor@carellabyrne.com -- Carella Byrne & Todd Anthony Seaver, Berman Tabacco. Rebecca Cervenak, Plaintiff, represented by William James Doyle, II -- bill@doylelowther.com -- Doyle Lowther LLP. John Russo, Plaintiff, represented by William James Doyle, II -- jim@doylelowther.com -- Doyle Lowther LLP, James Robert Hail, Doyle Lowther & Katherine S. DiDonato, Shustak Reynolds & Partners, P.C.. LG Chem Ltd., Defendant, represented by Benjamin Edward Waldin -- bwaldin@eimerstahl.com -- Eimer Stahl LLP, Brian Yanlang Chang -- bchang@eimerstahl.com -- Eimer Stahl LLP, Jungmin Lee -- jlee@eimerstahl.com -- Eimer Stahl LLP, Nathan P. Eimer -- neimer@eimerstahl.com -- Eimer Stahl LLP & Vanessa Greenwood Jacobsen -- vjacobsen@eimerstahl.com -- Eimer Stahl LLP. LG Chem America, Inc, Defendant, represented by Benjamin Edward Waldin, Eimer Stahl LLP, Brian Yanlang Chang, Eimer Stahl LLP, Jungmin Lee, Eimer Stahl LLP, Nathan P. Eimer, Eimer Stahl LLP & Vanessa Greenwood Jacobsen, Eimer Stahl LLP. Samsung SDI America Inc, Defendant, represented by John Roberti - - john.roberti@allenovery.com -- Allen & Overy LLP, Bradley Pensyl -- bradley.pensyl@allenovery.com -- Allen and Overy LLP, Jacob S. Pultman -- jacob.pultman@allenovery.com -- Allen Overy LLP, Matthew R. Boucher -- matthew.boucher@allenovery.com -- Allen and Overy LLP, Michael S. Feldberg -- michael.feldberg@allenovery.com -- Allen and Overy LLP & Nneka Ukpai -- Nneka.Ukpai@AllenOvery.com -- Allen and Overy LLP. Hitachi Ltd., Defendant, represented by Craig P. Seebald -- cseebald@velaw.com -- Vinson & Elkins LLP, Elliott J. Joh -- elliott.joh@squirepb.com -- Vinson and Elkins LLP & Matthew J. Jacobs -- mjacobs@velaw.com -- Vinson & Elkins LLP. Hitachi Maxell, Ltd, Defendant, represented by Christopher Walter James -- cjames@velaw.com -- Vinson and Elkins LLP, Craig P. Seebald, Vinson & Elkins LLP, Elliott J. Joh, Vinson and Elkins LLP, Jason Alan Levine -- jlevine@velaw.com -- Vinson Elkins LLP, Jeremy C. Keeney -- jkeeney@velaw.com -- Vinson and Elkins L.L.P., Lindsey Robinson Vaala -- lvaala@velaw.com -- Matthew J. Jacobs, Vinson & Elkins LLP & Thomas William Bohnett -- tbohnett@velaw.com -- Vinson and Elkins L.L.P.. Maxell Corporation of America, Defendant, represented by Christopher Walter James, Vinson and Elkins LLP, Craig P. Seebald, Vinson & Elkins LLP, Elliott J. Joh, Vinson and Elkins LLP, Jason Alan Levine, Vinson Elkins LLP, Jeremy C. Keeney, Vinson and Elkins L.L.P., Lindsey Robinson Vaala, Matthew J. Jacobs, Vinson & Elkins LLP & Thomas William Bohnett, Vinson and Elkins L.L.P.. Samsung SDI Co Ltd, Defendant, represented by John Roberti, Allen & Overy LLP, Bradley Pensyl, Allen and Overy LLP, Jacob S. Pultman, Allen Overy LLP, Matthew R. Boucher, Allen and Overy LLP, Michael S. Feldberg, Allen and Overy LLP & Nneka Ukpai, Allen and Overy LLP. Maxwell Corporation of America, Defendant, represented by Thomas William Bohnett, Vinson and Elkins L.L.P.. Hitachi Maxell Corporation of America, Defendant, represented by Lindsey Robinson Vaala. Toshiba America Electronic Components Inc, Defendant, represented by Christopher M. Curran -- ccurran@whitecase.com -- White & Case & J. Frank Hogue -- fhogue@whitecase.com -- White Case LLP. MDL 2492: "Lamountain" Suit v. Atlantic Transferred to Illinois --------------------------------------------------------------- The class action lawsuit filed on November 15, 2017 styled Sandra Lamountain and Noah Hoffman, Co-Personal Representatives of the Estate of Ryan C. Hoffman, and on behalf of all others similarly situated v. Atlantic Coast Conference and National Collegiate Athletic Association, Case No. 1:17-cv-01038, was transferred on January 4, 2018, from the U.S. District Court for the Middle District of North Carolina to the U.S. District Court Northern for the District of Illinois. The District Court Clerk assigned Case No. 1:18-cv-00063 to the proceeding. The Case is consolidated in the multidistrict litigation, MDL No. 2492. The lead case is 1:16-cv-08727. The case arises out of the Defendants' disregard for the health and safety of generations of University of North Carolina at Chapel Hill student-athletes. Atlantic Coast Conference is a collegiate athletic conference with its principal office located at 4512 Weybridge Lane, Greensboro, North Carolina 27407. National Collegiate Athletic Association is the governing body of collegiate athletics that oversees twenty-three college sports and over 400,000 students who participate in the intercollegiate athletics. [BN] The Plaintiff is represented by: Nancy Routh Meyers, Esq. Janet Ward Black, Esq. WARD BLACK LAW 208 W. Wendover Ave. Greensboro, NC 27401 Telephone: (336) 510-2104 Facsimile: (336) 379-9415 E-mail: nmeyers@wardblacklaw.com jwblack@wardblacklaw.com MDL 2503: Court Certifies Direct Purchasers Class ------------------------------------------------- The United States District Court for the District of Massachusetts issued an Order granting Direct Purchasers Class' Motion for Class Certification in the case captioned IN RE SOLODYN (MINOCYCLINE HYDROCHLORIDE) ANTITRUST LITIGATION. This Document Relates to: Direct Purchaser Actions, MDL No. 2503, Civil Action No. 1:14-MD-2503-DJC (D. Mass.). Plaintiffs allege that the Medicis and Impax violated federal antitrust laws by unlawfully impairing the introduction of generic versions of the prescription drug Solodyn into the United States market. Plaintiffs allege that Medicis entered into an illegal reverse payment agreement with Impax that impaired generic Solodyn competition. Plaintiffs claim that this alleged conduct suppressed or eliminated competition that Medicis would have faced. The Plaintiffs further claim that class members were injured as a result of the challenged conduct by paying more for extended-release minocycline hydrochloride tablets. A redacted public copy of the Plaintiffs' Amended Complaint and Demand for Jury Trial, dated February 18, 2016, is available for download at www.SolodynDirectPurchaserAntitrustLitigation.com. The Court allowed Direct Purchaser Class Plaintiffs' Motion for Class Certification: All persons or entities in the United States and its territories, including Puerto Rico, who purchased (a) 45mg, 55mg, 65mg, 80mg, 90mg, 105mg, 115mg, and/or 135mg brand or generic Solodyn tablets directly from any Defendant or other manufacturer at any time during the period July 23, 2009 through and including November 25, 2012 and/or (b) 55mg, 65mg, 80mg, 105mg, and/or 115mg brand Solodyn tablets directly from Medicis at any time from November 26, 2012 until November 30, 2015. Excluded from the Class are Defendants, and their officers, directors, management, employees, subsidiaries, or affiliates, and all federal government entities. The Class Certification Order, this Court found that the Direct Purchaser Class Plaintiffs satisfied the requirements of Fed. R. Civ. P. 23(a)(1), (a)(2), and (a)(3) by showing that the class is so numerous that joinder of all members is impracticable, there are questions of law or fact common to the class, and the claims or defenses of the representative parties are typical of the claims or defenses of the class. The Court appoints the following counsel as Co-Lead Counsel for the Class: Thomas M. Sobol, Esq. Lauren Guth Barnes, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 55 Cambridge Parkway, Suite 301 Cambridge MA 02142 Tel: 617-482-3700 Fax: 617-482-3003 Email: tom@hbsslaw.com lauren@hbsslaw.com -- and -- David F. Sorensen, Esq. Andrew C. Curley, Esq. Caitlin G. Coslett, Esq. BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Tel: (215) 875-3000 Fax: (215) 875-4604 Email: dsorensen@bm.net acurley@bm.net ccoslett@bm.net Ahold USA, Inc., and Rochester Drug Co-Operative, Inc., are appointed as representatives of the Class. Angeion Group, LLC, is appointed notice administrator for this action. A full-text copy of the District Court's December 14, 2017 Order is available at https://tinyurl.com/ydchgzwr from Leagle.com. Consolidated Plaintiffs, Consolidated Plaintiff, represented by Andrew C. Curley -- acurley@bm.net -- Berger & Montague, PC, pro hac vice. Consolidated Plaintiffs, Consolidated Plaintiff, represented by Caitlin G. Coslett -- ccoslett@bm.net -- Berger & Montague PC, pro hac vice, David F. Sorensen -- dsorensen@bm.net -- Berger & Montague, P.C., pro hac vice, Joseph T. Lukens -- jlukens@faruqilaw.com -- FARUQI & FARUQI, pro hac vice, Lauren G. Barnes -- lauren@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Neill Clark -- nclark@faruqilaw.com -- Faruqi & Faruqi, LLP, pro hac vice, Peter Kohn -- pkohn@faruqilaw.com -- Faruqi & Faruqi LLP, pro hac vice, Thomas M. Sobol -- tom@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Jayne A. Goldstein -- jgoldstein@sfmslaw.com -- Shepherd Finkelman Miller & Shah LLP, Jessica Rose MacAuley -- jessicam@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP & Steve D. Shadowen -- steve@hilliardshadowenlaw.com -- Hilliard & Shadowen LLP, pro hac vice. Rochester Drug Co-Operative, Inc., Plaintiff, represented by Archana Tamoshunas -- atamoshunas@tcllaw.com -- Taus, Cebulash & Landau, LLP, pro hac vice, Barry S. Taus -- btaus@tcllaw.com -- Taus, Cebulash & Landau, pro hac vice, Daniel C. Simons -- dsimons@bm.net -- Berger & Montague PC, pro hac vice, David F. Sorensen -- dsorensen@bm.net -- Berger & Montague, P.C., pro hac vice, Joseph T. Lukens, FARUQI & FARUQI, pro hac vice, Peter Kohn, Faruqi & Faruqi LLP, pro hac vice & Daniel Walker -- dwalker@bm.net -- Berger & Montague PC, pro hac vice. Direct Purchaser Plaintiffs, Plaintiff, represented by David S. Nalven -- davidn@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Lauren G. Barnes, Hagens Berman Sobol Shapiro LLP, Andrew C. Curley, Berger & Montague, PC & Kiersten Taylor -- kierstent@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP. Albertson's LLC, Plaintiff, represented by Anna T. Neill -- aneill@knpa.com -- Kenny Nachwalter, P.A., pro hac vice, Richard Alan Arnold -- raa@knpa.com -- Kenny Nachwalter, PA, Scott E. Perwin -- sep@knpa.com -- Kenny Nachwalter, P.A. & Lauren C. Ravkind -- lcr@knpa.com -- Kenny Nachwalter PA, pro hac vice. HEB GROCERY CO. LP, Plaintiff, represented by Anna T. Neill, Kenny Nachwalter, P.A., pro hac vice, Richard Alan Arnold, Kenny Nachwalter, PA, Scott E. Perwin, Kenny Nachwalter, P.A. &Lauren C. Ravkind, Kenny Nachwalter PA, pro hac vice. Safeway, Inc., Plaintiff, represented by Anna T. Neill, Kenny Nachwalter, P.A., pro hac vice,Richard Alan Arnold, Kenny Nachwalter, PA, Scott E. Perwin, Kenny Nachwalter, P.A. & Lauren C. Ravkind, Kenny Nachwalter PA, pro hac vice. The Kroger Co., Plaintiff, represented by Anna T. Neill, Kenny Nachwalter, P.A., pro hac vice,Richard Alan Arnold, Kenny Nachwalter, PA, Scott E. Perwin, Kenny Nachwalter, P.A. & Lauren C. Ravkind, Kenny Nachwalter PA, pro hac vice. Walgreen Co., Plaintiff, represented by Anna T. Neill, Kenny Nachwalter, P.A., pro hac vice,Richard Alan Arnold, Kenny Nachwalter, PA, Scott E. Perwin, Kenny Nachwalter, P.A. & Lauren C. Ravkind, Kenny Nachwalter PA, pro hac vice. Rite Aid Corporation, Plaintiff, represented by Barry L. Refsin - - brefsin@hangley.com -- Hangley, Aronghick, Segal, Pudlin & Schiller, Daniel P. Thiel -- brefsin@hangley.com -- Hangley Aronchick Segal Pudlin & Schiller, pro hac vice, Eric L. Bloom -- ebloom@hangley.com -- Hangley Aronchick Segal Pudlin & Schiller, pro hac vice, Monica L. Kiley -- mkiley@hangley.com -- Hangley Aronchick Segal Pudlin & Schiller, pro hac vice & Scott E. Perwin -- sep@knpa.com -- Kenny Nachwalter, P.A. Rite Aid Hdqtrs. Corp., Plaintiff, represented by Barry L. Refsin, Hangley, Aronghick, Segal, Pudlin & Schiller, Daniel P. Thiel, Hangley Aronchick Segal Pudlin & Schiller, pro hac vice, Eric L. Bloom, Hangley Aronchick Segal Pudlin & Schiller, pro hac vice, Monica L. Kiley, Hangley Aronchick Segal Pudlin & Schiller, pro hac vice & Scott E. Perwin, Kenny Nachwalter, P.A.. Impax Laboratories, Inc., Defendant, represented by Anna Fabish - - afabish@omm.com -- O'Melveny & Myers LLP, pro hac vice, Danielle R. Foley -- drfoley@Venable.com -- Venable LLP, pro hac vice, James Douglas Baldridge -- jbaldridge@Venable.com -- Venable LLP, pro hac vice, James J. Belanger -- jbelanger@cblawyers.com -- Coppersmith Brockelman PLC, James R. Carroll -- james.carroll@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP, John G. Harkins, Jr. -- jharkins@harkinscunningham.com -- Harkins Cunningham, KENNETH R. O'ROURKE -- korourke@omm.com -- O'MELVENY & MYERS LLP, pro hac vice, Katherine Louise DeStefano -- kdestefano@cblawyers.com -- Coppersmith Brockelman PLC, Keith Beauchamp, Coppersmith Brockelman PLC, Kristin M. Koger -- kmkoger@Venable.com -- Venable LLP, pro hac vice, Lisa Jose Fales -- ljfales@Venable.com -- Venable LLP, pro hac vice, Neill C. Kling -- nkling@harkinscunningham.com -- Harkins Cunningham, Stephen J. McIntyre -- smcintyre@omm.com -- O'Melveny & Myers LLP, pro hac vice, Christian R. Jenner -- cjenner@duffysweeney.com -- Duffy & Sweeney, Ltd., Joseph L. Demeo -- jdemeo@DemeoLLP.com -- Demeo LLP, Lawrence S. Delaney -- ldelaney@DemeoLLP.com -- Demeo LLP & William K. Wray, Jr. -- wwray@duffysweeney.com -- Brown Rudnick LLP. Teva Pharmaceuticals USA Inc, Defendant, represented by David B. Rosenbaum -- drosenbaum@omlaw.com -- Osborn Maledon PA, JOSEPH E. WOLFSON -- jwo@stevenslee.com -- STEVENS & LEE, Joseph Nathaniel Roth -- jroth@omlaw.com -- Osborn Maledon PA, Sarah K. Frederick -- sfrederick@goodwinlaw.com -- Goodwin Procter LLP, Christopher T. Holding -- cholding@goodwinlaw.com -- Goodwin Procter, LLP & Robert D. Carroll -- rcarroll@goodwinlaw.com -- Goodwin Procter, LLP. MDL 2719: Settlement in SLS Marketing Suit Has Final Approval ------------------------------------------------------------- In the case, IN RE: THE HONEST COMPANY, INC., SODIUM LAURYL SULFATE (SLS) MARKETING AND SALES PRACTICES LITIGATION. THIS DOCUMENT RELATES TO: ALL ACTIONS, Case No. 2:16-ML-02719 AB (RAOx) (C.D. Cal.), Judge Andre Birotte, Jr. of the U.S. District Court for the Central District of California, Western Division, granted the Motion for Final Approval of Class Action Settlement. Judge Birotte finds that Settlement is, in all respects, fair, adequate, and reasonable to the Class. He finally approved and confirmed the settlement set forth in the Settlement Agreement. Pursuant to Rule 23(g), he appointed Pearson, Simon & Warshaw, LLP and Freed Kanner London & Millen LLC as the co-lead counsel for the Class. The Judge also finds that there are seven persons who filed a valid request for exclusion from the Settlement. He has fully considered and overruled the sole objection to the Settlement filed by Ms. Alyson Lanier. Because he has determined that Ms. Lanier's objection is without merit, he has not determined whether the objection suffers from procedural deficiencies which would render the objection invalid. Judge Birotte dismissed on the merits and with prejudice the claims asserted in the litigation by the Plaintiffs against Honest. He finds that the settlement notice disseminated to the Class was the best notice that was practicable under the circumstances. He also finds that the Court-appointed Claims Administrator Dahl Administration, LLC has fulfilled its duties in disseminating notice to the Class and processing Class Member claims, objections, and opt-outs consistent with the Settlement Agreement and the Court's Order Granting Preliminary Approval of Class Action Settlement and Provisional Class Certification. He says Dahl Administration, LLC is entitled to receive payment in the amount of $219,500 in accordance with the Settlement for its services as a Claims Administrator in the case. The Judge finds, pursuant to Rule 54(a) and (b), that the Final Judgment should be entered and further finds that there is no just reason for delay in the entry of the judgment as a Final Judgment, as to the parties to the Settlement Agreement. Accordingly, the Clerk is directed to enter Judgment forthwith. A full-text copy of the Court's Dec. 15, 2017 Amended Judgment and Order is available at https://is.gd/j2YtzP from Leagle.com. Staci Seed, individually and on behalf of all those similarly situated; From member case number: 2:16-cv-01835-AB-RAO, Plaintiff, represented by Harry Shulman, Shulman Law. Staci Seed, individually and on behalf of all those similarly situated; From member case number: 2:16-cv-01835-AB-RAO, Plaintiff, represented by Bobby Pouya , Pearson Simon Warshaw LLP, Daniel L. Warshaw , Pearson Simon and Warshaw LLP, Douglas A. Millen -- dmillen@fklmlaw.com -- Freed Kanner London and Millen LLC, pro hac vice & Robert J. Wozniak -- rwozniak@fklmlaw.com -- Freed Kanner London and Millen LLC, pro hac vice. Monica Gomez, on behalf of herself and all other similarly situated; From Member Case number: 2:16-cv-02439-AB-RAO, Plaintiff, represented by Betsy C. Manifold -- manifold@whafh.com -- Wolf Haldenstein Adler Freeman and Herz LLP, Brittany DeJong - - dejong@whafh.com -- Wolf Haldenstein Adler Freeman and Herz LLP, Carlos M. Jaramillo, Access Lawyers Group, Gloria Melwani -- melwani@whafh.com -- Wolf Haldenstein Adler Freeman and Herz LLP, pro hac vice, Janine L. Pollack -- pollack@whafh.com -- Wolf Haldenstein Adler Freeman and Herz LLP, pro hac vice & Rachele R. Rickert -- rickert@whafh.com -- Wolf Haldenstein Adler Freeman and Herz LLP. Alvaro Alhadeff, individually and on behalf of all others similarly situated; From member case number: 2:16-cv-02361-AB (RAOx), Plaintiff, represented by Erica C. Mirabella -- erica@mirabellallc.com -- Mirabella Law, pro hac vice, Robert Ahdoot -- rahdoot@ahdootwolfson.com -- Ahdoot and Wolfson PC & Tina Wolfson -- twolfson@ahdootwolfson.com -- Ahdoot and Wolfson PC. Margo Smith, individually, and on behalf of a class of similarly- situated individuals, From member case number: 2:16-cv-05857-AB (RAO), Plaintiff, represented by Alexander L. Braitberg -- alex@keanelawllc.com -- Keane Law LLC, pro hac vice. Amy Glover, Individually and on Behalf of All Others Similarly Situated; From Member case number: 2:16-cv-05855-AB (RAOx), Plaintiff, represented by Jack Fitzgerald -- jack@jcakfitzgeraldlaw.com-- The Law Office of Jack Fitzgerald PC, Kevin A. Seely -- kseely@robbinsarroyo.com -- Robbins Arroyo LLP, Ashley R. Rifkin -- arifkind@robbinsarroyo.com -- Robbins Arroyo LLP, Brian J. Robbins -- brobbins@robbinsarroyo.com -- Robbins Arroyo LLP & Leonid Kandinov -- lkandinov@robbinsarroyo.com -- Robbins Arroyo LLP. Mario Aliano, individually and on behalf of all others similarly situated; From member case number: 2:16-cv-02394-AB (RAOx), Plaintiff, represented by Charles T. Spagnola, Sullivan Krieger Truong Spagnola and Klausner LLP, Eliot F. Krieger, Sullivan Krieger Truong Spagnola and Kalusner LLP & Thomas A. Zimmerman, Jr., Zimmerman Law Offices PC, pro hac vice. Alan Klarik, individually and on behalf of all others similarly situated; From member case number: 2:16-cv-02394-AB (RAOx), Plaintiff, represented by Charles T. Spagnola, Sullivan Krieger Truong Spagnola and Klausner LLP, Eliot F. Krieger, Sullivan Krieger Truong Spagnola and Kalusner LLP & Thomas A. Zimmerman, Jr., Zimmerman Law Offices PC, pro hac vice. Michael Cesarini, an individual on behalf of himself and all others similarly situated, from Member case number: 8:16-cv- 00880-AB (RAOx), Plaintiff, represented by Reuben D. Nathan -- rnathan@nathanlawpractice.com -- Nathan and Associates APC & Ross Cornell , Law Offices of Ross Cornell APC. Julie Sanchez, on behalf of themselves and all others similarly situated, From member case number: 2:16-cv-04159 AB (RAOx), Plaintiff, represented by Betsy C. Manifold, Wolf Haldenstein Adler Freeman and Herz LLP, Brittany DeJong, Wolf Haldenstein Adler Freeman and Herz LLP, Carlos M. Jaramillo, Access Lawyers Group & Rachele R. Rickert, Wolf Haldenstein Adler Freeman and Herz LLP. The Honest Company, Inc., From Member case number: 2:16-cv-01835- AB-RAO, Defendant, represented by Brian A. Lamping -- blamping@thompsoncoburn.com -- Thompson Coburn LLP, pro hac vice, Christina S. Davis -- cdavis@cooley.com -- Cooley LLP, Darcie Allison Tilly -- dtilly@cooley.com -- Cooley LLP, Matthew D. Caplan -- mcaplan@cooley.com -- Cooley LLP, Nathaniel Robert Cooper -- ncooper@cooley.com -- Cooley LLP, Roman P. Wuller -- rwuller@thompsoncoburn.com -- Thompson Coburn LLP, William R. Bay -- wbay@thompsoncoburn.com -- Thompson Coburn LLP, pro hac vice & William P. Donovan, Jr. -- wdonovan@cooley.com -- Cooley LLP. MGT CAPITAL: Law Firm Probes Potential Fiduciary Duty Breach ------------------------------------------------------------ Purcell Julie & Lefkowitz LLP, a class action law firm dedicated to representing shareholders nationwide, is investigating a potential breach of fiduciary duty claim involving the board of directors of MGT Capital Investments, Inc. (OTC: MGTI). If you are a shareholder of MGT Capital Investments, Inc. and are interested in obtaining additional information regarding this investigation, free of charge, please visit us at: http://pjlfirm.com/mgt-capital-investments-inc/ You may also contact Robert H. Lefkowitz, Esq. either via email at rl@pjlfirm.com or by telephone at 212-725-1000. One of our attorneys will personally speak with you about the case at no cost or obligation. Purcell Julie & Lefkowitz LLP -- http://pjlfirm.com-- is a law firm exclusively committed to representing shareholders nationwide who are victims of securities fraud, breaches of fiduciary duty and other types of corporate misconduct. [GN] MICHIGAN: Court Enjoins Suspension of Driver's License ------------------------------------------------------ The United States District Court for the Eastern District of Michigan, Southern Division, issued an Opinion and Order granting Plaintiff's Motion for Preliminary Injunction in the case captioned ADRIAN FOWLER and KITIA HARRIS, on behalf of themselves and others similarly situated, Plaintiffs, v. RUTH JOHNSON, in her official capacity as Secretary of State of the Michigan Department of State, Defendant, Civil Case No. 17-11441 (E.D. Mich.). On the day Plaintiffs initiated the action, they also filed a motion for preliminary injunction to enjoin Defendant from suspending the driver's licenses of people unable to pay their traffic debt. Under Michigan's Motor Vehicle Code, the failure to follow certain traffic laws results in a civil infraction that includes a fine. For each civil infraction, a judge can order costs of up to $100 and, in the majority of cases, must also impose a mandatory justice system assessment of $40. Any fine, cost, or fee remaining unpaid after fifty-six (56) days incurs a twenty- percent (20%) late fee. Michigan law provides that twenty-eight (28) days after a person fails to answer a traffic citation or notice to appear in court for a citation, the court must notify the person that the failure within fourteen (14) days to appear in court or comply with an order or judgment of the court (including the failure to pay all fines, costs, fees, and assessments) will result in the Secretary of State suspending his or her driver's license. Plaintiffs Adrian Fowler and Kitia Harris are Michigan residents who claim to have had their driver's licenses suspended pursuant to the aforementioned statutory provisions. While living in Georgia from 2008 to 2012, Ms. Fowler was issued three tickets for civil traffic infractions, which she was not able to pay. When she moved back to Michigan in 2012, Ms. Fowler tried to renew her Michigan driver's license and was informed that it was suspended because she had not paid her Georgia court debts. According to Defendant, Ms. Fowler was not able to renew her license because Michigan law precludes the Secretary of State from issuing a license to someone whose license is revoked or suspended in another state. Defendant indicates that Georgia suspended Ms. Fowler's license for nonpayment of court debts. Ms. Fowler is the sole caretaker of her three-year-old daughter. They reside in Detroit. In winter 2013, during an ice storm, Ms. Fowler's daughter developed a high fever. Fearing that the ice would inhibit an ambulance from quickly arriving to transport her daughter to the hospital, Ms. Fowler decided to drive her there. A police officer stopped Ms. Fowler for speeding in Ferndale, and issued her a speeding ticket and DWLS citation. The total cost was almost $600. Plaintiffs allege in their Complaint, Defendant's indefinite suspensions of their driver's licenses because of their inability to pay court debts violated their constitutional rights under the Equal Protection and Due Process Clauses. Plaintiffs put forth several theories to explain how Defendant's suspension scheme is unconstitutional. Plaintiffs assert that Michigan's suspension scheme violates the Due Process Clause because it lacks fundamental fairness. Plaintiffs contend that Michigan's practice of suspending a driver's license because of the failure to pay a court debt the licensee cannot afford is fundamentally unfair. Absent a fundamental right or suspect classification, due process requires only that the government act rationally and afford certain procedural protections before the deprivation of protected interests. Bell v. Burson, 402 U.S. 535, 539 (1971), holding that driver's licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment. Later in this decision, the Court will address whether Michigan's challenged practice is rational and comports with procedural due process. Plaintiffs' challenge to Michigan's suspension scheme based on their claim that it is fundamentally unfair, however, is not likely to succeed. According to Plaintiffs, Michigan's policy of depriving Plaintiffs of their driver's licenses because they are too poor to pay their traffic fines strips them of their mobility, implicating their constitutional right to travel. Plaintiffs urge the Court to recognize a fundamental right to drive under the circumstances presented here. where, they assert, public transportation is woefully inadequate and thus, they argue, Plaintiffs lack access to other modes of travel. Fundamental rights are not identified by looking so narrowly or locally, however. Instead, the Due Process Clause provides heightened protection against government interference for only those liberty interests that are traditionally protected by our society and those so rooted in the traditions and conscience of our people as to be ranked as fundamental. Thus in spite of the challenges placed on Michigan drivers due to its transportation system, particularly in certain geographical areas, such challenges would not be deemed fundamental in a national or constitutional sense. In short, there is a fundamental right to intrastate travel, as Plaintiffs assert. Nevertheless, this right is not infringed by Defendant's suspension scheme that deprived Plaintiffs of their driver's licenses and thus the ability to travel by a car they drive. In other words, Plaintiffs are not likely to establish a violation of their substantive due process right to intrastate travel. Michigan's scheme for suspending driver's licenses neither interferes with a fundamental right nor discriminates against individuals based on a suspect class. Plaintiffs nevertheless argue that it fails rational basis review. Plaintiffs present no evidence suggesting that the Michigan legislature selected the current driver's license revocation scheme at least in part because of, and not merely in spite of, its adverse effects upon an identifiable group. In short, the lack of a rational basis to support the challenged law does not establish Plaintiffs' likelihood of success in this matter. Plaintiffs maintain that Michigan's scheme for suspending driver's licenses is an extraordinary collection effort that violates the Equal Protection Clause. Relying on the Supreme Court's decision in Strange, 407 U.S. 128, Plaintiffs argue that the scheme violates the Equal Protection Clause's guarantee that an individual will not be treated differently as debtors to the state than they would be treated as civil debtors, and that individuals are able to afford basic necessities and to make a living. In Strange, the Supreme Court held that a Kansas statute violated the Equal Protection Clause because it permitted the State to recoup court-appointed attorney fees from indigent criminal defendants without permitting them to raise any of the defenses available to other civil judgment debtors including certain protections from wage garnishment. The Supreme Court later clarified that the issue with the statute in Strange was its provision that in an action to compel repayment of counsel fees in one of the exemptions provided for in the code of civil procedure (for collection of other judgment debts) shall apply to any such judgment. Fuller v. Oregon, 417 U.S. 40, 47 (1974) (quoting Strange, 407 U.S. at 135). Strange holds that the Fourteenth Amendment precludes the government from subjecting government debtors to unduly harsh treatment when compared to those individuals indebted to private creditors. The Michigan statutes at issue here, like Oregon's recoupment statute challenged in Fuller, do not expressly eliminate any exemptions normally available to judgment creditors with respect to the collection of a government debt. Plaintiffs fail to demonstrate a likelihood of success on their claim that Michigan's scheme for suspending driver's licenses is an extraordinary collection effort that violates the Equal Protection Clause. Lastly, Plaintiffs assert that Defendant violated their procedural due process rights by suspending their driver's licenses without first affording them an "ability-to-pay hearing. Plaintiffs challenge the content of the hearing afforded, whether it considers their ability to pay) and the timing of the hearing, whether it occurs before their license is suspended). The Supreme Court has recognized that suspension of a driver's license for statutorily defined cause implicates a protectable property interest" subject to due process protection. Mackey v. Montrym, 443 U.S. 1, 10 (1979); Bell v. Burson, 402 U.S. at 539, licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment. There is unquestionable value to an ability-to-pay hearing prior to the revocation of an individual's license. The State's interests in encouraging Michigan drivers to pay their traffic debt and to respond to traffic citations are actually harmed by the absence of such a hearing. Taking away an individual's license to drive particularly in a state lacking an efficient and extensive public transportation system, such as Michigan deprives the individual of the means to earn the money needed to pay their traffic debt. Affording individuals an opportunity at a pre-revocation hearing to request alternatives to paying their traffic debt in full would provide an incentive for them to appear in court in response to traffic citations. It likely would also increase the chance of the State recouping the debt. Finally, instituting a mechanism whereby an individual's ability to pay his or her traffic debt is considered early in the process will eliminate fiscal and administrative burdens imposed on the State under the current scheme when that individual unwillingly fails to pay that debt. The Court concludes that Plaintiffs demonstrate a likelihood of success on their claim that Michigan's scheme for suspending driver's licenses violates procedural due process. The remaining factors governing a request for preliminary injunction weigh in favor of granting Plaintiffs relief. The Court agrees with Defendant that Ms. Fowler would not benefit from the requested preliminary injunction because she was not subjected to the challenged driver's license revocation scheme. Nevertheless, Defendant did suspend Ms. Harris' license pursuant to the challenged law. Plaintiffs establish not only the substantial and irreparable harm to Ms. Harris normally accompanying an unconstitutional deprivation, but imminent and irreparable consequences to her of not being able to drive. Defendant's revocation of Ms. Harris' license interferes with her ability to obtain regular needed medical care. Plaintiffs also show that the loss of a driver's license in Michigan makes it difficult for individuals to find and retain employment. A full-text copy of the District Court's December 14, 2017 Opinion and Order is available at https://tinyurl.com/ycaspepl from Leagle.com. Adrian Fowler, Plaintiff, represented by Anthony D. Paris -- tparis@sugarlaw.com -- Maurice and Jane Sugar Law Center Adrian Fowler, Plaintiff, represented by Catherine B. Sevcenko -- catherine@equaljusticeunderlaw.org -- Equal Justice Under Law, John C. Philo -- jphilo@sugarlaw.org -- Sugar Law Center, Rebecca R. Ramaswamy, Equal Justice Under Law, 400 7th Street, Ste. 602 Washington, DC 20004 & Phil Telfeyan -- ptelfeyan@equaljusticeunderlaw.org -- Equal Justice Under Law. Kitia Harris, Plaintiff, represented by Anthony D. Paris, Maurice and Jane Sugar Law Center, Catherine B. Sevcenko, Equal Justice Under Law, John C. Philo, Sugar Law Center, Rebecca R. Ramaswamy, Equal Justice Under Law & Phil Telfeyan, Equal Justice Under Law. Ruth Johnson, Defendant, represented by John G. Fedynsky -- FedynskyJ@michigan.gov -- State of Michigan Attorney General's Office. MINNESOTA: Court Affirms Discovery Order in "Murphy" ---------------------------------------------------- The United States District Court for the District of Minnesota issued an Order affirming the Order and Opinion of the Magistrate Judge on Plaintiffs' Motion to Compel Regarding Temporal Scope and Terms for Searching Electronically Stored Information (ESI) in the case captioned Tenner Murphy, by his guardians Kay and Richard Murphy; Marrie Bottelson; Dionne Swanson; and on behalf of others similarly situated, Plaintiffs, v. Emily Johnson Piper in her Capacity as Commissioner of the Minnesota Department of Human Services, Defendant, Civil No. 16-2623 (DWF/BRT) (D. Minn.). This matter is before the Court upon Defendant's appeal of Magistrate Judge Becky R. Thorson's October 4, 2017 Order and Opinion on Plaintiffs' Motion to Compel Regarding Temporal Scope and Terms for Searching Electronically Stored Information (ESI) (Order). The Court must modify or set aside any portion of the Magistrate Judge's order found to be clearly erroneous or contrary to law. A magistrate judge's ruling is contrary to law when it either fails to apply or misapplies pertinent statutes, case law or rules of procedure. Magistrate Judge Thorson addressed disputes between Plaintiffs and Defendant regarding (1) search terms for conducting electronic discovery and (2) the temporal scope applicable to particular discovery requests. Defendant objects to the Order as it relates to both issues, and Plaintiffs argue that Defendant has not met her burden to prevail on these objections. First, Magistrate Judge Thorson considered the proper search terms to be applied to Plaintiffs' discovery requests. The Magistrate Judge considered Defendant's argument that utilizing Plaintiffs' search terms would result in an undue burden but determined that Defendant had not met her burden to preclude discovery on this basis. Defendant argues that the Magistrate Judge's Order is contrary to law because she failed to adequately analyze proportionality and relevance with respect to the search terms dispute. Plaintiffs assert that the Magistrate Judge properly determined that Plaintiffs' search terms should be utilized in light of the relevance of the proposed terms and the corresponding burden to Defendant. Second, Magistrate Judge Thorson evaluated the appropriate temporal scope pertaining to Plaintiffs' written discovery requests. The Magistrate Judge was persuaded that Plaintiffs' temporal limits are appropriate because the requested discovery was both relevant and proportional. Defendant argues that the Magistrate Judge's Order is contrary to law because the Magistrate Judge did not conduct an adequate inquiry into whether Plaintiffs met their burden to establish relevance. Plaintiffs argue that the Magistrate Judge correctly determined that Plaintiffs' proposed time frame for discovery was relevant and proportional and properly concluded that Defendant had not established that the imposition of this time frame was irrelevant or would impose an undue burden. In light of these governing standards and for the reasons outlined below, the Court concludes that Magistrate Judge Thorson's Order is neither clearly erroneous nor contrary to law with respect to both search terms and the temporal scope of discovery. The Court concludes that the Magistrate Judge's Order is not clearly erroneous or contrary to law with respect to the parties' search terms dispute. The Court reaches this conclusion in light of the demonstrated relevance of each of Plaintiffs' proposed search terms and Defendant's failure to adequately support her claimed burden in utilizing those search terms. The Court agrees with Magistrate Judge Thorson that Plaintiffs have adequately demonstrated that this temporal scope is relevant. In 2009, the state imposed a moratorium on the development of new corporate foster care facilities. In Plaintiffs' Amended Complaint, Plaintiffs identify this event as relevant to their claims and suggest that Defendants have known, since at least 2009, that individuals receiving Disability Waiver services need access to individualized housing as an alternative to Community Residential Setting (CRS) facilities. Plaintiffs have explained why evidence from the time period following this event until the present is relevant. In particular, such evidence is relevant to support Plaintiffs' claim that more integrated alternatives to CRS facilities are feasible and to oppose Defendant's contention that Plaintiffs' requested relief would constitute a fundamental alteration to the State's Disability Waiver services system. Defendant has not demonstrated that such information is not relevant and has failed to establish that responding to discovery within this temporal scope would be an undue burden. A full-text copy of the District Court's December 14, 2017 Order is available at https://tinyurl.com/y7j8z45a from Leagle.com. Tenner Murphy, by his guardians Kay and Richard Murphy and on behalf of others similarly situated, Plaintiff, represented by Christen Leigh Chapman -- cchapman@mylegalaid.org -- Mid- Minnesota Legal Aid Minnesota Disability Law Center. Tenner Murphy, by his guardians Kay and Richard Murphy and on behalf of others similarly situated, Plaintiff, represented by Joseph W. Anthony -- janthony@anthonyostland.com -- Anthony Ostlund Baer & Louwagie PA, Justin H. Perl -- jperl@mylegalaid.org -- Mid-Minnesota Legal Aid, Peter McElligott -- pmcelligott@anthonyostland.com -- Anthony Ostlund Baer & Louwagie PA, Sean B. Burke, Mid-Minnesota Legal Aid, 430 1st Avenue N, Suite 300, Minneapolis MN 55401-1780 & Steven M. Pincus -- spincus@anthonyostland -- Anthony Ostlund Baer & Louwagie PA. Marrie Bottelson, and on behalf of others similarly situated, Plaintiff, represented by Christen Leigh Chapman, Mid-Minnesota Legal Aid Minnesota Disability Law Center, Joseph W. Anthony, Anthony Ostlund Baer & Louwagie PA, Justin H. Perl, Mid-Minnesota Legal Aid, Peter McElligott, Anthony Ostlund Baer & Louwagie PA, Sean B. Burke, Mid-Minnesota Legal Aid & Steven M. Pincus, Anthony Ostlund Baer & Louwagie PA. Dionne Swanson, and on behalf of others similarly situated, Plaintiff, represented by Christen Leigh Chapman, Mid-Minnesota Legal Aid Minnesota Disability Law Center, Joseph W. Anthony, Anthony Ostlund Baer & Louwagie PA, Justin H. Perl, Mid-Minnesota Legal Aid, Peter McElligott, Anthony Ostlund Baer & Louwagie PA, Sean B. Burke, Mid-Minnesota Legal Aid &Steven M. Pincus, Anthony Ostlund Baer & Louwagie PA. Emily Johnson Piper, in her Capacity as Commissioner of The Minnesota Department of Human Services, Defendant, represented by Aaron Winter, Minnesota Attorney General's Office, Janine Wetzel Kimble, Minnesota Office of Attorney General & Scott H. Ikeda, Minnesota Attorney General's Office Human Services Division. ARRM, Movant, represented by Pari McGarraugh -- pmcgarraugh@fredlaw.com -- Fredrikson & Byron & Samuel D. Orbovich -- sorbovich@fredlaw.com -- Fredrikson & Byron, PA. MOMENTA PHARMA: Court Allows Amendment to Antitrust Complaint ------------------------------------------------------------- The United States District Court for the Middle District of Tennessee, Nashville Division, issued a Memorandum and Order granting Plaintiff's Motion for Leave to File Amended Complaint in the case captioned THE HOSPITAL AUTHORITY OF METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, d/b/a/ NASHVILLE GENERAL HOSPITAL, v. MOMENTA PHARMACEUTICALS INC. and SANDOZ INC., No. 3:15-1100 (M.D. Tenn.). The complaint involved four separate counts against Defendants Momenta Pharmaceuticals Inc. and Sandoz Inc. under the Sherman Act, which included allegations of implementation of unreasonable restraints on trade, monopolization, a conspiracy to monopolize, and attempts to monopolize. The alleged Sherman Act violations centered on the role of Momenta and Sandoz in producing and distributing enoxaparin, a generic version of the drug Lovenox(R). The complaint was filed on behalf of both Plaintiff and a nationwide class of persons and entities, pursuant to Fed. R. Civ. P. 23(a) and (b), that purchased enoxaparin from Defendants or non-party Sanofi-Aventis who brought Lovenox(R) to market in the United States. Defendants contend that the addition of DC 37 as a plaintiff to the instant lawsuit would be futile because the Court lacks personal jurisdiction with respect to any claims that could be asserted by DC 37. The Court finds that permitting Plaintiff to modify its proposed amended complaint to identify the unjust enrichment claims by state, rather than denying amendment at all, is the most consistent with Fed. R. Civ. P. 15. Despite Defendants' correct observation that the Fifth Amendment limits a court's ability to exercise jurisdiction over a non- resident defendant, the Court takes its cue from the Iron Workers, Iron Workers, 23 F. Supp. 2d at 805-06, decision in finding that such a nucleus of pertinent facts in common with the pending federal claim exists in this matter. The Supreme Court has yet to address the scope of due process protection under the Fifth Amendment in the jurisdictional context. Since the Sixth Circuit also has yet to address this precise issue, the Court will follow the view that Fifth Amendment due process is satisfied when the defendant in question resides in the United States and a statute provides for nationwide service of process. Because the Court has personal jurisdiction over the defendants under the antitrust claims, and because the state law claims alleging a conspiracy to sell and market tobacco derive from a common nucleus of operative facts with the federal claims, the Court need not reach the question of whether personal jurisdiction with respect to the state law claims is otherwise available. Accordingly, the Court finds that it has jurisdiction over Defendants as to both the federal and state law claims contained in the Amended Complaint. There is at least a substantial argument to be made as to jurisdiction, and the Court therefore declines to find futility on this ground. A full-text copy of the District Court's December 14, 2017 Memorandum and Order is available at https://tinyurl.com/y7sx5dd5 from Leagle.com. The Hospital Authority of Metropolitan Government of Nashville and Davidson County, Tennessee, doing business as Nashville General Hospital, Plaintiff, represented by Brendan P. Glackin -- bglackin@lchb.com -- Lieff, Cabraser, Heimann & Bernstein, LLP. The Hospital Authority of Metropolitan Government of Nashville and Davidson County, Tennessee, doing business as Nashville General Hospital, Plaintiff, represented by Bruce W. Leppla -- bleppla@lchb.com -- Lieff, Cabraser, Heimann & Bernstein, LLP, Dean M. Harvey -- dharvey@lchb.com -- Lieff, Cabraser, Heimann & Bernstein, LLP, John Tate Spragens -- jspragens@lchb.com -- Lieff, Cabraser, Heimann & Bernstein, LLP, Katherine C. Lubin - klubin@lchb.com -- Lieff, Cabraser, Heimann & Bernstein, LLP & Mark P. Chalos -- mchalos@lchb.com -- Lieff, Cabraser, Heimann & Bernstein, LLP. Momenta Pharmaceuticals Inc., Defendant, represented by Bradley D. Justus -- bjustus@axinn.com -- Axinn, Veltrop & Harkrider, LLP, Daniel K. Oakes -- doakes@axinn.com -- Axinn, Veltrop & Harkrider, LLP, Jason T. Murata -- jmurata@axinn.com --, Axinn, Veltrop & Harkrider, LLP, Jeremy Lowe -- jlowe@axinn.com -- Axinn, Veltrop & Harkrider, LLP, Michael L. Keeley -- mkeeley@axinn.com -- Axinn, Veltrop & Harkrider, LLP, Richard B. Dagen -- rdagen@axinn.com -- Axinn, Veltrop & Harkrider, LLP, Robert Dale Grimes -- dgrimes@bassberry.com -- Bass, Berry & Sims, Thomas Rohback -- trohback@axinn.com -- Axinn, Veltrop & Harkrider, LLP & Virginia M. Yetter, Bass, Berry & Sims. Sandoz Inc., Defendant, represented by Andrew Hatchett -- andrew.hatchett@alston.com -- Alston & Bird LLP, Liz Broadway Brown -- liz.brown@alston.com -- Alston & Bird LLP, Matthew Kent -- matthew.kent@alston.com -- Alston & Bird LLP, Michael P. Kenny -- mike.kenny@alston.com -- Alston & Bird LLP, Teresa T. Bonder - - teresa.bonder@alston.com -- Alston & Bird LLP & Timothy L. Warnock -- twarnock@rwjplc.com -- Riley, Warnock & Jacobson. MONTEREY FIN'L: Court Won't Take Back Bid to Dismiss "Brinkley" --------------------------------------------------------------- The United States District Court for Southern District of California issued an Order denying parties' request that the Court take the Defendants' Motion to Dismiss and Motion for Judgment on the Pleadings back under submission in the case captioned TIFFANY BRINKLEY, on behalf of herself and others similarly situated, Plaintiff, v. MONTEREY FINANCIAL SERVICES INC.; DOE No. 1. MONTEREY FINANCIAL SERVICES, LCC; and DOES 1 through 100 inclusive; Defendants, Case No. 16-cv-1103-WQH-WVG (S.D. Cal.). Plaintiff commenced the action in the Superior Court of the State of California for the County of San Diego by filing a Complaint. Defendant Monterey Financial Services Inc. and Defendant Monterey Financial Services, LLC, removed the action to the District Court pursuant to the Class Action Fairness Act (CAFA). The Court denies the parties' request that the Court take the Defendants' Motion to Dismiss and Motion for Judgment on the Pleadings back under submission. Any motions that the parties elect to file must be filed in accordance with the Southern District of California's Local Rules and the Court's Chamber Rules. A full-text copy of the District Court's December 14, 2017 Order is available at https://tinyurl.com/ybzfxsr4 from Leagle.com. Tiffany Brinkley, on behalf of herself and others similarly situated, Plaintiff, represented by Christina E. Wickman -- christina@wickmanlaw.com -- Wickman & Wickman, Attorneys at Law. Tiffany Brinkley, on behalf of herself and others similarly situated, Plaintiff, represented by Patrick N. Keegan -- pkeegan@keeganbaker.com -- Keegan & Baker, LLP & Steven Allen Wickman -- steve@wickmanlaw.com -- Wickman and Wickman. Monterey Financial Services INC., Defendant, represented by Matthew Orr -- MORR@CALLJENSEN.COM -- Call & Jensen APC & William Paul Cole -- WCOLE@CALLJENSEN.COM -- Call & Jensen APC. DOE No. 1 Monterey Financial Services, LLC, Defendant, represented by Matthew Orr, Call & Jensen APC & William Paul Cole, Call & Jensen APC. MORRIS COLLEGE: Responds to Students' Class Action Over Mold Risk ----------------------------------------------------------------- Bruce Mills, writing for the SumterITEM, reports that in its answer to the complaint filed against it by current and former students for health issues related to mold infestation in the student dormitories, Morris College said the students assumed that risk while living in the campus facilities. The college's answer came on Dec. 14, within the 30-day window after a litigation attorney filed a class-action suit on behalf of five current and former students on Nov. 15 that was served to the college the next day. Attorney David Weeks of Weeks Law Office LLC, of Sumter, filed the answer for the college. A Morris College alumnus, Weeks has also been a member of the state House of Representatives for Sumter since 2000. Weeks is now the lead attorney for the college, which is the defendant, in the case. Attorney John Harrell of Harrell Law Firm PA in Charleston is representing the students in the case. The five plaintiffs -- Teanna Caswell, Maya Robinson, Kiesha Robinson, Myrcle Fleming and Kianna Joint -- were or are current residents in student housing on the Morris campus, 100 W. College St. In a new development in the case, Mr. Harrell's firm said on Dec. 21 that when the college provided its answer to the complaint on Dec. 14, it also filed a motion to quash -- or stop -- a subpoena letter filed by Harrell to allow his firm to send a mold specialist onto the campus to inspect for mold early in December. Now, that subpoena will not be heard by a judge until Jan. 3, when an initial hearing in the case takes place. Efforts to reach Mr. Weeks for comment were not successful. In the college's answer to the complaint, Morris also said the college never received any notification by students of mold problems on campus. In another defense, the college said since some plaintiffs allege in their complaint that they became aware of the alleged hazardous condition on or about 2013, the complaint violates a three-year statute of limitations to raise the complaint. [GN] MURRAY GOULBURN: Milk Price Class Action May Hamper Sale Bid ------------------------------------------------------------ Peter Hemphill, writing for The Weekly Times, reports that it has been an annus horribilis for Murray Goulburn and the first few months of 2018 possibly hold further embarrassment. The announcement of clawback in the farmgate milk price for 2015- 16 led to a crash in the price of listed units and the bleeding of milk as dairy farmers left the dairy co-operative. The debacle has prompted a class action by holders of the listed units, many of whom saw their investment slashed to a third of its value. On October 27, MG announced it had entered into an agreement to essentially sell the company to Canadian dairy giant Saputo for $1.31 billion. MG spurned higher bids for the business as well as a proposal by Fonterra to merge its Australian operations to form a super co- op. Spurning the higher bids may come back to haunt the dairy co-op. MG will be keen to settle the class action as soon as possible for fear litigants will block a meeting called to vote on the Saputo deal. Whether the $220 million kept aside by MG is enough to cover the class action payout plus legal fees and costs to wind up the company may become a pivotal point. If it goes to court, legal fees will erode the returns to shareholders and unit holders. It will be cheaper to settle out of court and there are three precedents for guidance on payouts: the Multiplex class action in 2006, the Centro result of 2008 and Oz Minerals in 2009. In Multiplex's case, the estimated shareholder loss was $177 million but they settled for $100 million, or 62 cents in the dollar. Shareholders in Centro lost about $1 billion, and were paid $200 million, or 20 cents in the dollar. In the case of Oz Minerals, the shareholders' estimated losses were $250 million. They settled for $60 million, or 32 cents in the dollar. The simple average of these settlements is 38 cents in the dollar. With claims of losses of about $1.20 a unit for MG, this would amount to about $246 million, given there are 205 million units issued. A 38 cents in the dollar payout would mean MG coughs up about $93 million. But if it was as high as 62 cents in the dollar -- as was the case with Multiplex -- the payout is $152 million. It is unlikely all unit holders lost as much as $1.20 in the collapse in the unit price and equally unlikely all unit holders will participate in the class action, so the payout by MG could be less than $152 million or even $93 million. That means unit holders and shareholders are likely to receive more than the estimated 75 cents return on investment indicated by MG based on the Saputo deal. The return to unit holders and shareholders is likely to have a bearing on any vote on the Saputo deal, particularly since a syndicate of rival bidders has indicated a guarantee of $1 a unit or share when they cast their bid, expected in the coming weeks. There are a few more moves to be made in this chess game. [GN] MORRIS COLLEGE: Responds to Students' Class Action Over Mold Risk ----------------------------------------------------------------- Bruce Mills, writing for the SumterITEM, reports that in its answer to the complaint filed against it by current and former students for health issues related to mold infestation in the student dormitories, Morris College said the students assumed that risk while living in the campus facilities. The college's answer came on Dec. 14, within the 30-day window after a litigation attorney filed a class-action suit on behalf of five current and former students on Nov. 15 that was served to the college the next day. Attorney David Weeks of Weeks Law Office LLC, of Sumter, filed the answer for the college. A Morris College alumnus, Weeks has also been a member of the state House of Representatives for Sumter since 2000. Weeks is now the lead attorney for the college, which is the defendant, in the case. Attorney John Harrell of Harrell Law Firm PA in Charleston is representing the students in the case. The five plaintiffs -- Teanna Caswell, Maya Robinson, Kiesha Robinson, Myrcle Fleming and Kianna Joint -- were or are current residents in student housing on the Morris campus, 100 W. College St. In a new development in the case, Mr. Harrell's firm said on Dec. 21 that when the college provided its answer to the complaint on Dec. 14, it also filed a motion to quash -- or stop -- a subpoena letter filed by Harrell to allow his firm to send a mold specialist onto the campus to inspect for mold early in December. Now, that subpoena will not be heard by a judge until Jan. 3, when an initial hearing in the case takes place. Efforts to reach Mr. Weeks for comment were not successful. In the college's answer to the complaint, Morris also said the college never received any notification by students of mold problems on campus. In another defense, the college said since some plaintiffs allege in their complaint that they became aware of the alleged hazardous condition on or about 2013, the complaint violates a three-year statute of limitations to raise the complaint. [GN] NATIONWIDE ENERGY: Class Action Over Submetering Woes Pending ------------------------------------------------------------- Dan Gearino, writing for The Columbus Dispatch, reports that four years after The Dispatch put a spotlight on companies that mark up the costs of electricity and water in apartments and condominiums, nearly every aspect of this business model remains legal. Some consumers say they feel betrayed by state policymakers who have done little or nothing. Many other consumers have little or no idea what is happening. "Whatever I do, I get slapped in the face," said Frank Clager, 75, who gets electricity at his Far North Side condominium from one of the utility middlemen. But there was one notable change in 2017 that is helping the more than 28,000 customers served by these companies. The Public Utilities Commission of Ohio ruled in June that utility resellers -- often called "submeter" companies -- can charge no more for electricity than a household would otherwise pay to a regulated utility, with some exceptions. Almost immediately after the PUCO action, customers served by American Power & Light saw several charges vanish from their bills, a monthly savings of about $10 to $18, based on bills reviewed for this story. American Power declined to comment. Another prominent submeter company, Nationwide Energy Partners, did not need to change its pricing because its practices already were in line with the PUCO order. And yet, consumer advocates and officials for regulated utilities say the commission didn't go far enough. American Electric Power, the Columbus-based regulated utility, calls these companies "imitation utilities" whose names are designed to confuse customers and whose practices would be illegal in most states. "Our call center gets calls all the time from (American Power & Light) customers because they think it's us," said Marc Reitter, vice president for regulation and finance at AEP Ohio. "When we tell them that's a different company, they don't understand." Among the concerns: -- Submeter customers do not have the option to shop for an alternative supplier for electricity; in contrast, customers of the regulated utility can shop for other suppliers and might save money by doing so. "I don't think it's fair what's happening to the residents here that they don't have options," said Ralph Cantore, 27, a resident of Olentangy Commons on the Northwest Side. He is one of the lead plaintiffs in a proposed class-action lawsuit against Nationwide Energy that was filed by Mark Whitt, a Columbus attorney, and others. -- Though submeter customers cannot shop, submeter companies can use the shopping system to get lower prices for themselves. Apartment-complex owners sometimes get a cut of the savings, with no requirement that they pass some on to customers. This is galling to consumers such as Cantore, whose property owner, Crawford Hoying, splits the savings 50-50 with the submeter company, according to a 2010 contract made public in the lawsuit. Crawford Hoying declined to comment. -- Regulated utilities must meet state standards for quality and reliability of service; submeter companies have no such rules. Araceli Vences, who lives in the Dublin area, complained to the Ohio attorney general's office because of a long wait for her submeter company to fix an outage. "That company is all about themselves, not the consumer," she said. -- The PUCO order does not address markups on water service for consumers who otherwise would be served by city-run utilities. This leaves out the many customers in the central Ohio territory of Columbus' city water service. -- Submeter customers are ineligible for low-income utility- assistance programs such as PIPP Plus, even though the customers pay rates that include the charge that finances the programs. In Franklin County, low-income aid is administered by Impact Community Action, and officials there say they often are in the difficult position of telling customers they are ineligible. "Unfortunately, there is nothing we can do," said Latisha Chastang, the agency's director of emergency assistance. "It's actually pretty frequent, especially during the winter months. We find it to be an ongoing issue." Customers unaware Almost everything about this situation should be an embarrassment to elected officials and regulators who continue to let it happen, said Rep. Mike Duffey, R-Worthington. He has sponsored several bills that seek to rein in the practices; none of those bills has gotten far in the legislature. "People should be completely outraged," he said. But there is little evidence that a large number of consumers are upset. For example, the PUCO has logged just 63 complaints and inquiries about submetering since June, according to records from the office's call center. The underlying problem is that people don't understand what's happening because of the complexity of utility rates, said Joe Maskovyak, fair-housing coordinator for the Coalition on Homelessness and Housing in Ohio. "The consumer, for one, has to figure out they're getting screwed," he said. Several consumers interviewed for this story say their greatest frustration is that they don't fully understand what is happening. "I think it would be nice if everything were clear," said Charlie Michaels, a condominium owner on the Far North Side. Nationwide Energy and American Power are the two largest companies that use this model of utility markups. The two serve a combined 28,306 households in AEP's Ohio territory, most of which are in central Ohio, according to AEP. Nationwide Energy, with offices in the Arena District, is the larger of the two, with 17,539 households; American Power, with offices in Westerville, has 10,767 households. Each company shares ownership with prominent developers of multi- family housing and serves the units developed by the related companies, along with unrelated clients. Nationwide Energy is owned by the people who also own Lifestyle Communities, and American Power is owned by the people who also own Ardent Communities and Village Communities. Tenants say the connection between the developers and submeter companies is not clearly disclosed. 'Imitation utilities' AEP officials say it is inexcusable that the problems with submetering have been widely known for years, yet little substantive action has been taken. "They skirt the very rules that we as regulated utilities have to play by," Mr. Reitter of AEP Ohio said. He repeatedly uses the term "imitation utility" to describe companies such as American Power and Nationwide Energy because he thinks "submeter company" is an inaccurate way to describe these businesses. A traditional submeter business model has been around for decades; under it, companies essentially are a billing service that charges a few dollars for each bill. In contrast, American Power, Nationwide Energy and others rely on markups on the cost of electricity and water. How much is the markup? The companies won't say, but the nonpartisan Ohio Legislative Service Commission analyzed the differences in costs based on publicly available data and found a "bulk savings discount" of 25 percent. This example is based on a hypothetical 350-unit apartment complex in central Ohio. The commission says it asked Nationwide Energy for information to better illustrate the cost differences, but the company declined to help, other than to provide generalities about its business model that could not be verified. Gary Morsches, Nationwide Energy's CEO, says criticism of his company is baseless. He calls out Whitt, the attorney who is working on the proposed class-action lawsuit, and has several complaint cases before the PUCO. "AEP Ohio and utility advocate Mark Whitt are waging a war to restrict property rights and suppress energy-saving innovations that benefit consumers," Mr. Morsches said in an e-mail. "NEP continues to apply, on behalf of its property-owner customers, the same electricity rate as the local host utility residential rate, and at some communities, the rate applied is less." He added, "NEP's services are a gateway to real energy innovation and efficiency in Ohio. We provide property owners the ability to meter for electricity via a smart meter for each separate unit. This network of smart meters creates a smart-metered microgrid, which provides greater flexibility, access to innovations and control over electricity generation and use." Lacking consensus The Dispatch's 2013 report mainly looked at how submeter bills compared with regulated prices for households, and it found that consumers were paying 5 percent to 40 percent more for service. The comparison was straightforward, using copies of bills and looking at what the regulated price would be for the same usage. The bulk-buying discounts spotlighted by the Legislative Service Commission are at the wholesale level and invisible to consumers. As lawmakers and regulators look at the markups, their focus has been on the simple comparison of customer bills, with almost no scrutiny of the underlying business model. The PUCO opened its investigation in 2015. The result was the June ruling that submeter companies can charge no more than a customer would pay to the regulated utility, with exceptions. Those exceptions include charges for electricity in common areas such as hallways, and a broader exception that allows occasional price gaps. Nationwide Energy had phased out its extra charges on bills over the previous few years, so the company did not have to change its practices as a result of the PUCO order. It was a different story for American Power. Based on dozens of bills reviewed by The Dispatch, customers were paying a monthly fee of $10 to $11 that was listed as "distribution recovery," plus a separate charge of $6.75 listed as "service charge." These charges were in addition to a base rate that was the same as the regulated price for a household. After the PUCO order, American Power immediately halted the two charges. This adds up to an annual savings of about $200 per housing unit for the bills examined. If these bills are representative of the company's full customer base, the overall savings is $1 million to $2 million. "We are well aware . . . that this is not a full and complete fix of the submetering issue," PUCO Chairman Asim Haque said in a recent interview. "For a full and complete fix, we would need some guidance from the General Assembly." In other words, he thinks the PUCO has done as much as is allowed under state law. "We tried to take care of, from a policy perspective, the primary issue, which was price gouging," Mr. Haque said. Mr. Duffey, the state legislator, has been one of the harshest critics of the PUCO action, which he describes as "just window- dressing" because it does not address the underlying business model. He also worries that the General Assembly will ultimately pass something that appears to be consumer-friendly but has the effect of codifying harmful practices. For example, he is leery of any proposal that would include a ban on local governments making their own rules governing submetering. Brad Miller, a spokesman for House Speaker Cliff Rosenberger, R- Clarksville, had this statement: "As the debate over submetering in recent years has illustrated, there has not been a consensus opinion on what, if anything, should be done legislatively," he said. "However, we do recognize the helpful steps that PUCO has taken to establish some standards for the industry, as well as companies like NEP that are changing its business practices to consumers' benefit at the behest of property owners." Two bills on the subject are pending, but there is little evidence that either has a chance of passing. Meanwhile, the PUCO is still considering whether to revise any aspects of its June decision, which is a normal part of the process on a major case. The commission also is reviewing a complaint case from a consumer advocate, the Office of the Ohio Consumers' Counsel, that is seeking more protections for submeter customers in AEP territory. In the background, the proposed class-action lawsuit remains active, with no indication of its likelihood of success. Taken together, all this means there is a chance that consumers will see changes, but also a strong possibility that nothing will be different this year. [GN] NEW LONDON, CT: Thames River Tenants Await Housing Vouchers ----------------------------------------------------------- Greg Smith, writing for The Day, reports that Jeanne Ward is fed up and disgusted. A "tsunami" of an overflowing toilet that left most of her possessions wet just days before Christmas will do that. The mother of four, who is head of a tenant group at the soon-to- be-vacant Thames River Apartments, was displaced from her Crystal Avenue unit on Dec. 22 because of an overflowing toilet that left several inches of water on its floors. It's the latest problem at the federally subsidized housing complex for low-income families that was deemed obsolete by the federal Department of Housing and Urban Development. Tenants, who years ago joined for a class-action lawsuit to fight the unsafe and unsanitary conditions there, are awaiting the arrival of mobile housing vouchers that provide a deep subsidy to allow them to live at privately owned apartments of their choice. Ms. Ward is expected to be among the first tenants to receive a housing voucher, which were made available after the Housing Authority's so-called disposition application to HUD was approved earlier in 2017. HUD essentially agreed that the cost of renovating the long-troubled complex was not worth the trouble. Housing Authority Executive Director Lee Erdmann said the move out of the complex will start sometime in the new year, as tenants identify their apartments of choice, and the Glendower Group, which was contracted by the Housing Authority to aid the move, confirms and inspects the new living arrangements. The first group of housing vouchers was expected to be distributed on Dec. 29. There are 349 people living at the Thames River Apartments. Mr. Erdmann said the goal is to have everyone out by June 30 or sooner. Ms. Ward said she has identified a new home and the move can't come soon enough. "People are ready to get out of here. There are children who need a safe environment. This complex should never have been. It's sad that it took so many years for them to do something about it," she said. Ms. Ward said the toilet issue is related to the plumbing and not something of her own doing and is symptomatic of the larger issues at the complex. Ms. Ward's toilet problems started Dec. 19, but her calls to maintenance crews were unanswered and escalated into a full-blown emergency by Dec. 22, she said. The posted photos and calls for action on social media caught the attention of both Betsy Gibson, chairwoman of the New London Housing Authority board of commissioners, and Mayor Michael Passero. Both showed up at her apartment to inspect the damage on Dec. 22. Maintenance crews also arrived at that time and claim the first message they had received about the problem was that day. Either way, both Ms. Ward and Ms. Gibson said the response from Housing Authority staff in several respects was unacceptable. Ms. Ward initially was given $20 to use the laundry machine to wash her blankets. At Ms. Gibson's urging, the Housing Authority later delivered a $100 Walmart gift card. Meanwhile, Ward said she was forced to throw out a number of possessions, including her daughter's mattress, which was on the floor. And instead of a hotel room and a comfortable place to spend the holidays, Ms. Ward was moved to a smaller apartment in the same building and provided with five Red Cross-style cots. Ms. Ward spent Christmas with family but said she and her kids spent the night at the homes of different family members or friends to avoid going back to the high-rise. "This is an insult. As far as the New London Housing Authority, I have no words," Ms. Ward said. "To sum it up would be disgust. It's inhumane, terrible. Sad. How do you go to sleep at night with a clear conscience? Basically, I feel like I'm homeless." Ms. Gibson said she is disappointed in the response and angered by what appeared to be a lack of compassion by the staff. "I'm furious this is how we treat our residents in a crisis situation," she said. Ms. Gibson said Ms. Ward always has been an outspoken critic of the conditions at Thames River and hoped that the lack of response to her plumbing issue was not some sort of retaliation. The board of commissioners is exploring the possibility of hiring an outside firm to take over Housing Authority operations. Mr. Erdmann, the authority director, said he is trying to pin down why staff never received Ms. Ward's earlier messages. He said problems with the phones system may be to blame. Mr. Erdmann said he intends to find out whether Ms. Ward wants to move back to her three-bedroom apartment and will have crews start the necessary repairs if that is the case. [GN] NEW SOURCE: Court OKs $2.85MM Settlement in Shareholders' Suit -------------------------------------------------------------- The United States District Court for the Southern District of New York issued an Opinion and Order granting Plaintiffs' Motion for Approval of Class Action Settlement and Award of Attorney's Fees in the case captioned ENRICO VACCARO, F. GREGORY DENEEN, and WILLIAM SLATER, on behalf of themselves and all others similarly situated, Plaintiffs, v. NEW SOURCE ENERGY PARTNERS L.P., KRISTIAN B. KOS, TERRY L. TOOLE, DIKRAN TOURIAN, RICHARD D. FINLEY, V. BRUCE THOMPSON, JOHN A. RABER, STIFEL, NICOLAUS & COMPANY INC., ROBERY W. BAIRD & CO. INC., JANNEY MONTGOMERY SCOTT LLC, OPPENHEIMER & CO. INC., AND WUNDERLICH SECURITIES INC., Defendants, Class Action No. 15 CV 8954 (KMW) (S.D.N.Y.). Plaintiffs filed the lawsuit in connection with an offering of $40 million worth of Series A Preferred Units from New Source Energy Partners, L.P. Plaintiffs sued New Source, along with certain individuals who were officers or directors of New Source at the time of the Offering (Individual Defendants), and certain firms that were underwriters to New Source in connection with the Offering (Underwriter Defendants). Plaintiffs allege that Defendants made materially false and misleading statements in various financial reports including by allegedly failing to disclose issues regarding the incompetency, fraudulent conduct, and unreliability of New Source's contract operator, resulting in millions of dollars in damages and curtailed efforts to drill new oil wells. The Court preliminarily certified a Class (Settlement Class) as follows: All Persons (including, without limitation, their beneficiaries) who purchased Series A Preferred Units of New Source pursuant and/or traceable to its May 5, 2015 public offering prior to the commencement of this action on October 21, 2015. Co-Lead Counsel request a fee award of $950,000, representing 33.33% (1/3) of the $2,850,000 settlement fund. Co-Lead Counsel also request (i) reimbursement of litigation expenses in the amount of $28,300.84, and (ii) reimbursement of litigation costs for each of the three Lead Plaintiffs, in the total amount of $15,000 ($5,000 for each Lead Plaintiff). Under the percentage method, the fee is calculated simply as a percentage of the recovery. Under the lodestar method, the court determines the lodestar that is, the number of hours reasonably expended on the case multiplied by the appropriate hourly rates based on submissions from counsel regarding the work they performed. This lodestar is then adjusted, usually upward (by a multiplier), to arrive at the appropriate fee award for the case. Lead Counsel requests $950,000, or 33.33% of the Settlement Fund of $2.85 million. This percentage is within the range of what is reasonably granted in this Circuit. A full-text copy of the District Court's December 14, 2017 Opinion and Order is available at https://tinyurl.com/yb385sjt from Leagle.com. Enrico Vaccaro, on behalf of himself and all other similarly situated, Lead Plaintiff, represented by Peter Currier Harrar -- harrar@whafh.com -- Wolf Haldenstein Adler Freeman & Herz LLP. Enrico Vaccaro, on behalf of himself and all other similarly situated, Lead Plaintiff, represented by Phillip C. Kim -- pkim@rosenlegal.com -- The Rosen Law Firm P.A. & Yu Shi -- yshi@rosenlegal.com -- The Rosen Law Firm. P.A.. F. Gregory Deneen, Lead Plaintiff, represented by Phillip C. Kim, The Rosen Law Firm P.A., Yu Shi, The Rosen Law Firm. P.A. & Peter Currier Harrar, Wolf Haldenstein Adler Freeman & Herz LLP. William Slater, Lead Plaintiff, represented by Phillip C. Kim, The Rosen Law Firm P.A., Yu Shi, The Rosen Law Firm. P.A. & Peter Currier Harrar, Wolf Haldenstein Adler Freeman & Herz LLP. Edwin Bailey, Jr., Movant, represented by Lesley Frank Portnoy -- lportnoy@glancylaw.com -- Glancy Prongay & Murray LLP. New Source Energy Partners L.P., Defendant, represented by Marisa Antos-Fallon -- mantos-fallon@velaw.com -- Vinson & Elkins, LLP & Ari M. Berman -- aberman@velaw.com -- Vinson & Elkins L.L.P. Kristian B. Kos, Defendant, represented by Marisa Antos-Fallon, Vinson & Elkins, LLP & Ari M. Berman, Vinson & Elkins L.L.P.. Terry L. Toole, Defendant, represented by Marisa Antos-Fallon, Vinson & Elkins, LLP & Ari M. Berman, Vinson & Elkins L.L.P.. Dikran Tourian, Defendant, represented by Marisa Antos-Fallon, Vinson & Elkins, LLP & Ari M. Berman, Vinson & Elkins L.L.P.. Richard D. Finley, Defendant, represented by Marisa Antos-Fallon, Vinson & Elkins, LLP & Ari M. Berman, Vinson & Elkins L.L.P.. V. Bruce Thompson, Defendant, represented by Marisa Antos-Fallon, Vinson & Elkins, LLP & Ari M. Berman, Vinson & Elkins L.L.P.. John A. Raber, Defendant, represented by Marisa Antos-Fallon, Vinson & Elkins, LLP & Ari M. Berman, Vinson & Elkins L.L.P.. Stifel, Nicolaus & Company Inc., Defendant, represented by Peter B. Morrison -- peter.morrison@skadden.com -- Skadden, Arps, Slate, Meagher & Flom, LLP, Patrick George Rideout -- patrick.rideout@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP, Robert Alexander Fumerton -- robert.fumerton@skadden.com -- Skadden, Arps, Slate,Meagher & Flom LLP & Virginia Faye Milstead -- virginia.milstead@skadden.com -- Skadden, Arps, Slate, Meagher & Flom, LLP. Robert W. Baird & Co. Inc., Defendant, represented by Peter B. Morrison, Skadden, Arps, Slate, Meagher & Flom, LLP, Patrick George Rideout, Skadden, Arps, Slate, Meagher & Flom LLP,Robert Alexander Fumerton, Skadden, Arps, Slate,Meagher & Flom LLP & Virginia Faye Milstead, Skadden, Arps, Slate, Meagher & Flom, LLP. Janney Montgomery Scott LLC, Defendant, represented by Peter B. Morrison, Skadden, Arps, Slate, Meagher & Flom, LLP, Patrick George Rideout, Skadden, Arps, Slate, Meagher & Flom LLP, Robert Alexander Fumerton, Skadden, Arps, Slate,Meagher & Flom LLP & Virginia Faye Milstead, Skadden, Arps, Slate, Meagher & Flom, LLP. Oppenheimer & Co. Inc.,, Defendant, represented by Peter B. Morrison, Skadden, Arps, Slate, Meagher & Flom, LLP, Patrick George Rideout, Skadden, Arps, Slate, Meagher & Flom LLP,Robert Alexander Fumerton, Skadden, Arps, Slate,Meagher & Flom LLP & Virginia Faye Milstead, Skadden, Arps, Slate, Meagher & Flom, LLP. Wunderlich Securities Inc., Defendant, represented by Peter B. Morrison, Skadden, Arps, Slate, Meagher & Flom, LLP, Patrick George Rideout, Skadden, Arps, Slate, Meagher & Flom LLP, Robert Alexander Fumerton, Skadden, Arps, Slate,Meagher & Flom LLP & Virginia Faye Milstead, Skadden, Arps, Slate, Meagher & Flom, LLP. NEVADA: J. Decker Reply Brief in Little Valley Fire Suit Extended ----------------------------------------------------------------- In the case captioned JOSEPH SHANNON, PENNY LUCILLE BEHRENS, CHRISTOPHER ROBERT BRAGGS, and JOSEPH LOPEZ GOMEZ, individually and on behalf of all others similarly situated, Plaintiffs, v. JOSEPH (JD) DECKER, STEVE GEORGE, and DONALD SODERBERG, in their individual capacities, Defendants, Case No. 2:17-cv-00875-JAD-GWF (D. Nev.), Judge Jennifer A. Dorsey of the U.S. District Court for the District of Nevada continued the time for the Defendants to file their reply brief from Dec. 15, 2017 until Dec. 18, 2017. The counsel for the Defendants, Mr. Shevorski, is trial and appellate counsel for the State of Nevada in the approximately dozen cases that have arisen out of the Little Valley Fire, which consumed 23 homes and many outbuildings, legal counsel for Secretary of State Barbara Cegavske in the federal and state court litigations arising out of the attempted recall of Senators Woodhouse, Farley, and Cannizzaro, counsel for Governor Brian Sandoval and Attorney General Laxalt in the Ballot Question One litigation in state court, and counsel for State of Nevada in the Fair Labor Standards Act class action known as Walden et al. v. State of Nevada ex. rel. Nevada Department of Corrections. This work is in addition to his supervisory duties as Head of Complex Litigation with the Office of the Attorney General. Because of the press of these activities, the counsel for Defendants needs a modest three-day extension of time to file the Defendants' reply in support of their motion to dismiss. The parties had previously agreed to extend time for the Plaintiffs to file their opposition to the Defendants' motion to dismiss until Nov. 30, 2017 and to extend time for the Defendants to file their reply until Dec. 15, 2017. In light of the foregoing, the counsel for the Plaintiffs have generously agreed to continue the time for the Defendants to file their reply brief in support of their motion to dismiss from Dec. 15, 2017 until Dec. 18, 2017. Based on the parties' recitals and good cause appearing, the parties stipulated and agreed, and Judge Dorsey approved, to continue the time for the Defendants to file their reply brief in support of their motion to dismiss from Dec. 15, 2017 until Dec. 18, 2017. A full-text copy of the Court's Dec. 15, 2017 Order is available at https://is.gd/BF1nmN from Leagle.com. Joseph Shannon, Plaintiff, represented by Jason D. Mills -- jdm@neemanmills.com -- Neeman & Mills, Ltd. Joseph Shannon, Plaintiff, represented by Leon Marc Greenberg, Leon Greenberg Professional Corporation, Dana Sniegocki, Leon Greenberg, 2965 South Jones Boulevard #E-4, Las Vegas, NV, 89146 Office (702) 383-6085 & James P. Kemp, Kemp & Kemp, 7534 W. Azure Drive, Suite 110Las Vegas, NV 89130. Phones: (702) 258- 1183. Penny Lucille Behrens, Plaintiff, represented by Jason D. Mills Neeman & Mills, Ltd., Leon Marc Greenberg, Leon Greenberg Professional Corporation, Dana Sniegocki, Leon Greenberg & James P. Kemp, Kemp & Kemp. Christopher Robert Braggs, Plaintiff, represented by Jason D. Mills, Neeman & Mills, Ltd., Leon Marc Greenberg, Leon Greenberg Professional Corporation, Dana Sniegocki, Leon Greenberg & James P. Kemp, Kemp & Kemp. Jose Lopez Gomez, Plaintiff, represented by Jason D. Mills, Neeman & Mills, Ltd., Leon Marc Greenberg, Leon Greenberg Professional Corporation, Dana Sniegocki, Leon Greenberg & James P. Kemp, Kemp & Kemp. Joseph Decker, Defendant, represented by Sarah Bradley, State of Nevada Office of the Attorney General. Steve George, Defendant, represented by Sarah Bradley, State of Nevada Office of the Attorney General. Donald Soderberg, Defendant, represented by Sarah Bradley, State of Nevada Office of the Attorney General. NFL: MDL Panel to Take Up Hernandez's Daughter's Case ----------------------------------------------------- Laurel J. Sweet, writing for Boston Herald, reports that a special panel of federal judges meeting in Miami, Fla., will take up the struggle by Aaron Hernandez's little girl to keep her $20 million lawsuit against the National Football League and others separate from a mountain of player concussion claims stacking up under one class-action umbrella. The U.S. Judicial Panel on Multidistrict Litigation will consider a request by lawyers for Mr. Hernandez's fiancee, Shayanna Jenkins Hernandez, and the former couple's 5-year-old daughter to vacate the panel's November order that threatens to remove their loss-of-parental-consortium suit from Norfolk Superior Court in Dedham and merge it with concussion-specific claims lumped together at a federal court in Pennsylvania. The panel stipulated it will not permit oral arguments when its members convene in Miami Jan. 25; however, they might schedule a second hearing if the judges find the Hernandez case unique and compelling. In a memorandum supporting their Dec. 12 motion to vacate the panel's transfer order, the child's lawyers contend the loss of her father's love and companionship "concerns quite different issues from those centralized" in Pennsylvania because her case is not about "alleged NFL-football-related injury. . . . Here, there is nothing to be gained by transferring this unrelated case into a settlement-focused MDL (multidistrict litigation). . . . Therefore, it does not further the purposes of centralization to move a proverbial apple into an orange basket." Mr. Hernandez, 27, was posthumously diagnosed with advanced chronic traumatic encephalopathy of the brain following his jailhouse suicide, which came just days after he was acquitted of shooting two strangers to death at a South End traffic light. The former New England Patriots tight end was still serving life, however, for the 2013 murder of semi-pro footballer Odin L. Lloyd. That conviction was vacated after his death because the case was under appeal. The child's attorneys assert in her complaint that her father lived a "chaotic and horrendous existence" as a result of being neurologically compromised by playing football for more than two decades. They allege the child was deprived of her father's love, affection and companionship while he was alive because his career made him sick. The child, they argue, "had no reasonable ability to discern that the symptoms witnessed in Aaron were linked to latent brain disease, and also to exposure to repetitive blows to the head suffered during football play until after Aaron's death." The suit accuses the NFL and football helmet manufacturer Riddell of civil conspiracy, negligence and fraudulent concealment of long-term concussion dangers. [GN] NFL: 3rd Cir. Reverses Dismissal of 2nd Amended "Finkelman" Suit ---------------------------------------------------------------- In the case captioned JOSH FINKELMAN, on behalf of himself and the Putative class, Appellant, v. NATIONAL FOOTBALL LEAGUE; NFL VENTURES, L.P.; NFL PROPERTIES, L.L.C.; NFL VENTURES, INC.; NFL ENTERPRISES, L.L.C., Case No. 16-4087 (3d Cir.), the U.S. Court of Appeals for the Third Circuit reversed the District Court's order dismissing Finkelman's Second Amended Complaint. Finkelman had the once-in-a-lifetime opportunity to buy tickets to Super Bowl XLVIII held in his home state of New Jersey in February 2014. However, the NFL withheld almost all of these tickets -- 99% -- from the general public for league insiders, offering the remaining 1% to lucky winners of a lottery that all could enter. To get his tickets, Finkelman turned to the secondary market, purchasing two tickets with a face value of $800 each for $2,000 each. One month before the Super Bowl, he filed suit, alleging that the NFL's ticket distribution violated New Jersey law. Specifically, Finkelman claims that the NFL's withholding of more than 5% of the available tickets for the Super Bowl violated the New Jersey Ticket Law. He has now had two opportunities before the Appellate Court to show that he has Article III standing to pursue the claim. In the first round of the case, the Defendants moved to dismiss Finkelman's first amended complaint under Rule 12(b)(6) and the District Court granted the motion. On appeal, the Appellate Court concluded that Finkelman did not establish Article III standing. However, it found that Finkelman had not pleaded specific enough allegations to demonstrate that the NFL's withholding actually did increase the price he paid for tickets on the secondary market. Because it could only speculate as to the effects the NFL withholding had on secondary ticket prices, the allegations were insufficient to establish Article III standing. The Appellate Court remanded to allow the District Court to exercise its discretion as to whether Finkelman should be granted leave to amend. The District Court granted Finkelman's motion to amend the complaint, and Finkelman filed a Second Amended Complaint. In it, Finkelman pursued only the second theory of standing, mapped out in the Third Circuit's first opinion. The Defendants again moved to dismiss, and the District Court granted the motion. The District Court found that Finkelman had not proved standing because he did not enter the NFL's ticket lottery and because the additional facts Finkelman alleged regarding causation were too conclusory. Furthermore, in the alternative, the District Court reasoned that even if Finkelman did have standing, Finkelman had not properly alleged a violation of the Ticket Law, reiterating its interpretation of the Ticket Law from its first decision. Finkelman appeals the District Court's judgment which followed the remand, arguing that he has properly pleaded Article III standing and has properly pleaded a claim under the Ticket Law to overcome the Defendants' Rule 12(b)(6) motion to dismiss. The Appellate Court finds that Finkelman has offered specific factual allegations. Finkelman did not just allege that prices would be lower on the secondary market were it not for the NFL's withholding. Instead, he alleged a causal chain justifying why the NFL's withholding set into motion a series of events that ultimately raised prices on the secondary market. Specifically, Finkelman alleged that the insiders to whom the NFL presently provides tickets are more likely to re-sell those tickets through third-party brokers to keep those sales anonymous, and those brokers in turn are more likely to charge higher prices. But if more tickets were made available to fans initially, fans would be more likely than the NFL insiders are to sell through direct fan- to-fan sales, and the prices would likely be lower. In addition, Finkelman has offered economic facts that are specific, plausible, and susceptible to proof at trial. The Court says the Defendants may be correct that Finkelman will not be able to prove that the 2014 Superbowl secondary ticket market worked as he claims. The Defendants remain free to bring a factual challenge to jurisdiction disputing just that. But Finkelman is not required to prove his economic theory in his complaint, and, at this stage in the litigation, Finkelman has alleged sufficient factual allegations to show that the Defendants' withholding raised the price that he paid for tickets on the secondary market. Thus, Finkelman has Article III standing. For these reasons, the Third Circuit reversed the District Court and found that it has subject matter jurisdiction over the matter. The Court deferred action on the merits of the appeal pending a decision by the Supreme Court of New Jersey on a petition for certification of questions of state law. It will retain jurisdiction over the appeal pending resolution of the certification. A full-text copy of the Court's Dec. 15, 2017 Opinion is available at https://is.gd/ToVvpD from Leagle.com. Greg M. Kohn, Esq. -- gkohn@nagelrice.com -- Bruce H. Nagel, Esq. -- bnagel@nagelrice.com -- [ARGUED], Nagel Rice, 103, Eisenhower Parkway, Roseland, NJ 07068, Counsel for Appellant. Karen A. Confoy, Esq. -- kconfoy@foxrothschild.com -- Fox Rothschild, 997, Lenox Drive, Princeton Pike Corporate Center, Building 3, Lawrenceville, NJ 08648, William Feldman, Esq. -- wfeldman@wafnjlaw.com -- Jonathan D. Pressment, Esq. -- jonathan.pressment@haynesboone.com -- [ARGUED], Haynes & Boone, 30, Rockefeller Center, 26th Floor, New York, NY 10112, Counsel for Appellees. NORTHROP GRUMMAN: Contamination Suit Remains in Federal Court ------------------------------------------------------------- Judge Denis R. Hurley of the U.S. District Court for the Eastern District of New York denied the Plaintiffs' motion to remand the case, ROSALIE ROMANO, PATRICIA GLUECKERT, WILLIAM P. GLUECKERT, FRANCISCO PASTOLERO, MARIA SPICER, JOHN VARGHESE, JAYNE MANN, DENISE FLORIO, ROSS MEADOW, ARLENE MEADOW, JACOB KHOLODNY, BELLA KHOLODNY, FLO RAUCCI, DANIEL GALLANTE and JENNIFER GALLANTE, individually and on behalf of all others similarly situated, Plaintiffs, v. NORTHROP GRUMMAN CORPORATION, NORTHROP GRUMMAN SYSTEMS CORPORATION, and TOWN OF OYSTER BAY, Defendants, Civil Action No 16-5760(DRH)(E.D. N.Y.). The putative class action was filed on Sept. 13, 2016, in Nassau County Supreme Court on behalf of current and former residents and property owners of Bethpage, New York asserting various state law causes of action against the Defendants for injuries and damages allegedly suffered as a result of the release of hazardous substances from its former site of approximately 635 acres in East-Central Nassau County, formerly known as the Grumman-Aerospace-Bethpage Facility Site, as well as 18 acres of land donated by Grumman to the Town of Oyster Bay and currently known as Bethpage Community Park. The Site includes the Northrop Grumman-Bethpage Facility, the Naval Weapons Industrial Reserve Plant - Bethpage ("NWIRP"), and the Grumman Steel Lose Site. According to the Complaint, over its almost six-decade existence, Grumman, an airplane, weapons and satellite manufacturer with significant U.S. Department of Defense contracts, generated, stored, and disposed of toxic contaminants and manufacturing byproducts at its facilities and at landfills. These practices resulted in extensive pollution at or emanating from Grumman Facilities identified in the Complaint. On Oct. 14, 2016, Northrop filed a Notice of Removal, setting forth the following bases for removal: (i) there exists complete diversity under 28 U.S.C. Section 1332(a); (ii) the Class Action Fairness Act ("CAFA") confers original jurisdiction and (iii) actions taken by Northrop Grumman satisfy the federal-officer removal statute under 28 U.S.C. Section 1442(a)(B). That same day Northrop also filed its answer. On Nov. 4, 2016, the Plaintiffs filed an amended complaint ("AC"). As relevant to the current motion, the AC added the Town of Oyster Bay as a Defendant. With respect to the Town, the amended complaint alleges that the Town is the current owner and operator of the Park, within which is an area of approximately 3.75 acres which formerly contained "Grumman Settling Ponds" which was used to dispose of various wastes generated by industrial operations at the Site resulting in the releases of PCBs into the surrounding soil. Pursuant to a March 18, 2005 Administrative Consent Order with the New York State Department of Environmental Conservation, the Town was required and obligated to develop and implement a remedial program to undertake a clean-up of Park property because of the presence of hazardous waste and contamination at the Park. In July 2005 the Town entered into an order for an interim remedial measure to investigate and remediate 7 acres of the Park. Thereafter the Town was formally identified as a potential responsible party and has been responsible for continued contamination emanating from the Park. It is alleged that despite the foregoing orders, the groundwater from the Park has continued to migrate resulting in volatile organic compounds seeping into the groundwater and have moved into the soil vapor of the Plaintiffs, affecting the indoor air quality. The allegations in the AC against Northrop are essentially unchanged from those in the complaint. After the filing of the AC, the Plaintiffs filed the instant motion to remand, arguing that (i) removal is not appropriate because the adverse parties are not completely diverse; (ii) the Home State and Local Controversy exceptions to CAFA mandate that the Court abstain from exercising jurisdiction; and (iii) Northrop does not satisfy the requirements of the Federal Officer Removal Statute. Both Northrop and the Town oppose the motion. Preliminarily, Judge Hurley notes that there appears to be no dispute that the requirements of 28 U.S.C. Section 1332(d)(2) are met whether viewed against the complaint or the amended complaint. Indeed, both the complaint and the AC allege that while the exact number of class members is unknown, the amount of affected property owner residents in Bethpage has reached the thousands. Further, damages are sought in an amount of not less than $100,000,000 dollars for each asserted cause of action. Finally, minimal diversity exists in that at least one of the Plaintiffs is a citizen of New York and NG and NGSC are not citizens of New York. Thus, removal was proper and federal jurisdiction exists under CAFA absent an exception. However, CAFA jurisdiction is determined at the time of the filing of the original complaint and the Plaintiff cannot circumvent CAFA by amending its complaint to add the Town. The rule that an amendment of a complaint post-removal does not affect CAFA jurisdiction has been applied to amendments that could affect an exception to CAFA jurisdiction. In addition, precluding an AC filed after removal from triggering one of CAFA's mandatory exceptions to jurisdiction is particularly appropriate in the case. Finally, in their memorandum, the Plaintiffs request, as an alternative to remand, that the matter be reassigned to Judge Bianco as related to Town of Hempstead v. United States of America, 16-CV-3652 (JFB)(SIL). The Town takes the position that this case and a case pending before Judge Azrack, Town of Oyster Bay v. Northrop Grumman Corp., 05-CV-1945(JMA)(AKT) are related and should be consolidated. As the procedure for requesting that cases be related has not been complied with, the Judge says such relief is inappropriate at this juncture. For these reasons, Judge Hurley concludes that jurisdiction exists under CAFA and he needs not address the other bases asserted for jurisdiction. Accordingly, he denied the Plaintiffs' motion to remand. A full-text copy of the Court's Dec. 15, 2017 Memorandum and Order is available at https://is.gd/7p79TA from Leagle.com. Rosalie Romano, Plaintiff, represented by Brittany Sloane Weiner -- brittany@lawicm.com -- Imbesi Law PC. Rosalie Romano, Plaintiff, represented by Hunter Jay Shkolnik -- hunter@napolilaw.com -- Napoli Shkolnik PLLC, Paul J. Napoli -- pnapoli@napolilaw.com -- Napoli Shkolnik PLLC, Robert Gitelman -- rgitelman@napolilaw.com -- Napoli Shkolnik PLLC & Thomas W. Raleigh -- TRaleigh@napolilaw.com -- Napoli Shkolnik PLLC. Patricia Glueckert, Plaintiff, represented by Brittany Sloane Weiner, Imbesi Law PC, Hunter Jay Shkolnik, Napoli Shkolnik PLLC, Paul J. Napoli, Napoli Shkolnik PLLC, Robert Gitelman, Napoli Shkolnik PLLC & Thomas W. Raleigh, Napoli Shkolnik PLLC. William P. Glueckert, Plaintiff, represented by Brittany Sloane Weiner, Imbesi Law PC, Hunter Jay Shkolnik, Napoli Shkolnik PLLC, Paul J. Napoli, Napoli Shkolnik PLLC, Robert Gitelman, Napoli Shkolnik PLLC & Thomas W. Raleigh, Napoli Shkolnik PLLC. Francisco Pastolero, Plaintiff, represented by Brittany Sloane Weiner, Imbesi Law PC, Hunter Jay Shkolnik, Napoli Shkolnik PLLC, Paul J. Napoli, Napoli Shkolnik PLLC, Robert Gitelman, Napoli Shkolnik PLLC & Thomas W. Raleigh, Napoli Shkolnik PLLC. Maria Spicer, Plaintiff, represented by Brittany Sloane Weiner, Imbesi Law PC, Hunter Jay Shkolnik, Napoli Shkolnik PLLC, Paul J. Napoli, Napoli Shkolnik PLLC, Robert Gitelman, Napoli Shkolnik PLLC & Thomas W. Raleigh, Napoli Shkolnik PLLC. John Varghese, Plaintiff, represented by Brittany Sloane Weiner, Imbesi Law PC, Hunter Jay Shkolnik, Napoli Shkolnik PLLC, Paul J. Napoli, Napoli Shkolnik PLLC, Robert Gitelman, Napoli Shkolnik PLLC & Thomas W. Raleigh, Napoli Shkolnik PLLC. Jayne Mann, Plaintiff, represented by Brittany Sloane Weiner, Imbesi Law PC, Hunter Jay Shkolnik, Napoli Shkolnik PLLC, Paul J. Napoli, Napoli Shkolnik PLLC, Robert Gitelman, Napoli Shkolnik PLLC & Thomas W. Raleigh, Napoli Shkolnik PLLC. Denise Florio, Plaintiff, represented by Brittany Sloane Weiner, Imbesi Law PC, Hunter Jay Shkolnik, Napoli Shkolnik PLLC, Paul J. Napoli, Napoli Shkolnik PLLC, Robert Gitelman, Napoli Shkolnik PLLC & Thomas W. Raleigh, Napoli Shkolnik PLLC. Ross Meadow, Plaintiff, represented by Brittany Sloane Weiner, Imbesi Law PC, Hunter Jay Shkolnik, Napoli Shkolnik PLLC, Paul J. Napoli, Napoli Shkolnik PLLC, Robert Gitelman, Napoli Shkolnik PLLC & Thomas W. Raleigh, Napoli Shkolnik PLLC. Northrop Grumman Corporation, Defendant, represented by Grant Joseph Esposito -- gesposito@mofo.com -- Morrison & Foerster LLP & Jessica Kaufman -- jkaufman@mofo.com -- Morrison & Foerster. Northrop Grumman Systems Corporation, Defendant, represented by Grant Joseph Esposito, Morrison & Foerster LLP & Jessica Kaufman, Morrison & Foerster. Town of Oyster Bay, New York, Defendant, represented by Peter Seiden -- pseiden@milbermakris.com -- Milber Makris Plousadis & Seiden, LLP, Matthew M. Rozea, Office of the Town Attorney & Peter F. Tamigi, Burns, Russo, Tamigi & Reardon, LLP. OKLAHOMA: Schultz & McCall Dismissed as Parties in "Hunsucker" -------------------------------------------------------------- In the case, JOHN HUNSUCKER, on behalf of himself and his clients; BRUCE EDGE, on behalf of himself and his clients; CHARLES SIFERS, on behalf of himself and his clients; STEPHEN FABIAN, on behalf of himself and his clients, Petitioners, v. THE HONORABLE MARY FALLIN, GOVERNOR, in her official capacity; THE HONORABLE SENATOR MIKE SCHULTZ, SENATE PRESIDENT PRO TEMPORE, in his official capacity; THE HONORABLE REPRESENTATIVE CHARLES McCALL, SPEAKER OF THE HOUSE, in his official capacity; MICHAEL THOMPSON, in his official capacity as Commissioner of Oklahoma Department of Public Safety; DAVID PRATER, in his official capacity as District Attorney for Oklahoma County; STEVE KUNZWEILER, in his official capacity as District Attorney for Tulsa County; Respondents, Case No. 116131 (Okla.), Judge James E. Edmondson of the Supreme Court of Oklahoma denied the Petitioners' request for an injunction. The new Impaired Driving Elimination Act 2 ("IDEA2") contains 17 numbered sections and according to its title includes, but is not limited to, provisions which relate to revocation, modification, and reinstatement of driver licenses, ignition interlock devices installed in vehicles, making certain acts unlawful, clarifying and deleting procedures relating to blood and breath tests for the presence of alcohol, surrender of driver licenses, and authorization to the Department of Public Safety to create the Impaired Driver Accountability Program by June 30, 2018. The Petitioners, four Oklahoma lawyers and licensed drivers raise four constitutional claims on behalf of themselves and their clients and argue they will be adversely affected when the Act is scheduled to become effective on Nov. 1, 2017. Two claims attack the constitutionality of Oklahoma Senate Bill No. 643, the IDEA2. Two claims attack the constitutionality of the Governor's Executive Order 2017-19, promulgated on June 8, 2017, and designed to implement a portion of S.B. No. 643. The Petitioners filed applications for the Court to assume original jurisdiction and grant extraordinary declaratory and injunctive relief. The Petitioners allege they possess standing based upon one or more of five criteria: (i) they are subject to potential criminal prosecution pursuant to the new legislation; (ii) they are subject to potential civil drivers' revocation in the future; (iii) they represent the interests of future clients subject to civil and criminal proceedings within the scope of the new Act; (iv) the new Act will have an adverse economic impact on their businesses which represent many Oklahomans in criminal and civil proceedings related to the subject matter of the new Act; and (v) they possess "public interest" standing. The Respondents challenge the standing of the Petitioners to bring an action challenging a new Act which has not yet been made effective. Judge Edmondson concludes the IDEA2 is unconstitutional in its entirety due to violating the single subject rule in Okla. Const. Art. 5 Section 57. The non-offending sections are not capable of being severed for independent enforcement. He further holds that one provision of the Act, section 13, violates the Due Process Clause in Okla. Const. Art. 2 Section 7. Because he concludes that the provisions of the Act are not severable and the Act is unconstitutional in its entirety, the Judge needs not adjudicate the Petitioners' additional claims challenging the Act and the Governor's Executive Order. The Petitioners' request for an injunction is denied. He holds that these Petitioners possess standing. He furthers holds that Respondents Schultz and McCall are not proper parties, and their motion to be dismissed as parties is granted. The Court previously issued an order staying the application of the 2017 IDEA2. It noted its stay was for the purpose of granting temporary relief in order to protect the rights of parties pending resolution of a judicial controversy. Judge Edmondson's Opinion is an exercise of original jurisdiction, it is immediately effective upon its filing with the Clerk of the Court, and no post-opinion mandate issues by the Court. The stay pending the litigation is dissolved upon the conclusion of the matter before the Court. The stay will be dissolved upon denial of a petition for rehearing if rehearing is sought by any party and not granted, or upon final adjudication of any petition for rehearing granted by the Court, or upon expiration of the time to file a petition for rehearing if no rehearing is sought. The temporary stay of the Act pending litigation will be effectively replaced by a final opinion of the Court concluding the Act is unconstitutional and lacking legal enforceability. A full-text copy of the Court's Dec. 15, 2017 Opinion is available at https://is.gd/ZlCqtx from Leagle.com. Brian K. Morton, Oklahoma City, Oklahoma; & Sonja R. Porter, Oklahoma City, Oklahoma, for petitioners. M. Daniel Weitman, Assistant Attorney General, Oklahoma City, Oklahoma, for respondents Senator Mike Schultz, Oklahoma Senate President Pro Tempore, and Representative Charles McCall, Speaker of the Oklahoma House of Representatives. Mithun Mansinghani, Solicitor General; Kevin McClure, Assistant Attorney General; Lauren E. Hammonds, Assistant Attorney General, Oklahoma City, Oklahoma, for Respondents Gov. Mary Fallin, Commissioner Michael Thompson, District Attorney David Prater, and District Attorney Steve Kunzweiler. PENNSYLVANIA LEADERSHIP: Denial of Class Certification Affirmed --------------------------------------------------------------- The Superior Court of Pennsylvania issued an Opinion affirming the Trial Court's judgment denying Plaintiff's Motion for Class Certification in the case captioned KATHLEEN M. THIEL AND JENNA GRUBER, ON BEHALF OF THEMSELVES AND OTHERS SIMILARLY SITUATED Appellants, v. PENNSYLVANIA LEADERSHIP CHARTER SCHOOL AND JAMES HANAK, No. 973 EDA 2017 (Pa. Super.). Appellants appeal from the order entered in the Court of Common Pleas of Chester County, denying their motion for class certification. Kathleen M. Thiel and Jenna Gruber initiated a class action suit on behalf of themselves and others similarly situated. Appellants were teachers at the Pennsylvania Leadership Charter School (PLCS), a cyber-charter school. Thiel taught at the school from fall 2009 to spring 2013; Gruber was employed at the school from fall 2009 to fall 2013. Appellee James Hanak is the CEO of PLCS. Appellees submitted a memorandum of law opposing class certification. The court denied class certification, reasoning Appellants failed to establish commonality and typicality between their claims and those of the rest of the class. Appellants argue they sufficiently demonstrated commonality because their claims all arise from PLCS's nonpayment of bonuses. A lower court's order denying class certification will not be disturbed on appeal unless the court neglected to consider the requirements of the rules governing class certification, or unless the court abused its discretion in applying the class certification rules. To certify a proposed class, the Pennsylvania Rules of Civil Procedure require the petitioning party to show: the class is so numerous that joinder of all members is impracticable; there are questions of law or fact common to the class; the claims or defenses of the representative parties are typical of the claims or defenses of the class; the representative parties will fairly and adequately assert and protect the interests of the class; and the class action provides a fair and efficient method for adjudication of the controversy. The court also found Appellants' claims were not typical of the proposed class. As both parties note, the bonuses were awarded each school year. Even assuming the bonus program during the 2008-2009 school year was identical to that of later years and Appellees are found to owe bonus payments to employees, Appellants acknowledge they did not work at PLCS during that school year. Thus, Appellants could not recover a bonus for that year even if they were successful at trial. Since Appellants have no ability to recover payments for that period, their position on the issue of bonus payments for the 2008-2009 school year is not aligned with members of the proposed class. Pursuit of their own claims will not advance those of proposed class members who may be owed bonuses for the 2008-2009 school year. Consequently, the trial court also properly denied class certification on the issue of typicality. The Superior Court finds the trial court correctly denied class certification, and Appellants are not entitled to relief. Accordingly, the Superior Court affirms the trial court's order. A full-text copy of the Superior Court's December 14, 2017 Opinion is available at https://tinyurl.com/y7cg7qs7 from Leagle.com. Alfred A. Gollatz -- agollatz@macelree.com -- MacElree Harvey, Ltd., for Appellant, Kathleen M. Thiel and Jenna Gruber. Christopher G. Hayes, Escrow Intelligence, for Appellant, Kathleen M. Thiel and Jenna Gruber. William T. Wilson -- wtw@becounsel.com -- Bailey & Ehrenberg PLLC, for Appellant, Kathleen M. Thiel and Jenna Gruber. Christopher S. Mayer -- cmayer@mccarter.com -- McCarter & English, L.L.P., for Appellee, Pennsylvania Leadership Charter School. PEPPERMILL CASINOS: Bid to Dismiss "Abrams" Suit Partly Granted --------------------------------------------------------------- In the case, JOSHUA ABRAMS, an individual; PRESTON FORTNEY, an individual; NOE LUNA, an individual; SALESH JATAN, an individual; NANCI WIRTH, an individual; ADAM YOUNG, an individual; EMERIO BENAVIDES, an individual; JEFFREY SHARP, an individual; ANA HLEDIK, an individual; and FE HLEDIK, an individual, all on behalf of themselves and all similarly-situated individuals, Plaintiffs, v. PEPPERMILL CASINOS, INC., a Nevada corporation; and DOES 1 through 100, inclusive, Defendant, Case No. 3:16-cv- 00454-MMD-VPC (D. Nev.), Judge Miranda M. Du of the U.S. District Court for the District of Nevada denied the Plaintiffs' Motion for Reconsideration of Order Denying Remand, and granted in part and denied in part the Defendant's Motion to Dismiss ("MTD"). In their amended class action complaint ("FAC"), the Plaintiffs advance two claims against the Defendant: (i) violation of Nevada's Minimum Wage Amendment ("MWA" or "Amendment") and (iii) violation of NRS Section 608.1555. As to their first claim, the Plaintiffs contend that the Defendant has violated the MWA by failing to provide qualified health benefit plans consistent with NRS Section 608.1555. Simultaneously, their second claim contends that the Defendant's proffered health care benefits do not meet the requirements of NRS Chapters 689A and 689B and, therefore, that the Defendant has violated NRS Section 608.1555. In the Court's prior order, it denied the Plaintiffs' motion to remand, finding that complete preemption under the Employee Retirement Income Security Act ("ERISA"), applied to their second claim because NRS Section 608.1555 "clearly relates" to an ERISA- regulated plan. Because state causes of action that duplicate or fall within the scope of an ERISA Section 502(a) remedy are completely preempted and hence removable to federal court, the Court found removal of the Plaintiffs' second claim for violation of NRS Section 608.1555 to be proper. The Court then chose to extend supplemental jurisdiction to the Plaintiffs' first claim pursuant to 28 U.S.C. Section 1367(c). The Plaintiffs now move for reconsideration of that order. They argue that, in its order denying their motion to remand, the Court misconstrued the allegations of the FAC because they do not allege that the Defendant must provide particular benefits to them or that the Defendant has failed to provide a precise health benefit plan as promised, and also contend that they could not have brought their second claim under Section 502(a) of ERISA. Judge Du disagrees and finds that it did not misconstrue the allegations in the FAC. She says the Motion to Reconsider and accompanying reply, as well as the Plaintiffs' opposition to the Defendant's MTD, make clear that the Plaintiffs have misunderstood the meaning of NRS Section 608.1555 in arguing that their second claim is not preempted by ERISA. For that reason, she clarifies the prior order by focusing exclusively on the statute's meaning -- which applies only where there is an ERISA health care plan -- so that it may elucidate why the Plaintiffs' second claim is preempted. Based on the plain language of NRS Section 608.1555 and the legislative history behind that statutory provision, the Court construed the second claim of the FAC to allege that the Defendant acts as an insurer by providing a self-funded health care plan to its employees and that the Defendant's plan fails to provide the benefits outlined in NRS Chapters 689A and/or 689B. By providing an insurance plan for its employees and not purchasing a policy from a proper insurance company, NRS Section 608.1555 ensures that the employer itself is subject to NRS Chapters 689A and 689B and is treated in the same manner as an insurance company. Taking the matter into consideration as well as the Plaintiffs' use of the term "proffered benefits" -- implying an existing self-funded health care plan -- the Judge found that the Plaintiffs' second claim was premised on the existence of a self- funded health care plan provided by the Defendant. Accordingly, the Judge holds that the Court was correct in denying the Plaintiffs' motion to remand. Therefore, she will deny the Plaintiffs' Motion to Reconsider. With respect to the Defendant's MTD, it moves to dismiss the Plaintiffs' FAC on three grounds: (i) both claims in the FAC are preempted by ERISA; (ii) the legal theory advanced by the Plaintiffs as to how Defendant has violated the MWA is not viable; and (iii) the Plaintiffs fail to allege any facts in the FAC upon which to base their claims. Judge Du will grant the Defendant's MTD as to the Plaintiffs' second claim because NRS Section 608.1555 is completely preempted pursuant to ERISA's "deemer clause." However, because she declines to exercise supplemental jurisdiction over the first claim, the MTD will be denied as to the Plaintiffs' first claim. The Judge notes that the parties made several arguments and cited to several cases not discussed. She has reviewed these arguments and cases and determines that they do not warrant discussion as they do not affect the outcome of the motions before the Court. She therefore ordered that the Plaintiffs' Motion for Reconsideration of Order Denying Remand is denied. She further ordered that the Defendant's MTD is granted as to the Plaintiffs' second claim, which is dismissed with prejudice. She declines to address the remaining state law claim. The action is remanded to state court. A full-text copy of the Court's Dec. 15, 2017 Order is available at https://is.gd/dwJAlq from Leagle.com. Joshua Abrams, et al. are represented by Bradley Scott Schrager, Esq. -- bschrager@wrslawyers.com -- Daniel Bravo, Esq. -- dbravo@wrslawyers.com -- Don Springmeyer, Esq. -- dspringmeyer@wrslawyers.com -- and -- John M. Samberg, Esq. -- jsamberg@wrslawyers.com -- WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP Preston Fortney, Plaintiff, represented by Bradley Scott Schrager, Wolf, Rifkin, Shapiro, Schulman & Rabkin, Daniel Bravo, Wolf, Rifkin, Shapiro, Schulman, & Rabkin, LLP, Don Springmeyer, Wolf, Rifkin, Shapiro, Schulman and Rabkin, LLP & John M. Samberg, Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP. Noe Luna, Plaintiff, represented by Bradley Scott Schrager, Wolf, Rifkin, Shapiro, Schulman & Rabkin, Daniel Bravo, Wolf, Rifkin, Shapiro, Schulman, & Rabkin, LLP, Don Springmeyer, Wolf, Rifkin, Shapiro, Schulman and Rabkin, LLP & John M. Samberg, Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP. Salesh Jatan, Plaintiff, represented by Bradley Scott Schrager, Wolf, Rifkin, Shapiro, Schulman & Rabkin, Daniel Bravo, Wolf, Rifkin, Shapiro, Schulman, & Rabkin, LLP, Don Springmeyer, Wolf, Rifkin, Shapiro, Schulman and Rabkin, LLP & John M. Samberg, Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP. Nanci Wirth, Plaintiff, represented by Bradley Scott Schrager, Wolf, Rifkin, Shapiro, Schulman & Rabkin, Daniel Bravo, Wolf, Rifkin, Shapiro, Schulman, & Rabkin, LLP, Don Springmeyer, Wolf, Rifkin, Shapiro, Schulman and Rabkin, LLP & John M. Samberg, Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP. Adam Young, Plaintiff, represented by Bradley Scott Schrager , Wolf, Rifkin, Shapiro, Schulman & Rabkin, Daniel Bravo , Wolf, Rifkin, Shapiro, Schulman, & Rabkin, LLP, Don Springmeyer , Wolf, Rifkin, Shapiro, Schulman and Rabkin, LLP & John M. Samberg , Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP. Emerio Benavides, Plaintiff, represented by Bradley Scott Schrager, Wolf, Rifkin, Shapiro, Schulman & Rabkin, Daniel Bravo, Wolf, Rifkin, Shapiro, Schulman, & Rabkin, LLP, Don Springmeyer, Wolf, Rifkin, Shapiro, Schulman and Rabkin, LLP & John M. Samberg, Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP. Jeffrey Sharp, Plaintiff, represented by Bradley Scott Schrager, Wolf, Rifkin, Shapiro, Schulman & Rabkin, Daniel Bravo, Wolf, Rifkin, Shapiro, Schulman, & Rabkin, LLP, Don Springmeyer, Wolf, Rifkin, Shapiro, Schulman and Rabkin, LLP & John M. Samberg, Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP. Ana Hledik, Plaintiff, represented by Bradley Scott Schrager, Wolf, Rifkin, Shapiro, Schulman & Rabkin, Daniel Bravo, Wolf, Rifkin, Shapiro, Schulman, & Rabkin, LLP, Don Springmeyer, Wolf, Rifkin, Shapiro, Schulman and Rabkin, LLP & John M. Samberg, Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP. Fe Hledik, Plaintiff, represented by Bradley Scott Schrager, Wolf, Rifkin, Shapiro, Schulman & Rabkin, Daniel Bravo, Wolf, Rifkin, Shapiro, Schulman, & Rabkin, LLP, Don Springmeyer, Wolf, Rifkin, Shapiro, Schulman and Rabkin, LLP & John M. Samberg, Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP. Peppermill Casinos, Inc. is represented by Rick D. Roskelley, Esq. -- rroskelley@littler.com -- and -- Kathryn Blakey, Esq. -- kblakey@littler.com -- Littler Mendelson. PHILIP MORRIS: Feb. 20 Lead Plaintiff Motion Deadline Set --------------------------------------------------------- Faruqi & Faruqi, LLP, a national securities law firm, reminds investors in Philip Morris International Inc. ("Philip Morris" or the "Company") (NYSE:PM) of the February 20, 2018 deadline to seek the role of lead plaintiff in a federal securities class action that has been filed against the Company. If you invested in Philip Morris stock or options between July 26, 2016 and December 20, 2017 and would like to discuss your legal rights, click here: www.faruqilaw.com/PM. There is no cost or obligation to you. You can also contact us by calling Richard Gonnello toll free at 877-247-4292 or at 212-983-9330 or by sending an e-mail to rgonnello@faruqilaw.com. CONTACT: FARUQI & FARUQI, LLP 685 Third Avenue, 26th Floor New York, NY 10017 Attn: Richard Gonnello, Esq. rgonnello@faruqilaw.com Telephone: (877) 247-4292 (212) 983-9330 The lawsuit has been filed in the U.S. District Court for the District of New Jersey on behalf of all those who purchased Philip Morris securities between July 26, 2016 and December 20, 2017 (the "Class Period"). The case, Rubenstahl v. Philip Morris International Inc. et al, No. 2:17-cv-13504 was filed on December 21, 2017, and has been assigned to Judge Esther Salas. The lawsuit focuses on whether the Company and its executives violated federal securities laws by making materially false and/or misleading statements and/or failing to disclose that: (1) there were irregularities in the clinical experiments that underpin Philip Morris' application to the Food and Drug Administration ("FDA") for approval of its iQOS smoking device; and (2) as a result, the Company's statements about its business, operations and prospects were materially false and misleading and/or lacked a reasonable basis. Specifically, on December 20, 2017, Reuters published a report stating, in part, that "[f]ormer employees and contractors [of Philip Morris] have detailed irregularities in the clinical experiments that underpin Philip Morris International's application to the FDA for approval of its iQOS smoking device[.]" On this news, Philip Morris' share price fell from $108.12 per share on December 19, 2017 to a closing price of $104.37 on December 20, 2017 -- a $3.75 or a 3.47% drop. The court-appointed lead plaintiff is the investor with the largest financial interest in the relief sought by the class who is adequate and typical of class members who directs and oversees the litigation on behalf of the putative class. 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. Your ability to share in any recovery is not affected by the decision to serve as a lead plaintiff or not. Faruqi & Faruqi, LLP -- http://www.faruqilaw.com-- also encourages anyone with information regarding Philip Morris' conduct to contact the firm, including whistleblowers, former employees, shareholders and others. [GN] QUINCY BIOSCIENCE: Prevagen Consumers Class in "Racies" Certified ----------------------------------------------------------------- In the case, PHILLIP RACIES, Plaintiff, v. QUINCY BIOSCIENCE, LLC, Defendant, Case No. 15-cv-00292-HSG (N.D. Cal.), Judge Haywood S. Gilliam, Jr. of the U.S. District Court for the will ern District of California granted the Plaintiff's motion for class certification. On Jan. 21, 2015, Racies filed the putative class action, bringing claims under California's Unfair Competition Law ("UCL"), and Consumers Legal Remedies Act ("CLRA"). According to the First Amended Complaint, the Defendant made false, misleading, and deceptive statements about its brain health supplement. Specifically, the Plaintiff alleges that, contrary to the product's labeling, Prevagen does not improve memory or brain function because its only active ingredient is digested and transformed into amino acids before it can measurably affect the brain. The Court denied in part and granted in part the Defendant's motion to dismiss on May 19, 2015. As part of its analysis, the Court pointed out that individuals may not bring suit under the UCL or the CLRA alleging that advertising claims lack substantiation. Instead, that right is reserved to the Director of Consumer Affairs, the Attorney General, any city attorney, or any district attorney. The Court found that the Plaintiff's allegations that the Defendant misrepresented Prevagen as "clinically tested" were based on a lack of substantiation theory and accordingly dismissed those claims. It nevertheless found that the Plaintiff's body chemistry allegations were sufficient. The Court then denied the parties' cross motions for partial summary judgment on Sept. 30, 2016. The Plaintiff now moves for class certification. Then Plaintiff seeks to certify the following classes: a. UCL Multi-State Class: All consumers who, within the applicable statute of limitations period, purchased Prevagen in California, Florida, Illinois, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York, and Washington until the date notice is disseminated. b. California-Only CLRA Class: All California consumers who, within the applicable statute of limitations period, purchased Prevagen until the date notice is disseminated. In the alternative, the Plaintiff seeks to certify a California- only class for both the UCL and CLRA claims. He defines "Prevagen" to include five products that he asserts were marketed as improving memory and supporting healthy brain function: Prevagen Regular Strength, Prevagen Extra Strength, Prevagen Mixed Berry Chewable, Prevagen Extra Strength Chewable, and Prevagen Professional Strength. He further seeks appointment as class representative and appointment of the law firms of Bonnett, Fairbourn, Friedman & Balint, P.C., and Siprut, PC as the Class Counsel. The Defendant contends that certification of these classes is inappropriate because the Plaintiff and the classes fail to satisfy the requirements for a Rule 23(b)(3) class, namely: typicality; predominance; and superiority. Judge Gilliam finds that the Plaintiff has not presented any cogent reason to add two additional products at this late stage in the litigation. When pressed for an explanation of the delay during the hearing on this motion, the Plaintiff responded that he discovered these two additional products sometime in April 2017. Yet he did not seek to add them to the case until his class certification brief, filed on Sept. 15, 2017. The Judge that such a delay is unreasonable, and that the Plaintiff may not add new products to the case through his class certification motion. He nevertheless finds that class certification is warranted for Prevagen Regular Strength, Prevagen Extra Strength, and Prevagen Mixed Berry Chewable. Judge Gilliam concludes that all the requirements of Federal Rule of Civil Procedure 23(a) and Rule 23(b)(3) have been met in the case. Accordingly, he granted Plaintiff's motion for class certification and certified the following class for both the Plaintiff's UCL and CLRA claims: All California consumers who, within the applicable statute of limitations period, purchased Prevagen Regular Strength, Prevagen Extra Strength, or Prevagen Mixed Berry Chewable. The Judge appointed Racies as the Class representative and the law firms of Bonnett, Fairbourn, Friedman & Balint, P.C., and Siprut, PC as the Class Counsel in the action. He set a further case management conference on Jan. 16, 2018, at 2:00 p.m. The parties will meet and confer and submit a joint case management statement by Jan. 9, 2018. The joint statement should include a proposed case schedule through trial, as well as a brief discussion of any outstanding issues to resolve before trial. A full-text copy of the Court's Dec. 15, 2017 Order is available at https://is.gd/1nCLEb from Leagle.com. Phillip Racies, On Behalf of Himself and All Others Similarly Situated, Plaintiff, represented by Patricia Nicole Syverson -- psyverson@bffb.com -- Bonnett Fairbourn et al. Phillip Racies, On Behalf of Himself and All Others Similarly Situated, Plaintiff, represented by Daniel R. Lapinski -- dlapinski@wilentz.com -- Wilentz, Goldman Spitzer PA, Elaine A. Ryan -- eryan@bffb.com -- Bonnett Fairbourn Friedman & Balint, P.C, pro hac vice, Manfred Patrick Muecke -- mmuecke@bffb.com -- Bonnett, Fairbourn, Friedman, & Balint, P.C., Max A. Stein -- mstein@boodlaw.com -- Boodell and Domanskis, LLC, pro hac vice, Michael Matthew Chang -- mchang@siprut.com -- Siprut PC, Nada Djordjevic -- ndjordjevic@boodlaw.com -- Boodell and Domanskis, LLC & Stewart M. Weltman -- sweltman@siprut.com -- Siprut PC. Quincy Bioscience, LLC, a Wisconsin limited liability company, Defendant, represented by Joshua G. Simon -- jsimon@calljensen.com -- Call & Jensen, Matthew Ryan Orr -- morr@calljensen.com -- Call & Jensen A Professional Corporation, William Paul Cole -- wcole@calljensen.com -- Call and Jensen & Yixin H. Tang -- yixin@amintalati.com -- Amin Talati Upadhye, LLC, pro hac vice. RENT-A-CENTER INC: Loses Bid to Dismiss Securities Fraud Suit ------------------------------------------------------------- The United States District Court for the Eastern District of Texas, Sherman Division, issued a Memorandum adopting a Magistrate Judge's Amended Report and Recommendation in the case captioned ALAN HALL and JAMES DEPALMA, individually and on behalf of all others similarly situated, Plaintiffs, v. RENT-A-CENTER INC., ROBERT D. DAVIS, and GUY J. CONSTANT, Defendants, Civil Action No. 4:16cv978 (E.D. Tex.). This is a federal securities class action brought pursuant to Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (Exchange Act) and SEC Rule 10b-5 promulgated thereunder against Rent-A-Center Inc. According to Plaintiffs, Defendants falsely assured investors the little bit of impact to revenue would go away then in the back half of the year. Defendants also falsely assured the market that RAC had a very good knowledge of what we see in terms of the impact on the stores. Despite these assurances, RAC's stock price dropped approximately 25% on February 2, 2016 on high trading volume. Defendants filed their current Motion to Dismiss Plaintiffs' Consolidated Amended Class Action Complaint pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6) and the PSLRA. Defendants assert the Complaint fails to plead either (1) falsity or (2) the requisite strong inference of scienter with particularity as to any of the alleged misrepresentations. The Magistrate Judge issued an Amended Report and Recommendation (R&R), recommending Defendants' Motion to Dismiss Plaintiffs' Consolidated Class Action Complaint be denied. The Magistrate Judge concluded that Plaintiffs adequately pleaded Defendants made false and misleading statements and omissions during the Class Period. In reaching this determination, the Magistrate Judge considered all of Plaintiffs' allegations and found, at this stage, a reasonable person may draw the plausible inferences from the allegations that Defendants made material representations or omissions. Viewing the allegations as a whole, the Court agrees with the Magistrate Judge that a reasonable person may draw the plausible inferences from the allegations that Defendants made material misrepresentations or omissions. The complaint identifies each of the false and misleading statements and omissions including the speaker, and the date when and location where, the statement was made; plausibly alleges the misleading nature of the representations with facts that are sufficiently particularized to explain why and on what basis they are misleading; and contains information from high-level CWs who were employed by RAC before and during the Class Period, based on their own personal knowledge of the facts alleged. The Magistrate Judge recognized confidential witness accounts are a permissible basis on which to allege falsity, so long as the complaint provides details such as job descriptions, individual responsibilities, and specific employment dates for the witnesses. Defendants have not challenged the Magistrate Judge's finding that the two CWs have been described with sufficient particularity to establish their reliability and personal knowledge. Even giving less weight to the CW allegations, the Court agrees with the Magistrate Judge's finding that a reasonable person may draw the plausible inference from the allegations in the complaint that Defendants made material misrepresentations or omissions. A full-text copy of the District Court's December 14, 2017 Memorandum and Recommendation is available at https://tinyurl.com/yabzpv7y from Leagle.com. Alan Hall, Plaintiff, represented by Lionel Z. Glancy -- lglancy@glancylaw.com -- Glancy Prongay & Murray LLP, pro hac vice. Alan Hall, Plaintiff, represented by Elton Joe Kendall -- jkendall@kendalllawgroup.com -- Kendall Law Group, LLP & Jamie Jean McKey -- jmckey@kendalllawgroup.com -- Kendall Law Group, LLP. James DePalma, Plaintiff, represented by Willie Charles Briscoe - - wbriscoe@thebriscoelawfirm.com -- The Briscoe Law Firm & R. Dean Gresham -- dean@stecklerlaw.com -- Steckler Gresham Cochran LLP. City of Hollywood Employees' Retirement Fund, Plaintiff, represented by Jonathan Gardner -- jgardner@labaton.com -- Labaton Sucharow LLP, Marisa N. DeMato -- mdemato@labaton.com -- Labaton Sucharow LLP & Guillaume Orson Buell -- gbuell@hdwlegal.com -- Hicks Davis Wynn P.C.. Rent-A-Center INC., Defendant, represented by David Dykeman Sterling -- david.sterling@bakerbotts.com -- Baker Botts LLP & Jessica B. Pulliam -- jessica.pulliam@bakerbotts.com -- Baker Botts LLP. Robert D. Davis, Defendant, represented by David Dykeman Sterling, Baker Botts LLP & Jessica B. Pulliam, Baker Botts LLP. Guy J. Constant, Defendant, represented by David Dykeman Sterling, Baker Botts LLP & Jessica B. Pulliam, Baker Botts LLP. Oklahoma Firefighters Pension and Retirement System, Movant, represented by Christine M. Fox -- cfox@labaton.com -- Labaton Sucharow LLP, Christopher L. Mooney -- cmooney@labaton.com -- Labaton Sucharow LLP, Guillaume Orson Buell, Hicks Davis Wynn P.C., Jonathan Gardner, Labaton Sucharow LLP, Christopher Joseph Keller -- ckeller@labaton.com -- Labaton Sucharow LLP, Eric J. Belfi -- ebelfi@labaton.com -- Labaton Sucharow LLP, Francis Paul McConville -- fmcconville@labaton.com -- Labaton Sucharow LLP & Marisa N. DeMato, Labaton Sucharow LLP. Carl Miceli, Movant, represented by R. Dean Gresham, Steckler Gresham Cochran LLP. Dominic Miceli, Movant, represented by R. Dean Gresham, Steckler Gresham Cochran LLP. Larry Adams, Movant, represented by Elton Joe Kendall, Kendall Law Group, LLP. University of Puerto Rico Retirement System, Movant, represented by Barry C. Barnett -- bbarnett@susmangodfrey.com -- Susman Godfrey LLP. District No. 9, I.A. of M. & A.W. Pension Trust, Movant, represented by Jack Wesley Hill -- wh@wsfirm.com -- Ward, Smith & Hill, PLLC. RJ REYNOLDS: Tort Exception Applies to Engle Progeny Cases ---------------------------------------------------------- In the case captioned JOAN SCHOEFF, etc., Petitioner, v. R.J. REYNOLDS TOBACCO COMPANY, Respondent, No. SC15-2233. (Fla.), Joan Schoeff asks the Supreme Court of Florida to review the decision of the Fourth District Court of Appeal in R.J. Reynolds Tobacco Co. v. Schoeff, 178 So.3d 487 (Fla. 4th DCA 2015), on the ground that it expressly and directly conflicts with the First District Court of Appeal's decision in R.J. Reynolds Tobacco Co. v. Sury, 118 So.3d 849 (Fla. 1st DCA 2013), on the applicability of the comparative fault statute to Engle progeny cases. In 1994, the Engle class action was filed against tobacco companies including R.J. Reynolds Tobacco Company (RJR). The class included all Florida smokers who had contracted diseases caused by smoking. The Engle class raised claims including strict liability, negligence, fraudulent concealment, and conspiracy. In the first phase of the trial, the jury determined that the tobacco companies were negligent, marketed defective cigarettes, and conspired to conceal the risks of smoking. In the second phase of the trial, the jury found the defendants were liable to three class representatives and awarded the class a total of $145 billion in punitive damages. The defendants appealed. On appeal, the Third District decertified the class and found the punitive awards excessive. The state Supreme Court agreed that the punitive awards were excessive and that continued class treatment was not feasible "because individualized issues such as . . . comparative fault . . . predominate." The state Supreme Court also authorized members of the decertified class to file individual cases and held that findings from the first phase of trial including defect, negligence, concealment, and conspiracy would have res judicata effect in their individual cases. In Schoeff, 178 So. 3d at 488-90, the Fourth District affirmed the trial court's denial of RJR's motion for a directed verdict, denial of the motion for a new trial, grant of RJR's motion to remit the jury's compensatory damages, and application of Engle findings to Mrs. Schoeff's case. The Fourth District also concluded that the $30 million punitive damages award was unconstitutionally excessive in light of the $10.5 million compensatory damages. The decision further held that even if the punitive damages were not unconstitutional, remittitur was necessary under section 768.74(5)(e), Florida Statutes (2012), because Mrs. Schoeff had begged the jury not to award more than $25 million and a larger award "could [not] be adduced in a logical manner." Finally, the Fourth District majority determined that the proper remedy for the punitive damages issue would be for the trial court to grant RJR's motion for remittitur or hold a new trial on punitive damages if RJR did not agree to the amount of the remittitur. The district court rejected Mrs. Schoeff's cross-appeal regarding the trial court's reduction of compensatory damages, finding that she had waived the intentional tort exception by arguing comparative fault to the jury because no reasonable jury could "possibly understand that its comparative fault determination was going to have no effect whatsoever on its compensatory damages award." Reviewing the trial court's decision de novo, the majority also found that the comparative fault statute applies to Engle progeny cases in which the jury finds for the plaintiff on the intentional tort claims because Engle progeny cases are "grounded in negligence." The majority acknowledged that its de novo standard of review created conflict with the First District's review for abuse of discretion in Sury. The First District held in Sury that the comparative fault statute does not apply to Engle progeny cases in which the jury finds for the plaintiff on intentional tort claims because they sound in intentional tort rather than negligence. The state Supreme Court quashed the decision and approved the First District in Sury to the extent that it held that the intentional tort exception applies to Engle progeny cases in which the jury finds for the plaintiff on intentional tort claims such that compensatory damages may not be reduced by comparative fault. The state Supreme Court quashed the Fourth District's findings that Mrs. Schoeff waived the intentional tort exception, that the punitive damages award was unconstitutionally excessive, and that the trial court abused its discretion in denying RJR's motion for remittitur. A full-text copy of the state Supreme Court's December 14, 2017 Opinion is available at https://tinyurl.com/ybz9qt37 from Leagle.com. John S. Mills and Courtney Brewer, The Mills Firm, P.A., The Bowen House, 325 North Calhoun Street, Tallahassee, Florida 32301; Alex Alvarez, The Alvarez Law Firm, 355 Palermo Ave, Coral Gables, FL 33134, USA; Gary M. Paige, Gordon & Doner, 10650 Florida 84 #210, Davie, FL 33324; Laurie J. Briggs and T. Hardee Bass III of Searcy Denney Scarola Barnart & Shipley, PA, 2139 Palm Beach Lakes Blvd., West Palm Beach, FL 33409-6601, Florida; and Robert S. Glazier of Law Office of Robert S. Glazier, 540 Brickell Key Dr Ste C 1. Miami, FL 33131, for Petitioner. Donald B. Ayer -- dbayer@jonesday.com -- Jones Day, Washington, D.C. and Charles R.A. Morse -- cramorse@jonesday.com -- Jones Day, New York, New York; Robert C. Weill -- robert.weill@gray- robinson.com -- and Eric L. Lundt -- eric.lundt@gray-robinson.com -- of GrayRobinson, P.A. Fort Lauderdale, Florida, for Respondent. Gary M. Farmer Sr. -- farmergm@att.net -- of Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, Fort Lauderdale, Florida, Amicus Curiae Florida Justice Association. Celene H. Humphries -- chumphries@bhappeals.com -- Steven L. Brannock -- sbrannock@bhappeals.com -- Maegen P. Luka -- mluka@bhappeals.com -- and Thomas J. Seider -- tseider@bhappeals.com -- Brannock & Humphries, Tampa, Florida, Amicus Curiae Engle Plaintiffs' Firms. ROARK CAPITAL: Class Action Over Workers' Severance Pay Settled --------------------------------------------------------------- Mike Mullen, writing for City Pages, reports that next time you're basking in the steam off a pile of Asian Zing boneless chicken from Buffalo Wild Wings, spare a thought for Aaron Vance, standing dumbstruck in a woodworking factory. In 2009, Vance arrived for the 7 a.m. shift at Wood Structures, Inc. in Saco, Maine. A sawyer with a decade's experience, he had just punched in when everyone was called to a meeting. The company was shutting down, workers were told, and all employees were being placed on an "unpaid leave of absence." A few weeks later, those absences became permanent. No one bothered to tell the workers. Vance was one of 180 employees who argued in a class-action suit that they should've received 60 days' notice, severance pay, and payment for unused vacation hours. The suit targeted Roark Capital Group, an Atlanta private equity firm. Roark's response was astonishing: Workers couldn't sue Roark, which owned more than 98 percent of the company, because it was merely a "parent company," not their "employer," and therefore not subject to employment law. The woodworkers were technically employed by Wood Structures, and good luck collecting from that company, which was in bankruptcy. A judge saw through these arguments. The parties later settled on non-public terms. Founded in 2001, Roark brought on investors in waves. By 2008 it was sitting on more than $1 billion. It waited, wisely, as overpriced companies collapsed that year. Roark emerged from the crisis with an appetite to invest, and has developed a taste for restaurant chains, grabbing major holdings in Arby's, Jimmy John's, Hardee's/Carl's Jr., and Cinnabon, among others. In November, Roark made its biggest deal yet: a $2.9 billion purchase of Buffalo Wild Wings. When the purchase is complete in 2017, B-Dubs will once again be privately held. Very privately. Despite its splashy purchases of well-known brand names, Roark, incorporated in Delaware and the Cayman Islands, keeps a low profile. In December, it declined even to address a report that it was raising another $7 billion for acquisitions. Its founder, Neal K. Aronson, does an in-depth interview about once a decade. The firm is likely a mystery to the tens of thousands of lower- income employees of its restaurants, and the millions of low- to middle-income people who eat at them. It handles $7 billion in investments in more than 60 companies. On its website, Roark explains the inspiration behind its name: Howard Roark, the fictional architect-hero of the Ayn Rand novel The Fountainhead. This comes with the assurance that the name "does not connote any political philosophy," and is merely about admiration for the character's "independence and integrity." In the book, Roark demonstrates this "integrity" by blowing up a low-income housing project because it wasn't built to his designs, an act he defends in a monologue about the value of selfishness and ego. And the evil of charity. "I am a man who does not exist for others," he declares. The book is a favorite of Donald Trump's, who has said it "relates to business, beauty, life . . . inner emotions," and "everything." Trump shares this philosophical appreciation -- dark, if not exactly deep -- with Andrew Puzder, his first choice for U.S. labor secretary, who later withdrew after spousal abuse allegations resurfaced. Mr. Puzder started his career as a pro-life, anti-labor attorney, and was installed in 2000 as the CEO of CKE Restaurant Holdings, the corporation behind Hardee's and Carl's Jr. When Roark swooped to buy CKE in 2013, it kept Mr. Puzder in place, a reflection of its "partnering with management" strategy. As CEO, Mr. Puzder opposed the Affordable Care Act and minimum wage increases of any kind, and once spoke highly of the idea of employing robots, which "never take a vacation" or file "an age, sex, or racial discrimination case." Mr. Puzder was right to be bitter. His fast-food chains were sued often. In June, Carl's Jr. settled for $1.4 million with 37 employees whom it neglected to pay minimum wage. A survey of CKE employees found 28 percent were forced to work off-the-clock, and 76 percent had worked sick due to understaffing. Another class- action suit alleges CKE prohibits franchisees from hiring employees who work at another CKE business, which effectively suppresses employee wages. (Shift supervisors at a Carl's Jr. make about $25,000 a year.) Jimmy John's is currently embroiled in a class-action suit alleging it refused to pay assistant managers who worked overtime. Arby's has settled similar suits, with a new class- action filed in Florida in 2017. In 2015, Buffalo Wild Wings settled for $1.8 million with employees in Illinois and Michigan, who claimed the company was forcing tipped employees to do regular labor, like cleaning bathrooms, while receiving less than the minimum wage. In 2017, two employees in Ohio sued Buffalo Wild Wings for doing the same thing. This is the beauty of the franchise model: Franchisees are free to "innovate" at their restaurants as they see fit. Often enough, they do it in ways that screw their employees. The case of the Maine woodworkers should be instructive for employees at Roark's Buffalo Wild Wings. When the bourbon honey mustard hits the fan, don't come asking your new "parent company" for charity. Heed their harsh lessons and, as soon as you can afford it, consider moving out from under their roof. [GN] SALAMANDER FIRE: Doesn't Properly Pay Workers, "Alvarez Suit Says ----------------------------------------------------------------- Danny E. Alvarez, as an individual and on behalf of all others similarly situated v. Salamander Fire Protection, Inc. and Does 1 through 100, Case No. BC688326 (Cal. Super. Ct., January 3, 2018), is brought against the Defendants for failure to pay all overtime, minimum wages owed, failure to pay all rest period premium wages, and failure to provide the Plaintiff with accurate, itemized wage statements. Salamander Fire Protection, Inc. owns and operates an engineering and construction company in Los Angeles, California. [BN] The Plaintiff is represented by: Paul K. Haines, Esq. Tuvia Korobkin, Esq. Daniel J. Brown, Esq. HAINES LAW GROUP, APC 222 N. Sepulveda Blvd., Suite 1550 El Segundo, CA 90245 Telephone: (424) 292-2350 Facsimile: (424) 292-2355 E-mail: phaines@haineslawgroup.com tkorobkin@haineslawgroup.com dbrown@haineslawgroup.com SAN FRANCISCO: Wins Dismissal of Cellular Phone User Suit --------------------------------------------------------- The United States District Court for the Northern District of California issued an Order granting Defendant's Motion to Dismiss the case captioned PAMELA MORENO, Plaintiff, v. SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT, et al., Defendants, Case No. 17-cv- 02911-JSC (N.D. Cal.). The Motion to Strike is denied as moot. Defendants have each moved to dismiss the First Amended Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and BART has moved to strike the class allegations under Federal Rule of Civil Procedure 12(f). Plaintiff Pamela Moreno brings the putative class action alleging that Defendants the San Francisco Bay Area Rapid Transit District (BART) and Elerts Corporation violated California law through the clandestine collection of cell phone identifiers and location data via the BART Watch mobile application. Defendants insist that Plaintiff's claims are barred because she consented to the very conduct she complains of here. Defendants argue that Plaintiff cannot state a claim under California Penal Code Section 637.7. The Defendants maintain, albeit for different reasons, that California's Cellular Communications Interception Act does not apply to them. Defendants contend that Plaintiff has failed to adequately plead her constitutional and common law privacy claims. BART separately moves to strike the class allegations as insufficiently pled. The Court addresses each argument in turn. The Court finds that Plaintiff has not plausibly alleged that the App is a device within the meaning of section 637.7(d). A common meaning of device is a thing made or adapted for a particular purpose, especially a piece of mechanical or electronic equipment. Merriam-Webster defines device in relevant part as a piece of equipment or a mechanism designed to serve a special purpose or perform a special function, for example, smartphones and other electronic devices or a hidden recording device. A device could be "attached to" a moveable object, but software, such as the App, cannot. The legislative history confirms that the statute governs electronic tracking devices placed on vehicles or other movable things, like a boat or plane and not on software installed in mobile devices. For example, the purpose of the bill was to make it a misdemeanor to place an electronic tracking device on an automobile without the permission of the owner. Likewise, the bill analysis contains repeated references to regulating the placing of electronic tracking devices on automobiles. Plaintiff's only response to this history argues that the legislative history reveals a much broader scope of applicability than merely attaching tracking devices to cars; rather, the law's purpose was to generally "protect individuals from having their movements tracked by other private individuals. It is true that the statute is not limited to attaching devices to cars, but it is limited to attaching a device to a moveable object. Such facts are not alleged here, the Court said. Defendants maintain that Plaintiff also cannot state a claim under the Cellular Communications Interception Act. The Act, Cal. Gov't Code Section 53166, enacted in January 2016, requires every local agency that operates cellular communications interception technology. Plaintiff insists that its allegation that Defendants' targeting and collection of unique cellular identifiers is not incidental to usage of any part of the App but reflects Defendants' intentional and out of the ordinary programming choice is sufficient to satisfy its obligation to allege that BART knowingly violated the statute. Not so. Plaintiff alleges that Bart paid Elerts $300,000 for the development of the BART Watch App. The Court finds that there are no allegations that plausibly suggest that BART had any knowledge of the functionality alleged by Plaintiff. BART's motion to dismiss the Section 53166 claim likewise must be granted. Drawing all reasonable inferences in Plaintiff's favor, Plaintiff's allegations are insufficient to satisfy the third element of the constitutional invasion of privacy claim: a reasonable user would find that Defendants' periodic transmitting to their servers of her anonymous client id (there is no allegation she provided her contact information) and location is an egregious breach of social norms. Plaintiff concedes that prior to downloading the App, she had to accept that the App would have access to her "location, phone, photos/media/files, camera, and device ID & call information. She was thus on notice that BART would be accessing this information. Further, users download the BART Watch App so that they can report suspicious activity happening on BART it is implicit that the App would need to provide BART police with the user's location to do so. How else would the police know where to go? Indeed, the App clearly states that it will use a user's location to do so even and especially in the case of an anonymous report. That BART also periodically accesses this information even when the user is not using the App is not an egregious violation of social norms. The motion to dismiss Plaintiff's constitutional privacy claim is therefore granted. Defendants' motions to dismiss are granted with leave to amend. The motion to strike the class allegations is denied as moot. A full-text copy of the District Court's December 14, 2017 Order is available at https://tinyurl.com/y9btzwjh from Leagle.com. Pamela Moreno, individually and on behalf of all others similarly situated, Plaintiff, represented by Rafey Sarkis Balabanian -- rbalabanian@edelson.com -- Edelson PC. Pamela Moreno, individually and on behalf of all others similarly situated, Plaintiff, represented by Eve-Lynn J. Rapp -- erapp@edelson.com -- Edelson LLC, pro hac vice, John Aaron Lawson -- alawson@edelson.com -- Edelson PC, pro hac vice & Todd M. Logan -- tlogan@edelson.com -- Edelson PC. San Francisco Bay Area Rapid Transit District, a public entity, Defendant, represented by Gordon James Calhoun -- calhoun@lbbslaw.com -- Lewis Brisbois Bisgaard Smith LLP & Rene I. Gamboa -- Rene.Gamboa@lewisbrisbois.com -- Lewis Brisbois Bisgaard & Smith. Elerts Corp., a Delaware corporation, Defendant, represented by Esteban Morales Fabila -- emorales@mintz.com -- Mintz Levin Cohn Ferris Glovsky and Popeo PC & Joshua Briones -- JBriones@mintz.com -- Mintz Levin Cohn Ferris Glovsky and Popeo PC. SIX FLAGS: Plaintiff Fails to Show Harm in BIPA Class Action ------------------------------------------------------------ Scott Holland, writing for Cook County Record, reports a woman whose son had scanned his fingerprint to verify his identity when using his season pass to enter Six Flags Great America can't sue the amusement park over the fingerprint scan, because neither she nor her son were legally harmed by the scan, a state appeals court has ruled. In an opinion issued Dec. 21, the Illinois Second District Appellate Court in Elgin answered the question of whether the woman had legal standing to sue as part of a so-called interlocutory appeal amid plaintiff Stacy Rosenbach's ongoing class action lawsuit. Ms. Rosenbach had brought a class action lawsuit against Six Flags Entertainment Corporation and Great America LLC in January 2016 because her son, Alexander Rosenbach, was required to activate a fingerprint scanner to use his season pass for theme park admission. According to Stacy Rosenbach, Six Flags' use of fingerprint scanners violates the Biometric Information Privacy Act because the company doesn't obtain written consent or disclose its plans for collection, storage, use or destruction of customers' personal "biometric" records -- data relying on unique physical characteristics, like fingerprints or retinal scans, which can be used to identify a person. She said her son bought the membership and recorded his fingerprint, activating his pass at the park. However, when he came home, he told his mother he didn't have anything in writing from Six Flags concerning the fingerprint data. She alleged she wouldn't have let her son buy the pass had she known about the scanners, and she said he didn't return to Great America after the purchase. Ms. Rosenbach sued the theme park operators, asking the court to expand the lawsuit to include others who had submitted to fingerprint scans at Six Flags Great America without first being asked to give written consent or receiving the written notices Ms. Rosenbach asserted the BIPA law requires. Lake County Circuit Court Judge Luis A. Berrones dismissed the woman's claim of unjust enrichment, but allowed the woman's allegations under the BIPA law to continue. Six Flags then asked the judge to send to the appeals court questions on whether Rosenbach had standing to sue under the BIPA law. Judge Berrones granted that request April 7. Second District Appellate Justice Michael J. Burke wrote the opinion; Justices Ann B. Jorgensen and Mary S. Schostok concurred. The justices said the answer to the question centers on whether Rosenbach is "aggrieved" simply because Six Flags didn't follow BIPA's technical requirement to provide written notice of biometric data usage, or whether she must specify adverse consequences resulting from the alleged violation. BIPA, Justice Burke wrote, does not define "aggrieved," and the panel determined a technical violation of the law "does not equate to alleging an adverse effect or harm." The panel said state lawmakers could have written BIPA "to allow for a private cause of action for every technical violation." Choosing not doing so, they reasoned, gives weight to the word "aggrieved," such that a plaintiff must demonstrate how they were actually harmed. Ms. Rosenbach pointed to both the Uniform Commercial Code and Mortgage Act, each of which "allow an 'aggrieved' party a right of action without an actual injury," Justice Burke wrote. But the UCC "unambiguously identifies a concrete harm, i.e., the diminished value of the lease contract," and the Mortgage Act allows a "party aggrieved" to recover some money should a lender's action place "a cloud" on a real estate title, affecting its salability. Another section of the Mortgage Act "is a strict liability statute," which BIPA is not. Ultimately the panel determined Ms. Rosenbach did not allege harm that would allow her to pursue either damages or injunctive relief. They sent the case back to Lake County court for further proceedings. According to Lake County court records, Ms. Rosenbach is represented in the action by attorney Mark Bulgarelli, of Progressive Law Group LLC, of Chicago. Six Flags is represented by attorneys Debra Bernard -- DBernard@perkinscoie.com -- and Jasmina Vajovic -- JVajzovic@perkinscoie.com -- of the firm of Perkins Coie, of Chicago. [GN] SOUTHERN CALIFORNIA: Mandamus Bid in Gas Leak Suits OK'd -------------------------------------------------------- In the case, SOUTHERN CALIFORNIA GAS COMPANY, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; FIRST AMERICAN WHOLESALE LENDING CORPORATION et al., Real Parties in Interest, Case No. B283606 (Cal. App.) ("Southern California Gas Leak Cases"), Judge Kim Dunning of the Court of Appeals of California for the Second District, Division Five, granted SoCalGas' petition for a peremptory writ of mandate. On Oct. 23, 2015, SoCalGas discovered a natural gas leak at its Aliso Canyon Storage Facility, located above Porter Ranch in Los Angeles. The gas leak spread an oily mist over nearby neighborhoods, damaging real and personal property. Residents and individuals who worked in the vicinity of the facility complained about odors and acute respiratory and central nervous system symptoms. On Nov. 19, 2015, in response to the complaints, the Los Angeles County Department of Public Health ("Department") directed SoCalGas to offer temporary relocation to anyone living within a five-mile radius of the facility. The following month, the Los Angeles County Board of Education relocated students and staff at two Porter Ranch schools for the duration of the 2015-2016 school year. On Feb. 18, 2016, state officials confirmed SoCalGas permanently sealed the leak. On May 13, 2016, the Department issued a directive to SoCalGas to implement immediately a comprehensive remediation protocol for residences within a five-mile radius of the facility. Since October 2015, homeowners and realtors have been obligated to disclose to potential homebuyers and lessees the events related to the gas leak. The gas leak and the resulting relocation of approximately 15,000 Porter Ranch residents took an enormous toll on the local economy. On behalf of businesses located within a five-mile radius of the leak, seven Named Plaintiffs initiated a putative class action against SoCalGas for (i) strict liability for ultrahazardous activity, (ii) negligence, (iii) negligent interference with prospective economic advantage, and (iv) violations of the UCL. The Business Plaintiffs claimed no injury to person or property. Instead, they alleged the gas leak and subsequent relocation of Porter Ranch residents caused crushing economic loss to their businesses. SoCalGas filed a demurrer, asserting it owed no duty of care to the Business Plaintiffs under any of the alleged negligence theories -- strict liability, negligence, and negligent interference with prospective economic advantage. The Business Plaintiffs opposed the demurrer, asserting J'Aire did not apply or, to the extent that authority did apply, they sufficiently pleaded the existence of a J'Aire "special relationship." The respondent court advised the parties its tentative decision was to overrule the demurrer. In a comprehensive discussion, the court concluded SoCalGas owed a duty to the Business Plaintiffs and they could proceed with their action. After the hearing, the respondent court adopted the tentative ruling as its decision. The respondent court certified the ruling for appellate review. SoCalGas petitioned for a writ of mandate in the Court and the Business Plaintiffs filed a preliminary opposition. The Court issued an alternative writ directing respondent court to vacate its order overruling the demurrer or to show cause before the Court why the relief sought in the petition should not be granted. The respondent court elected not to comply with the alternative writ. The Business Plaintiffs subsequently filed a return and SoCalGas filed a reply. Judge Dunning finds that contrary to the assertions by the Business Plaintiffs, a third party's purely economic loss arising from a transaction is a prerequisite for recovery in tort, absent injury to person or property. The failure to establish this foundation precludes a finding of the "special relationship" required by J'Aire and subsequent Supreme Court decisions. She also finds that overruling the demurrer to hold SoCalGas accountable to the Business Plaintiffs for all the costs its accident caused would promote virtually unlimited responsibility. Without personal injury, property damage or a special relationship, the general rule that precludes the Business Plaintiffs from recovering for pure economic losses under a negligence theory remains viable. Counsel for business Plaintiffs confirmed at oral argument they do not seek leave to further amend their pleading. The Judge finds this position tacitly acknowledges the complaint does not suffer from a deficiency that can be cured by amendment, but is, instead, ripe for writ review. Judge Dunning concluded as a matter of law SoCalGas did not owe a duty to prevent the Business Plaintiffs' economic loss based on negligent conduct. Accordingly, she granted the petition for a peremptory writ of mandate. A full-text copy of the Court's Dec. 15, 2017 Order is available at https://is.gd/EH0zEq from Leagle.com. Morgan, Lewis & Bockius, James J. Dragna -- jim.dragna@morganlewis.com -- David L. Schrader -- david.schrader@morganlewis.com -- Yarden A. Zwang-Weissman -- yardena.zwang-weissman@morganlewis.com -- for Petitioner. No appearance for Respondent. Baron & Budd and Roland Tellis; Boucher and Raymond P. Boucher; Lieff Cabraser Heimann & Bernstein and Robert J. Nelson -- rnelson@lchb.com -- for Real Parties in Interest. STONE ENERGY: Faces "Heinrich" Class Suit Over Talos Merger Plans ----------------------------------------------------------------- John Heinrich, individually and on behalf of all others similarly situated v. Stone Energy Corporation, James Moore Trimble, Neal P. Goldman, John Juneau, Charles M. Sledge, and David Rainey, Case No. 1:18-cv-00054-UNA (D. Del., January 4, 2018), is brought on behalf of all public common stockholders of Stone Energy Corporation to enjoin the proposed acquisition of Stone Energy Corporation by Talos Energy LLC for approximately $2 billion. According to the complaint, Stone filed a Form S-4 Registration Statement with the U.S. Securities and Exchange Commission, which recommends that Stone stockholders vote in favor of the Proposed Transaction. However, the Registration Statement omits or misrepresents material information concerning, among other things: (i) financial projections for the Company; (ii) the valuation analyses performed by the Company's financial advisor, Petrie Partners Securities, LLC ("Petrie"), in support of their fairness opinions; and (iii) the background process leading to the Proposed Transaction. The failure to adequately disclose such material information constitutes a violation of the Exchange Act as stockholders need such information in order to cast a fully- informed vote in connection with the Proposed Transaction, says the complaint. The Complaint adds that the Proposed Transaction will unlawfully divest Stone's public stockholders of the Company's valuable assets without fully disclosing all material information concerning the Proposed Transaction to Company stockholders. To remedy defendants' Exchange Act violations, Plaintiff seeks to enjoin the stockholder vote on the Proposed Transaction unless and until such problems are remedied. Stone Energy Corporation acquires, explores, develops, and operates oil and gas properties onshore and offshore in the Gulf Coast Basin. [BN] The Plaintiff is represented by: Blake A. Bennett, Esq. COOCH AND TAYLOR, P.A. The Brandywine Building 1000 West Street, 10th Floor Wilmington, DE 19801 Telephone: (302) 984-3800 E-mail: bbennett@coochtaylor.com - and - Juan E. Monteverde, Esq. Miles D. Schreiner, Esq. MONTEVERDE & ASSOCIATES PC 350 Fifth Avenue, Suite 4405 New York, NY Telephone: (212) 971-1341 Facsimile: (212) 202-7880 E-mail: jmonteverde@monteverdelaw.com mschreiner@monteverdelaw.com THERANOS INC: Gets $100MM Lifeline Amid Investor Class Actions -------------------------------------------------------------- Gizmodo's Tom McKay, citing Wall Street Journal, reports that Theranos, the beleaguered health care company that has fallen into serious financial trouble since 2016 over allegations its signature blood testing technology didn't work and it misled investors, has found a lifeline. Per the Wall Street Journal, Theranos has secured a $100 million loan from Fortess Investment Group, though CEO Elizabeth Holmes wrote in a memo to the company's remaining staff that it is "subject to achieving certain product and operational milestones." The $100 million has averted doom for now, but is likely the end of the line unless Theranos manages to pull through quick, such as by proving that its specialized devices for running various types of blood tests can actually work. As the Journal noted, Theranos had previously raised some $900 million and achieved a valuation of $10 billion before the series of scandals nearly destroyed the company and threatened to drown it to death in lawsuits. The Centers for Medicare and Medicaid Services actually banned Holmes from operating labs in July 2016, while the company itself agreed to reduced penalties from regulators in exchange for staying out of the blood testing business for two years in April 2017. Investigators from the U.S. attorney's office in San Francisco and the Securities and Exchange Commission are still looking into the company's practices, per the Journal, while both investors and customers are seeking class-action lawsuits. The company has at least partially moved away from its original selling point-running tests on extremely tiny amounts of blood from a single pin-prick and is instead betting all on the miniLab, a small device which it says combines the capabilities of a whole array of traditional diagnostic instruments. But scientists remain skeptical miniLab is anywhere near as revolutionary as claimed, and the prototype first revealed in 2016 didn't contain any features not previously demonstrated by other companies' products. miniLab's predecessor, Edison, was a colossal disaster that saw two years of blood tests retroactively voided, risking the health of 890,000 patients who used Theranos testing services. [GN] THERANOS INC: Intends to Vigorously Defend Consumer Class Action ---------------------------------------------------------------- Luke Stangel, writing for Silicon Valley Business Journal, reports that embattled blood-testing startup Theranos has secured a $100 million loan, which should keep the company afloat through 2018 as it continues to battle lawsuits and close out ongoing federal investigations, the Wall Street Journal reports. The loan from Softbank-owned private equity firm Fortress Investment Group LLC is "subject to achieving certain product and operational milestones," Theranos CEO Elizabeth Holmes reportedly said in an email to investors on Dec. 22. In return, Theranos put up its patent portfolio as collateral, and gave Fortress grants for 4 percent of the company's equity. The Newark-based startup was once one of Silicon Valley's best- funded unicorns, having raised $900 million venture capital at a nearly $10 billion valuation. Its core technology, so-called "nanotainers," gathered a microscopic amount of blood and tested it for more than 30 conditions in under four hours. Theranos signed an agreement with Walgreens to open 40 blood-testing centers in stores. But the tests gave inaccurate results, and Theranos failed to tell its investors and partners that it sometimes had to test blood using conventional methods. In 2015, the company's story began to unravel, prompting multiple federal investigations and a high-profile, $140 million lawsuit from Walgreens. In her email, Ms. Holmes said the company would continue to cooperate with federal investigators at the Securities and Exchange Commission and Department of Justice, and intended to "vigorously" defend itself against an ongoing investor lawsuit and consumer class-action lawsuit. In July, Theranos put its new headquarters in Palo Alto up for rent and moved its offices to Newark. The company laid off nearly 400 employees between October 2016 and January 2017, amid news that its ended 2016 with just $200 million in cash. [GN] TRAEGER PELLET: $2.85MM Settlement in "Leverage" Has Final OK ------------------------------------------------------------- In the case, DAVID LEVERAGE, et al., Plaintiffs, v. TRAEGER PELLET GRILLS, LLC, et al., Defendants, Case No. 16-cv-00784-KAW (N.D. Cal.), Judge Kandis A. Westmore of the U.S. District Court for the Western District of California granted the Plaintiffs' unopposed motion for final approval of the settlement; and (ii) granted in part and denied in part the Plaintiffs' unopposed motion for attorney's fees, costs, and class representatives' incentive payments. On Feb. 16, 2016, the Plaintiffs filed the instant putative class and collective action complaint for violation of various federal and California labor laws. On March 25, 2016, they filed an amended complaint, adding additional claims under California labor laws. On June 8, 2016, they filed a second amended complaint adding an unlawful deductions claim. On June 22, 2016, the Defendants filed a motion, seeking to dismiss based on improper venue, or, in the alternative, to transfer the case to Utah. They also sought dismissal under Rule 12(b)(6). On Oct. 4, 2016, the Plaintiffs filed a motion to conditionally certify a class under 29 U.S.C. Section 216(b). On Dec. 6, 2016, the parties filed a notice of settlement, and requested that all pending hearings and deadlines be taken off- calendar. On April 7, 2017, the Plaintiffs filed their unopposed motion for preliminary approval on April 7, 2017. On May 31, 2017, the parties filed a joint supplemental brief in support of the motion for preliminary approval. The Court held a hearing on the Plaintiffs' motion for preliminary approval on June 15, 2017. At the hearing, the parties agreed to make certain changes to the settlement. After the parties filed a revised Settlement Agreement with the requested changes, the Court granted preliminary approval. Under the terms of the approved Settlement Agreement, the Defendants agree to pay a "Maximum Settlement Amount" of $2,850,000. Of the Maximum Settlement Amount, the Plaintiff's counsel seeks an attorney's fee award of 25%, or $712,500, as well as expenses not to exceed $60,000. The Maximum Settlement Amount also includes $65,000 in incentive payments to the Named Plaintiffs, and $35,000 for administration costs. The Maximum Settlement Amount includes $66,666.67 in penalties under California's Private Attorneys General Act ("PAGA"); $50,000 will be paid to the California Labor and Workforce Development Agency ("LWDA"), and $16,666.67 will be distributed to California members based on the number of weeks each member worked in California between Feb. 16, 2015 and the date of preliminary approval. This leaves a "Net Settlement Amount" of $1,910,833.33 for distribution to an estimated 909 class members. The Settlement provides for three classes: (i) the "California Class," which consists of employees who worked for the Defendants in California; (ii) the "Non-California Rule 23 Class," which consists of employees who worked for the Defendants in states outside of California under whose laws the Plaintiffs have alleged state-law claims in the proposed Fourth Amended Complaint; and (iii) the "FLSA Class," which consists of employees who worked for Defendants in all other states. The California Class and Non-California Rule 23 Class are opt-out classes, while the FLSA Class is an opt-in class. As part of the settlement, the Plaintiffs agreed to file a Fourth Amended Complaint, which will add Mr. Tracy Powell as a Named Plaintiff and will add labor claims from additional states. The Settlement Agreement will release: (i) "Released California Claims," or any and all claims that were or could have been asserted under California law by California Class members based on the factual allegations in the Complaint; (iii) "Released FLSA Claims," or any and all claims that were or could have been asserted under the Fair Labor Standards Act by FLSA Class Members based on the factual allegations in the Complaint; and (iii) "Released Non-California Rule 23 Claims," or any and all claims that were or could have been asserted under the wage and hour laws and regulations of all state laws (other than California) invoked in the Fourth Amended Complaint and arising from the factual allegations in the Complaint. Judge Westmore finds that the Settlement is fair, adequate, and reasonable. Accordingly, the Judge granted the Plaintiffs' motion for final approval. She also granted the Plaintiffs' requests for an award of attorney's fees in the amount of $712,500, costs in the amount of $49,439.16, and $35,000 for the Settlement Administrator's costs. Finally, the Judge granted the Plaintiffs' request for (i) a $20,000 incentive award for Plaintiff Leverage; (ii) a $20,000 incentive award for Plaintiff Lentini; (iii) a $10,000 incentive award for Plaintiff Dana; and (iv) a $5,000 incentive award for Plaintiff Powell. She denied the Plaintiffs' request for a $10,000 incentive award for Plaintiff Benhardus and, instead, awards Plaintiff Benhardus $5,000. A full-text copy of the Court's Dec. 15, 2017 Order is available at https://is.gd/XpQuHQ from Leagle.com. David Leverage, Plaintiff, represented by John Henry Crouch, IV, Kilgore Kilgore PLLC. David Leverage, Plaintiff, represented by Fletcher W.H. Schmidt - - fschmidt@haineslawgroup.com -- Haines Law Group, APC, Paul Haines -- phaines@haineslawgroup.com -- Haines Law Group, APC, Sean M. Blakely -- sblakley@haineslawgroup.com -- Haines Law Group, APC, Tuvia Korobkin -- tkorobkin@haineslawgroup.com -- Haines Law Group, APC & Christine A. Hopkins, Kilgore & Kilgore, PLLC. Michael Lentini, Plaintiff, represented by John Henry Crouch, IV, Kilgore Kilgore PLLC, Fletcher W.H. Schmidt, Haines Law Group, APC, Paul Haines, Haines Law Group, APC, Sean M. Blakely, Haines Law Group, APC, Tuvia Korobkin, Haines Law Group, APC & Christine A. Hopkins, Kilgore & Kilgore, PLLC. Peter Dana, Plaintiff, represented by Christine A. Hopkins, Kilgore & Kilgore, PLLC, Fletcher W.H. Schmidt, Haines Law Group, APC, Paul Haines, Haines Law Group, APC, Sean M. Blakely, Haines Law Group, APC, Tuvia Korobkin, Haines Law Group, APC & John Henry Crouch, IV, Kilgore Kilgore PLLC. Chris Bernhardus, Plaintiff, represented by Christine A. Hopkins, Kilgore & Kilgore, PLLC & Paul Haines, Haines Law Group, APC. Traeger Pellet Grills, LLC, Defendant, represented by Timothy Joseph Long -- tjlong@orrick.com -- Orrick Herrington & Sutcliffe LLP & David Peter Fuad -- dfuad@orrick.com -- Orrick Herrington and Sutcliffe LLP. Xen 2, Inc., Defendant, represented by Timothy Joseph Long, Orrick Herrington & Sutcliffe LLP & David Peter Fuad, Orrick Herrington and Sutcliffe LLP. TORONTO-DOMINION: Lead Plaintiff Named in Securities Suit --------------------------------------------------------- In the cases, ARMANDO DURIGON, individually and on behalf of all others similarly situated, Plaintiffs, v. THE TORONTO-DOMINION BANK, et al., Defendants. JANET TUCCI, individually and on behalf of all others similarly situated, Plaintiffs, v. THE TORONTO- DOMINION BANK, et al., Defendants, Case Nos. 1:17-cv-1665 (NLH/JS), 1:17-cv-1735 (NLH/JS) (D. N.J.), Judge Noel L. Hillman of the U.S. District Court for the District of New Jersey granted Ethan Silverman's motion for consolidation and appointed Silverman as the Lead Plaintiff of the consolidated action. On Dec. 3, 2015, The Toronto-Dominion Bank filed an annual report on Form 40-F with the U.S. Securities and Exchange Commission (SEC), announcing its financial and operating results for the fiscal year that ended Oct. 31, 2015. On Dec. 1, 2016, it filed an annual report on Form 40-F with the SEC, announcing its financial and operating results for the fiscal year that ended Oct. 31, 2016. In March 2017, CBC News published a report revealing that unrealistic sales goals led Dominion Bank employees to engage in illegal conduct. Between Dec. 3, 2015 and March 2017 publication, the class members purchased securities from Dominion Bank. The publication of the report resulted in shares falling in value and in damages to the class members. A complaint was filed in the 17-1665 action on March 12, 2017 by Durigon, individually and on behalf of all others similarly situated. A complaint was filed in the 17-1735 action on March 15, 2017 by Tucci, individually and on behalf of all others similarly situated. The complaints allege various statements made by Dominion Bank in SEC filings were materially false and/or misleading and that they failed to disclose material adverse facts. On May 11, 2017 in the 17-1665 action, Diana Lawler, V Rao Dandamudi, and Sujata Dandamudi moved for consolidation, for appointment as the lead plaintiffs, and for approval of the class counsel. Also on May 11, 2017 in the 17-1665 action, John Gilbert moved to consolidate, for appointment as the lead plaintiff, and for approval of the class counsel. Also on May 11, 2017 in the 17-1665 action and in the 17-1735 action, Silverman moved for consolidation, appointment as the lead plaintiff, and for approval of the class counsel. On May 22, 2017, Lawler, Dandamudi, and Dandamudi filed a notice of non-opposition to Silverman's motion, stating they reviewed the competing lead plaintiff motions and do not appear to have the largest financial interest as it appears Movant Ethan Silverman has the largest financial interest in the action. Also on May 22, 2017, Gilbert filed a notice of non-opposition indicating, based on his review of the other motions, he does not have the largest financial interest. Dominion Bank, Bharat Masrani, Colleen Johnston, and Riaz Ahmed do not oppose consolidation and take no position on the motions to appoint the lead plaintiffs and the lead counsel in both actions. Judge Hillman finds consolidation of these cases appropriate. The complaints are brought against the same Defendants in both actions. Both assert violations of Section 10(b) of the Exchange Act and Rule 10b-5, promulgated thereunder, and violations of Section 20(a) of the Exchange Act. Both complaints also preliminarily define an identical class consisting of people and entities who purchased or acquired securities from Dominion Bank between Dec. 3, 2015 and March 9, 2017. He finds the most efficient way to resolve these questions is by consolidating these actions. He does not find any specific risks of prejudice or confusion. Accordingly, the Judge will consolidate these actions. The Judge also finds that during the proposed class period, Silverman (i) purchased 15,000 shares, (ii) expended $780,002, and (iii) suffered a loss of $49,669. The other movants who subsequently withdrew their motions for appointment as the lead plaintiff recognized Silverman's financial interest was greater than theirs. The Judge finds similarly. Based on the information before it, he finds Silverman has the largest financial interest in the relief sought by the purported class. As Silverman appears to have the largest financial interest, has satisfied the Rule 23 requirements, and the presumption that Silverman is the most adequate Plaintiff has not been rebutted, he will appoint Silverman as the Lead Plaintiff in this consolidated action. Finally, the Judge will reserve its decision on approval of the class counsel. Silverman is directed to re-brief his application for approval of the class counsel with particular emphasis on the necessity for two law firms serving as co-lead class counsel and separate liaison counsel. Silverman is also directed to brief the steps taken in selecting his chosen firms and details of any retainer agreements entered into and any negotiations regarding such retainer agreements. A full-text copy of the Court's Dec. 13, 2017 Opinion is available at https://is.gd/fN3pcs from Leagle.com. Diana Lawler, Movant, represented by LAURENCE M. ROSEN -- lrosen@rosenlegal.com -- THE ROSEN LAW FIRM, PA. V Rao Dandamudi, Movant, represented by LAURENCE M. ROSEN, THE ROSEN LAW FIRM, PA. Sujata Dandamudi, Movant, represented by LAURENCE M. ROSEN, THE ROSEN LAW FIRM, PA. Ethan Silverman, Movant, represented by BRUCE DANIEL GREENBERG -- bgreenberg@litedepalma.com -- LITE DEPALMA GREENBERG, LLC. ARMANDO DURIGON, individually and on behalf of all others similarly situated, Plaintiff, represented by LAURENCE M. ROSEN, THE ROSEN LAW FIRM, PA. JOHN GILBERT, Plaintiff, represented by JAMES E. CECCHI -- JCecchi@carellabyrne.com -- CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C.. JANET TUCCI, individually and on behalf of all others similarly situated, Plaintiff Consolidated, represented by BRUCE DANIEL GREENBERG, LITE DEPALMA GREENBERG, LLC. THE TORONTO-DOMINION BANK, Defendant, represented by SUSAN M. LEMING -- sleming@brownconnery.com -- BROWN & CONNERY, LLP & WILLIAM M. TAMBUSSI -- wtambussi@brownconnery.com -- BROWN & CONNERY, LLP. BHARAT MASRANI, Defendant, represented by SUSAN M. LEMING, BROWN & CONNERY, LLP & WILLIAM M. TAMBUSSI, BROWN & CONNERY, LLP. COLLEEN JOHNSTON, Defendant, represented by SUSAN M. LEMING, BROWN & CONNERY, LLP & WILLIAM M. TAMBUSSI, BROWN & CONNERY, LLP. RIAZ AHMED, Defendant, represented by SUSAN M. LEMING, BROWN & CONNERY, LLP & WILLIAM M. TAMBUSSI, BROWN & CONNERY, LLP. UNIFUND CCR: Court Grants Bid to Dismiss "Livermore" Suit --------------------------------------------------------- Judge J.P. StadtMueller of the U.S. District Court for the Eastern District of Wisconsin granted the Defendants Unifund CCR LLC, Pilot Receivables Management LLC, and Distressed Asset Portfolio III LLC (DAP)'s motion to dismiss the case, CHARLES LIVERMORE, Plaintiff, v. UNIFUND CCR LLC, PILOT RECEIVABLES MANAGEMENT LLC, DISTRESSED ASSET PORTFOLIO III LLC, and WILL LAND GROUP INC., Defendants, Case No. 17-CV-1051-JPS (E.D. Wis.). The Plaintiff defaulted on a Citibank credit card account. On March 17, 2016, UCB sent the Plaintiff a collection letter regarding the debt. UCB's letter states that "CITIBANK, N.A." was the Plaintiff's creditor. It further states that the Plaintiff's balance was $19,552.10 and that interest may accrue on that balance. On June 15, 2016, Will Land sent the Plaintiff a similar letter. The letter identified Citibank as the Plaintiff's creditor and provided a current balance of $19,844.39. Will Land sent another letter on July 19, 2016 with the same information. More letters came for August through November 2016. Each of those letters provided a new balance of $19,840.37. On May 30, 2017, Citibank wrote to the Plaintiff, informing him that his delinquent credit card account had been sold to Pilot. The May 30 letter listed the balance as $19,548.08. On June 15, 2017, the Plaintiff received a letter from Unifund. Unifund claimed that DAP, not Pilot, was the current owner of the debt. Apparently, between May 30 and June 15, Pilot sold the debt to DAP. The balance on Unifund's letter was the same as that provided by Citibank -- $19,548.08. Unifund further identified Citibank as the original creditor and provided an address for Citibank in Sioux Falls, South Dakota. The Plaintiff finds a number of faults in this barrage of collection notices. First, the differing balances were confusing, in that they went up and down without him having made a payment since September 2015. Second, Unifund's letter identified the debt amount as the "Balance Placed." The Plaintiff alleges that this leaves open the possibility that some other portion of the debt was not "placed" with Unifund. Third, the May 30 and June 15, 2017 letters, taken together, do not clearly identify whether Pilot or DAP owned his debt. Finally, he says that including Citibank's address in the June 15 letter was a deliberate attempt to mislead consumers into sending disputes about their debts to Citibank itself. The Plaintiff filed the class action on July 31, 2017. He sued the Defendants for their part in sending him, and members of the putative class, allegedly confusing debt collection letters. He brings claims under the Fair Debt Collection Practices Act ("FDCPA") and the Wisconsin Consumer Act ("WCA"). All the Defendants save Will Land moved to dismiss the Plaintiff's Complaint on Sept. 14, 2017. That motion was mooted by the filing of the Plaintiff's Amended Complaint on Sept. 20, 2017. The new pleading did not assuage the Defendants' concerns, however, as they promptly filed another motion to dismiss on Oct. 4, 2017. The Plaintiff states his claims against the Defendants in five counts. The first three are FDCPA claims. Count One alleges that, in light of the moving balances stated in the various letters throughout 2016 and 2017, all the Defendants are liable for either over- or under-stating the amount of the Plaintiff's debt. Count Two claims that Unifund attempted to deceive the Plaintiff by including Citibank's address on its letter. The address also "overshadowed" the FDCPA-mandated validation notice included in Unifund's letter. Count Three also targets Unifund, stating that its letter misidentified DAP as the owner of the debt. The final two counts are based on the WCA and are offered as factual alternatives. Count Four alleges that if Pilot was the true owner of the Plaintiff's debt, it is liable for Unifund's letter which was sent to collect a debt on Pilot's behalf. In this instance, Pilot would be responsible for Unifund's assertion that DAP owned the debt, when this was false. Count Five states that if DAP was the true owner, it too bears liability for Unifund's conduct. Here, Unifund did not clarify that the debt had been sold to DAP so soon after Citibank had sold it to Pilot. According to Plaintiff, failing to explain this development constitutes harassment. The Plaintiff also asserts two class claims. These appear to be based on Counts One and Two. The allegations nonetheless suggest that the class claims have a basis in both the FDCPA and WCA. Judge Stadtmuller finds that the thrust of the Plaintiff's claims is to hold the Defendants liable for the conduct of others over whom they exercised no control. As it stands, however, the Defendants' single contact with the Plaintiff was plain and in full compliance with their FDCPA-mandated duties. The Judge says the Defendants' motion must, therefore, be granted. Upon his review of the Defendants' motion, the Judge would not have granted the Plaintiff leave to amend his complaint. First, the Plaintiff chose not to ask for leave. Further, he already amended his complaint once, in response to the Defendants' initial motion to dismiss. However, on Dec. 5, 2017, more than a month after the Defendants' motion to dismiss was fully briefed, the Plaintiff filed a motion for leave to submit a second amended complaint. He states that he received discovery responses from Unifund on Nov. 8, 2017, and he wishes to amend his pleading to conform to the evidence produced therein. The Judge is troubled by the almost month-long delay between the Plaintiff's receipt of Unifund's discovery responses and his motion for leave to amend. Nonetheless, in light of the extremely liberal standard applied to amendment of pleadings, the Judge will permit the Plaintiff to offer a second amended complaint. He will deny the Plaintiff's current motion for leave to amend without prejudice. Judge Stadtmueller expects that Plaintiff will carefully edit his pleading in light of the Court's rulings above and excise any claims for which amendment would be futile. He further notes that, contrary to the Plaintiff's assertion, the lawsuit is not in an early stage. Absent truly exceptional circumstances, no further amendments will be permitted. The Plaintiff will be permitted until Dec. 22, 2017 to file a new motion for leave to amend his complaint. If he does not do so, the Court will promptly effectuate dismissal of the appropriate claims. This means that Counts One, Two, and Three of the Amended Complaint will be dismissed with prejudice as to the Defendants. The state-law claims encompassed in Counts Four and Five will be dismissed without prejudice. The Court will also dismiss the class claims with respect to the Defendants. The only claims remaining in this case would be Count One and the class claims as against Will Land. Accordingly, Judge Stadtmuller granted the Defendants Unifund, Pilot, and DAP's motion to dismiss. The Plaintiff's motion for leave to file a sur-reply is denied as moot. He denied without prejudice the Plaintiff's Motion for Leave to File Second Amended Complaint. A full-text copy of the Court's Dec. 15, 2017 Order is available at https://is.gd/AypMLh from Leagle.com. Charles Livermore, Plaintiff, represented by Mark A. Eldridge -- meldridge@ademilaw.com -- Ademi & O'Reilly LLP. Charles Livermore, Plaintiff, represented by Shpetim Ademi -- sademi@ademilaw.com -- Ademi & O'Reilly LLP & John D. Blythin -- jblythin@ademilaw.com -- Ademi & O'Reilly LLP. Unifund CCR LLC, Defendant, represented by Michael S. Poncin -- Mike.Poncin@lawmoss.com -- Moss & Barnett PA. Pilot Receivables Management LLC, Defendant, represented by Michael S. Poncin, Moss & Barnett PA. Distressed Asset Portfolio III LLC, Defendant, represented by Michael S. Poncin, Moss & Barnett PA. UNITED ASSOCIATION: $2MM Settlement in "Norris" Has Final OK ------------------------------------------------------------ In the case, ROBERT BRADLEY NORRIS, Plaintiff, v. LAWRENCE J. MAZZOLA, et al., Defendants, Case No. 15-cv-04962-JSC (N.D. Cal.), Magistrate Judge Jacqueline Scott Corley of the U.S. District Court for the Northern District of California granted the Plaintiffs' unopposed Motion for Preliminary Approval of Class Action Settlement; and granted in part the requested attorney's fees, costs, and incentive award. Plaintiff Norris brought the putative class action on his behalf as well as on behalf of similarly situated individuals under the Employee Retirement Income Security Act of 1974 ("ERISA") to recover withheld pension benefit contributions from the Defendants, the Trustees and Administrator of the Local 38 Plan at issue. The Plaintiff, a union plumber, is a participant in the Local 17 pension plan in Memphis, Tennessee. In 2012 and 2013, he worked in the Bay Area for an employer who was a signatory to a collective bargaining agreement with Local 38. Pursuant to that agreement, his employer made pension plan contributions to the Local 38 pension plan; however, Local 38 only transferred a portion of the contributions made on the Plaintiff's behalf to his Home Fund. The Plaintiff alleges that Local 38 violated ERISA in doing so. On the parties' cross-motions for summary judgment, the Court found in the Plaintiff's favor on many of his claims; however, prior to class certification, the parties notified the Court that they had reached a settlement agreement on Plaintiff's class and individual claims. The Settlement Class is defined as Travelers who traveled to and performed work in United Association Local 38's jurisdiction as a Traveler subject to the Reciprocal Agreement between Nov. 1, 2004 and June 19, 2017, excluding Travelers whose Home Locals participate in the Plumbers and Pipe Fitters National Pension Fund. The Settlement Agreement provides for a total Settlement Fund of $2,000,000 which is divided as follows: (i) a Common Fund of at least $1,465,000; (ii) a class representative incentive award to Mr. Norris of $35,000, (iii) an attorney's fees payment under 29 U.S.C. Section 1132 from the Local 38 Pension Plan's insurance carrier not to exceed $500,000, and (iv) an additional attorney's fee from the Common Fund of 25% (after deducting costs). The Common Fund will be allocated as follows: i. First, the damages subclass will receive a full and complete "true-up"; that is, each damages subclass member will receive 100% of the value of the difference between Local 38 Pension Plan's full hourly pension contribution rate and the amount transferred on behalf of each damages subclass member (i.e. 100% of employer non-PPA contributions). The aggregate value of this true-up is approximately $268,643. ii. Second, the Pension Protection Act of 2006 of damages subclass members will be transferred to their Home Funds if their Home Funds calculate the monthly pension benefit using a defined contribution type formula, i.e., where the Traveler's pension benefit from his or her Home Fund is based, under the terms of the Home Fund Plan Document, on the amount of contributions made or transferred to the Home Fund on the Traveler's behalf. The value of these contributions is approximately $88,505. iii. Third, the balance of the Common Fund will be distributed pro rata amongst the remaining Damages Class members Home Funds based on the number of hours each Damages Class member worked in Local 38's jurisdiction during the Damages Class time frame. The Home Funds calculate monthly pension benefits based on Traveler's years of service, and some may also provide increased benefits based on the dollar amount transferred. The balance to be divided pro rata is approximately $807,000. On Oct. 13, 2017, the Court granted the Plaintiffs' unopposed Motion for Preliminary Approval of Class Action Settlement. His unopposed motion for final approval of the class action settlement and for attorney's fees and expenses is now pending before the Court. There are no objections from any Class Members. The Court held a fairness hearing regarding final approval and fees on Dec. 7, 2017. Because the Settlement Class satisfies Rules 23(a) and 23(b)(1), and Notice was sufficient in accordance with Rule 23(c), Magistrate Judge Corley granted final class certification. She is also satisfied that the Settlement was not the result of collusion between the parties and instead is the product of arms- length negotiations between experienced and professional counsel. There are no objections to address. For each of these reasons, she finds that the Settlement Agreement passes muster under Rule 23(e) and final approval is appropriate. The Magistrate also approved the Class Counsel's request for $858,751 in attorney's fees and $29,994 in litigation expenses. However, she finds that the Plaintiff's individual damages recovery is not insubstantial. She determines that some incentive award is appropriate, but not the full amount sought. At the preliminary approval hearing, she advised the Class Counsel that $35,000 was very high for an incentive award and noted that counsel would need to make a showing regarding why such a high amount was justified; however, no such showing has been made. Accordingly, she determines that an incentive award here of $10,000 adequately compensates the Plaintiff for the risks and burdens of pursuing the case on behalf of the class and fairly compensates him for the significant results he achieved on their behalf. Having considered the arguments of counsel and the papers submitted, Magistrate Judge Corley granted final approval of the Settlement Agreement, and granted in part the requested attorney's fees, costs, and incentive award. Specifically, she awarded $858,751 in attorney's fees, $29,994 in litigation costs, and $10,000 to the Plaintiff as the class representative. A full-text copy of the Court's Dec. 19, 2017 Order is available at https://is.gd/qY38Bk from Leagle.com. Robert Bradley Norris, individually and on behalf of all others similarly situated, Plaintiff, represented by Colin David Wells - - colinwells@dwt.com -- Davis Wright Tremaine LLP. Robert Bradley Norris, individually and on behalf of all others similarly situated, Plaintiff, represented by Joseph P. Hoag -- josephhoag@dwt.com -- Davis Wright Tremaine LLP, pro hac vice & Richard J. Birmingham -- richbirmingham@dwt.com -- Davis Wright Tremaine LLP, pro hac vice. Lawrence J. Mazzola, Jr., Defendant, represented by James P. Baker -- JAMES.BAKER@BAKERMCKENZIE.COM -- Baker & McKenzie LLP & Christina M. Wong -- CHRISTINA.WONG@BAKERMCKENZIE.COM -- Baker and McKenzie LLP. Robert E. Buckley, Jr., Defendant, represented by James P. Baker, Baker & McKenzie LLP & Christina M. Wong, Baker and McKenzie LLP. Armand Kilijan, Defendant, represented by James P. Baker, Baker & McKenzie LLP & Christina M. Wong, Baker and McKenzie LLP. Scott Strawbridge, Defendant, represented by James P. Baker, Baker & McKenzie LLP & Christina M. Wong, Baker and McKenzie LLP. Fred Nurisso, Defendant, represented by James P. Baker, Baker & McKenzie LLP & Christina M. Wong, Baker and McKenzie LLP. Daniel Orsot, Defendant, represented by James P. Baker, Baker & McKenzie LLP & Christina M. Wong, Baker and McKenzie LLP. Milt Goodman, Defendant, represented by James P. Baker, Baker & McKenzie LLP & Christina M. Wong, Baker and McKenzie LLP. Steve Jennings, Defendant, represented by James P. Baker, Baker & McKenzie LLP & Christina M. Wong, Baker and McKenzie LLP. William Blackwell, Defendant, represented by James P. Baker, Baker & McKenzie LLP & Christina M. Wong, Baker and McKenzie LLP. Peter Machi, in his capacity as Administrator of the United Association Local 38 Defined Benefit Pension Plan, Defendant, represented by James P. Baker, Baker & McKenzie LLP & Christina M. Wong, Baker and McKenzie LLP. UNITED HEALTH: Court Grants Bid to Dismiss PBM Suit --------------------------------------------------- Judge Joan N. Ericksen of the U.S. District Court for the District of Minnesota granted the Defendants' motion to dismiss the case, In re: United Health Group PBM Litigation. THIS ORDER RELATES TO: Nos. 16-CV-3352, 16-CV-3496, 16-CV-3914, 16-CV-3996, 16-CV-4119, 16-CV-4129, 16-CV-4130, and 16-CV-4136, Case No. 16- CV-3352 (JNE/BRT) (D. Minn.). The Plan members bring suit against United Health and some of its wholly-owned subsidiaries under the Employee Retirement Income Security Act of 1974, the Racketeer Influenced and Corrupt Organizations Act, and various state laws relating to breach of contract, fraud, and deceptive trade practices for the Defendants' conduct in administrating pharmacy benefits that allegedly caused the Plaintiffs to overpay for prescription drugs purchased at retail network pharmacies. The Plaintiffs received prescription drug benefits through health plans purchased directly from Defendants or issued or administered by the Defendants for the Plaintiffs' employers. The non-Optum Defendants are health insurance and/or plan administrators, and Defendant OptumRx is a pharmacy benefit manager ("PBM"). The Plaintiffs' plan documents outline what plan members must pay to receive prescription drugs under their plans. Under each of their plans, the plan documents provide that plan members must pay copayments or coinsurance when filling prescriptions at retail pharmacies. The Plaintiffs allege, however, that they were entitled to pay less than they were charged as copayments or coinsurance under the terms of their plans because their plans entitled them to receive the benefit of the discounted rate, in the form of lower copayments or coinsurance amounts. They allege that they purchased certain drugs on numerous occasions and were overcharged due to OptumRx's contribution calculations, resulting in spreads and clawbacks. They bring claims for damages and equitable relief on behalf of two classes and five subclasses. The Defendants filed a motion to dismiss the Consolidated Class Action Complaint. Judge Ericksen granted the Defendants' motion to dismiss. He dismissed without prejudice Counts I, II, III, IV, V, VI, VII, VIII, IX, X, XI, XII, XIII, XVI, and XVIII of the CAC; and dismissed with prejudice Counts XIV, XV, and XVII of the CAC. Among other things, in light of the comprehensive nature of the Florida Insurance Code and its applicability to the Defendants, either as administrators or insurers, and their relevant activities, the Judge finds that Fellgren's Florida DUTPA claim in Count XV failed as a matter of law. Also, since the Defendants did not act as fiduciaries when engaging in the complained-of conduct or, if they did, the Plaintiffs have not plausibly alleged how such conduct constitutes a breach of any fiduciary duties. Therefore, Count IV is dismissed. And because both Counts VI and VII rely on underlying breaches of fiduciary duty or prohibited transactions, and Judge dismisses the underlying fiduciary duty and prohibited transaction claims, these Counts are also dismissed. Finally, the Judge dismissed for failure to exhaust Fellgren's Minnesota UDTPA claim in Count XVI relating to her alleged overpayment. A full-text copy of the Court's Dec. 19, 2017 Order is available at https://is.gd/rqI6l5 from Leagle.com. Anna Mohr, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Christopher Michael Barrett - - craabe@ikrlaw.com -- Izard, Kindall & Raabe, LLP, pro hac vice. Anna Mohr, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Craig Archer Raabe -- craabe@ikrlaw.com -- Izard, Kindall & Raabe, LLP, pro hac vice, Daniel E. Gustafson -- dgustafson@gustafsongluek.com -- Gustafson Gluek PLLC, Daniel R. Shulman -- daniel.shulman@gpmlaw.com -- Gray, Plant, Mooty, Mooty & Bennett, P.A., John M. Nichols -- ohn.nichols@gpmlaw.com -- Gray Plant Mooty, Joseph P. Guglielmo - - JGUGLIELMO@SCOTT-SCOTT.COM -- Scott & Scott, Attorneys at Law, LLP, Julia Dayton Klein , Gray Plant Mooty & Robert A. Izard, Jr. -- rizard@ikrlaw.com -- Izard, Kindall & Raabe, LLP, pro hac vice. Samantha Sohmer, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Christopher Michael Barrett, Izard, Kindall & Raabe, LLP, pro hac vice, Craig Archer Raabe, Izard, Kindall & Raabe, LLP, pro hac vice, Daniel E. Gustafson, Gustafson Gluek PLLC, Daniel R. Shulman, Gray, Plant, Mooty, Mooty & Bennett, P.A., John M. Nichols, Gray Plant Mooty, Joseph P. Guglielmo , Scott & Scott, Attorneys at Law, LLP, Julia Dayton Klein, Gray Plant Mooty & Robert A. Izard, Jr., Izard, Kindall & Raabe, LLP, pro hac vice. Charles Wiltsie, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Christopher Michael Barrett, Izard, Kindall & Raabe, LLP, pro hac vice, Craig Archer Raabe, Izard, Kindall & Raabe, LLP, pro hac vice, Daniel E. Gustafson, Gustafson Gluek PLLC, Daniel R. Shulman, Gray, Plant, Mooty, Mooty & Bennett, P.A., John M. Nichols, Gray Plant Mooty, Joseph P. Guglielmo , Scott & Scott, Attorneys at Law, LLP, Julia Dayton Klein, Gray Plant Mooty & Robert A. Izard, Jr., Izard, Kindall & Raabe, LLP, pro hac vice. Kathy L. Fellgren, Individually and On Behalf of All Others Similarly Situated, Plaintiff, represented by Craig Archer Raabe, Izard, Kindall & Raabe, LLP, Daniel E. Gustafson, Gustafson Gluek PLLC, Daniel R. Shulman, Gray, Plant, Mooty, Mooty & Bennett, P.A., Derek W. Loeser, Keller Rohrback L.L.P., pro hac vice, Eric N. Linsk, Lockridge Grindal Nauen PLLP, Erin M. Riley , Keller Rohrback L.L.P., Gretchen S. Obrist, Keller Rohrback LLP, pro hac vice, Heidi M. Silton, Lockridge Grindal Nauen PLLP, Joseph P. Guglielmo, Scott & Scott, Attorneys at Law, LLP, Julia Dayton Klein , Gray Plant Mooty, Karen Hanson Riebel, Lockridge Grindal Nauen PLLP, Kristen G. Marttila, Lockridge Grindal Nauen P.L.L.P. & Lynn Lincoln Sarko, Keller Rohrback LLP, pro hac vice. Dawn Mastra, on behalf of herself and all others similarly situated, Plaintiff, represented by Craig Archer Raabe, Izard, Kindall & Raabe, LLP, Daniel E. Gustafson, Gustafson Gluek PLLC, Daniel R. Shulman, Gray, Plant, Mooty, Mooty & Bennett, P.A., Joseph C. Bourne, Gustafson Gluek PLLC, Joseph P. Guglielmo, Scott & Scott, Attorneys at Law, LLP, Julia Dayton Klein, Gray Plant Mooty, Karla M. Gluek, Gustafson Gluek PLLC & Michelle J. Looby , Gustafson Gluek PLLC. Sherry Stevens, on Behalf of Themselves and All Others Similarly Situated, Plaintiff, represented by Andrew Allen Lemmon , Lemmon Law Firm, LLC, pro hac vice, Brian C. Gudmundson , Zimmerman Reed, PLLP, Bryce Daniel Riddle , Zimmerman Reed, LLP, Carey Alexander , Scott & Scott, Attorneys at Law, LLP, pro hac vice, Craig Archer Raabe , Izard, Kindall & Raabe, LLP, Daniel E. Gustafson , Gustafson Gluek PLLC, Daniel R. Shulman , Gray, Plant, Mooty, Mooty & Bennett, P.A., Edward Kirksey Wood, Jr. , Wood Law Firm, LLC, pro hac vice, Erin Green Comite , Scott + Scott, LLC, pro hac vice, Joseph P. Guglielmo , Scott & Scott, Attorneys at Law, LLP, pro hac vice, Julia Dayton Klein , Gray Plant Mooty, Nicholas Andrew Palerino , Law Office of Nicholas Palerino, pro hac vice & Ravi Kishan Sangisetty , Sangisetty Law Firm, LLC, pro hac vice. Robert Holm, on Behalf of Themselves and All Others Similarly Situated, Plaintiff, represented by Andrew Allen Lemmon, Lemmon Law Firm, LLC, pro hac vice, Brian C. Gudmundson, Zimmerman Reed, PLLP, Bryce Daniel Riddle, Zimmerman Reed, LLP, Carey Alexander, Scott & Scott, Attorneys at Law, LLP, pro hac vice, Craig Archer Raabe, Izard, Kindall & Raabe, LLP, Daniel E. Gustafson, Gustafson Gluek PLLC, Daniel R. Shulman, Gray, Plant, Mooty, Mooty & Bennett, P.A., Edward Kirksey Wood, Jr., Wood Law Firm, LLC, pro hac vice, Erin Green Comite , Scott + Scott, LLC, pro hac vice, Joseph P. Guglielmo, Scott & Scott, Attorneys at Law, LLP, pro hac vice, Julia Dayton Klein, Gray Plant Mooty, Nicholas Andrew Palerino, Law Office of Nicholas Palerino, pro hac vice & Ravi Kishan Sangisetty, Sangisetty Law Firm, LLC, pro hac vice. Stephen Hawks, Individually and On Behalf of All Others Similarly Situated, Plaintiff, represented by Craig Archer Raabe, Izard, Kindall & Raabe, LLP, Daniel E. Gustafson, Gustafson Gluek PLLC, Daniel R. Shulman, Gray, Plant, Mooty, Mooty & Bennett, P.A., Derek W. Loeser, Keller Rohrback L.L.P., pro hac vice, Eric N. Linsk, Lockridge Grindal Nauen PLLP, Erin M. Riley , Keller Rohrback L.L.P., Gretchen S. Obrist, Keller Rohrback LLP, pro hac vice, Heidi M. Silton, Lockridge Grindal Nauen PLLP, Joseph P. Guglielmo, Scott & Scott, Attorneys at Law, LLP, Julia Dayton Klein , Gray Plant Mooty, Karen Hanson Riebel, Lockridge Grindal Nauen PLLP, Kristen G. Marttila, Lockridge Grindal Nauen P.L.L.P. & Lynn Lincoln Sarko, Keller Rohrback LLP, pro hac vice. Marvin Rabbiner, Individually and On Behalf of All Others Similarly Situated, Plaintiff, represented by Craig Archer Raabe , Izard, Kindall & Raabe, LLP, Daniel E. Gustafson, Gustafson Gluek PLLC, Daniel R. Shulman, Gray, Plant, Mooty, Mooty & Bennett, P.A., Eric N. Linsk, Lockridge Grindal Nauen PLLP, Heidi M. Silton, Lockridge Grindal Nauen PLLP, Joseph P. Guglielmo, Scott & Scott, Attorneys at Law, LLP, Julia Dayton Klein , Gray Plant Mooty, Karen Hanson Riebel, Lockridge Grindal Nauen PLLP & Kristen G. Marttila, Lockridge Grindal Nauen P.L.L.P.. UnitedHealthcare, Inc., Defendant, represented by Andrew J. Holly -- holly.andrew@dorsey.com -- Dorsey & Whitney LLP, Jaime Stilson -- stilson.jaime@dorsey.com -- Dorsey & Whitney LLP, Michelle S. Grant -- grant.michelle@dorsey.com -- Dorsey & Whitney LLP & William R. Stoeri -- stoeri.bill@dorsey.com -- Dorsey & Whitney LLP. United HealthCare Services, Inc., Defendant, represented by Andrew J. Holly, Dorsey & Whitney LLP, Jaime Stilson, Dorsey & Whitney LLP, Michelle S. Grant, Dorsey & Whitney LLP & William R. Stoeri, Dorsey & Whitney LLP. UnitedHealthCare Insurance Company, Defendant, represented by Andrew J. Holly, Dorsey & Whitney LLP, Jaime Stilson, Dorsey & Whitney LLP, Michelle S. Grant, Dorsey & Whitney LLP & William R. Stoeri, Dorsey & Whitney LLP. Oxford Health Insurance, Inc., Defendant, represented by Andrew J. Holly, Dorsey & Whitney LLP, Jaime Stilson, Dorsey & Whitney LLP, Michelle S. Grant, Dorsey & Whitney LLP & William R. Stoeri, Dorsey & Whitney LLP. UnitedHealthcare Community Plan, Inc., Defendant, represented by Andrew J. Holly, Dorsey & Whitney LLP, Jaime Stilson, Dorsey & Whitney LLP, Michelle S. Grant, Dorsey & Whitney LLP & William R. Stoeri, Dorsey & Whitney LLP. OptumRX, Inc., Defendant, represented by Jaime Stilson, Dorsey & Whitney LLP & Michelle S. Grant , Dorsey & Whitney LLP. UnitedHealthcare of Alabama, Inc., Defendant, represented by Jaime Stilson, Dorsey & Whitney LLP & Michelle S. Grant, Dorsey & Whitney LLP. Optum, Inc., Defendant, represented by Jaime Stilson , Dorsey & Whitney LLP & Michelle S. Grant , Dorsey & Whitney LLP. UnitedHealth Group Inc., Defendant, represented by Jaime Stilso, Dorsey & Whitney LLP & Michelle S. Grant , Dorsey & Whitney LLP. UNITED STATES: $3.9MM Fees Award in "Sabo" Affirmed --------------------------------------------------- In the case, MICHAEL SABO, NICHOLAS WELLS, JUAN PEREZ, ALAN PITTS, BILLY J. TALLEY, AIMEE SHERROD, TYLER EINARSON, ON BEHALF OF THEMSELVES AND ALL OTHER INDIVIDUALS SIMILARLY SITUATED, Plaintiffs-Appellees, v. UNITED STATES, Defendant-Appellant, Case No. 2016-2693 (Fed. Cir.), Judge Kimberly Ann Moore of the U.S. Court of Appeals, Federal Circuit, affirmed the Court of Federal Claims's judgment and order awarding $3,862,924.53 to a certified class of the Plaintiffs for attorneys' fees and expenses pursuant to the Equal Access to Justice Act ("EAJA"). When a disability renders a military service member unfit to perform his duties, he may be retired -- either permanently or temporarily (by being placed on the temporary disability retirement list) -- or separated. In 2008, Congress enacted the National Defense Authorization Act for Fiscal Year 2008 ("NDAA"). The Department of Veterans Affairs's Schedule for Rating Disabilities ("VASRD") contains provisions relating to post- traumatic stress disorder ("PTSD"). Prior to the enactment of NDAA, the Department of Defense Instruction ("DoDI") 1332.39 generally adopted the VASRD as the standard for assignment of disability ratings, but stated not all the general policy provisions in Sections 4.1 - 4.31 of the VASRD are applicable. The Army also issued policy memoranda in 2002 and 2005 declaring that the 50% rating in VASRD Section 4.129 was a convalescent rating that it would not use when assigning disability ratings to soldiers deemed unfit for duty due to PTSD. Shortly after passage of the NDAA, the Department of Defense ("DoD") rescinded DoDI 1332.39 and directed the service branches to prospectively apply VASRD Section 4.129 to service members deemed unfit for duty due to PTSD. The Plaintiffs are service members who served in Iraq and Afghanistan, were diagnosed with PTSD, and were medically separated as a result. All received disability ratings of less than 50% for PTSD, in accordance with DoD policy prior to the enactment of NDAA. On Dec. 17, 2008, they sued, alleging the DoD wrongfully disregarded VASRD Section 4.129 and chapter 61 of Title 10 in rating their disabilities. On July 15, 2011, the parties filed a settlement agreement, which the Claims Court approved on Dec. 22, 2011. The terms of the Agreement involved various actions by the Plaintiffs, the government, and the Claims Court, but the Agreement generally provided the service branches would change the Plaintiffs' records to reflect a 50% disability rating for PTSD. Nothing in the Settlement Agreement will preclude the Plaintiffs from making an application for fees or other applicable relief under EAJA, nor from receiving an award pursuant to EAJA, and the government does not waive any defenses to any such EAJA application nor concede or admit any entitlement under EAJA. The Plaintiffs filed an initial application for fees and costs under EAJA on Oct. 10, 2012. The government moved to dismiss the application because the Plaintiffs' EAJA application was untimely filed more than 30 days after the day the Claims Court approved the Agreement. The Claims Court denied the motion. On July 26, 2016, the Claims Court awarded the Plaintiffs the entirety of their requested attorneys' fees and expenses pursuant to EAJA. It held that the government's position was not substantially justified, in part, because VASRD Section 4.129 is not a convalescent rating and was applicable prior to enactment of the NDAA. On Oct. 13, 2016, the Claims Court dismissed the last remaining claim with prejudice. On Nov. 7, 2016, the Claims Court issued a judgment pursuant to Rule 58 that all claims in the matter are dismissed, with prejudice. The government timely appealed. Judge Moore holds that in a thorough and well-reasoned opinion, the Claims Court clearly addressed each of the government's arguments and explained why the government's positions, both before and during litigation, were not substantially justified. It explained that the plain language of 10 U.S.C. Sections 1201- 03, applicable before enactment of the NDAA, required the service branches to use the standard schedule of rating disabilities in use by the VA at the time of the determination without qualification that some sections of the VASRD should be used but not others. It reasoned that the DoD's characterization of VASRD Section 4.129 as a convalescent rating was contrary to the description of convalescent ratings in VASRD Sections 4.30 and 4.128 as a 100% total disability rating when treatment for a disability resulted in hospitalization or immobilization. And while the Claims Court recognized that the government's decision to pursue a settlement with the Plaintiffs was substantially justified, it evaluated the government's actions after approval of the Agreement and concluded that it failed to meet its burden of establishing that the actions it took to expeditiously process the Plaintiffs' claims were substantially justified. Under these circumstances, the Judge cannot say the Claims Court abused its discretion in concluding that, overall, the government's positions were not substantially justified. Accordingly, Judge Moore affirmed the Claims Court's judgment awarding fees and expenses under EAJA. A full-text copy of the Court's Dec. 15, 2017 Order is available at https://is.gd/n3YRuH from Leagle.com. ARNOLD BRADLEY FAGG -- brad.fagg@morganlewis.com -- Morgan, Lewis & Bockius LLP, Washington, DC, argued for plaintiffs-appellees. Also represented by CHARLES P. GROPPE -- charles.groppe@morganlewis.com; BARTON F. STICHMAN, National Veterans Legal Services Program, Washington, DC. ALEXANDER ORLANDO CANIZARES, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellant. Also represented by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., DOUGLAS K. MICKLE, SHARI A. ROSE. UNITED STATES: Court Hears Arguments in Iraqi Detainees' Case ------------------------------------------------------------- Sarah Rahal, writing for The Detroit News, reports that relatives of hundreds of detained Iraqi nationals are pleading with a federal judge to reunite them with their Metro Detroit loved ones during the holiday season. U.S. District Judge Mark Goldsmith received 129 letters requesting that some of the remaining 300 detainees of 1,400 swept up in raids by U.S. Immigration and Customs Enforcement this summer, be sent home. The letters, many handwritten, were submitted to the court by wives, children, employers, religious figures and the detainees themselves in support of their release. Family letters and photographs were filed with the court on Dec. 20 by the Chaldean Community Foundation, an arm of the Chaldean American Chamber of Commerce. Most of the detainees are being housed in the Northeast Ohio Correctional Center. "It has been a living nightmare and our hears are broken," Angela Daoud, wife of detainee Yani Daoud, wrote in her letter to the judge, noting the center where her husband is behind housed won't permit visitors on Christmas and that children aren't allowed. ". . . my son and I have not seen Yani in 4 months because it is a 6-7 hour drive from where we live and they do not allow children anyway," she added. The American Civil Liberties Union filed a lawsuit in June and was granted a preliminary injunction by Judge Goldsmith the following month that halted deportation of the detainees until each has their own case in court. The government appealed. Immigration officials have said those targeted in the raids committed crimes since their time in the United States and have forfeited their right to remain in the country. On Dec. 19, the ACLU filed a motion arguing the Iraqis are being held unjustly. Arguments in the case were held on Dec. 20 on three key points which included whether the case should be certified as a class- action lawsuit, having the detainees released while they await bond hearings and the federal government's motion to have the case dismissed altogether. Margo Schlanger, who is among the attorneys representing the detainees, told Judge Goldsmith on Dec. 20 that prolonged detention of the detainees denies them due process since the cases are going to drag on for months or years, affecting the detainees' liberty, health and their families. After more than four hours of testimony, Judge Goldsmith said on Dec. 20 he would issue a written opinion but did not specify when. Meantime, detainees and their relatives contend they are suffering grievous harm. Jennifer Marogi writes that her husband, Dorid Marogi, was taken on June 11 while she was pregnant with their fourth child. Because of the stress her family endured, she wrote, her baby was born prematurely. "Kayden which is 19 weeks now . . . has a hole in his heart and his lung. Which we pray will close on its own and not with surgery," she wrote. "He has yet to meet his dad." Jennifer Marogi writes that her oldest son Kyle, 14, has shut down and two other children, Kaleb, 13, and Khloe, 8, have anxiety attacks. "I have a fear of my kids falling into a deeper depression, that I won't be able to help them get out of . . . ," the letter says. "My deepest fear is that my children and I will never be able to hug and see him again." As to whether the judge will consider the letters, ACLU attorney Miriam Auckerman said one factor the judge will have to decide is whether detention causes irreparable harm. "That human cost is central to the legal analysis that the judge will have to undertake," Ms. Auckerman said. "The letters are the most powerful evidence one can imagine of the incalculable human suffering that is imposed by ICE's deportation machine." Relatives say detainees would face religious persecution and even death as Christians, a religious minority, by returning to Iraq. Sisters Ashley and Ashourina Slewo said their father, Warda Slewo, was picked up on June 11 at his home in Madison Heights. Slewo served time in jail and probation before serving in the U.S. Army. "If he is deported, he will face persecution. He left Iraq in 1993 with my mother to start a better life," said Ashourina Slewo, who also submitted one of the letters. "He will face persecution for a number of things, the first being that he served in the U.S. Army. He was also drafted into the Republican Guard, which makes him a target," she said. "And like the other detainees, he's Christian and will face persecution for that fact alone." Christmas was going to be hard for the family, said Ashourina Slewo, noting she usually attends church with her parents, older sister and two younger brothers on Christmas before exchanging gifts. "My little brother is the only one we got gifts for because this has already affected him so much, we don't have the heart to deny him this, too," she said. "I will have to spend Christmas waiting by the phone for my dad to call." [GN] UNITED STATES: Calif. Governor Jerry Brown Pardons Two Immigrants ----------------------------------------------------------------- Christopher Cadelago and Anita Chabria, writing for The Wichita Eagle, report that escalating the state's showdown with the Trump administration over illegal immigration, California Gov. Jerry Brown used a Christmas holiday tradition to grant pardons on Dec. 23 to two men who were on the verge of being deported for committing crimes while in the U.S. Gov. Brown, pairing his state's combative approach to federal immigration authorities with his belief in the power of redemption, characterized the pardons as acts of mercy. The Democratic governor moved as federal officials in recent months have detained and deported immigrants with felony convictions that resulted in the loss of their legal residency status, including many with nonviolent offenses that occurred years ago. With the pardons, the reason for applicants' deportations may be eliminated, said attorney Kevin Lo of Asian Americans Advancing Justice-Asian Law Caucus, which represented some of the men in a recent class-action lawsuit. The pardoned immigrants will still need to ask immigration courts to reopen their cases, he said. The detentions of felons has focused on specific ethnic groups in past months, including Cambodians and Vietnamese, according to immigration lawyers handling the cases. Cambodia has been reluctant to repatriate former felons, but acquiesced to accepting more after the State Department stopped issuing visas in September to a small group of top Cambodian officials and their families. Two of Gov. Brown's pardons are Northern California Cambodian men picked up in October in those immigration sweeps, Mony Neth of Modesto and Rottanak Kong of Davis. Mr. Kong was convicted on felony joyriding in 2003 in Stanislaus County at age 25 and sentenced to a year in jail. Mr. Neth was convicted on a felony weapons charge with a gang enhancement and a misdemeanor charge of receiving stolen property with a value of $400 or less in 1995 in Stanislaus County. Both men came to the United States as children after their families fled the Khmer Rouge regime, and neither has engaged in criminal activity since being released from prison. Messrs. Kong and Neth were scheduled to be deported Dec. 25, but a federal judge issued a temporary restraining order in the lawsuit filed by Lo's team, delaying their departure. Mr. Neth, 42, was unexpectedly released from Rio Cosumnes Correctional Center on Dec. 22, said his wife, Cat Khamvongsa, and is back home with his family -- albeit with an ankle monitor. "We gave him a big hug," she said of herself and her 16-year-old daughter. "We're so happy." In a phone interview on Dec. 22 while on his way to Costco, Mr. Neth said he was asleep on Dec. 22 when a guard at the detention facility near Elk Grove called his name. "I knew right then I was coming home," Mr. Neth said. "It's the best Christmas gift ever. . . . I don't want to be anywhere else in the world." Despite the governor's pardon, Mr. Neth still faces legal hurdles, Mr. Lo said. Mr. Lo said the pardon only covers the felony charge against Mr. Neth, but federal immigration law doesn't allow the pardon to remove a possibility of being deported on the firearms count. But California gave Mr. Neth another gift in 2014 with Proposition 47, the voter-approved ballot initiative that allowed some felony crimes to be reclassified as misdemeanors. A court changed Mr. Neth's firearm count to a lesser charge under those guidelines -- another step toward restoring his legal status. Mr. Neth said he plans on becoming a U.S. citizen if he is able, and encouraged other immigrants in his situation to remain optimistic. "When I was in (detention), I think I was taught a few lessons, that I am not alone. God is always with me," Mr. Neth said. "I'm not pretty outspoken, sometimes can't find the right words to say, but just have hope." Mr. Kong remained in custody as of Dec. 22. His family could not immediately be reached for comment. Gov. Brown stated in his pardon that several people wrote in support of Mr. Kong's application, describing him as "kind" and "generous" and a role model for "those who face insurmountable challenges in their lives." Gov. Brown defied the White House in October by signing into law so-called "sanctuary state" legislation, placing limitations on state and local law enforcement's ability to help federal officials enforce immigration violations. He fortified the state budget with millions more in spending to help mount a range of immigration-related legal challenges, including cases over the ending of the Deferred Action for Childhood Arrivals program. Other cases seek to prevent construction of a U.S.-Mexico border wall, and to stop the federal government from withholding public safety grants from localities that don't expend public resources on immigration enforcement. In April, the governor issued full pardons to three veterans who served in the U.S. military but were deported to Mexico after completing sentences for various crimes. The cases were part of 72 pardons and seven commutations Brown extended ahead of Easter, the majority covering old crimes dealing with drugs and other lower-level offenses. Pardons are reserved only for those who have lived crime-free for a decade, completed their sentence and received a court-issued certificate of rehabilitation, provided they still live in California. The potential benefits include being able to own a gun or serve on juries. On Dec. 23, Gov. Brown extended a total of 132 pardons and 19 commutations. Since returning to office in 2011, he has handed down a modern-era record 1,059 pardons, along with 37 commutations, far more than the 404 pardons and one commutation he made over his first two terms as governor, from 1975 to 1983. Gov. Brown's father, Edmund G. "Pat" Brown had 467 pardons and 55 commutations, but there have been long stretches of very few. From 1991 through 2010, former Govs. Pete Wilson, Gray Davis and Arnold Schwarzenegger combined for just 15 pardons and 14 commutations. Among those Gov. Brown pardoned ahead of the Christmas holiday was Kimberly Joyce Carter, who led life in and out of prison, prostitution and homelessness in San Bernardino, before founding the nonprofit organization Time for Change Foundation to help women break the cycle of homelessness. Ms. Carter began repairing her life in the mid-1990s, and went on to become a "CNN Hero," a recognition Brown cited in her written pardon. "Homeless women and children, I call them invisible people," Ms. Carter said when receiving the national honor two years ago. "We pretend that we don't see them. But I see them. And I know there's something we can do to help them." Gov. Brown also commuted the sentence of Candace Lee Fox, 57, of Los Angeles, to 15 years to life. Ms. Fox has served 33 years in prison for joining others in a killing and robbery when she was 24 and a single mother working as a manicurist. Ms. Fox had reportedly received a life sentence after she initially agreed to a plea deal from a prosecutor in open court promising possible parole after 7-1/2 years in exchange for testimony against a fellow assailant. However at a retrial, after it was determined she would need to serve at least a decade before being eligible for parole, a jury convicted Ms. Fox of first-degree murder, and she was sentenced to life without parole. While the Los Angeles County District Attorney's Office maintains that Ms. Fox "has not paid her debt to society," Gov. Brown noted in his commutation that a correctional officer called her a "model inmate," and wrote, "I believe Inmate Fox has paid her debt to society and is ready for life after the California Department of Corrections and Rehabilitation." It is clear that Fox's crime partners were primarily responsible for the murder, Gov. Brown wrote. "Justice is not served by continuing to deny her the opportunity she was promised decades ago -- the chance to show that she is worthy of release," he concluded. Inmates may apply to have their sentence reduced or eliminated and must demonstrate exemplary behavior since their conviction. In August, Gov. Brown commuted the sentences of nine prisoners convicted over the past three decades primarily of murder or attempted murder. Gov. Brown, who in 2016 spearheaded a successful ballot initiative, Proposition 57, which allows parole consideration for nonviolent felons, in November granted a full and unconditional pardon to Craig Coley. Multiple investigations -- including one requested by Gov. Brown's office -- determined that Coley was wrongfully convicted of murder after spending nearly 40 years in prison. Concluded Gov. Brown: "I grant this pardon because Mr. Coley did not commit these crimes." [GN] USAA CASUALTY: Court Won't Stay Discovery in Billing Suit --------------------------------------------------------- The United States District Court for the Southern District of Florida issued an Order denying Defendant's Motion to Stay Discovery in the case captioned MAO-MSO RECOVERY II, LLC, a Delaware Entity; MSP RECOVERY, LLC, a Florida entity; MSPA Claims 1, LLC, a Florida entity, Plaintiffs, v. USAA CASUALTY INSURANCE COMPANY a Texas company, Defendant. Case No. 17-21289-Civ- WILLIAMS/TORRES. (S.D. Fla.) This matter is before the Court on USAA Casualty Insurance Company's motion to stay discovery pending the disposition of Defendant's motion to dismiss against MAO-MSO Recovery II, LLC, MSP Recovery, LLC, and MSPA Claims 1 LLC. Plaintiffs filed their original class action complaint alleging, on behalf of themselves and all others similarly situated, that: (1) unidentified MAOs paid unspecified medical expenses related to treatment of unnamed Medicare enrollees arising out of unspecified automobile accidents, (2) Defendant was responsible for paying those expenses in accordance with MSP Law, (3) Defendant failed to make required payments under the MSP provisions and failed to reimburse MAOs for such medical expenses, and (4) numerous MAOs have assigned their recovery rights to assert causes of action to Plaintiffs. In the original complaint, Plaintiffs redacted the names of the representative MAOs and the representative Medicare Beneficiaries. Defendant filed its motion to dismiss because Plaintiffs' first amended complaint allegedly failed to (1) identify a single bill paid by any MAO for medical treatment of any of enrollee which should allegedly be reimbursed by Defendant, or (2) allege that any specific MAOs assigned their claims to Plaintiffs. Defendant claims that these errors deprive the Court of subject matter jurisdiction and that the first amended complaint fails to state a viable claim. Defendant further believe that the allegations are facially inadequate to establish even the minimum pleading requirements for standing in this action or that Plaintiffs have suffered an injury in fact vis-a-vis this Defendant. Defendant's motion seeks a protective order to temporarily stay all discovery in this case pending a resolution of its motion to dismiss Plaintiffs' first amended complaint. Defendant argues that the Court lacks subject matter jurisdiction over Plaintiffs' claims because Plaintiffs cannot establish Article III standing with any valid assignments of rights or an injury in fact. The Court is not persuaded that Plaintiffs' complaint is so deficient that leave to amend could not remedy a lack of factual allegations. Indeed, in cases where Plaintiffs have failed to include any supporting facts of a valid assignment of rights, courts have often granted a defendant's motion to dismiss without prejudice. Moreover, the Federal Rules of Civil Procedure allow for pleadings to be amended when justice so requires. The Eleventh Circuit has "held that district courts should generally grant an opportunity to amend the initial complaint, even if the plaintiff does not request to do so, where it appears a more carefully drafted complaint might state a claim upon which relief can be granted." Relying on these principles, the Court cannot conclude that Defendant's motion is truly case dispositive. Viewing the complaint's allegations in the light most favorable to Plaintiff and accepting the facts as true, the Court finds Defendant's arguments unconvincing to warrant a wholesale stay of discovery. Accordingly, Defendant's motion to stay discovery is denied pending the disposition of Defendant's motion to dismiss. The final issue presented is Defendant's request to phase discovery into three parts. First, Defendant asks that discovery be limited to whether Plaintiffs have standing. If Plaintiffs overcome that hurdle, Defendant requests that discovery proceed to class wide issues. And finally, Defendant suggests that the case should proceed with discovery on the merits. Defendant is certainly correct that courts have the discretion to phase discovery as an inherent power to control their dockets yet courts may also decline to exercise that discretion. The Court declines to exercise its discretion to phase discovery because the issues surrounding standing, merits, and class certification may be inextricably tied together, and may therefore require more not less judicial intervention to resolve the parties' disagreements. As such, Defendant's motion to phase discovery is denied and any discovery disputes that do arise can be adequately resolved on the Court's discovery calendar on a case by case basis. A full-text copy of the District Court's December 14, 2017 Order is available at https://tinyurl.com/yd9gcqo3 from Leagle.com. MAO-MSO Recovery II, LLC, a Delaware entity, Plaintiff, represented by Christine Marie Lugo, PO Box 368, Cape Coral, FL 33993 MAO-MSO Recovery II, LLC, a Delaware entity, Plaintiff, represented by Christopher L. Coffin -- ccoffin@pbclawfirm.com -- Pendley, Baudin & Coffin, LLP, pro hac vice, Courtney L. Stidham -- cstidham@pbclawfirm.com -- Pendley, Baudin & Coffin, LLP, pro hac vice, Pedram Esfandiary -- PEsfandiary@BaumHedlundLaw.com -- Baum, Hedlund, Aristei & Goldman, P.C., pro hac vice, Robert Brent Wisner -- RBWisner@BaumHedlundLaw.com -- Baum Helund ARistei & Goldman PC, pro hac vice, Tracy L. Turner -- tturner@pbclawfirm.com -- Pendley, Baudin & Coffin, LLP, pro hac vice & Frank Carlos Quesada, MSP Recovery Law Firm, 5000 SW 75 AVE Suite #400 Miami, FL 33155 United States MSPA Claims 1, LLC, a Florida entity, Plaintiff, represented by Christine Marie Lugo, Christopher L. Coffin, Pendley, Baudin & Coffin, LLP, pro hac vice, Courtney L. Stidham, Pendley, Baudin & Coffin, LLP, pro hac vice, Pedram Esfandiary, Baum, Hedlund, Aristei & Goldman, P.C., pro hac vice, Robert Brent Wisner, Baum Helund ARistei & Goldman PC, pro hac vice, Tracy L. Turner, Pendley, Baudin & Coffin, LLP, pro hac vice & Frank Carlos Quesada, MSP Recovery Law Firm. MSP Recovery Claims, Series LLC, Plaintiff, represented by Frank Carlos Quesada, MSP Recovery Law Firm. USAA Casualty Insurance Company, a Texas company, Defendant, represented by Valerie B. Greenberg -- valerie.greenberg@akerman.com -- Akerman LLP, Jonathan Dov Lamet -- jonathan.lamet@akerman.com -- Akerman LLP & Stacy Jaye Rodriguez -- stacy.rodriguez@akerman.com -- Akerman Senterfitt. WATERLOO, ON: Regional Police Faces Class Action ------------------------------------------------ Lisa Rutledge, writing for Cambridge Times, reports that the year 2017 has served as a Judgment Day of sorts for Waterloo Regional Police, but scrutiny is healthy and necessary for positive change, maintains Chief Bryan Larkin. The chief's reflections follow a year filled with challenges. It was a year that placed internal and external policing practices into the crosshairs, focusing on issues including responses to a deadly opioid epidemic, handling of sexual assault investigations, internal claims of sexual harassment, as well as efforts to maintain public confidence. As he moves into his fourth year as top cop, Mr. Larkin isn't afraid to acknowledge the policing profession isn't perfect, but identifies himself as a "shift disturber" willing to make change where needed, even when changes aren't popular. Mr. Larkin shocked many by publicly supporting safe injection sites as a harm reduction measure to save lives in the wake of an opioid crisis that has seen the eruption of fentanyl. In the face of heavy criticism heaped upon the police service for not arresting drug users, the chief reiterated his position, saying the drug epidemic is one of the most complex issues he's ever witnessed. "I think 2017 in our organization will forever, in some ways, be remembered as the year of fentanyl," said Mr. Larkin, who gathered with media Dec. 18 for year-end reflections. Investigative priority has been placed on targeting drug traffickers, which has resulted in major drug busts, but Larkin insists police also have a duty to protect all lives. And he considers safe injection sites a means to preserving life, as well as increasing access to rehabilitation programs. "If that's one tool in the tool box that provides them a safe environment that keeps them alive to the point where they finally decide, 'you know what, I'm going to go upstairs to get rehab', then we've been successful." In the same breath, he applauds and welcomes varying opinions from the community. Consistently insisting communities can't arrest their way out of drug epidemics, Mr. Larkin said the fentanyl crisis is a public health issue -- not just a policing issue -- that demands a different approach. Record-breaking death tolls paint a frightening reality, especially when compared to other life-threatening hazards, like road safety. "The reality is that 65 people have died year to date based on consumption, 14 have died based on road fatalities," said Mr. Larkin. The service is already adopting unique approaches to saving lives. It launched a new #TheNewFWord campaign in early December, educating teens about fentanyl. A dramatic video features a re-enactment of a teen overdosing, followed by a message of warning from the chief. The video has been shared internationally on social media and is being played ahead of feature films in local theatres. Policing has reached a "tipping point" demanding change, Larkin maintains. Evolution is also expected to take shape as the service reflects upon its performance regarding investigations into sexual assaults, a move spurred by a report on unfounded rates. In response, the police service helped establish grassroots committees that are currently reviewing a selection of sex assault cases investigated in the region, but also proposing investigative methods to better serve victims. Cultural shifts also gained ground in the areas of inclusion, equity and diversity at the service, with the hiring of an equity and inclusion officer in 2017. The year also saw the launch of a women-in-policing leadership initiative to empower female officers. The initiative is expected to continue in a more prominent format in 2018. The first forum was only open to women to create "safe spaces", said Mr. Larkin, but will be open to all members this year. The chief acknowledges the organization has much work to do to ensure its culture continues to evolve, mirroring the change underway in society. In fact, the service is now forced to defend itself against a lawsuit launched by former female officers claiming they were subjected to gender-based discrimination and harassment and sexual harassment on the job. The organization responded by saying some of the incidents, dating back to 1988, had only recently come to the its attention and were already subject to investigation. The service also stated it "does not condone or tolerate any form of discrimination or harassment in the workplace". "I can't speak to the specifics," said Mr. Larkin, "but obviously the civil class action suit is a stark reminder that there's work to be done in our organization, there's work to be done in the policing profession, and quite frankly, there's work to be done in society." Mr. Larkin also noted the service is working hard to police its own members, and goes public about cases involving its officers. Transparency is vital to maintaining public confidence, he insists, and to assure the community that police take such investigations seriously. "Am I proud that we have seven members currently suspended on allegations of sexual assault? I'm not proud. I want to respect the presumption of innocence, I want to respect the judicial process, but I am angry that I find ourselves even here." One of Mr. Larkin's prescriptions for positive change is to encourage current members, some of whom suffer from physical and moral fatigue, to remember why they wanted to wear a badge. In fact, Waterloo Regional Police recently launched its new recruiting program with an embedded message of "Love What You Do". "We're trying to reset our organization around loving what you do. If you love what you do, your output, our outcomes will be significant." While 2017 served up many challenges and scrutiny, Larkin remains optimistic about the new year, accepting responsibility to guide the organization through firestorms. "My job as chief is to keep us driving through those fires, through the smoke, through the haze, through the hot temperatures to get us to go where we need to go." [GN] WEXFORD HEALTH: Court Narrows Claims in "Farmer" Suit ----------------------------------------------------- In the case, JEFF FARMER, Plaintiff, v. WEXFORD HEALTH SOURCES, INC., DR. MOFIKPARA WRIGHT, DR. MULETA OBSU, DR. BOLAJI ONABAJO, DR. JONATHAN THOMPSON, and REBECCA BARNHARDT, RN, Defendants, Civil Action No. PWG-17-346 (D. Md.), Judge Paul W. Grimm of the U.S. District Court for the District of Maryland (i) granted in part and denied in part the Defendants' motion to dismiss or in the alternative for summary judgment; (ii) granted in part and denied in part the Defendants' Motion for Protective Order; and (iii) denied the Plaintiff's Motions for Injunctive relief and to file a class action. The Plaintiff is an inmate committed to the custody of the Maryland Department of Public Safety and Correctional Services and currently confined at Eastern Correctional Institution. Farmer alleges he has been denied back surgery and effective pain management pending the surgery; his prescription for pain medication was reduced to one-third of his previous dosage for non-medical reasons; his allergy medication was changed to something less effective; and he has not received treatment for a shoulder injury sustained during a fall from a prison van. He claims that he has moderate and severe disc herniation, spinal stenosis and broken pieces of bone in his lower back (lumbar spine at levels L4, L5, and S1). He states that prior to his current incarceration he was scheduled for surgery and claims he is entitled to receive that surgery (known as kyphoplasty) while he is incarcerated. Farmer explains he is experiencing such severe pain that he has difficulties sleeping and continued denial of the surgery violates his rights under the Eighth Amendment. The Defendants move to dismiss or in the alternative for summary judgment in response to this civil rights complaint. Also pending are Defendants' Motion for Protective Order and the Plaintiff's Motions for Temporary Injunction and for an Extension of Time to file a Class Action. Objectively, Farmer has an acknowledged chronic pain condition for which he has been referred to and seen by an orthopedist on at least three occasions. As a result of the examinations by Dr. Manning of Farmer's lumbar spine and right shoulder injury, MRI imaging was requested with a return to the doctor after the results are available. These facts are not in dispute. Judge Grimm finds that despite the known need for further information regarding the source of Farmer's chronic pain resulting from his right shoulder and lumbar spine conditions, there is no evidence that the MRI imaging of Farmer's lumbar spine and right shoulder has actually occurred, nor is there an explanation provided for the more than two-year delay in doing so. To the extent that one or both issues are correctable through surgery, the delay in obtaining the imaging information required to make that decision may amount to a deliberate infliction of pain. The record establishes that Defendants Onabajo, Obsu, and Wright were well aware of these requests for MRI imaging and were all involved in the treatment for Farmer's chronic pain, but either permitted the delay to occur or refused to take corrective action. To the extent the delay is attributable to a corporate policy or practice, the claim against Wexford Health Sources, Inc. also survives summary judgment. The Judge therefore denied without prejudice the Defendants' summary judgment as to these Defendants on the claims concerning Farmer's need for lumbar spinal and right shoulder surgery. However, the Judge finds that Farmer's claims regarding medication dosage changes as to all of the named Defendants, fail. Despite Farmer's assertions otherwise, it is clear from the verified medical records as well as Wright's declaration under oath that the Neurontin dosage was lowered because it was mistakenly written at a higher than therapeutic dosage. Moreover, it is clear that Farmer has not been denied all pain relieving medication; rather, he has been prescribed other medication (Ibuprofen, Tylenol, Ultram, and Soma) in addition to the Neurontin. With regard to Farmer's allergy medications, the underlying medical condition (allergic rhinitis) is not so serious that failure to treat it (which has not occurred here) would amount to an intentional infliction of pain. The Eighth Amendment does not guarantee that prisoners will receive the health care of their choice or the medications they prefer, but only that serious medical conditions will not be treated with deliberate indifference. The Judge dismissed the claims asserted regarding medications as to all the Defendants. Judge Grimm further finds that Farmer's claims as to Barnhardt and Thompson amount to a disagreement over the delivery of medical care. Refusal to administer medication in three doses or at the levels demanded by a prisoner does not shock the conscience nor does it exhibit a callous disregard for Farmer's life. There is nothing to suggest that Barnhardt and Thompson's failure to honor Farmer's demands resulted in the unnecessary infliction of pain or endangered his life. The Judge concludes that Barnhardt and Thompson are entitled to summary judgment in their favor as to the claims against them and those claims are dismissed. For these reasons, Judge Grimm (i) granted in part and denied in part the Defendants' motion to dismiss or in the alternative for summary judgment; (ii) granted in part and denied in part the Defendants' Motion for Protective Order; and (iii) denied the Plaintiff's Motions for Injunctive relief and to file a class action. As the case is proceeding and entering discovery, the Judge notes that the circumstances have changed sufficiently to warrant the appointment of pro bono counsel as Farmer has previously requested. Also, he notes that in order to insure that the surviving claims proceed expeditiously without the constant filing of motions by Farmer or the Defendants without advance screening to determine whether they are colorably meritorious, he is initiating a pre-motion conference procedure. Under this procedure, no motion whether substantive or procedural, including discovery related motions, may be filed until it is reviewed by him in advance. A request to file a motion will be initiated by filing a letter, not to exceed three pages, single spaced. A separate order will issue providing counsel more guidance on this procedure. He advised the parties that filing motions in disregard of the order will result in their being stricken from the docket. Lastly, Judge Grimm directed the Defendants file their answers by Jan. 5, 2018. At that time, he will enter a Scheduling Order in the matter, and once the Plaintiff's counsel is appointed, he will hold a Fed. R. Civ. Proc. 16 conference via telephone with the counsel to discuss the litigation moving forward. A full-text copy of the Court's Dec. 13, 2017 Memorandum Opinion is available at https://is.gd/IQmmYC from Leagle.com. Jeff Farmer, Plaintiff, Pro Se. Wexford Health Services, Inc., Defendant, represented by Gina Marie Smith -- GSmith@mrrlaw.net -- Meyers Rodbell and Rosenbaum PA, Douglas Conrad Meister -- DMeister@mrrlaw.net -- Meyers Rodbell and Rosenbaum PA & Joseph B. Chazen -- JChazen@mrrlaw.net -- Meyers Rodbell and Rosenbaum PA. Dr. Wright, Defendant, represented by Gina Marie Smith, Meyers Rodbell and Rosenbaum PA, Douglas Conrad Meister, Meyers Rodbell and Rosenbaum PA & Joseph B. Chazen, Meyers Rodbell and Rosenbaum PA. Dr. Obsu, Defendant, represented by Gina Marie Smith, Meyers Rodbell and Rosenbaum PA & Douglas Conrad Meister, Meyers Rodbell and Rosenbaum PA. Dr. Obabejero, Defendant, represented by Gina Marie Smith, Meyers Rodbell and Rosenbaum PA & Douglas Conrad Meister, Meyers Rodbell and Rosenbaum PA. Dr. Jonathan Thompson, Defendant, represented by Gina Marie Smith, Meyers Rodbell and Rosenbaum PA & Douglas Conrad Meister, Meyers Rodbell and Rosenbaum PA. Becky Barnhardt, RN, Defendant, represented by Gina Marie Smith, Meyers Rodbell and Rosenbaum PA & Douglas Conrad Meister, Meyers Rodbell and Rosenbaum PA. Office of the Attorney General, Interested Party, represented by Gina Marie Smith, Meyers Rodbell and Rosenbaum PA & Douglas Conrad Meister, Meyers Rodbell and Rosenbaum PA. ********* 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, Jessenius Pulido, Noemi Irene A. Adala, Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche Maricon Castillon-Lopez, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2018. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. 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