/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/180220.mbx C L A S S A C T I O N R E P O R T E R Tuesday, February 20, 2018, Vol. 20, No. 37 Headlines ADAMS AUTO: "Layden" Sues Over Illegal SMS Advertisements AIRBNB INC: Court Stays "Plazza" Pending Outcome of Arbitration ALMOST FAMILY: "Stein" Suit Seeks to Halt Merger Deal AMAYA INC: Court Prohibits Pre-Leave Discovery in Securities Case ANTHEM INC: Special Master Appointed to Investigate Overbilling ANTHEM INC: Judge Balks at Plaintiffs' Lawyers $38BB Fee Request APPLE INC: Acknowledges US Probes Into Slowdown of Old iPhones APPLE INC: Update to Fix iPhone Throttling Expected This Spring APPLE-METRO INC: Court Denies Bid for Judgment on Pleadings AUSTRALIA: More Than $60MM Paid to Former Manus Island Detainees AVEO: Levitt Robinson Meets with Residents Amid Class Action BAHAMAS: Jubilee Gardens Residents Sue Over Toxic Emissions BANK OF NEW YORK: 11th Cir. Affirms Dismissal of "Manyoma" Suit BESTCOMP INC: Medical Providers Class Certification Affirmed BRANDON SANATORIUM: Named in Lawsuit Filed on Behalf of Patients BULLSEYE GLASS: Judge Clears Way for $1.2-Billion Lawsuit BULLSEYE GLASS: Toxic Air Pollution Class Action Can Proceed BUMBLE BEE: Consents to Relabeling Smoked Salmon Products CANADA: Lawyers in Toronto Mull Class Action for Cannabis Amnesty CANADA: Former Nanaimo Indian Hospital Named in Class Action CAVALRY PORTFOLIO: "Schurger" Disputes Collection Letter CERES MARINE: "Mattson" Action to Recover Overtime Pay COMCAST CABLE: Court Dismisses "Scott" FLSA Suit DON HERRING: Loses Bid to Dismiss "Lopez" DPPA Suit COSTCO WHOLESALE: Court OKs $9MM Wage & Hour Suit Settlement CREATIVE HAIRDRESSERS: "Sanford" Suit to Recover Overtime Pay DIRDEN LANDSCAPE: "Johnson" Action Seeks to Recover Overtime Pay DUKE UNIVERSITY: Antitrust Case Expanded to Class Action DUNN-EDWARDS CORP: Cal. App. Affirms Summary Judgment in "Khan" DYNEGY INC: Gul Seeks to Halt Merger Deal, Seeks Projections EI DUPONT: Faces Class Action Over Cape Fear River Contamination EL MIRADOR: Settlement in "Lopez" Unpaid OT Wages Suit Denied EQUIFAX INC: CFPB Puts Data Breach Probe on Ice Amid Lawsuits EQUIFAX INC: Six Teams of Lawyers Compete for Lead Counsel Posts EQUIFAX INC: CFPB Faces Backlash for Dropping Data Breach Probe FARMERS GROUP: Wins Dismissal of Abante's TCPA Suit GARDNER, MA: Faces Class Action Over Corrosive Water Problem GENESIS HEALTH: Court Dismisses KWPA Claim in "McGowan" Suit HARVEY WEINSTEIN: K&L Not Named Defendant in Cover-up Suit ILLINOIS: Court Dismisses "Henrichs" Suit INDUCTOR MAKERS: Lifetime Service Asserts Inductor Price-fixing INTEREXCHANGE INC: Judge Certifies Class of 90,000 Au Pairs JOHNSON & JOHNSON: Opening Arguments Begin in Talcum Product Case LE CORDON BLEU: Culinary Students' Class Action Nears Settlement LG ELECTRONICS: No Deal Over Bootlooping LG Phones, Atty Said LINCOLN, CA: Feb. 27 Status Conference in "MacCracken" MAGNACHIP SEMICONDUCTOR: June 9 Proof of Claim Deadline Set MARRONE BIO: Court Grants Withdrawal of M. McGaughey MDL 2353: Court Certifies Class of Consumers in Juice Label Suit MDL 2804: Howard County Plans to File Suit Over Opioid Crisis MDL 2804: Lewis County to Look Into Opioid Crisis Lawsuit MDL 2804: Marblehead Joins National Suit Over Opioid Crisis MDL 2804: Opioid Multidistrict Litigation Pending MENZIES AVIATION: Court Awards $416K Atty Fees in "Jimenez" METLIFE INC: Rosen Law Firm Files Securities Class Action MIDLAND FUNDING: Ill. App. Allows "Raney" Suit to Proceed MISSION CHINESE: Workers Sue for Racial Discrimination MISSION CHINESE: Faces Class Action Over Racism, Unpaid Wages MIZUHO BANK: Lack to Recover Fund Lost in Cryptocurrency Fraud NORDSTROM INC: Court Narrows Claims in "Keating" Suit NRG YIELD: Court Dismisses IRA Trust's Suit OASIS POWER: "Gallagher" Sues Over Illegal Telemarketing Calls OKLAHOMA: Class Action Challenges Jail Debt-Collection System OSI SYSTEMS: Saxena White Files Securities Fraud Class Action PARALIA CORP: "Lopez" Employees Class Conditionally Certified PEI WEI ASIAN DINER: "Rike" Seeks Unpaid Overtime Pay PERRY ELLIS: Pre-Certification Settlements Require Class Notice PERSONAL HOME CARE: "Lemon" Action Seeks to Recover Overtime Pay PETROLEO BRASILEIRO: USS Agrees to $50MM Deal with PwC PRINCESS CRUISES: Class Action Mulled Over Norovirus Outbreaks PROFESSIONAL TRANSPORT: Branch Administrators Class Decertified RUTHERFORD COUNTY, TN: June 25 Settlement Fairness Hearing Set SANTANDER CONSUMER: Court Denies "Lindblom" Class Certification SARBANAND FARMS: Fined $149,000 on Breaks and Meals SHERWOOD, AR: Faces New Lawsuit Filed Over Hot-Check Court SOLARCITY CORP: Ct. Awards $4.5M in Attorneys' Fee in "Lucero" SOUTH BRISTOL, NY: Tom Golisano Pledges Property Tax Class Action SOUTHCROSS ENERGY: Franchi Seeks to Halt Sale to Midstream SPOKEO INC: High Court Denies Certiorari to Review Remand Opinion SQUARE ENIX: Faces Suit Over Hoshi no Dragon Quest's Loot Boxes STATE FARM: Spine Care's Suit Remains in District Court STEINHOFF: Faces Possible Class-Action Style Lawsuits in Europe SYNGENTA AG: Court Sets Status Conference in Mass Tort Actions T-MOBILE USA: Court Denies Bid to Dismiss 2nd Amended "Boone" TAURUS: Faces Class Action Over Defective Pistols TEXAS: Prison Officials Agree to Deal on Wallace Pack Housing THORN GROUP: Chair Steps Down Following Class Action Settlement TOSHIBA CORP: "Lightsey" Suit Removed to South Carolina TOYOTA MOTORS: Faces Class Action Over Defects in Prius Cars IPM TRUDY GILMOND: Court Denies Bid to Decertify Net Winners Class UNITED STATES: Judge to Review ACLU-NJ's Class Action Against ICE UNITED STATES: Class Action Against HSS Over CSR Payments Pending UNITED STATES: Court Denies Bid to Dismiss "Ibrahim" Suit UNITED STATES: Court Denies Limpin's Request for Counsel UNITED STATES: Court Dismisses "Rohland" Suit UNITED STATES: Court Grants $160M Settlement in "Haggart" Suit UNITED STATES: Feb. 16 Deadline for "Schneider" Case Mngt Plan US STEEL: Seeks Dismissal of Donora Zinc Works Lawsuit WEST WIND: Fond-du-Lac Plane Crash Survivors File Class Action WILLIAM K'S: Ex-Workers' Minimum Wage Class Action Pending * Employers Face Wave of Background Check-Related Class Actions * Judicial Panel Orders MDLs on Six Matters ********* ADAMS AUTO: "Layden" Sues Over Illegal SMS Advertisements --------------------------------------------------------- Jonathon Layden, individually and on behalf of all others similarly situated, Plaintiff, v. Adams Auto Corp., Defendants, Case No. 18-cv-00065 (W.D. Mo., January 23, 2018), seeks an injunction prohibiting Adams Toyota from continuing to engage in illegal text messaging ads. The Plaintiff also seeks attorneys' fees and costs for violation of the Telephone Consumer Protection Act. Adams Toyota is an auto dealership that sells and services new and used Toyota brand vehicles. It either directly or through a third-party telemarketer, and without prior consent, sent unsolicited text messages to the cellular telephones of the Plaintiff in order to advertise and market its products and services, build brand trust through interaction with the public, improve its rankings in local online searches, increase its exposure on business review websites and pursue other marketing objectives. [BN] Plaintiff is represented by: Ari N. Rodopoulos, Esq. WOOD LAW FIRM, LLC 1100 Main Street, Suite 1800 Kansas City, MO 64105-5171 Tel: (816) 256-3582 Fax: (816) 337-4243 Email: ari@woodlaw.com AIRBNB INC: Court Stays "Plazza" Pending Outcome of Arbitration --------------------------------------------------------------- In the case, FRANCESCO PLAZZA and SYLVIE NAUDE, individually and on behalf of all others similarly situated, Plaintiffs, v. AIRBNB, INC., Defendant, Case No. 16-CV-1085 (VSB) (S.D. N.Y.), Judge Vernon S. Broderick of the U.S. District Court for the Southern District of New York granted in part and denied in part Airbnb's motion to compel arbitration and dismiss the action, and the action is stayed pending the outcome of arbitration. The Plaintiff originally created her account and registered as a user with Airbnb on July 29, 2009. Plaintiff Plazza initially registered with Airbnb on Aug. 21, 2011, and created a second account on Oct. 2, 2014. They allege that by creating and maintaining a website that lists, advertises, and takes fees or commissions for property rentals posted by individual members on the site, Airbnb is acting as an unlicensed real estate broker in violation of New York Real Property Law Section 440, et seq. They assert that in this way Airbnb avoids being subject to the laws governing real estate brokers, and places itself in the position of sole arbiter and decision-maker in all member disputes and vests itself with complete discretion with regard to the fees and commissions its takes as well as the distribution of rental payments it processes. The Plaintiffs allege that Airbnb's actions and behavior are "deceptive and fraudulent" and result in actual harm to Airbnb's members. The Plaintiffs filed their putative class action complaint on Feb. 11, 2016 on behalf of themselves and all similarly situated individuals who paid any fee, commission, or rent to Airbnb for the purpose of listing and/or renting real property, including apartments, co-ops, condominiums, and houses, within the State of New York within the six-year period preceding the filing of the complaint in the action. Specifically, they claim violations under New York Real Property Law Section 440, et seq., deceptive trade practices under New York General Business Law Section 349, fraud, and unjust enrichment. In accordance with Judge Broderick's Individual Rules, on March 28, 2016, the Defendant filed a letter that requested a pre- motion conference on its anticipated motion to compel arbitration and outlined the basis for such a motion. It filed a letter with supplemental authority on March 29, 2016. On March 31, 2016, the Plaintiffs responded to the letter, and on April 28, 2016, the Judge held a conference regarding the Defendant's anticipated motion. On May 9, 2016, the Judge granted the parties' joint letter proposing deadlines for discovery and motion practice. On July 7, 2016, he granted the parties' stipulation requesting an extension of time in connection with the motion to compel arbitration. Pursuant to that stipulation, the Defendant filed its motion to compel arbitration on July 22, 2016, the Plaintiffs filed their opposition on Aug. 22, 2016, and Defendant filed its reply on Sept. 12, 2016. The Plaintiffs filed a notice of supplemental authority on Oct. 5, 2016, to which the Defendant responded on Oct. 11, 2016. The Defendant filed its own notice of supplemental authority on Nov. 1, 2016, to which the Plaintiffs responded on Nov. 16, 2016. The Defendant filed an additional notice of supplemental authority on Aug. 17, 2017, to which Plaintiffs responded on Aug. 18, 2017. The Defendants filed a reply to the Plaintiffs' letter that same day, and the Plaintiffs filed a response on Aug. 30, 2017, which provided an update noting that the Second Circuit had denied without prejudice a motion to amend its decision in Meyer v. Uber Technologies, Inc., which was the subject of the Defendant's notice of supplemental authority filed on Aug. 7. Before the Court is Airbnb's motion to compel arbitration and dismiss the action. Judge Broderick finds that the Plaintiffs and the Defendant entered into a valid and enforceable arbitration agreement. Given that Airbnb's broad arbitration clause applies retroactively, the arbitration clauses in the modified versions of the 2009 Terms of Service ("TOS") are sufficient to govern the dispute and refer the entire matter to arbitration. The Judge says each version of the TOS between 2011 and 2015 contained a broadly worded arbitration clause stating that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof will be settled by binding arbitration. Even without the notice provided after the terms of service were modified, he finds that Airbnb's original sign-up procedure was sufficient inquiry notice of the terms of service which included an arbitration provision. As to the Plaintiffs' two issues that they claim will impact the enforceability of Airbnb's arbitration clause: fraudulent inducement and unconscionability, the Judge holds that given that the Plaintiffs' fraudulent inducement claim here rests solely on the same faulty foundation upon which they base some of their arguments as to lack of notice, he finds that the fraudulent inducement argument fails. Since any argument that the arbitration clause at issue is procedurally or substantively unconscionable is unpersuasive and not supported by the case law; he finds that the arbitration clause in Airbnb's TOS is not unconscionable. Although the Defendant urges that he dismisses the action, Judge Broderick finds that a stay, rather than dismissal, is appropriate given the Second Circuit's holding in Katz v. Cellco Partnership, and subsequent case law addressing the same issue. Although the Second Circuit only decided the issue in the context of the moving party having requested the stay, the Second Circuit opted to stay rather than dismiss the proceedings for reasons applicable in the instant case, including that the dismissal of an arbitrable matter would convert the decision into an appealable order, thus controverting the FAA's underlying policy to move the parties to an arbitrable dispute out of court and into arbitration as quickly and easily as possible. As a result, he exercises his discretion to impose a stay pending the outcome of arbitration. For these reasons, Judge Broderick granted in part and denied in part the Defendant's motion to compel arbitration and dismiss the action, and stayed the action pending the outcome of arbitration. The Clerk of the Court is respectfully directed to close the motion on the docket. Francesco Plazza, Individually and on behalf of all others similarly situated & Sylvie Naude, Individually and on behalf of all others similarly situated, Plaintiffs, represented by Roger Alan Sachar, Jr., Newman Ferrara LLP & Jeffrey Michael Norton -- jnorton@nfllp.com -- Newman Ferrara LLP. Airbnb, Inc., Defendant, represented by Roberta Ann Kaplan -- rkaplan@kaplanandcompany.com -- Kaplan & Company, LLP & John Charles Quinn -- jquinn@kaplanandcompany.com -- Sullivan & Cromwell, LLP. ALMOST FAMILY: "Stein" Suit Seeks to Halt Merger Deal ----------------------------------------------------- Leonard Stein, individually and on behalf of all others similarly situated, Plaintiff, v. Almost Family, Inc., William B. Yarmuth, Steven B. Bing, Donald G. McClinton, Tyree G. Wilburn, Jonathan D. Goldberg, W. Earl Reed III, Henry M. Altman, Jr., and Clifford S. Holtz, Defendants, Case No. 18-cv-00126 (D. Del., January 23, 2018), seeks to enjoin defendants and all persons acting in concert with them from proceeding with, consummating or closing the merger between Almost Family and a subsidiary of LHC Group, Inc., or rescinding it in the event defendants consummate the merger. The lawsuit also seeks rescissory damages, costs of this action, including reasonable allowance for plaintiff's attorneys' and experts' fees and such other and further relief under the Securities Exchange Act of 1934. Almost Family shareholders stand to receive 0.9150 shares of LHC common stock for each share of stock they own representing approximately $2.4 billion in implied transaction value. The complaint says the merger documents omitted material information regarding Almost Family and LHC financial projections as well as projected free cash flows as well as the valuation analyses performed by Guggenheim Securities, LLC. Said disclosure of projected financial information is material because it provides stockholders with a basis to project the future financial performance of a company, and allows stockholders to better understand the financial analyses in support of its fairness opinion. Almost Family is a provider of home health nursing, rehabilitation and personal care services, with over 340 locations in 26 states. [BN] Plaintiff is represented by: Nadeem Faruqi, Esq. James M. Wilson, Jr., Esq. FARUQI & FARUQI, LLP 685 Third Ave., 26th Fl. New Yor006B, NY 10017 Telephone: (212) 983-9330 Email: nfaruqi@faruqilaw.com jwilson@faruqilaw.com - and - Michael Van Gorder, Esq. FARUQI & FARUQI, LLP 20 Montchanin Road, Suite 145 Wilmington, DE 19807 Tel: (302) 482-3182 Email: mvangorder@faruqilaw.com AMAYA INC: Court Prohibits Pre-Leave Discovery in Securities Case ----------------------------------------------------------------- Eric Prefontaine, Esq. -- eprefontaine@osler.com -- Fabrice Benoit, Esq. -- fbenoit@osler.com -- and Frederic Plamondon, Esq. -- fplamondon@osler.com -- of Osler Hoskin & Harcourt LLP, in an article for Lexology, wrote that in its decision released January 31, 2018, Amaya inc. c. Derome, the Quebec Court of Appeal overturned a ruling by the Quebec Superior Court in holding that parties seeking leave to institute an action for secondary market misrepresentations under Section 225.4 of the Quebec Securities Act (QSA) were entitled to compel a public issuer defendant to disclose documents and information for the purpose of the leave proceedings. Harmonizing the regime in Quebec with those of the other Canadian provinces, the Court of Appeal held that such pre- leave disclosure is incompatible with the legislative policy for the leave requirement, which is to prevent strike suits against public issuers. Background On March 23, 2016, the Autorite des marches financiers (the AMF) issued a press release announcing that it had filed penal proceedings against, among others, David Baazov, then president, chief executive officer, board chairman and shareholder of Appellant, Amaya Inc. (now The Stars Group Inc.). The AMF accused these persons of having used privileged information pertaining to Amaya, and having conspired to commit offences under the QSA. A proposed class action pursuant to Article 574 of the Code of Civil Procedure (CCP) and Section 225.4 of the QSA was immediately bought against Amaya and certain of its directors. Before the hearing on their requests for leave under the QSA, and for authorization of the class action, the proposed class representatives filed a preliminary motion to compel documentary disclosure from Amaya, as well as from the AMF and the RCMP. In their motion, the proposed class representatives sought the production of documents, the majority of which were not publicly available, in order to assist them in meeting the evidentiary burden on their leave application under Section 225.4 of the QSA. The Superior Court granted their motion, holding that plaintiffs requesting leave to institute an action for secondary market misrepresentations pursuant to Section 225.4 of the QSA were entitled to compel a public issuer to disclose documents and information for the purpose of the leave proceeding, even in situations where such disclosure is prohibited elsewhere in Canada. In his reasons, the motion judge relied on, among other things, differences between the wording of the relevant provisions in the statutory regime and rules applicable in Quebec and Ontario. Amaya appealed the decision. Reasons of the Court of Appeal The Court of Appeal reversed the Superior Court decision, holding that documentary disclosure should not be permitted at the leave stage, as allowing it would run counter to legislative policy underlying Section 225.4 of the QSA; in particular the protection of public issuers against strike suits. The Court of Appeal agreed with Amaya, finding that the Quebec regime was intended to be harmonized with equivalent provincial regimes in Canada. While the Court of Appeal agreed with the motion judge that the Ontario rules and the Quebec rules were not identical, it held that their differences did not impact the threshold that the proposed class plaintiffs had to meet at the leave stage. To the contrary, the Court of Appeal held that the Quebec securities regime, "as a matter of substantive securities law, reflects the same legislative policy as that in Ontario" [para. 95]. Given that such pre-leave discovery is prohibited in all other Canadian provinces, there was no reason for an exception in Quebec. The Court of Appeal further held that Quebec's CCP, in particular Article 20 (duty for parties to co-operate), did not create an independent right to pre-leave disclosure in secondary market misrepresentation cases. Commentary The Court of Appeal's decision in this case harmonizes the law across Canadian provinces with regard to the prohibition against discovery at the leave stage of a securities class action. In doing so, it eliminates a potential tactical advantage to proceeding in Quebec on behalf of a national class in secondary market misrepresentation cases. This decision could be subject to an application for leave to appeal before the Supreme Court of Canada. [GN] ANTHEM INC: Special Master Appointed to Investigate Overbilling --------------------------------------------------------------- Frank Bednarz, writing for Competitive Enterprise Institute, reports that "I would never have appointed you . . . had I known you were going to pile on 53 law firms on this case," Judge Lucy Koh of the Northern District of California reportedly told class counsel on Feb. 1 in the data privacy settlement of In re Anthem, Inc. Data Breach Litigation. Judge Koh agreed with a motion filed by the Competitive Enterprise Institute's Center for Class Action Fairness that a special master should be appointed to investigate overbilling. Final approval hearings are normally sedate affairs in which settling parties ask for final approval of a class action settlement that the count preliminarily approved months before. Anthem didn't turn out this way, and this should caution courts to scrutinize proposed settlements earlier in the process, when improvements to class relief are more feasible. Repeat Players in Multidistrict Litigation The Anthem litigation arose from a data breach of insurance provider Anthem's computer systems containing personal information of 78.8 million people. Numerous lawsuits were filed across the country and consolidated in Judge Koh's court by the Joint Panel of Multidistrict Litigation (JPMDL). Overbilling is common in such consolidated cases (called MDLs) because dozens of firms may file suit and all expect to be generously compensated -- sometimes at the expense of class members. Lawyers who prosecute MDLs are repeat players, and this breeds cronyism; MDL lawyers get along to get ahead. In each case, courts appoint a small number of lead attorneys. As these "lead lawyers can influence and sometimes directly control one another attorneys' fees, lawyers must often rely on each other to form funding coalitions, and. . . being dubbed 'uncooperative' may render defectors ineligible for future leadership roles," as Professors Burch and Williams have documented. The Anthem settlement epitomized such backscratching. From the outset of the case in 2015, Judge Koh sought to control costs, trimming the eight firms proposed for leadership positions down to four. The steering committee had originally assured the court that "No one other than the attorneys and firms proposed here will necessarily work on this case," but this proved to be a meaningless promise. The four appointed firms distributed over $3.5 million worth of work to the four firms Judge Koh specifically excluded, and distributed an additional $10 million to 45 other firms. Such overbilling is harmful to class members because class counsel negotiates both attorneys' fees and class benefit from defendants. Defendants simply want to minimize their costs and would happily overpay attorneys if it means less liability to class members. Courts usually understand this dynamic, so will not knowingly approve a settlement where attorneys get more than class members, but class lawyers have tricks to exaggerate the size of their settlements. Anthem Settlement: A Case Study in Disproportional Fees Anthem settled after two years, with attorneys earmarking $42 million for their own fees and costs, but only securing credit monitoring services for most class members. Class counsel preposterously claimed that this in-kind benefit would be worth up to $500 million if everyone signed up, such that their fee request was only 8%. Instead, merely 1.86% of class members signed up, for a total value of perhaps $51 million benefit out of a $115 million common fund, with the rest claimed for attorneys' fees and costs. This claim rate is so low that the settling parties contend that millions of dollars must be distributed to an unrelated charity through the "cy pres" doctrine. Class members are frequently shortchanged by abusive "cy pres" awards like this, which CEI is challenging in other settlements, and CEI disputes the parties' interpretation of their agreement here which suggests that credit monitoring should be extended "as many months as possible." Meanwhile, class counsel arranged that they would be compensated with hard cash, not credit monitoring service. While Anthem class members will receive less than a dollar of benefit on average, their supposed attorneys seek $38 million in fees. Judge Koh observed that this upside-down settlement puts attorneys first: "It does bother me that 55 percent would go to attorney fees and administrative costs and only 45 percent goes to class members." Judge Koh chastised attorneys for their bill request due to the waste of 53 law firms billing, and also their markup of contract attorney fees. Temporary staff attorneys perform low-level legal work like document review and are typically billed at cost -- perhaps $50/hour -- to paying clients. Yet parties submitted millions of dollars' worth of billing for contract attorneys at hundreds of dollars an hour. "I would like you to find a single paying client that would have approved these type of markups in a contract attorney," challenged Judge Koh. Second Special Master Appointed Within the Last Year By appointing a special master to review billing in Anthem, Judge Koh follows the lead of Arkansas Teacher Retirement System v. State Street in the District of Massachusetts, which appointed a special master after the Boston Globe published an expose on inflated billing. Both cases reveal enormous markups of contract attorney fees, and both happen to feature Lieff Cabraser Heimann & Bernstein, LLP -- one of the most prolific MDL and class action firms. While a special master might lessen the windfall to class counsel, it cannot remake a settlement to better benefit class members. In Anthem, $23 million has already been spent on notice of a settlement that attempts to prioritize attorney welfare over the class member victims of the data breach. The court has not decided whether the settlement itself will be approved, but the sunk costs of notice alone should caution courts to apply scrutiny earlier in the settlement approval process. [GN] ANTHEM INC: Judge Balks at Plaintiffs' Lawyers $38BB Fee Request ---------------------------------------------------------------- Amanda Bronstad, writing for Law.com, reports that plaintiffs' lawyers in the Anthem data breach settlement should have known what was coming when U.S. District Judge Lucy Koh began the Feb. 1 final approval hearing with: "I have a number of questions, as you might imagine." It went downhill from there. A clearly exasperated Koh, who had trimmed the leadership committee in the Anthem MDL to four law firms, indicated she was incensed over the $38 million in fees being sought by -- get ready for this -- 53 law firms. She ordered that a special master review their bills. "I'm deeply disappointed," she told plaintiffs attorneys Eve Cervantez of Altschuler Berzon and Andrew Friedman of Cohen Milstein, who are lead counsel. "I would never have appointed you, or Mr. Friedman, had I known you were going to pile on 53 law firms on this case." It's a big win for Ted Frank, of the Competitive Enterprise Institute's Center for Class Action Fairness, who had asked for a special master, calling the fee request "outrageous on its face." He was quick to note that a special master in Boston is investigating three law firms for potential over-billing in a $74.5 million fee request in securities class action settlements with State Street. It could be a rough couple of months for Lieff Cabraser, which not only is one of the firms under the microscope in State Street but, along with Girard Gibbs, serves on the Anthem steering committee. [GN] APPLE INC: Acknowledges US Probes Into Slowdown of Old iPhones -------------------------------------------------------------- Michael Liedtke, writing for The Associated Press, reports that Apple is cooperating with U.S. government inquiries into its secret slowdown of older iPhones, further complicating its efforts to move past an issue that irked customers whose devices bogged down. The company acknowledged the probes late on Jan. 30 after both The Wall Street Journal and Bloomberg reported the U.S. Justice Department and Securities and Exchange Commission were investigating how investors have been affected by Apple's handling of the situation. A software update released in 2016 began to slow down older iPhones when their batteries weakened to prevent them from abruptly turning off. But Apple didn't fully disclose what it was doing until December 2017. Apple has since apologized for not being more forthcoming and is replacing batteries on iPhone 6 models or later for $29, a $50 discount. The Cupertino, California, company is also working on another software update that will give consumers the option of turning off the slowdown feature, if they are willing to risk a sudden shutdown. That free update, due out this spring, also will include a feature measuring the battery's strength. In its latest statement, Apple reiterated its belief that it was acting in the best interest of its customers by extending the lives of their iPhones. Many consumers, however, remain convinced that the company torpedoed the older iPhones to prod them to upgrade to the latest -- and more expensive -- models released in last fall. "We have never -- and would never -- do anything to intentionally shorten the life of any Apple product, or degrade the user experience to drive customer upgrades," Apple said. "Our goal has always been to create products that our customers love." Despite its contrition, Apple is still grappling with the fallout from its slowdown of older iPhones. Authorities in France are in the midst of an investigation whether Apple violated laws protecting consumers in that country and lawyers in the U.S. are pursuing a variety of class-action lawsuits on behalf of millions of consumers. Meanwhile, the head of the commerce committee in the U.S. Senate had previously sent a letter to Apple demanding more information about the iPhone slowdown. Apple was supposed to respond by Jan. 23, but was granted an extension, said Frederick Hill, a spokesman for Sen. John Thune, a South Dakota Republican who confronted the company. Both the Justice Department and the SEC have declined to comment on their investigations, leaving it unclear what piqued their interest. Apple's delayed disclosure of the iPhone slowdown doesn't appear to have done significant harm to investors so far. Just a few weeks after Apple disclosed it had been slowing down older iPhones, the company's stock surged to an all-time high, despite consumer outrage. The shares have retreated but that downturn has been driven by concerns about lackluster demand for its high-priced iPhone X. [GN] APPLE INC: Update to Fix iPhone Throttling Expected This Spring --------------------------------------------------------------- Indian Wire reports that Apple iOS 11.3 preview reveals battery health and acclaims when a battery needs to be serviced. Users can also see if the power management affection is on and can choose to turn it off. However, not all iPhone will get the affection. The new gimmicks will be available for iPhone 6, iPhone 6 plus, iPhone SE, iPhone 6s, iPhone 6s plus, iPhone 7 and iPhone 7 plus. Apple has been trying to fix the issue ever since it cropped up in December last year. In a letter, Apple says it will never do anything to "deliberately condense the life of any Apple product, or mud-sling the user experience to drive customer upgrades." The incident was brought into the picture when Apple was hit with the fifth class action lawsuit after the company admitted slowing down older iPhones to prevent battery reduction. Apple is pushing to make iOS the biggest platform in the world for intensify reality, which melds pragmatic reality with the real world. Using Apple's ARKit1.5 software, developers can turn posters, signs and artwork into interchangeable AR experiences. For example, iPhone users will be able to see a menagerie with interactive exhibits or "bring a movie posters to life." Apple will implement new battery health information and the ability to customize power settings after it was revealed that the company throttles CPU performance on older devices where the battery is disintegrating. Apple's throttling is done to prevent random shutdowns of the device and ensure smooth operation, but some customers took misdemeanor to the fact that the slowdowns were occurring without gossamer to the user. Health Records: Apple's Health app will also add a new Health Records gimmick, enabling hospitals and clinics to share patient data more easily. This will allow consumers to see available medical data from multiple providers. With the update, users can receive regular notifications for lab results, medications, conditions and more. The data is encrypted and protected with a pass-code. Business Chat for Messages: Apple will also launch a new beta gimmick dubbed Business Chat, allowing companies to directly connect with consumers. Launch partners will include Discover, Hilton, Lowe's, and Wells Fargo. "With Business Chat, it is easy to have a confabulation with a service delineation, schedule an appointment or make purchases using Apple pay in the Messages app". Business Chat doesn't share the user's contact information with business and gives users the ability to stop converse at any time. [GN] APPLE-METRO INC: Court Denies Bid for Judgment on Pleadings ----------------------------------------------------------- In the case, KENDALL GHEE and YANG SHEN, on behalf of themselves and all others similarly situated, Plaintiffs, v. APPLE-METRO, INC., 42ND APPLE LLC, and BROADWAY APPLE, LLC, Defendants, Case No. 17-CV-5723 (JPO) (S.D. N.Y.), Judge J. Paul Oetken of the U.S. District Court for the Southern District of New York denied the Defendants' motion for judgment on the pleadings. A diner in a typical American restaurant orders from a server and gets a paper bill at the end of the meal. If she pays with a credit card, she then gets a receipt. If she wishes to leave a tip, she writes the amount of the tip on the receipt. Assuming that the diner is not a scrooge and the service was not atrocious, a typical New Yorker tips between 15% and 25%. In contrast, a diner at the Broadway or Times Square Applebee's, as alleged in the Complaint, orders through a table-top computer tablet. At the end of her meal, she pays through that tablet. During the payment process, the tablet prompts her: "Select your Tip." But the tablet does not give her the option of not leaving a tip. At the Times Square Applebee's, the tablet requires that the customer leave at least an 18% tip. At the Broadway Applebee's, the tablet requires that the customer leave at least a 15% tip. If the customer tries to enter a number less than the minimum, a message appears on the screen: "Amount entered is under the minimum service charge of 15% [or 18%], please enter a higher amount. The Plaintiffs are two individuals who ate at the two Applebee's restaurants in question. There are three the Defendants: Apple- Metro, which owns 35 Applebee's franchises in the New York City area; and 42nd St. Apple and Broadway Apple, which operate the two Applebee's restaurants at issue in the case. The crux of the Complaint is that the two offending Applebee's restaurants deceive their customers and force them into tipping their servers. The Complaint alleges that the menu prices are misleading because they do not disclose that customers must pay a mandatory tip. Along the same lines, the Complaint alleges that it is misleading to call the end-of-meal charge a "tip" because it is really a mandatory surcharge. The Plaintiffs seek to represent a class of consumers who dined at the two Applebee's restaurants. They assert claims under New York law, including unfair business practices, false advertising, breach of contract, negligent misrepresentation, and unjust enrichment. The Defendants answered the Complaint and now move for judgment on the pleadings. They argue that the Complaint should be dismissed because (1) the tipping structure was adequately disclosed on the menu, (2) the tips were not really mandatory, (3) tipping is an accepted social norm, (4) the Plaintiffs did not properly allege that they were injured, and (5) there was no unjust enrichment because the tips went to the waitstaff, not to Applebee's. Judge Oetken finds that the Defendants' first argument fails. The Complaint adequately alleges that the restaurant did not fully disclose its tipping structure. The Judge also finds that the Defendants' second argument is more appropriate at the summary judgment stage. Their argument is based on facts not in the Complaint, and there are likely disputed factual issues -- for example, as to whether customers knew that this option was available to them. The Judge does not doubt the Defendants' contention that all tips go to the waitstaff and not to the restaurants. Indeed, their intentions may be noble -- to make sure that their hardworking servers are not stiffed by uninformed tourists. Nevertheless, not all of the Defendants' customers expected to be assessed a mandatory 15% or 18% tip. Accordingly, the fact that tipping is a well-accepted social norm does not defeat the Plaintiffs' claims. Judge Oetken further finds that the Complaint adequately alleges that the Plaintiffs went to the two restaurants, wished to leave a tip of less than 15% or 18%, but were effectively forced to pay a higher amount. Accordingly, the Plaintiffs' Section 349 claims survive to the extent they allege that diners tipped more than they otherwise would have. Finally, as to the Defendants' final argument, the Judge is not convinced. The management could have been enriched by the tips even if all the tips went to the waitstaff. The extent to which the management benefitted is a factual issue, and is therefore more appropriately decided after discovery has taken place. For the reasons he stated, Judge Oetken denied the Defendants' motion for judgment on the pleadings. The Clerk of Court is directed to close the motion at Docket Number 19. A full-text copy of the Court's Jan. 26, 2018 Opinion and Order is available at https://is.gd/ol1X9j from Leagle.com. Kendall Ghee, on behalf of themselves and all others similarly situated & Yang Shen, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Anne Melissa Seelig -- anne@leelitigation.com -- Lee Litigation Group, PLLC & C.K. Lee -- cklee@leelitigation.com -- Lee Litigation Group, PLLC. Apple-Metro, Inc., a New York corporation, 42nd Apple LLC., a New York corporation doing business as Applebee's Neighborhood Grill & Bar & Broadway Apple, LLC, a New York corporation doing business as Applebee's Neighborhood Grill & Bar, Defendants, represented by Andrew B. Lustigman -- alustigman@olshanlaw.com -- Olshan Frome Wolosky LLP & Scott Allen Shaffer -- sshaffer@olshanlaw.com -- Olshan Frome Wolosky LLP. AUSTRALIA: More Than $60MM Paid to Former Manus Island Detainees ---------------------------------------------------------------- Megan Neil, writing for Newcastle Herald, reports that more than $60 million has so far been paid to former Manus Island detainees as part of Australia's largest human rights class action settlement. Most of the 1696 people sharing the total $70 million settlement have been sent their payments, the Victorian Supreme Court heard on Feb. 5. By the end of Feb. 5, almost $60.3 million will have been paid to 1447 former detainees. The court has extended the deadline for payments by four weeks to allow more time for the remaining people to provide their banking details or have the arrangements confirmed. The class action was settled in June by the Australian government and operators of the now-closed offshore immigration detention centre without any admission of liability. Payments under the class action, which was launched by legal firm Slater and Gordon in December 2014, began in mid-December. The individuals stand to receive anything from a few thousand dollars to close to $100,000, with most of the compensation being for false imprisonment following a Papua New Guinea court ruling. [GN] AVEO: Levitt Robinson Meets with Residents Amid Class Action ------------------------------------------------------------ The Weekly Source reports that over 100 residents of Aveo's Botanic Gardens village in Cranbourne, 43km southeast of the CBD, had a two-hour meeting with lawyer Stewart Levitt on Jan. 31 as he looks to grow his client base for the firm's class action against the village operator. It appears he has less than 100 people signed up despite commencing his hunt for aggrieved residents (and families) last August. In his presentation, he talks of his successes, like the $200 to $300 million won in Storm Financial. He is funded by a New York litigation fund. Mr Levitt will need to move fast. The case is due to head to court in March. [GN] BAHAMAS: Jubilee Gardens Residents Sue Over Toxic Emissions ----------------------------------------------------------- Nico Scavella, writing for Tribune242, reports that more than 100 residents of Jubilee Gardens have filed a class action lawsuit against the government and Renew Bahamas for causing them to be "sickened to near death" as a result of the "toxic and hazardous" emissions caused by the recurring fires at the New Providence Landfill. The 111 residents, in a writ dated February 2 and obtained by The Tribune, are suing the government and Renew Bahamas for breaching their respective duties to ensure that adequate measures were taken to manage the landfill and prevent the fires and resulting "toxicity" from adversely impacting them and their "convenience of living". The residents are also suing the government in particular for breaching its "duty of care" by failing to "properly assess the danger of placing them so close" to the landfill and for not properly managing the dumpsite "so as to not pose a danger to the health and well-being of the residents of Jubilee." The residents are seeking compensation including but not limited to medical costs, repair costs to the homes in Jubilee Gardens and damages for the "breach of the covenant of quiet enjoyment" outlined in the conveyances between minister of environment and housing -- the second defendant -- and the residents. The residents are also seeking special damages to be specifically pleaded in a schedule for each plaintiff in the action in due course. Those include, but are not limited to, expenses incurred in relation to drapes and cloth cleaning due to the thick smoke associated with the fires; displacement costs and professional fees including that of appraisers and environmentalists. The writ further states that as some of the "heads of loss" are continuing and are "likely to increase," the residents reserve the right to provide "further voluntary particulars of loss and damage in due course." The residents are also seeking interest on all of the sums awarded both before and after judgement, costs, and any other relief the court deems just. According to the writ, Melissa Allen-Maynard and the 110 other residents of Jubilee Gardens are the plaintiffs in the action. Renew Bahamas, a company engaged in 2014 by the Christie administration to manage the landfill, is listed as the first defendant. The minister of environment and housing, the director of the Department of Environmental Health and the minister of public works are listed as the second, third and fourth defendants respectively. The attorney general is listed as the fifth defendant in the action due to his capacity as representative of the second and third defendants as officers of the Crown under the Crown Proceedings Act. According to the writ, the residents of Jubilee contracted with the second defendant to purchase homes in an area that was designated by the second defendant to be a "safe residential neighbourhood." Thus, they relied on that defendant to provide land for their homes in a "non-hazardous, non-toxic, non- dangerous environment," and that the fourth defendant would "approve construction of homes in likewise." However, the writ asserts the residents have since been "unable to enjoy their homes and lives" due to the "thick black smoke and noxious fumes" emanating from the "continuous uncontrolled fires" which take place at the landfill, due to the defendants failing to take any, or any adequate measures to prevent the fires and resulting toxicity. The writ further asserts that as a result of the recurrent fires, the residents have been "poisoned" due to them being forced to inhale gases from burning materials such as pyrolitic oil; metals such as lead, arsenic, mercury and magnesium; and pyrolitic aromatic hydrocarbons. The writ asserts that before purchasing the homes, the residents were never made aware by the second defendant of the "insurmountable problems" and the "toxic, dangerous and hazardous emissions" at the landfill, which was established in 1971, prior to the building of the Jubilee Gardens subdivision. Thus, the residents charge the fourth defendant ought not to have granted permission to the minister of environment and housing to create a subdivision in Jubilee Gardens, and ought not to have given building permits to the residents of that community in all the circumstances. The residents charged there has thus been "gross dereliction of duty, negligence and breach of their statutory obligations" on the part of both the second and fourth defendants. "Said defendants owed a duty of care to the residents of Jubilee to ensure that they would be able to enjoy their homes and lives in Jubilee to the normal standards of safety, cleanliness, comfort and convenience of living that are normally enjoyed by home owners in general in other housing developments in the Bahamas and not be subjected to the abuse described in this statement of claim," the writ said. "It was foreseeable that their omission to properly operate the landfill and ensure that the disposal of waste at the landfill in according with the methods prescribed in the Environmental Health Services (Collection and Disposal of Waste) Regulation would ultimately lead to unauthorised and uncontrolled fires, which was and is negligent and the scent and smoke which was and remains a nuisance." The residents have retained the services of attorney Fred Smith, QC, to represent them in the class action. [GN] BANK OF NEW YORK: 11th Cir. Affirms Dismissal of "Manyoma" Suit --------------------------------------------------------------- In the case, JACKLYN MANYOMA, individually and on behalf of a class of persons similarly situated, Plaintiff-Appellant, v. BANK OF NEW YORK, as trustee for the certificate holders CWALT, Inc., Alternatives Loan Trust 2006-OC1 Mortgage Pass-Through Certificates, DECISION ONE MORTGAGE COMPANY, LLC, MORTGAGE ELECTRONIC REGISTRATION SYSTEM, as nominee for Decision One Mortgage Systems, LLC, Defendants-Appellees, Case No. 14-14621 (11th Cir.), the Court of Appeals for the Eleventh Circuit affirmed the district court's judgment dismissing Manyoma's claims. Manyoma obtained a loan from Decision One to purchase a home in Miami, Florida. The note required Manyoma to repay the loan in monthly installments by Nov. 1, 2035. To secure the note, Manyoma executed a mortgage on the property, which Decision One later assigned to BONY. The mortgage contained an optional acceleration clause, allowing the lender to accelerate all amounts due and foreclose in the event of a default. Manyoma defaulted in November 2007. In April 2008, BONY initiated a foreclosure action in state court. In its complaint, BONY stated that it was exercising its rights under the acceleration clause and declared the entire amount owed under the loan due. After BONY failed to appear at a case management conference, the state court dismissed the foreclosure action without prejudice. To this day, Manyoma continues to reside in the home. In July 2013, Manyoma filed a class action suit against BONY and others in state court. She asserted that the limitations period for BONY to enforce the note or bring a foreclosure action had expired because the limitations period began to run either when Manyoma defaulted or when BONY filed the foreclosure action and declared the loan accelerated. She thus sought a declaratory judgment extinguishing the note and mortgage and also quieting title to the property. BONY removed the case to federal court and moved to dismiss. The district court granted the motion and dismissed Manyoma's complaint. Manyoma timely appealed. After she filed her initial brief, the Appellate Court stayed the appeal pending the Supreme Court of Florida's resolution of Bartram v. U.S. Bank National Ass'n. After Bartram was decided, the Court lifted the stay and ordered BONY to file a response brief. Manyoma's counsel moved to withdraw, and Court granted the motion. Applying its ruling, the Appellate Court concludes that the statute of limitations did not continue to run after the state court dismissed BONY's foreclosure action because the dismissal in effect revoked the bank's declaration that the mortgage had been accelerated. That is, the parties were placed back in the same contractual relationship as before with the residential mortgage as an installment loan. The Court thus cannot say that the statute of limitations bars BONY from enforcing the mortgage or from foreclosing on the property based on a separate and distinct default. As such, the district court properly dismissed Manyoma's claims seeking declarations that BONY was barred from enforcing the note or foreclosing on the mortgage because the note and mortgage remain enforceable, meaning her claims fail as a matter of law. Because the mortgage remains enforceable, Manyoma also failed to allege an invalid cloud on her title, meaning her claim seeking to quiet title on her property was properly dismissed. For the reasons set forth, the Court affirmed the district court's judgment. A full-text copy of the Court's Jan. 26, 2018 Order is available at https://is.gd/kAh4VM from Leagle.com. Dora Faye Kaufman -- dfk@lgplaw.com -- for Defendant-Appellee. Juan A. Gonzalez -- jag@lgplaw.com -- for Defendant-Appellee. James Randolph Liebler -- jrlii@lgplaw.com -- for Defendant- Appellee. John H. Ruiz -- jruiz@msprecovery.com -- for Plaintiff-Appellant. Karen Jill Barnet-Backer, for Plaintiff-Appellant. Douglas E. Winter -- dewinter@bryancave.com -- for Defendant- Appellee. Joshua Robert Levine, for Defendant-Appellee. Jennifer A. Jackson -- jjackson@bryancave.com -- for Defendant- Appellee. Steve Louis-Charles -- steve@charleslegalpl.com -- for Plaintiff- Appellant. Rosy Anette Aponte -- a2aponte@aol.com -- for Plaintiff- Appellant. Phillip Edward Holden, for Plaintiff-Appellant. Jed P. White -- jed.white@bryancave.com -- for Defendant- Appellee. Robert Edward Boone, III -- reboone@bryancave.com -- for Defendant-Appellee. Jennifer Espinet -- jeportell@jplawfirm.org -- for Plaintiff- Appellant. BESTCOMP INC: Medical Providers Class Certification Affirmed ------------------------------------------------------------ The Court of Appeal of Louisiana, Third Circuit, issued an Opinion affirming judgment of the Trial Court granting Class Certification in the case captioned GEORGE RAYMOND WILLIAMS, M.D., ORTHOPAEDIC SURGERY, A PROFESSIONAL MEDICAL LLC, ET AL. v. BESTCOMP, INC., ET AL., No. 17-478 (La. App.). The plaintiffs seeking class certification in this matter, George Raymond Williams, M.D., Orthopedic Surgery, A Professional Medical L.L.C.; West Louisiana Health Service, Inc., d/b/a Beauregard Memorial Hospital; Joe Wilson; and Wilson Chiropractic Center, Inc., all allege that they represent healthcare providers who rendered treatment to injured employees under the terms of the Louisiana Workers' Compensation Act. The trial court heard the plaintiffs' class certification motion. Putative class counsel and class representatives testified. Many exhibits were offered and filed to support and oppose the motion. Among those exhibits was Plaintiffs' Exhibit 4, the corporate deposition of StrataCare, which included a data disc containing information regarding recommended PPO discounts, presented as a Microsoft Excel spreadsheet. A judgment was signed, certifying the following class: All medical providers who have provided services to workers' compensation patients as contemplated in La. R.S. 23:1201, et seq., and whose bills have been discounted after January 1, 2000 pursuant to a preferred provider organization agreement, as defined in La. R.S. 40:2202, by and through Bestcomp, Inc. and Stratacare. The trial court determined that there were 49,988 claims to be adjudicated, based upon the information on the disc. Because there was evidence that no discount that StrataCare's software recommended was not applied. The trial court further found that it would be impractical to join all potential claimants, given the existence of 49,988 potential claims. The trial court found that the issue of commonality was satisfied. The common issue herein, according to the trial court, was whether Bestcomp improperly applied. The trial court found that there were no conflicting or antagonistic claims between the class representatives and the other class members. The trial court found that the class was susceptible of being objectively identified in ascertainable criteria. The StrataCare spreadsheet would serve as a means of identifying the potential members without the necessity of inquiring into the merits of each claimant's claim. Essential to the trial court's findings was the information contained on the data disc. This disc revealed over 49,000 claims, upon which the trial court found the potential for 49,988 claims and the impracticality of joinder of the individual class members satisfies the numerosity requirement. Defendants object to the certification of the class on the basis of a lack of commonality. The facts of the present case are similar to Gunderson, 977 So.2d 1128. Gunderson involved different defendants, but the allegations as to the alleged misconduct were identical; PPO discounts were applied without notice to discount the bills of health care providers who treated workers' compensation patients. The defendants interposed the same arguments in Gunderson as the present defendants in this matter. This court rejected each of them. The claims involve liability that is imposed solely in the failure to timely give notice. The fact that some claimants' demands are far larger than others' was not of great moment. The fact that Wilson Chiropractic had settled its demands is no more an impediment to his class representation as was a similar situation in Gunderson. Because the named class representatives each have less than [sixty-five] instances of alleged discounts, involving only one or a few patients, as opposed to other members of the putative class, for whom the typical claim exceeds $200,000.00, Defendants argue that the class representatives lack the typicality to adequately represent the class. The typicality element determines whether a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct. Thus, "A plaintiff's claim is typical if it arises out of the same event, practice, or course of conduct giving rise to the claims of the other class members and those claims arise from the same legal theory." In the present matter, while the class representatives' claims my not be as great as those of other members of the class, they do arise from the same conduct and recovery is sought under the same legal theory. The trial court did not manifestly err in finding this element of La.Code Civ.P. art. 591 satisfied. The La. App. cannot say the trial court manifestly erred in finding that the requisites for class certification of La.Code Civ.P. art. 591 were met. The La. App. added that it certainly cannot say the trial court abused its discretion in certifying the class. The judgment of the trial court certifying the class is affirmed. A full-text copy of the La. App.'s January 4, 2018 Opinion is available at https://tinyurl.com/y8elxyqy from Leagle.com. Thomas A. Filo, Cox, Cox, Filo, Camel & Wilson, LLC, 723 Broad Street, Lake Charles, LA 70601, (337) 436-6611, COUNSEL FOR PLAINTIFF/APPELLEE: George Raymond Williams, M.D., Orthopedic Surgery, A Professional Medical L.L.C. Patrick C. Morrow -- PatM@mmrblaw.com -- James P. Ryan -- JamesR@mmrblaw.com- Morrow, Morrow, Ryan, Bassett & Haik, 324 W. Landry Street, Opelousas, LA 70570, (337) 948-4483, COUNSEL FOR PLAINTIFF/APPELLEE: George Raymond Williams, M.D., Orthopedic Surgery, A Professional Medical L.L.C. Stephen B. Murray, Sr. -- smurray@murray-lawfirm.com -- Stephen B. Murray, Jr. -- smurrayjr@murray-lawfirm.com -- Arthur M. Murray, The Murray Law Firm, 909 Poydras Street, Suite 2150, New Orleans, LA 70112, (504) 525-8100, COUNSEL FOR PLAINTIFF/APPELLEE: George Raymond Williams, M.D., Orthopedic Surgery, A Professional Medical L.L.C. John S. Bradford, William B. Monk, Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., One Lakeside Plaza, Fourth Floor, Lake Charles, LA 70601, (337) 436-9491, COUNSEL FOR PLAINTIFF/APPELLEE: George Raymond Williams, M.D., Orthopedic Surgery, A Professional Medical L.L.C. George D. Fagan, Margaret F. Swetman -- gfagan@leakeandersson.com -- Anton L. Hasenkampf -- ahasenkampf@leakeandersson.com -- Leake & Anderson. L.L.P., 1100 Poydras Street, Suite 1700, New Orleans, LA 70163, (504) 585-7500, COUNSEL FOR DEFENDANT/APPELLANT: Chartis Specialty Insurance Company. Michael A. Balascio -- mbalascio@barrassousdin.com -- Barrasso Usdin Kupperman, 909 Poydras Street, 24th Fl, New Orleans, LA 70112, (504) 589-9700, COUNSEL FOR DEFENDANT/APPELLEE: Darwin Select Insurance Company. Patrick A. McShane, T.A. -- pmcshane@frilot.com -- Carl E. Hellmers, III -- chellmers@frilot.com -- Heather A. McArthur -- hmcarthur@frilot.com -- Frilot LLC, 1100 Poydras St., Suite 3700, New Orleans, LA 70163, (504) 599-8000, COUNSEL FOR DEFENDANT/APPELLANT: Landmark American Insurance Company. Maureen O. Sullivan Maureen.Sullivan@lewisbrisbois.com., Tabitha R. Durbin -- Tabitha.Durbin@lewisbrisbois.com -- Christie Noel -- Noel.Johnson@lewisbrisbois.com -- Jean Ann Billeaud -- Jean.Billeau@lewisbrisbois.com -- Lewis, Brisbois, Bisgaard & Smith, LLP, 100 E. Vermilion, Suite 300, Lafayette, LA 70501, (337) 326-5777, COUNSEL FOR DEFENDANT/APPELLANT: Illinois National Insurance Company, Westchester Surplus Lines Insurance Company. Christine Lipsey -- clipsey@mcglinchey.com -- Jamie D. Seymour -- jseymour@mcglinchey.com -- McGlinchey, Stafford, PLLC, 301 Main St., 14th Fl, Baton Rouge, LA 70801, (225) 383-3683, COUNSEL FOR DEFENDANT/APPELLEE: Cinga Health Management, Inc. Marshall M. Redmon -- marshall.redmon@phelps.com -- Phelps, Dunbar, P. O. Box 4412, Baton Rouge, LA 70821-4412, (225) 346- 0285, COUNSEL FOR DEFENDANT/APPELLEE: Indian Harbor Insurance Company. BRANDON SANATORIUM: Named in Lawsuit Filed on Behalf of Patients ---------------------------------------------------------------- Tyler Clarke, writing for The Brandon Sun, reports that a class- action lawsuit on behalf of former "Indian hospital" patients has named the "Brandon Indian Hospital" as one of the 29 segregated hospitals targeted. This hospital is more commonly known as the Brandon Sanatorium, which served Indigenous tuberculosis patients from 1947 to 1958. At the time of its closure, patients were shipped out to the Ninette Sanatorium and the Brandon location was restructured as the Assiniboine Hospital. According to a CBC News story, the $1.1-billion class-action lawsuit cites allegations of widespread mistreatment and abuse among so-called "Indian hospitals," where patients were forcibly detained. Brandon woman Alice Marina Young spent approximately eight years at the Brandon Sanatorium in the 1950s, during which she said that she was shut off from her family and society at large. She escaped on at least one occasion, only to be captured by a police officer and returned to the hospital. Now an 83-year-old resident of the Valleyview Long Term Care Home in Brandon, her time at the Brandon Sanatorium remains cemented in her mind. During a conversation with The Brandon Sun in September, she asked on several occasions whether she was at the Brandon Sanatorium. Daughter Sharon Dixon said that although her mother has never said anything about being mistreated, she believes that the class-action lawsuit is worthwhile. University of Winnipeg historian Mary Jane McCallum has been studying Manitoba's racially segregated tuberculosis treatment facilities with postdoctoral fellow Scott de Groot for the past few years, collecting the oral histories of those involved. While certain cases of abuse might not have been overt, McCallum said she has found a parallel between how the Brandon Sanatorium operated and how the residential school system was structured. Located at the corner of 10th Street and Queens Avenue, the Brandon Sanatorium had a "social orientation" program that helped assimilate patients into white communities. McCallum and de Groot conducted and processed six substantial interviews with patients of Manitoba sanatoriums. "All of the interviewees spoke about their experiences of being removed from their families and the hardships they faced -- both short and long-term -- as a result," McCallum wrote. "These consequences included a loss of language -- which resulted in difficulties adjusting back to family and community life after their return from the hospitals." These past patients also complained about the extreme isolation they faced at sanatoriums, as well as the length of time they were made to remain in the health-care facilities. Manitoba Lung Association CEO Neil Johnston said that what he has heard from past patients of these sanatoriums has been "certainly very troubling and tragic and something that we're concerned about." The Manitoba Lung Association was founded in 1975 as a division of the Sanatorium Board of Manitoba to tackle community health programs and education services. The Sanatorium Board of Manitoba's only activity at present is its operation of the Manitoba Lung Association, and Johnston said that they've long since divested of medical records that individual sanatoriums would have kept. Uncertain as to the local implications of the national class- action lawsuit, Johnston said that they're currently trying to figure out things themselves. "Because we're basically starting from scratch ourselves, from a record perspective, we have to be careful and make sure we get the information we need to take any kind of steps," he said. Although the Ninette Sanatorium is not listed in this class- action lawsuit, Winnipeg-based Indigenous advocate Gerald McIvor is working on developing a wider-reaching class-action lawsuit, which he said on February 2 would be national in scope and field in federal court. This class-action lawsuit would centre on "a serious breach of human rights and Canada's fiduciary responsibility toward First Nations people," he said. Unlike the Brandon Sanatorium, the Ninette Sanatorium was not dedicated exclusively to Indigenous people. The class-action lawsuit that cites the "Brandon Indian Hospital" (Brandon Sanatorium) was filed in Toronto by Koskie Minsky LLP and Masuch Albert LLP of Alberta. [GN] BULLSEYE GLASS: Judge Clears Way for $1.2-Billion Lawsuit --------------------------------------------------------- Katherine Kisiel, writing for KATU News, reports that a judge ruled in favor of a group of residents February 2, allowing them to move forward with a $1.2 billion class action lawsuit against a Southeast Portland glassmaker. Bullseye Glass Co. stopped using the chemicals cadmium and arsenic in its glass production in 2016, after air monitoring stations detected high levels of the chemicals around the company, prompting concerns from nearby residents and a day care center. The company also said it stopped using chromium a week later, after a request from the state. The company later resumed using cadmium after installing an updated filtration system known as a baghouse. Dozens of people packed the courthouse in downtown Portland and listened to both sides present their cases. The plaintiffs argued the lawsuit should move forward based on their research that shows hundreds of people were potentially affected by dangerous chemicals coming from the facility. The defense disagreed. After the ruling, Bullseye Glass's Vice President Jim Jones said he believed his company would prevail at trial. "It's hard for us to imagine that we affected someone a mile and a half, two miles away from us the same as someone close to us, and I believe that at trial we'll be able to show that the merits of the case don't stand up," said Jones, in response to claims related to the class action suit. Joshua Baker lives about a quarter of a mile away from Bullseye Glass. He's one of about 2,000 people who are part of the lawsuit. "They have from the very start challenged all the scientific findings that determined that they were the source for these contaminants, and apparently they're still claiming they are not responsible for it," he said. Bullseye argues it's been in compliance with the state since it started business about 40 years ago. "I would like people to understand is the owners of Bullseye decided to stay and put in the correct emissions equipment probably faster than any other company in Oregon has," said Jones. Baker acknowledged this isn't an isolated case. "It's just not Bullseye, and that's been a case they've made the whole time as well, which I agree, but it doesn't excuse what they got away with for so long," he said. Meanwhile, Bullseye Glass has filed its own lawsuit against the state, claiming several state agencies used Bullseye as a scapegoat to hide the facts about air quality. [GN] BULLSEYE GLASS: Toxic Air Pollution Class Action Can Proceed ------------------------------------------------------------ The Associated Press reports that Portland residents can move forward with a $1.2 billion class-action lawsuit against a local glass maker over concerns about toxic air pollution, a Multnomah County judge has ruled. Circuit Court Judge Stephen Bushong on Feb. 2 granted a motion to certify the lawsuit as a class-action against Bullseye Glass Co., KATU-TV reported. Several residents filed a lawsuit in March 2016 alleging Bullseye released arsenic, cadmium and other potentially toxic-heavy metals from its plant in southeast Portland over decades. The lawsuit alleges Bullseye knew or should have known that it is and has been emitting significant amounts of toxic materials. Company Vice President Jim Jones said on Feb. 2 he believes his company will prevail at trial. "It's hard for us to imagine that we affected someone a mile and a half, 2 miles away from us the same as someone close to us, and I believe that at trial we'll be able to show that the merits of the case don't stand up," he said. According to Bullseye, it has been in compliance with the state since it started business about 40 years ago. Mr. Jones said the company has installed the correct emissions equipment. Bullseye was one of two Portland-based glass manufacturers that sparked public outcry over toxic air pollution in 2016. Dozens of people packed the courthouse in downtown Portland for the Feb. 2 hearing. Among them was Joshua Baker, who lives about a quarter of a mile away from the factory. He is one of about 2,000 people who are part of the lawsuit. "They have from the very start challenged all the scientific findings that determined that they were the source for these contaminants, and apparently they're still claiming they are not responsible for it," Baker told KATU-TV. In December, Bullseye filed a $30 million lawsuit against Oregon Gov. Kate Brown and other top state officials, claiming they used the company as a scapegoat to cover up the state's lax record of environmental protection. [GN] BUMBLE BEE: Consents to Relabeling Smoked Salmon Products --------------------------------------------------------- Richard M. Blau, Esq., of GrayRobinson PA, in an article for Lexology, wrote that on February 1, 2018, Bumble Bee Foods, LLC agreed to repackage its canned salmon filets to end a proposed class action in California federal court. In the case of Miguel Rodriguez et al. v. Bumble Bee Foods LLC, case number 3:17-cv- 02447 (U.S. District Court for the Southern District of California), the plaintiff was a consumer accusing Bumble Bee of misrepresenting that its canned salmon was smoked and wild- caught, when in fact the fish was farm-raised and processed using added liquid smoke flavoring. The plaintiff sought class action status on behalf of all similarly-situated consumers of Bumble Bee's canned Premium Select Medium Red Smoked Salmon Filets in Oil. Consumers prize salmon because the fish has many health benefits: it is relatively a good source of protein, low in calories, and high in omega 3 fatty acids. Wild salmon feed on krill, which gives them their distinctive red or pink color and generally are considered to be of higher quality than farm-raised salmon. Consequently, consumers typically are willing to pay a higher price for wild-caught salmon products. The canned fish at issue in the Bumble Bee lawsuit was purchased at a Wal-Mart location in the Fall of 2017. The plaintiff alleged that he paid a premium for the product because he believed that the wording and images on the label were accurate, but that he would not have brought the product at all, and certainly not for a premium price, but for being misled by Bumble Bees false claims. According to the plaintiff's lawsuit, the medium red product he purchased looked identical to the Bumble Bee fish product labels that are in fact caught in the wild. The medium red label product uses an illustration of a fish leaping out of a body of water and uses the word "premium." In reality, according to the plaintiff's complaint, the fish were farm-raised in Chile, where they allegedly were penned in aqua cages off the coast and exposed to fecal matter, fungicides, and antibiotics. Moreover, farm-raised salmon naturally have a dull, grey flesh. To make the fish appealing to consumers, colorants -- typically canthaxanthin or astaxanthin -- are added to farmed salmons' feed to mimic the desired color of wild-caught salmon. The Bumble Bee Salmon false advertising lawsuit alleged that the company's intention was to mislead consumers into believing they were purchasing wild salmon filets when that was not the case. The Bumble Bee class action lawsuit alleged violations of the California False Advertising Law, the California Consumers Legal Remedies Act, the California Unfair Competition Law, breach of express warranty and breach of the implied warranty of merchantability. Under the terms of the stipulated settlement, Bumble Bee agreed to: (i) change the product's packaging, (ii) pay reasonable attorneys' fees (between $30,000 and $85,000) as well as an incentive award to the named plaintiffs who initiated the litigation, and (iii) not require the proposed class to release any claims for damages or personal injury. Because the parties agreed that the misleadingly labeled products are not inherently dangerous, the settlement does not compel Bumble Bee to recall the products with the old packaging. Bumble Bee explained that settlement made sense because of the product's modest sales and because the expense of litigating the class' damages claims likely would substantially outweigh the class' potential recovery. However, the plaintiff's counsel estimated consumers purchased approximately 2.3 million units of the smoked salmon filets, with a market value of $5.2 million, during the period of time covered by the proposed class action. Under the terms of the settlement agreement, Bumble Bee will repackage the salmon filets with more accurate labeling beginning in the Second Quarter of 2018. The new packaging will specify that the product is "smoke-flavored" rather than "smoked," omit claims that the fish is "Premium" or "Medium Red" and more accurately depict a farm-raised Coho salmon, according to the settlement filing. Consumer class action lawsuits are on the rise, especially with regards to processed foods. Consumer advocates, food professionals, and industry observers attribute this trend to a growing concern among consumers, especially Millennials, over the provenance, quality and safety of their diets. Accuracy in product labeling has become a focal point for consumer advocates as well as plaintiffs' lawyers, as more and more consumers demand detailed and accurate information regarding the contents of their food. [GN] CANADA: Lawyers in Toronto Mull Class Action for Cannabis Amnesty ----------------------------------------------------------------- Shree Paradkar, writing for Toronto Star, reports that "Entrepreneurial" is one of the terms used to describe a bunch of Canadian bootleggers who found varying success in the illicit running of alcohol to the U.S. about a century ago. They are portrayed as swashbuckling adventurers who dared to defy laws that banned alcohol, laws that in retrospect were not only archaic but perhaps misplaced and costly. They are fondly posited as cheeky and rebellious, the forerunners of a liberal era of alcohol-infused pleasures. It was legal in Canada to produce alcohol -- prohibition was lifted by the 1920s -- while Americans still faced a ban. That illicit trade was the building blocks on which Canadian distilleries, the suppliers of that booze, made a fortune. The histories of the Bronfman family (who owned Seagram) and the Corbys, among others, are just a Google search away. During the "roaring twenties," says the official Bay of Quinte website, many a Canadian lad . . . risked his life during this time for the daring and dangerous life of bootlegging." No such indulgent descriptors - or profits - appear to await the forerunners of a Liberal era of cannabis-infused pleasures. Canada sold $1.2 billion of illegal cannabis outside country in 2017, StatCan estimate suggests As the banned substance begins to burgeon into a multi-billion- dollar industry, the once-petty crooks, many of them Black, with the grassroots know-how of how to run the business and who could become contributing members of society, are once again being shut out because they have criminal records. The government has talked about amnesty for past marijuana crimes that would mean erasure of those records. But it is unlikely to take any action until after legalization -- and already, others with money have plunked their grubby fingers in this pie to make more money. This includes, of course, that shameless hypocrite and former chief of multiple police forces Julian Fantino, who helped passed into law Bill C-10 that included mandatory minimum sentences on people for having as few as six plants. On Feb. 2, The Canadian Press reported that a group of frustrated lawyers in Toronto is considering a class-action lawsuit against the government to push it into granting cannabis amnesty. They should just do it. Some advocates are also seeking an apology. A reckoning of the unfairness with which anything related to marijuana has been treated is a long time coming. Even the usage of the word marijuana -- which comes from Mexico-- came into being during the Prohibition Era to warn off Americans by appealing to their xenophobic sensibilities with the suggestion that it could lead to the intermingling of races. In Canada, too, marijuana has proven handy as a system of racial control. In July last year, the Star published an analysis of 10 years of Toronto police data -- including two years when Fantino was police chief -- to show that Black people with no history of criminal convictions were three times more likely to be arrested for possession of small amounts of marijuana than white people. The users are Black and white at about equal rates, but the people behind bars are disproportionately Black. More recently, the American experience shows that even in states where the plant is legalized, while overall numbers of arrests have plummeted, Black people are still arrested at higher rates. Four times higher in Washington, D.C., 10 times higher in Alaska. From Richard Nixon's so-called "war on drugs" to Ronald Reagan's drug war to Bill Clinton's "tough on crime" laws, the crackdown on drugs has always been an assault on race. The scholar Michelle Alexander points out in her seminal book The New Jim Crow that Nixon's White House Chief of Staff H.R. Haldeman recalled that Nixon "emphasized that you have to face the fact that the whole problem is really the Blacks. The key is to devise a system that recognizes this while not appearing to." The Reagan administration created an indelible link between drug abuse and Black people, she wrote in HuffPost. It hired staff whose responsibility it was "to publicize inner-city crack babies, crack mothers, crack whores, and drug-related violence." Clinton's policies wrought the highest increase in number of people imprisoned. But a change was coming. The face of drug users in the public imagination was getting lighter-skinned. Think Breaking Bad. Ozark. "Changing attitudes and policies became possible in large part because the media was no longer saturated with images of Black and brown drug dealers," Alexander said at a Drug Policy Reform conference in 2017. "The colour of drug users and dealers got whiter in the public imagination, and so we, as a nation, got nicer." Nicer in Canada would mean erasing criminal records without a fight, the flawed structure of the RCMP's national criminal record database notwithstanding. That database can show whether someone has a record for possessing an illegal drug, but not necessarily which one, according to a report in Global News. "That means that erasing marijuana possession (or trafficking) records could turn into a painstaking, manual process, involving searches in court and police archives across the country." No reason why people imprisoned for petty crimes should pay for the carelessness of those trafficking in power. [GN] CANADA: Former Nanaimo Indian Hospital Named in Class Action ------------------------------------------------------------ Nanaimo News reports that the former Nanaimo Indian Hospital has been named in a $1.1-billion class action lawsuit against the Canadian government. A statement of claim was filed in the Federal Court of Canada on Jan. 25, on behalf of aboriginal people who were patients of 29 government-run Indian hospitals, which the lawsuit alleges were overcrowded, poorly staffed, unsanitary and had widespread physical and sexual abuse like beating with rods and sticks and physical restraint to beds. Ann Cecile Hardy of Edmonton, the plaintiff, was admitted to the Charles Camsell Indian Hospital with tuberculosis in 1969 when she was 10 and the claim says while there, she was repeatedly sexually abused by medical technicians at the hospital and also witnessed other patients being sexually abused. Indian hospitals were part of a separate health care system for indigenous people, which the claim says were initially limited to those who contracted or were suspected to have tuberculosis, but other illnesses were subsequently treated. A facility opened in Nanaimo in 1946 in an old military hospital near Vancouver Island University and had 210 beds, which made it second in size to Charles Camsell Hospital in Alberta, shows 'Indian' Hospitals and Tuberculosis in Canada: a mini history by Laurie Meijer Drees, chairwoman of indigenous studies at Vancouver Island University. By the time the hospital closed in 1966, the Nanaimo Daily Free Press reported it had seen 14,000, or more, patients from Vancouver Island. Steven Cooper -- steve.cooper@masuchalbertlaw.com -- with Cooper Regel, co-counsel, said this case is coming to the courts now because one or more of the survivors is finding a place in life and the strength to tell the stories, and more scholarly work has been done lately on the Indian Hospital system. These cases are never just about compensation, he said, and like any other situation, when an institution and in this case a government or even an individual, causes harm, they are brought to account in the civil system. "When you have these historical injustices, these historical damages, it's an opportunity for the survivors to take control of their own history, their own lives, to bring these things to the knowledge of Canadians," he said. The Office of Crown-Indigenous Relations and Northern Affairs Minister Carolyn Bennett stated in an e-mail that Canada is committed to righting historical wrongs committed against indigenous people. "While the Government of Canada respects the decision of plaintiffs to pursue their claims through the courts, Canada believes that the best way to address outstanding issues and achieve reconciliation with indigenous people is through negotiation and dialogue rather than litigation," it said. "We are committed to working with all parties involved to explore mechanisms outside the adversarial court process to deal with these claims." Cooper said he agrees these things are best solved around the table, but context is still needed and in Canada, that context in these cases are class actions. "We will proceed to court and look to get the class certified and hope concurrently that the government will carry out their promise to talk to us," he said. "We are not anxious to run a trial on this, we are not anxious to get anything other than a proper, fair and quick settlement where that's possible." [GN] CAVALRY PORTFOLIO: "Schurger" Disputes Collection Letter -------------------------------------------------------- Darren Schurger, Michael Blake, and all others similarly situated, Plaintiffs, v. Cavalry Portfolio Services, Defendant, Case No. 18-cv-00027 (E.D. Wash., January 23, 2018), seeks to recover statutory and actual damages, prejudgment interest and post-judgment interest and attorneys' fees and costs under the Fair Debt Collection Practices Act. Cavalry is a Delaware corporation engaged in the business of collecting debts in Washington State. Some time prior to 2009, Plaintiffs incurred an obligation to HSBC Bank Nevada N.A. credit card for a purchase from Furniture Row where Calvary was assigned to collect via letter sent sometime in May 2017. Said letter failed to inform the Plaintiff that should he choose one of the payment plans offered it may restart the statute of limitations, which may expose the Plaintiffs to future litigation for this debt and did not inform them that should the statute of limitations reset, the Defendant may have the right to commence legal action, which would otherwise have been barred. [BN] Plaintiff is represented by: Kirk D. Miller, Esq. KIRK D. MILLER, P.S. 421 W. Riverside Avenue, Suite 660 Spokane, WA 99201 Tel: (509)413-1494 Fax: (509)413-1724 CERES MARINE: "Mattson" Action to Recover Overtime Pay ------------------------------------------------------ Lawton Mattson, on behalf of himself and all others similarly situated, Plaintiff, v. Ceres Marine Terminals Inc., Defendant, Case No. 18-cv-00192 (D. S.C., January 23, 2018), seeks to recover overtime compensation, liquidated damages and attorneys' fees and costs pursuant to the provisions of the Fair Labor Standards Act of 1938. Ceres Marine Terminals Inc. is a stevedoring and terminal operating company where Mattson worked as a stevedore at their Charleston Ports facility. Plaintiff claims overtime for hours in excess of forty in a work week. [BN] Plaintiff is represented by: Marybeth Mullaney, Esq. MULLANEY LAW 1037-D Chuck Dawley Blvd, Suite 104 Mount Pleasant, SC 29464 Tel/Fax: (800) 385-8160 Email: marybeth@mullaneylaw.net COMCAST CABLE: Court Dismisses "Scott" FLSA Suit ------------------------------------------------ Judge Edward M. Chen of the U.S. District Court for the Northern District of California dismissed without prejudice the case, ANDRE SCOTT, an individual; KEN FASSLER, an individual; ELIJAH MAXWELL-WILSON, an individual, and on behalf of themselves, all other similarly situated, Plaintiffs, v. COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC, a Delaware Corporation; and DOES 1-50, Inclusive, Defendants, Case No. 3:16-cv-06869-EMC (N.D. Cal.). The parties stipulated and Judge Chen approved that (i) all of the Plaintiffs' individual claims in the action are dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii); and (ii) the Plaintiffs' claims alleged on behalf of the putative class are dismissed without prejudice to the other putative class members pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii). The Plaintiffs will not re- assert or re-file any class, collective, or representative action claims that were, or could have been, alleged in the action. Each party is to bear their own fees and costs. A full-text copy of the Court's Jan. 26, 2018 Order is available at https://is.gd/VsWdfc from Leagle.com. Andre Scott, Ken Fassler & Elijah Maxwell-Wilson, Plaintiffs, represented by Chaim Shaun Setareh -- shaun@setarehlaw.com -- Setareh Law Group & Thomas Alistair Segal -- thomas@setarehlaw.com -- Setareh Law Group. Comcast Cable Communications Management, LLC, Defendant, represented by Daryl Steven Landy -- daryl.landy@morganlewis.com -- Morgan Lewis & Bockius LLP, Jennifer P. Svanfeldt -- jennifer.svanfeldt@morganlewis.com -- Morgan, Lewis & Bockius LLP & Sarah Jane Allen -- sarah.allen@morganlewis.com -- Morgan, Lewis and Bockius LLP. DON HERRING: Loses Bid to Dismiss "Lopez" DPPA Suit --------------------------------------------------- The United States District Court for the Northern District of Texas, Dallas Division, issued a Memorandum Opinion and Order denying Defendant's Motion to Dismiss the case captioned ARTHUR LOPEZ, individually, and on behalf of himself and all other similarly situated individuals Plaintiff, v. Don Herring Ltd., Defendant, Civil Action No. 3:16-CV-02663-B (N.D. Tex.). Herring, the only remaining defendant, moves the Court to dismiss Lopez's suit under Federal Rule of Civil Procedure 12(b)(6), contending that Lopez has failed to plead sufficient facts to support a Driver's Privacy Protection Act ("DPPA") claim. When Lopez first filed this class-action lawsuit, he sued Herring, Tacito, BB Direct, and Monica Braverman, the owner of Data Shark, alleging they violated the DPPA and purporting to represent a class of "millions, if not tens of millions" of victims of the defendants' allegedly unlawful practices. But the Court dismissed Lopez's original complaint. Electronic Order. Lopez then filed an Amended Complaint, naming Herring as the only defendant but still claiming to represent a class possibly numbering in the tens of millions. Though, Lopez more realistically describes the class he purports to represent as consisting of those whose personal information Herring obtained from state DMVs. And whereas Lopez attached emails from Tacito and BB Direct to his original complaint, he attaches only emails from Herring to his amended complaint and omits from his pleadings any mention of Tacito, BB Direct, or Data Shark. Herring now argues that Lopez has failed to plead a plausible claim. The Court disagrees. Herring's arguments that the sales person's and General Sales Manager's statements do not make Lopez's claim plausible fail. Herring first contends that the sales person and the General Sales Manager were incorrect about how Herring obtained Lopez's information and therefore that their statements do not make Lopez's claim plausible. But the Court must take Lopez's factual pleadings as true and construe factual allegations in the plaintiff's favor. Thus, the mere possibility that the sales person and General Sales Manager were incorrect about the source of Lopez's information does not render Lopez's claim implausible. Second, Herring argues that the General Sales Manager's statement, even if taken as true, does not make Lopez's claim plausible. Because the General Sales Manager said Herring obtained the information from third parties, Herring contends, the General Sales Manager could only have been speculating about the origin of the information. But although the manager could have been speculating, the Court can still reasonably infer that Herring knew Lopez's information came from the DMV based on what he said and the query to which he was responding. Here, Herring wants the Court to consider not only emails attached to the challenged complaint but also emails attached to a complaint the Court has already dismissed. But the Court may not consider the emails. First, the emails are not attached to the challenged complaint. Second, the Court cannot judicially notice the facts Herring says the emails establish. Federal Rule of Evidence 201 determines what facts a court may judicially notice. Courts may judicially notice facts not subject to reasonable dispute that are not subject to reasonable dispute because they are "generally known within the trial court's territorial jurisdiction; or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. Herring argues that the emails show that third parties from which it obtained Lopez's information did not obtain Lopez's information from the Texas DMV, which means Herring could not possibly have violated the DPPA. Even if the Court considered the email incorporated into Lopez's complaint, the Court would deny Herring's motion. At the 12(b)(6) stage, the Court must accept Lopez's pleadings as facts. The emails Herring wants the Court to consider contradict the facts Lopez pleaded, but that does not mean the emails render Lopez's claim implausible. At any rate, the oddity of the Court comparing pleadings it must accept as facts and actual evidence demonstrates why courts generally limit their 12(b)(6) analysis to the pleadings. There is still one way for the Court to consider the emails attached to Lopez's original complaint. But that would require converting Herring's motion to dismiss into a motion for summary judgment, Fed. R. Civ. P. 12(d), a procedural vehicle that allows court to consider evidence the parties submit, The Court declines to issue summary judgment for Herring at this time. Although the emails on which Herring relies may be some evidence tending to disprove Lopez's claim, granting summary judgment before Lopez has had the chance to gather and submit evidence would be improper. One matter remains unresolved: Herring's motion to strike portions of Lopez's amended complaint under Federal Rule of Civil Procedure 12(f). Rule 12(f) allows courts to strike any redundant, immaterial, impertinent, or scandalous matter. Motions to strike under rule 12(f) are disfavored. A court should grant a 12(f) motion to strike only when the matter of which the movant complains bears no possible relation to the controversy or may cause the objecting party prejudice. The Court will not strike Lopez's pleadings because the pleadings are related to the controversy and do not prejudice Herring. The Court denies Herring's motion to dismiss Lopez's Amended Complaint and denies Herring's motion to strike. A full-text copy of the District Court's January 4, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/yc8b5eun from Leagle.com. Arthur Lopez, individually, and on behalf of himself and all others similarly situated individuals, Plaintiff, represented by Joseph Hanson Malley, Law Offices of Joseph H. Malley PC., 1045 N Zang Blvd Dallas, TX 75208-4142 Don Herring Ltd, Defendant, represented by David B. Tabor - dtabor@shackelfordlaw.net -- Shackelford, Bowen, McKinley & Norton & Martha Hardwick Hofmeister -- mhofmeister@shackelfordlaw.net -- Shackelford Bowen McKinley & Norton LLP. COSTCO WHOLESALE: Court OKs $9MM Wage & Hour Suit Settlement ------------------------------------------------------------ The United States District Court for the Southern District of California issued an Order granting Final Approval of Class Settlement in the case captioned MARJAN ATAIPOUR, et al., Plaintiffs, v. COSTCO WHOLESALE CORPORATION, Defendant, Case No. 14cv1156-LAB (JLB) (S.D. Cal.). About three years ago, Marjan Ataipour and other employees filed a class action against Costco for labor code violations. After the parties settled for $9 million, the Court held a fairness hearing. The Court confirms its previous findings certifying the class for settlement, approving the class action as the best method for resolution, appointing class counsel and representatives, and approving the notice program to class members. The Court also approves the following expenses as fair and reasonable: (i) payment to the California Labor and Workforce Development Agency under the Private Attorneys General Act for $37,500; and (ii) payment to the settlement administrator CPT Group for $17,500. Accordingly, the motion for final approval of the settlement is granted. A full-text copy of the District Court's January 4, 2018 Order is available at https://tinyurl.com/yd2jwowd from Leagle.com. Paula Dittmar, individually and on behalf of all others similarly situated, Plaintiff, represented by Bevin Allen -- Bevin.Pike@CapstoneLawyers.com -- Capstone Lawyers APC, Daniel M. Holzman -- dholzman@caskeyholzman.com -- Caskey and Holzman, Daniela Saspe -- dsaspe@gmail.com -- Jennifer R. Bagosy -- Jennifer.Bagosy@CapstoneLawyers.com -- Capstone Law APC, Jonathan Sing Lee -- Jonathan.Lee@CapstoneLawyers.com -- Capstone Law APC, Rebecca G. Gundzik -- rgundzik@gghslaw.com -- Gartenberg Gelfand Hayton & Selden LLP, Robert Joseph Drexler, Jr. -- Robert.Drexler@CapstoneLawyers.com -- Capstone Law APC, THOMAS L. DOROGI -- tdorogi@lightgablerlaw.com -- Caskey and Holzman & Aaron C. Gundzik -- agundzik@gghslaw.com -- Gartenberg Gelfand Hayton LLP. Pauline Tilton, individually and on behalf of all others similarly situated, Plaintiff, represented by Bevin Allen, Capstone Lawyers APC, Daniela Saspe, Jennifer R. Bagosy, Capstone Law APC, Jonathan Sing Lee, Capstone Law APC, Robert Joseph Drexler, Jr., Capstone Law APC, Aaron C. Gundzik, Gartenberg Gelfand Hayton LLP & Rebecca G. Gundzik, Gartenberg Gelfand Hayton & Selden LLP. Marjan Ataipour & Brian Kim, Plaintiffs, represented by Jennifer R. Bagosy, Capstone Law APC, Raul Perez, Capstone Law APC & Andrew Joseph Sokolowski, Matern Law Group, PC. Costco Wholesale Corporation, a Washington corporation, Defendant, represented by David D. Kadue -- dkadue@seyfarth.com -- Seyfarth Shaw, Emily Elizabeth Schroeder -- eschroeder@seyfarth.com -- Seyfarth Shaw LLP, Matthew Scott McConnell -- mmcconnell@sheppardmullin.com -- Sheppard Mullin Richter and Hampton, Timothy M. Rusche -- trusche@seyfarth.com - - Seyfarth Shaw, LLP & Tara Wilcox twilcox@sheppardmullin.com -- Sheppard Mullin Richter and Hampton. CREATIVE HAIRDRESSERS: "Sanford" Suit to Recover Overtime Pay ------------------------------------------------------------- Zsuzy Sanford, and Stephanie Jo Tobin, individually and on behalf of all others similarly situated, Plaintiffs, v. Creative Hairdressers, Inc. and Ratner Companies, LLC, Defendant, Case No. 1:18-cv-10132 (D. Mass., January 23, 2018), seeks compensatory and liquidated damages equal to the amount of unpaid compensation found due, costs and reasonable attorneys' fees incurred prosecuting this claim and such further relief under Massachusetts General Law. Zsuzy Sanford and Stephanie Jo Tobin worked as hair stylists in "Hair Cuttery" salons owned and operated by Creative Hairdressers, Inc. and Ratner Companies, LLC, claiming that they were not paid minimum wage or overtime. Defendants required them to report to work prior to their scheduled shifts and stay after their shifts have ended without being compensated for that time as well as to attend mandatory meetings and run errands for which they are not compensated. [BN] Plaintiff is represented by: Shannon Liss-Riordan, Esq. Jill Kahn, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 Tel: (617) 994-5800 Email: sliss@llrlaw.com jkahn@llrlaw.com DIRDEN LANDSCAPE: "Johnson" Action Seeks to Recover Overtime Pay ---------------------------------------------------------------- Vernon Johnson on behalf of himself and all others similarly situated, Plaintiffs v. Ginger Dirden, executor of the estate of Lindsey Dirden, and Dirden Landscape & Irrigation, Inc., Case No. 18-cv-00217, (S.D. Tex., January 24, 2018), seeks unpaid overtime pay in an amount which is one and one-half times their regular rates of pay, liquidated damages, reasonable attorneys' fees and costs for violation of the Fair Labor Standards Act. Dirden Landscaping provides landscaping services in Harris County, Texas where Johnson is a former laborer and was misclassified as exempt from the Fair Labor Standards Act, thus denied overtime for work more than forty hours in a workweek. [BN] Plaintiff is represented by: Clayton D. Craighead, Esq. THE CRAIGHEAD LAW FIRM, PLLC 440 Louisiana, Suite 900 Houston, TX 77002 Tel: (832) 798-1184 Fax: (832) 553-7261 Email: clayton.craighead@thetxlawfirm.com DUKE UNIVERSITY: Antitrust Case Expanded to Class Action -------------------------------------------------------- Bre Bradham, writing for Duke Chronicle, reports that on Feb. 1, a district court judge ruled that the antitrust lawsuit against Duke for an alleged no-hire agreement can be expanded into a class-action suit. The lawsuit can now cover a total of 5,500 doctors at the Duke University School of Medicine or the University of North Carolina School of Medicine, the Associated Press reported. By becoming a class-action suit, U.S. District Judge Catherine Eagles ruled that all faculty members with an academic appointment at any point from 2012 to the present at either school are represented, and may receive compensation for damages depending on the outcome of the case. The court appointed Danielle Seaman, who filed the original suit, as class representative and the law firms Lieff Cabraser Heimann and Bernstein, LLP and Elliot Morgan Parsonage, P.A. as class counsel, to prosecute the case. The lawsuit began in May 2015 when Seaman, then-assistant professor of radiology, sued Duke, saying that she had lost a job opportunity due to a no-hire agreement between the University and UNC that she said violated federal antitrust laws. UNC was originally a co-defendant alongside Duke in the case, but Eagles officially approved a settlement by UNC on Jan. 4 that did not require the school to pay any money. As part of the settlement, UNC did have to commit to never enter into such an agreement in the future and provide testimonies and internal documents to Ms. Seaman's attorneys. As part of the settlement, UNC denied wrongdoing. The faculty from UNC are included in the class action suit. The lawsuit arose after Seaman expressed interest in a job at UNC and claims she received an email from their chief of cardiothoracic imaging saying that the two schools have agreed to not allow lateral moves of faculty. "I just received confirmation from the Dean's office that lateral moves of faculty between Duke and UNC are not permitted," the email allegedly states, based on Ms. Seaman's second amended complaint. "There is reasoning for this guideline which was agreed upon between the deans of UNC and Duke a few years back." Both universities deny the existence of such an agreement. As part of Judge Eagles' decision to certify a faculty class in the lawsuit, all faculty physicians at the two medical schools are covered. However, non-faculty physicians, nurses and other skilled medical staff are not included under the class action suit, as Ms. Seaman's lawyers had originally wanted. Judge Eagles contended that such an inclusion would make the lawsuit difficult to manage, and any notion of collusion involving individuals who were not faculty physicians is substantially weaker. [GN] DUNN-EDWARDS CORP: Cal. App. Affirms Summary Judgment in "Khan" --------------------------------------------------------------- The Court of Appeals of California, Second District, Division Eight, issued an Opinion affirming judgment of the trial court granting Defendant's Motion for Summary Judgment in the case captioned HAMID H. KHAN, Plaintiff and Appellant, v. DUNN-EDWARDS CORPORATION, Defendant and Respondent, No. B270382 (Cal. App.). Khan worked at Dunn-Edwards from September 6, 1994, to September 2, 2011. During normal pay periods, all of Khan's wage statements included the pay period start date. Khan never looked at his wage statements. His payments were deposited directly into his bank account. Khan received his final paycheck on September 13, 2011. In contrast to all other wage statements, Khan's final wage statement did not include the start date for the pay period. Khan provided Dunn-Edwards's counsel and the California Labor and Workforce Development Agency with a notice saying that "correspondence shall constitute written notice under Labor Code Section 2699.3 of my claims against my former employer, Dunn- Edwards Corporation (Defendant')." Khan further said in the notice that he alleges that Dunn Edwards: 1. violated Labor Code Section 226(a) by failing to identify all of the required information on my final paycheck stub/itemized wage statement that he received, including but not limited to the pay period begin date, the correct pay date, and the total hours worked; and 2. violated Labor Code Sections 201- 203 by failing to pay all of my earned wages immediately upon termination and failure to pay waiting time penalties as a result thereof. The trial court granted Dunn-Edwards's motion for summary judgment. Among other reasons, the trial court concluded that Khan's notice was insufficient. The trial court concluded that compliance with the pre-filing notice and exhaustion requirements are mandatory. The trial court further concluded that Khan failed to comply. On appeal, Khan challenges the trial court's conclusion, arguing that his notice was sufficient even though he limited it to his claims. Khan argues that his notice did not need to specify that it is being sought for aggrieved employees because plaintiff is a proxy of the state. He argues that his notice should be assumed to being brought on a representative capacity. The Cal. App. finds Khan's argument lacking in merit. Because his notice expressly applied only to him, it failed to give the Labor and Workforce Development Agency an adequate opportunity to decide whether to allocate resources to investigate Khan's representative action. Because Khan referred only to himself, the agency may have determined that no investigation was warranted. Additionally, the notice failed to provide Dunn-Edwards with an adequate opportunity to respond to the agency since the notice suggested only an individual violation. Because Khan failed to give fair notice of the individuals involved, he failed to comply with the administrative requirement, and the trial court properly granted summary judgment, the Cal. App. further finds. A full-text copy of the Cal. App.'s January 4, 2018 Opinion is available at https://tinyurl.com/y9h84ngq from Leagle.com. Diversity Law Group, BLarry W. Lee -- lwlee@diversitylaw.com -- Law Offices of Choi & Associates and Edward W. Choi -- edward.choi@choiandassociates.com -- for Plaintiff and Appellant. Reed Smith, Michele J. Beilke -- mbeilke@reedsmith.com -- Raymond A. Cardozo -- rcardozo@reedsmith.com -- Julia Y. Trankiem -- jtrankeim@reedsmith.com -- and Brian A. Sutherland bsutherland@reedsmith.com -- for Defendant and Respondent. DYNEGY INC: Gul Seeks to Halt Merger Deal, Seeks Projections ------------------------------------------------------------ Waled Gul, individually and on behalf of all others similarly situated, Plaintiff, v. Dynegy Inc., Robert C. Flexon, Pat Wood Iii, Hilary E. Ackermann, Paul M. Barbas, Richard Kuersteiner, Jeffrey S. Stein and John R. Sult, Defendants, Case No. 18-cv- 00219 (S.D. Tex., January 24, 2018), seeks to enjoin defendants and all persons acting in concert with them from proceeding with, consummating or closing the acquisition of Dynegy by Vistra Energy Corp., or rescinding it in the event defendants consummate the merger. The Plaintiff further seeks rescissory damages, costs of this action, including reasonable allowance for plaintiff's attorneys' and experts' fees and such other and further relief under the Securities Exchange Act of 1934. Under the terms of the merger, Dynegy stockholders will receive 0.652 shares of Vistra Energy common stock for each share of Dynegy stock they own. The proposed transaction is valued at approximately $1.7 billion. The merger documents omitted the Dynegy's financial projections utilized by the company's financial advisors, Morgan Stanley & Co. LLC and PJT Partners LP in their financial and valuation analyses in connection with the rendering of their fairness opinions and failed to disclose the company insiders' potential conflicts of interest, notably, three members of the Board have secured positions for themselves following completion of the Merger. Such information is needed in order to cast a fully informed vote in connection with the merger, says the complaint. Dynegy is a holding company whose primary business is the production and sale of electric energy, capacity, and ancillary services from its fleet of 50 power plants in 12 states totaling approximately 31,000 megawatts of generating capacity. [BN] Plaintiff is represented by: Thomas E. Bilek, Esq. THE BILEK LAW FIRM, L.L.P. 700 Louisiana, Suite 3950 Houston, TX 77002 Tel: (713) 227-7720 - and - Richard A. Acocelli, Esq. Michael A. Rogovin, Esq. Kelly C. Keenan, Esq. WEISSLAW LLP 1500 Broadway, 16th Floor New York, NY 10036 Tel: (212) 682-3025 Fax: (212) 682-3010 Email: racocelli@weisslawllp.com mrogovin@weisslawllp.com EI DUPONT: Faces Class Action Over Cape Fear River Contamination ---------------------------------------------------------------- Marc S. Reisch, writing for c&en, reports that lawyers have filed a new class action lawsuit against DuPont and Chemours claiming that the two firms contaminated the Cape Fear River in North Carolina with fluorosurfactants. The river is a source of drinking water for much of the southeast part of the state. The filing, made late last month, consolidates and updates three class action suits filed since October by lawyers representing thousands of people who claim they are ill or could get ill because they drank water from the Cape Fear River and from wells surrounding the plant, now run by DuPont spin-off Chemours. A judge in the U.S. Federal District Court in Wilmington, N.C., ordered the consolidation in early January to streamline the effort to try claims. The consolidated suit charges that DuPont dumped potentially toxic fluorosurfactants from the Fayetteville, N.C., plant starting in the 1980s. It also claims that DuPont knew that some of those fluorosurfactants, such as perfluorooctanoic acid (PFOA), had toxic effects on laboratory animals as far back as the 1960s. DuPont acknowledges that the lawsuits and ongoing federal and state investigations "could result in penalties or sanctions," according to documents it has filed with the U.S. Securities & Exchange Commission (SEC). Chemours says in its SEC filings that it believes discharges from the Fayetteville site "have not impacted the safety of drinking water in North Carolina." In February 2017, the two firms agreed to pay $670 million to settle 3,550 lawsuits in Ohio and West Virginia by residents who say they were sickened by drinking water that was contaminated with PFOA released from what is now Chemours' Parkersburg, W.Va., site. Chemours recently began capturing all of its fluorochemical production wastewater at Fayetteville and sending it to Texas for disposal in a deep injection well. But the suit charges that the chemicals in the river and wells persist and have caused complications including colon cancer, stomach cancer, and ulcerative colitis. The suit seeks funding for an epidemiological study to gauge the impact of PFOA, other polyfluoroalkyl substances, and GenX -- which Chemours considers a safer alternative to PFOA -- on residents along the Cape Fear River. It also seeks undetermined compensatory and punitive damages for illness, reduced property value, and the cost of water filtration. "We will make these companies take responsibility for what they have put in the local air and water, for ensuring that the air and water are safe going forward, and for addressing the serious harms their actions have caused," says Steve Morrissey -- smorrissey@susmangodfrey.com -- plaintiff counsel at the law firm Susman Godfrey. In an unusual twist, the suit picks up on new reports that the plant has emitted GenX into the air. At least one of the wells containing traces of GenX is uphill from the Fayetteville plant, plaintiff attorneys say. According to local reports, the state has expanded its testing program of wells outside the plant to a radius of 4 km from an earlier 1.5 km. [GN] EL MIRADOR: Settlement in "Lopez" Unpaid OT Wages Suit Denied ------------------------------------------------------------- In the case, MARGARET J. LOPEZ, individually and on behalf of all others similarly situated, Plaintiff, v. EL MIRADOR, INCORPORATED, and LOUIS PEREA, Defendants, Case No. CV 16-01257 RB-KBM (D. N.M.), Judge Robert C. Brack of the U.S. District Court for the District of New Mexico denied the parties' joint motion to approve the settlement. The Fair Labor Standards Act ("FLSA") provides certain protections to vulnerable workers. Due to concerns about the unequal bargaining power between workers protected by the FLSA and their employers, settlements of FLSA suits are only enforceable if supervised by the Secretary of Labor or approved by a court. Plaintiff Lopez brought suit on behalf of herself and similarly- situated workers against the Defendants to recover unpaid overtime wages under the FLSA. She also brought a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure to recover unpaid wages for herself and similarly-situated employees under the New Mexico Minimum Wage Act ("NMMWA"). After discovery and negotiations, the parties reached a settlement. Ms. Lopez and El Mirador now ask the Court to approve their settlement. According to the joint motion, the settlement negotiations between Ms. Lopez and El Mirador had centered on a dispute about when the Final Rule became effective. Ms. Lopez believed that the Final Rule was effective on Jan. 1, 2015, while El Mirador argued that the effective date was Oct. 13, 2015. Owing to the dispute over the effective date of the Final Rule, the proposed settlement agreement compromised on wages: in the disputed period from Jan. 1, 2015, to Oct. 12, 2015, Ms. Lopez and any class members would receive 60% of the overtime wages they were allegedly owed, while in the period from Oct. 13, 2015, to the date the Court approves the settlement, Ms. Lopez and any class members would receive 100% of the overtime wages they were allegedly owed. Specifically, under the terms of the settlement, El Mirador agrees to pay a maximum of $160,484.96. The Gross Settlement Amount includes a service award of $2,500 to Ms. Lopez for coming forward as the class representative. It also includes 60% of alleged overtime wages from the Disputed Period, totaling $57,334.50, as well as 100% of alleged overtime wages from the Undisputed Period, totaling $63,650.46 as of April 5, 2017. Finally, the Gross Settlement Amount contains attorney's fees and costs of $37,000. Any amount of the service award, attorney's fees, or allocated payment to class members that is not awarded to its designated recipient will remain the property of El Mirador. The amount allocated to class members will be subject to withholding for taxes. The settlement agreement also requires El Mirador to retain and pay for a Settlement Administrator, who will assist with the implementation of the settlement, including mailing notices to the potential settlement class members. Payment to the Settlement Administrator will not come out of the Gross Settlement Amount. The parties ask the Court to (1) certify the class as a collective action under Section 216(b) of the FLSA. Ms. Lopez has defined "similarly situated" employees, on whose behalf she hopes to sue, as all current and former home health workers employed by Louis Perea or El Mirador who were not paid overtime for all hours worked over 40 in a work week from Jan. 1, 2015 to the present. The parties have asked the Court for approval, however, of a final settlement. After weighing the factors, Judge Brack concludes that final collective action certification is inappropriate given the proposed settlement. He finds that the fact that the Section 216(b) collective action is an opt-in regime, where class members are not bound unless they affirmatively opt in to the litigation, does not absolve the Court of its responsibility to ensure that the class is similarly situated. Under the proposed settlement, the disparate factual and employment settings of the individual Plaintiffs strongly suggest that the potential class members are not sufficiently similarly situated for final certification. In addition, the policy of allowing the Plaintiffs to pool their resources for litigation and the policy encouraging settlement of litigation weigh in favor of certifying the collective action. As to the settlement, at the fairness hearing, the Court asked the parties why the settlement did not provide for liquidated damages. The parties' answers do not convince Judge Brack that it was fair to eliminate liquidated damages altogether. First, workers from the Undisputed Period appear to have a viable claim for liquidated damages. Second, the Judge is not convinced that the Plaintiff's counsel justifiably sacrificed the entirety of certain workers' liquidated damages claims. He is convinced that the Plaintiff's counsel unduly sacrificed the potential recovery for workers from the Undisputed Period to pay for the recovery of workers from the Disputed Period. Such an arrangement, according to him, is unfair to workers from the Undisputed Period, who are not subject to the same "effective date" dispute as workers from the Disputed Period. After considering these factors, he concludes that the proposed settlement is not fair and equitable to all parties. Because he has determined that the proposed settlement is not fair and equitable, the Judge holds that an analysis of the attorney's fees and costs is premature. For the reasons provided, Judge Brack denied the joint motion to approve the settlement. A full-text copy of the Court's Jan. 26, 2018 Memorandum Opinion and Order is available at https://is.gd/ozlk8j from Leagle.com. Margaret J. Lopez, individually and on behalf of all others similarly situated, Plaintiff, represented by Brian Kinsley, Crumley Roberts, Scott E. Brady -- scott@bohrerbrady.com -- Bohrer Brady, LLC & Philip Bohrer -- phil@bohrerbrady.com -- Bohrer Brady, LLC. El Mirador, Inc. & Louis Perea, Defendants, represented by Andrea K. Robeda -- Andrea.Robeda@jacksonlewis.com -- Jackson Lewis, LLC & Victor P. Montoya -- MontoyaV@jacksonlewis.com -- Jackson Lewis LLP. EQUIFAX INC: CFPB Puts Data Breach Probe on Ice Amid Lawsuits ------------------------------------------------------------- Patrick Rucker, writing for Reuters, reports that Mick Mulvaney, head of the Consumer Financial Protection Bureau, has pulled back from a full-scale probe of how Equifax Inc failed to protect the personal data of millions of consumers, according to people familiar with the matter. Equifax said in September that hackers stole personal data it had collected on some 143 million Americans. Richard Cordray, then the CFPB director, authorized an investigation that month, said former officials familiar with the probe. But Mr. Cordray resigned in November and was replaced by Mr. Mulvaney, President Donald Trump's budget chief. The CFPB effort against Equifax has sputtered since then, said several government and industry sources, raising questions about how Mr. Mulvaney will police a data-warehousing industry that has enormous sway over how much consumers pay to borrow money. The CFPB has the tools to examine a data breach like Equifax, said John Czwartacki, a spokesman, but the agency is not permitted to acknowledge an open investigation. "The bureau has the desire, expertise, and know-how in-house to vigorously pursue hypothetical matters such as these," he said. Three sources say, though, Mr. Mulvaney, the new CFPB chief, has not ordered subpoenas against Equifax or sought sworn testimony from executives, routine steps when launching a full-scale probe. Meanwhile the CFPB has shelved plans for on-the-ground tests of how Equifax protects data, an idea backed by Mr. Cordray. The CFPB also recently rebuffed bank regulators at the Federal Reserve, Federal Deposit Insurance Corp and Office of the Comptroller of the Currency when they offered to help with on- site exams of credit bureaus, said two sources familiar with the matter. Equifax has said it is under investigation by every state attorney general and faces more than 240 class action lawsuits. The Federal Trade Commission is examining the breach and the company may face financial penalties. The last time the FTC penalized a major credit bureau was in 2012, a $393,000 settlement with Equifax. In contrast, the CFPB fined credit bureaus more than $25 million just last year for over-marketing its monitoring services, which generated monthly fees. The FTC confirmed in September it was investigating Equifax but a spokesman declined further comment. Credit bureaus like Equifax, TransUnion and Experian collect and store personal information on scores of millions of consumers. Banks and other lenders rely on the information to track how consumers spend money and manage debt, then use it to decide what interest rate to charge for loans. The Equifax breach exposed vulnerabilities in how the companies keep data safe. It also highlighted how credit bureaus exist in a regulatory gray zone where they are partly regulated by several agencies. Under Mr. Cordray, the CFPB and FTC agreed to work together on the Equifax inquiry, sources said. But while the agencies have similar powers to investigate, only the FTC has issued a subpoena. And while Mr. Cordray had asked bank regulators to join in fresh cyber security exams of the bureaus, last month the CFPB told the regulators that no on-site exams were planned, so their help was not needed, said three officials, who declined to be identified because they were not authorized to speak publicly. The banking regulators declined to comment, and the credit bureaus declined to comment on their dealings with regulators. But TransUnion said the CFPB has no authority to examine the company over cyber security concerns. "We believe that it is clear that the CFPB was not given legal authority to supervise any financial institutions with respect to cybersecurity," the company said in a statement. The CFPB has come under sustained attack from Republicans during the seven years of its existence. Mr. Mulvaney put a hold on much agency work when he took over in November, and said it would last at least 30 days to give him a chance to understand the job. [GN] EQUIFAX INC: Six Teams of Lawyers Compete for Lead Counsel Posts ---------------------------------------------------------------- Amanda Bronstad, writing for Law.com, reports that at least six teams of lawyers are competing for the top leadership posts in the lawsuits brought over Equifax Inc.'s massive data breach. Four proposed slates, ranging from seven to 12 lawyers, have filed motions to lead the class actions filed by consumers. Equifax revealed last year that more than 145 million of its customers had their personal information hacked in a data breach. Two other teams are hoping to lead lawsuits brought by financial institutions over the breach. Most of the lawyers have backgrounds in data breach cases, such as Yahoo and Target, but some include attorneys who were involved in the litigation over Home Depot's data breach, which was before U.S. District Judge Thomas Thrash of the Northern District of Georgia. Thrash, now overseeing more than 350 class actions brought over Equifax, has scheduled a Feb. 9 hearing over appointments for lead counsel. Thrash told lawyers at a hearing last month that he planned to establish two tracks in the multidistrict litigation -- one for consumers and one for financial institutions. He also indicated that he wanted the leadership teams to be thin. Lawyers filed about 50 applications for leadership roles. Many referenced their appointments in Home Depot or their previous work against King & Spalding, the law firm representing Equifax. Some firms cited their work in the Anthem data breach litigation, even as U.S. District Judge Lucy Koh of the Northern District of California chastised lead counsel for bringing in 49 additional law firms on the case. In an unusual twist, several insisted they had not cut deals with other plaintiffs firms for work -- a reference to side deals and quid pro quo agreements that critics contend has led to repeat players leading MDLs. Some lawyers said they would keep costs down, while others insisted they would add diversity to MDL leadership, historically dominated by white, male attorneys. Here is a quick look at the competing slates: The Worley Group (for consumers): Spearheaded by David Worley of Atlanta's Evangelista Worley, this nine-person group claims to have the support of 64 firms representing consumers in the Equifax litigation. Worley, who was co-lead counsel in the Home Depot MDL consumer cases, would serve as co-lead counsel along with Ben Barnow -- b.barnow@barnowlaw.com -- of Chicago's Barnow and Associates and Timothy Blood of Blood Hurst & O'Reardon in San Diego. A proposed steering committee would include Janine Pollack -- pollack@whafh.com -- of Wolf Haldenstein Adler Freeman & Herz in New York and Kevin Sharp -- ksharp@sanfordheisler.com - - of Sanford Heisler Sharp in Nashville. The Barnes/Canfield Group (for consumers): Lead by former Georgia Gov. Roy Barnes of the Barnes Law Group and Ken Canfield -- kcanfield@dsckd.com -- of Doffermyre Shields Canfield & Knowles, both in Atlanta, this 10-person group brags that its lawyers have been involved in "every major data breach litigated to date," including Home Depot, Anthem, Target and Yahoo. Mr. Canfield, who was co-lead counsel of the financial institution cases in Home Depot, would be co-lead counsel along with Amy Keller -- akeller@dlcfirm.com -- of Chicago's DiCello Levitt & Casey and Norman Siegel -- siegel@stuevesiegel.com -- of Stueve Siegel Hanson in Kansas City, Missouri, who was co-lead in the Home Depot consumer cases. Barnes, co-liaison counsel in Home Depot consumer cases, would be liaison counsel. The steering committee would include Andrew Friedman -- afriedman@cohenmilstein.com -- of Cohen Milstein Sellers & Toll in Washington, D.C., and Eric Gibbs -- ehg@classlawgroup.com -- of San Francisco's Girard Gibbs, who were lead attorneys in the Anthem case, where Judge Koh appointed a special master to look into the billing of the plaintiffs' attorneys. Robbins Geller/Hagens Berman slate (for consumers): Stuart Davidson of Robbins Geller Rudman & Dowd and Thomas Loeser of Seattle's Hagens Berman Sobol Shapiro proposed a seven-member team. It includes four women: Cari Laufenberg -- claufenberg@kellerrohrback.com -- of Seattle's Keller Rohrback, Jodi Flowers -- jflowers@motleyrice.com -- of Motley Rice in Mount Pleasant, South Carolina, Jennifer Scullion -- jscullion@seegerweiss.com -- of New York's Seeger Weiss and Jennifer Joost -- jjoost@ktmc.com -- of Kessler Topaz Meltzer & Check in San Francisco. The application notes that none of the lawyers on the team "have their names on the door" but "have spent years running nationwide MDLs -- albeit often behind the scenes assisting their more 'notable' senior partners." The Susman Group (for consumer): This eight-person slate lead by Stephen Susman -- ssusman@susmangodfrey.com -- of Susman Godfrey in Houston includes committee members Dianne Nast of NastLaw and Berger & Montague chairwoman Sherrie Savett, both in Philadelphia. Ms. Savett was on the executive committee of a data breach class action against Experian. The team has agreed not to apply for a fee worth more than 2 percent of potential credit monitoring services distributed to class members or 15 percent of any cash fund. CUNA/ICBA Group (for financial institutions): This group of 12 lawyers boasts they have "lead and litigated every successful major data breach action on behalf of financial institutions," including Home Depot and Target. They claim to represent 63 of the 71 financial institution plaintiffs suing Equifax, and the Credit Union National Association and the Independent Community Bankers of America are among their clients. Nine of the attorneys held leadership positions for the financial institutions track in Home Depot. Co-lead counsel would be the same co-leads of the financial institution cases in Home Depot: Joseph Guglielmo -- jguglielmo@scott-scott.com -- of Scott + Scott in New York and Gary Lynch -- glynch@carlsonlynch.com -- of Carlson Lynch Sweet Kilpela & Carpenter in Pennsylvania. The Atlanta Group (for financial institutions): This nine-person group would be led by Michael McGlamry -- mmcglamry@popemcglamry.com -- of Pope McGlamry and Ranse Partin -- ranse@conleygriggs.com -- of Conley Griggs Partin, both of Atlanta, who served as co-liaison counsel for the financial institution cases in Home Depot. The steering committee includes Robert Kaplan -- rkaplan@kaplanfox.com -- of New York's Kaplan Fox & Kilsheimer, who was on the steering committee of the financial institution cases in Home Depot. [GN] EQUIFAX INC: CFPB Faces Backlash for Dropping Data Breach Probe --------------------------------------------------------------- Renae Merle, writing for Washington Post, reports that democratic lawmakers lashed out at the Consumer Financial Protection Bureau on Feb. 5 amid a report that the agency was backing off an investigation into a massive data breach at Equifax last year that exposed sensitive data about millions of people. Reuters, citing former officials familiar with the probe, reported that the CFPB has not taken routine steps to move forward with an investigation into the incident, including ordering subpoenas or seeking sworn testimony from Equifax executives. The report stirred backlash from Democratic lawmakers, who have feared that President Trump's pick to temporarily lead the agency, Mick Mulvaney, is weakening the consumer watchdog. Failing to investigate the data breach would put "145 million Americans at risk [and] is malpractice," said Sen. Sherrod Brown (Ohio), ranking Democrat of the Senate Banking Committee. Sen. Catherine Cortez Masto (D-Nev.) said, "The Trump administration has chosen to protect Equifax while denying Americans justice and accountability." The CFPB's former director, Richard Cordray, said on Twitter "if you're not going to stand up for consumers on something this important, then what good are you?" The CFPB, in a statement, denied that it had dropped its investigation into Equifax's data breach, but said it could not comment further on an ongoing investigation. The agency has the authority to act against companies "in response to the failure of institutions to engage in reasonable data security practices in connection with the collection and maintenance of consumer report information," the CFPB statement said. "As noted previously, the Bureau is looking into Equifax's data breach and response." Mr. Mulvaney has said he would be reviewing all of the CFPB ongoing enforcement cases before they moved forward. Mr. Mulvaney's efforts to remake the agency have repeatedly received protests from Democrats and consumer groups. A CFPB unit responsible for pursuing discrimination cases was stripped of its enforcement powers. Mr. Mulvaney has also dropped a lawsuit against payday lenders and said the agency would reconsider rules the financial industry complained would be particularly onerous. For Republicans, who have long been critical of the CFPB, Mr. Mulvaney's efforts are a welcome change for the agency, which they say has been too aggressive. In a memo to his staff, Mr. Mulvaney said the agency would act with "humility and prudence" and no longer "push the envelope." But Democrats say Mr. Mulvaney is gutting the CFPB, which was created after the global financial crisis. Equifax drew the ire of lawmakers last year after the company's massive data breach and its bungled response. For several days, the company's Twitter account directed consumers in search of help to a fake site pretending to be Equifax and it initially required consumers to agree not to join a class-action lawsuit to get some form of help. It eventually dropped that demand. The company is now under investigation by several agencies, including the Federal Trade Commission and the CFPB. In September, Cordray, then the CFPB director, said credit bureaus such as Equifax should prepare for a "different regime" and that "some of the critics of the consumer bureau are among the 143 million people who've now had their precious financial information compromised and are going to have to worry about what it means for them and their families." But, so far, despite the heavy criticism, lawmakers have yet to take up legislation to address the matter and regulators have not penalized the company. New York Attorney General Eric Schneiderman said on Twitter that he is "continuing to move full steam ahead" with a multistate investigation into the matter. [GN] FARMERS GROUP: Wins Dismissal of Abante's TCPA Suit --------------------------------------------------- The United States District Court for the Northern District of California issued an Order granting Defendant's Motion to Dismiss the case captioned ABANTE ROOTER & PLUMBING, Plaintiff, v. FARMERS GROUP, INC., Defendant, Case No. 17-cv-03315-PJH (N.D. Cal.). This putative class action asserts two causes of action against Farmers Group for negligently and willfully violating the Telephone Consumer Protection Act (TCPA). Abante, a California corporation, alleges that on four occasions over an approximately one-year period its employees received calls from defendant on plaintiff's cellular phones and that those calls were made using an automatic telephone dialing system (ATDS). Plaintiff alleges he did not have a previous relationship with defendant and never provided written consent to receive any of the above solicitation calls. Plaintiff also alleges that the number defendant called was assigned to a cellular telephone service for which plaintiff incurs a charge for incoming calls. Plaintiff, however, does not allege it pays per call received. Defendant first argues that plaintiff does not have standing to sue under the TCPA because plaintiff has not adequately alleged a concrete harm. The court need not reach defendant's argument because plaintiff has also alleged, and defendant all but ignores, a cognizable economic injury. Plaintiff alleges that it lost employee time as a result of plaintiff's employees receiving and answering the calls. The diversion of employee time is a concrete injury that confers standing. The three elements of a TCPA claim are: (1) the defendant called a cellular telephone number; (2) using an automatic telephone dialing system; (3) without the recipient's prior express consent. For a person to "make" a call under the TCPA, the person must either (1) directly make the call, or (2) have an agency relationship with the person who made the call. Defendant contends that plaintiff has failed to establish this element under either theory. The court agrees. Plaintiff's complaint is devoid of factual allegations from which the court could infer defendant controlled or could control the representatives. A number of representatives stated they were calling on behalf of "Farmers Insurance", not the defendant, or inquired whether plaintiff was interested in Farmers insurance. The only allegation that comes close to connecting the purported agents and defendant is Williams' profile on defendant's website and the use of defendant's mark and trade name. While the profile does show that there is some connection between defendant and Williams, it does not show what that connection is or how that relationship relates to the alleged calls. In fact, the allegations in the complaint leave open the possibility that Williams paid defendant to host his profile to increase Williams' profitability rather than the opposite scenario that plaintiff envisions. Plaintiff points to three allegations that supposedly establish apparent authority. First, plaintiff argues that defendant's agents called on defendant's behalf. Second, plaintiff argues that the agents promoted defendant's brand and products. Third, plaintiff argues that one of the defendant's agents is listed on defendant's website as a Farmers Insurance Agent. The court finds each of these insufficient. The website, which defendant never specifically disclaims as its own, shows Williams is a Farmers Insurance representative. It is reasonable to infer that defendant has control over the website, and its willingness to display Williams as a Farmers Insurance agent implies that there is some relationship between Williams and defendant. But again the bare existence of a relationship does not indicate that Williams was authorized to act on defendant's behalf or speak to the scope of that purported authorization. Nor does it give rise to a reasonable belief that Williams is authorized to act on defendant's behalf for all purposes. More fundamentally, plaintiff has not even alleged that it reasonably relied on the website. The Court finds that Plaintiff cannot show defendant is liable under a ratification theory because the principal-agent relationship is still a requisite, and ratification can have no meaning without it. The court finds the complaint's allegations sufficient to satisfy this element of plaintiff's TCPA claim. Plaintiff alleges, and defendant's briefing ignores, that Williams stated the other agents were Farmers agents calling from a call center using an auto dialed system. These specific factual allegations do not, as defendant asserts, merely parrot the ATDS definition. A full-text copy of the District Court's January 4, 2018 Order is available at https://tinyurl.com/y6vnub9p from Leagle.com. Abante Rooter & Plumbing, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Seyed Abbas Kazerounian -- ak@kazlg.com -- Kazerouni Law Group, APC, Yana Hart -- yana@westcoastlitigation.com. -- Hyde and Swigart & Joshua B. Swigart -- josh@westcoastlitigation.com -- Hyde & Swigart. Farmers Group, Inc., doing business as Farmers Insurance, Defendant, represented by Franz Phillip Hosp -- phosp@lockelord.com -- Locke Lord LLP & Randall Allan Hack -- rhack@lockelord.com -- Locke Lord LLP, pro hac vice. GARDNER, MA: Faces Class Action Over Corrosive Water Problem ------------------------------------------------------------ Paula Owen, writing for Telegram, reports that a Boston law firm has filed a class action lawsuit against Gardner and two of its water consultants, alleging the city and the companies the city hired to manage its water supply were negligent and sold, supplied and distributed corrosive water to residents and businesses. Lawyer Michelle Blauner of the firm Shapiro Haber & Urmy said that the corrosive water is alleged to have caused damage to copper heating coils, water heaters and boilers. Some residents had to replace copper heating coils on multiple occasions, she said. The class action was filed against the city, Suez Water Environmental Services and AECOM Technical Services, on behalf of all residents and businesses in Gardner whose copper heating coils, water heaters and boilers have been damaged by the corrosive water, Ms. Blauner said. "The city and its water companies knew for years that they could fix the problem by adjusting the water chemistry through the addition of an orthophosphate corrosion protector," according to the complaint. In August, Gardner announced its plan to add orthophosphates to the water supply. Nevertheless, Shapiro Haber & Urmy states, as of the time the case was filed, that solution had not been implemented. Mayor Mark P. Hawke referred questions on the matter to the city solicitor's office. In an email, City Solicitor John M. Flick said Gardner legal counsel was reviewing the complaint and preparing the city's response. He said the city had no comment at this time but "a more thorough public response" might be issued after the city formally responded to the lawsuit. Mr. Flick said he did not have any information regarding the addition of orthophosphate to the city's water. Ms. Blauner said she has no reason to believe that the corrosive water is a potential health risk. "To our knowledge, but we don't know," she said. When the city sought approval from the state to build the Crystal Lake and Snake Pond wastewater treatment plants, she said, a consultant recommended adding orthophosphate to the water to protect the pipes in the late 1990s. The city's water company sought approval to add orthophosphate to the water and though the state approved the measure, it was never added, she said. "Before the failed coils arose, the city had an approved plan to protect the pipes and just never added it," Ms. Blauner said. "In doing so, in our view, they were negligent." When coils started to fail in the mid- to early 2000s, Ms. Blauner said, Gardner still did not add the orthophosphate. The city began receiving complaints of coil failures and started investigating, she said, and eventually contacted the Environmental Protection Agency in 2011 about the issue. Documents from 2012 indicate 400 coil failures, she said. The average cost of replacing one of the coils is around $500 to $600, she said. Coils affected are mostly in tankless hot water systems, she said. "Their general response was telling people the problem was with the coils, not the water," Ms. Blauner said. The EPA determined the alkalinity of the water was very low, she said. A year after a 2015 report, the city asked the state, again, for approval to add orthophosphate, she said. That was approved in August 2017. "As far as we know, they haven't still added it," Ms. Blauner said. [GN] GENESIS HEALTH: Court Dismisses KWPA Claim in "McGowan" Suit ------------------------------------------------------------ Judge Daniel d. Crabtree of the U.S. District Court for the District of Kansas granted the Defendant's Motion to Dismiss Count II of the case, RONNIE McGOWAN, on behalf of himself and all other persons similarly situated, Plaintiffs, v. GENESIS HEALTH CLUBS MANAGEMENT, INC., Defendant, Case No. 17-2419-DDC- KGS (D. Kan.). The Defendant is a health and fitness club who operates about 40 locations in Kansas, Missouri, Nebraska, and Oklahoma. From February 2017 until April 2017, it employed the Plaintiff as a Fitness Advisor at one of its health clubs in Overland Park, Kansas. The Defendant paid the Plaintiff on a salary plus commission basis. During the Plaintiff's employment, the Defendant had a policy and practice of failing and refusing to pay overtime compensation to its Fitness Advisors for all hours worked exceeding 40 hours per week. It subjected the Plaintiff and other employees to this policy and practice during their employment. According to the Plaintiff, the Defendant requires its Fitness Advisors to work about 50 hours per week. Thus, the Plaintiff asserts, the Defendant failed to pay him and other similarly situated employees overtime compensation for all hours worked. The Plaintiff asserts that the Defendant's pay practices violate the Fair Labor Standards Act ("FLSA") and the Kansas Wage Payment Act ("KWPA"). He seeks to bring his FLSA claim as a collective action under 29 U.S.C. Section 216(b) and his KWPA claim as a class action under Federal Rule of Civil Procedure 23. He asks to represent a putative class that includes current and former employees of the Defendant who worked as Fitness Advisors in Kansas, and throughout the nation, and who never received overtime compensation for all hours worked. The Defendant has filed a Motion to Dismiss, asking the Court to dismiss Count II of the Plaintiff's Complaint -- the KWPA claim - - under Federal Rule of Civil Procedure 12(b)(6). The Defendant asserts that the Plaintiff's KWPA claim fails to state a plausible claim for relief because Kansas law precludes him from asserting state law overtime wage claims against an employer covered by the FLSA. The Plaintiff has filed an Opposition to the Defendant's Motion to Dismiss. And the Defendant has filed a Reply. Judge Crabtree explains that majority of the Court's cases have reached the conclusion that the Defendant urges the Court to reach that the Plaintiff's KWPA claim for overtime wages fails to state a claim against an employer covered by the FLSA. Also, one of the more recent cases determined that the FLSA preempts any state law claim that attempts to assert a cause of action for overtime claims because the federal statute expressly provides for such a claim. The Judge finds the reasoning of these more recent cases sound and convincing. And, he predicts that the Kansas Supreme Court - - if presented with the issue -- would reach the same conclusion as these cases. The Judge thus follows the majority of cases the Court has decided on the issue. And he concludes that the Plaintiff's KWPA claim for overtime violations fails to state a plausible claim for relief because Kansas law precludes state statutory claims to recover overtime wages against FLSA-covered employers, like the Defendant. For reasons he explained, Judge Crabtree granted the Defendant's Motion to Dismiss, and dismissed the Plaintiff's KWPA claim (Count II) from the action. A full-text copy of the Court's Jan. 26, 2018 Memorandum and Order is available at https://is.gd/kveSZN from Leagle.com. Ronnie McGowan, On behalf of himself and all other persons similarly situated, Benjamin Alaniz, David Knox & Shaun Waufle, Plaintiffs, represented by Mark A. Kistler -- mkistler@mbradylaw.com -- Brady & Associates Law Office & Sara T. Ballew -- sballew@mbradylaw.com -- Brady & Associates Law Office. Genesis Health Clubs Management, Inc., Defendant, represented by Brendan McPherson -- bmcpherson@polsinelli.com -- Polsinelli PC, James C. Sullivan -- jsullivan@polsinelli.com -- Polsinelli PC & Robert J. Hingula -- rhingula@polsinelli.com -- Polsinelli PC. HARVEY WEINSTEIN: K&L Not Named Defendant in Cover-up Suit ---------------------------------------------------------- The Class Action Reporter, citing Scott Flaherty of The American Lawyer, previously reported that a racketeering lawsuit claims several law firms, including K&L Gates and Boies Schiller Flexner, were key participants in an alleged scheme to cover up widespread sexual misconduct on the part of disgraced Hollywood producer Harvey Weinstein. K&L Gates LLP provided the following statement to Mr. Flaherty: "We are aware of the lawsuits filed against Harvey Weinstein and others that mention K&L Gates. K&L Gates is not named as a defendant in the lawsuits but the suits attempt to claim that the firm was involved in a scheme to facilitate or cover up Mr. Weinstein's activities. The claims relating to K&L Gates are false. K&L Gates has never represented Mr. Weinstein or any other person or entity concerning investigations or inquiries relating to Mr. Weinstein." According to The American Lawyer, six women, represented by Hagens Berman Sobol Shapiro, filed a proposed class action in Manhattan federal court on December 6, 2017, accusing Mr. Weinstein, the Weinstein Co., the company's board members, Miramax Film Corp. and others of violating the Racketeer Influenced and Corrupt Organizations Act. The complaint parallels a similar one filed in California, with both complaints alleging that advisers and others in Weinstein's orbit -- referred to as members of a "Weinstein Sexual Enterprise" -- helped "facilitate and conceal" a pattern of unwanted sexual conduct perpetrated by the film producer, The American Lawyer said. The American Lawyer related that prominent litigator David Boies and his law firm Boies Schiller had already been in the public spotlight over his work for Weinstein following a New Yorker report that the lawyer contracted with an Israeli private intelligence agency, Black Cube, as it was trying to derail a potential New York Times story about Weinstein's predatory behavior toward women. That scrutiny continued when Boies' actions came up again in a lengthy New York Times article looking at people who helped Weinstein keep his misconduct under wraps, the report said. But the successive RICO suits also suggest that the fallout from the Weinstein scandal is expanding to include other legal advisers, the report added. Although it does not specifically name lawyers or law firms as defendants, the Dec. 6 complaint casts the lawyers and law firms surrounding Weinstein -- including Boies Schiller, K&L Gates, U.K.-based BCL Burton Copeland, and Israel-based Gross, Kleinhendler, Hodak, Halevy, Greenberg & Co. -- as central figures in the alleged scheme to cover up his misconduct, The American Lawyer report noted. The firms are described as "co- conspirators" along with others that included Weinstein's business associates and private intelligence firms, the report said. "The law firm participants provided cover and shield to the Weinstein participants by contracting with the intelligence participants on behalf of the Weinstein participants and permitting the Weinstein participants to protect evidence of Weinstein's misconduct under the guise of the attorney-client privilege or the doctrine of attorney work product when that was not the case," the complaint said. "The law firm participants also approved the intelligence participants' 'operational methodologies,' which were illegal." ILLINOIS: Court Dismisses "Henrichs" Suit ----------------------------------------- In the case, WILLIAM J. HENRICHS, MYRON S. ALEXANDER, ROBERT PELUSO, JOSEPH RIZZO, and JEFFREY L. SPICER, individually and on behalf of all other persons similarly situated, Plaintiffs, v. ILLINOIS LAW ENFORCEMENT TRAINING AND STANDARDS BOARD, VALERIE L. SALMONS, PATRICK HARTSHORN, JOHN H. SCHLAF, TIM BECKER, TIMOTHY NUGENT, LAUREL LUNT PRUSSING, RICHARD WATSON, BRENT FISCHER, TIM GLEASON, DARRYL STROUD, PAUL D. WILLIAMS, JAN W. NOBLE, LISA MADIGAN, GARRY McCARTHY, THOMAS DART, SEAN M. COX, DOROTHY BROWN, MICHAEL SCHLOSSER, LEO SCHMITZ, and DONALD STOLWORTHY, Defendants, Case No. 15 C 10265 (N.D. Ill.), Judge Gary Feinerman of the U.S. District Court for the Northern District of Illinois, Eastern Division, denied the Defendants' Rule 12(b)(1) motions, but granted their Rule 12(b)(6) motions. The Law Enforcement Officers Safety Act ("LEOSA") gives retired law enforcement officers satisfying certain requirements the right, notwithstanding any state or local law to the contrary, to carry a concealed weapon. One such requirement is that the retired officer meets LEOSA's definition of qualified retired law enforcement officer. The other is that the retired officer possesses an identification, issued by the officer's former law enforcement agency, that identifies the person as having been employed as a police officer or law enforcement officer and that certifies that the officer has recently had the requisite training. Illinois law commits to the Illinois Law Enforcement Training and Standards Board the responsibility under the Illinois Retired Officer Concealed Carry ("IROCC") program to certify qualified retired law enforcement officers for eligibility under the program. The term "qualified retired law enforcement officer" under the Board's regulations incorporates the term "law enforcement officer" from the same regulations, which is defined to mean any police officer of a governmental agency who is primarily responsible for prevention or detection of crime and the enforcement of a criminal code or traffic or highway laws of any state or any political subdivision. This definition of "law enforcement officer" mirrors the definition set forth in the Illinois Police Training Act, 50 ILCS 705/2, although it is narrower than LEOSA's definition of "qualified retired law enforcement officer." Henrichs, Alexander, Peluso, and Rizzo ("Cook County Plaintiffs") retired in good standing after at least 10 years' service as Cook County Deputy Sheriffs. Each was assigned to correctional or court service. In 2013 and 2014, each applied to the Board for IROCC eligibility. The Board denied their applications in October 2015, explaining as to each that the Cook County Sheriff's Office indicated that he did not attend an approved law enforcement academy and therefore, he was not issued a law enforcement certificate and could not verify that he was a police officer under the definition of the Illinois Police Training Act and the corresponding IROCC rules. The Plaintiffs allege that the Board deprived them of their LEOSA right to carry a concealed firearm by refusing to verify that they are qualified retired law enforcement officers. They also allege that the Board's refusal violated their procedural due process rights by depriving them of their property interest in the concealed carry permits for which they applied. The Plaintiffs further allege that the Board violated the Equal Protection Clause by arbitrarily treating them differently from other Sheriff's Deputies who received IROCC certification. Finally, the Cook County Plaintiffs allege that the Board and Dart conspired to deprive them of their federal rights. They seek a declaration that they qualify for concealed carry permits, an injunction directing the Defendants to issue certifications to that effect, and damages. The Board and Dart move under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss the complaint. They argue that the Plaintiffs' LEOSA claims actually arise under state law because the crux of the suit is whether correctional and court officers like the Plaintiffs qualify as "law enforcement officers" under Illinois law. Judge Feinerman holds that unlike the federal definition, the Illinois definition does not include officers who worked in a correctional environment. That is precisely the ground on which the Board rested its denial of the Plaintiffs' IROCC applications -- the Plaintiffs worked as Sheriff's Deputies in corrections, not in any of the capacities referenced by the Illinois definition. The Plaintiffs allege that the Board's exclusion of them from the IROCC program violated their LEOSA right to a concealed carry permit because, regardless of what Illinois law might say, they are qualified retired law enforcement officers under LEOSA. And they seek to use Section 1983 as the vehicle to enforce what they believe to be their LEOSA rights. Therein lays the flaw in the Plaintiffs' LEOSA claim. The Judge finds that LEOSA does not give concealed carry rights to any individual who satisfies its definition of qualified retired law enforcement officer. Rather, LEOSA gives such rights to a qualified retired law enforcement officer only if that individual has the identification required by subsection (d). Judge Feinerman also holds that the Plaintiffs' procedural due process claim fails on the merits. The Plaintiffs contend that they possess a legitimate claim of entitlement to their status as law enforcement officers and to its specific retirement benefit, to wit: an IROCC card issued pursuant to LEOSA. The Judge says that theory fails for the reasons that the LEOSA claim fails: LEOSA gives them no right to, and thus no property interest in, the concealed carry permits that they seek. Nor do they have a state law entitlement to the concealed carry permits or their "status as law enforcement officers." The Judge further holds that the Plaintiffs' own pleadings establish that the Board's refusal to confirm their eligibility for concealed carry permits was rationally related to a legitimate government interest. They were assigned to corrections or court service during their careers as Sheriff's Deputies, and the Board determined that they do not qualify as "law enforcement officers" under its regulations, which cover only those officers primarily responsible for the prevention or detection of crime. Finally, as to the Plaintiffs' claim that the Board and Dart conspired to deprive them of their federal rights, the Judge holds that because the Cook County Plaintiffs have no viable LEOSA, due process, or equal protection claim, their conspiracy claim fails as well. For the reasons stated, Judge Feinerman denied the Defendants' Rule 12(b)(1) motions, but granted their Rule 12(b)(6) motions. He dismissed the Plaintiffs' claims, and because the flaws in their claims cannot be cured with repleading, the dismissal is with prejudice. Although the Plaintiffs have no right under LEOSA or the Fourteenth Amendment to a concealed carry permit, they of course remain entitled under Illinois law to apply for a concealed carry permit in the ordinary course. A full-text copy of the Court's Jan. 26, 2018 Memorandum Opinion and Order is available at https://is.gd/Q1CjQa from Leagle.com. William J. Henrichs, Individually and on behalf of all other persons similarly situated, Myron S Alexander, Individually and on behalf of all other persons similarly situated, Robert Peluso, Individually and on behalf of all other persons similarly situated & Joseph Rizzo, Individually and on behalf of all other persons similarly situated, Plaintiffs, represented by Lucy Kirschinger , Attorney Consumer Counseling. Illinois Law Enforcement Training and Standards Board, Valerie L. Salmons, Patrick Hartshorn, John H. Schlaf, Tim Becker, Timothy Nugent, Laurel Lunt Prussing, Richard Watson, Brent Fischer, Tim Gleason, Darryl Stroud, Paul D Williams, Jan W Noble, Lisa Madigan, Garry McCarthy, Dorothy Brown, Michael Schlosser, Leo Schmitz & Donald Stolworthy, Defendants, represented by T. Andrew Horvat, Illinois Attorney General's Office General Law Bureau & Chad Michael Skarpiak, Office of the Illinois Attorney General. Thomas Dart, Defendant, represented by Marie D. Spicuzza, Cook County State's Attorneys Office. INDUCTOR MAKERS: Lifetime Service Asserts Inductor Price-fixing --------------------------------------------------------------- Lifetime Service Center, Inc., Plaintiff, on behalf of itself and others similarly situated, v. Murata Manufacturing Co., Ltd., Murata Electronics North America, Inc., Panasonic Corporation, Panasonic Corporation Of North America, Panasonic Electronic Devices Co. Ltd, Panasonic Electronic Devices Corporation Of America, Sumida Corporation, Sumida Electric Co., Ltd., Sumida America Components, Inc., Taiyo Yuden Co., Ltd., Taiyo Yuden (U.S.A.) Inc., TDK Corporation, TDK-EPC Corporation and TDK U.S.A. Corporation, Defendants, Case No. 18-cv-00511 (N.D. Cal., January 23, 2018), seeks damages and any other available legal or equitable remedies resulting from violations of the Sherman Act. Defendants are manufacturers of discrete inductors and are accused of fixing and stabilizing the prices of inductors. Discrete inductors are passive electronic components fixed to a circuit board and are ubiquitous in thousands of products that rely on electronic circuits for power including laptop and desktop computers, cars, televisions, wireless handsets, video game consoles and wireless LAN boxes. Defendants allegedly formed a cartel in the late 1990s resulting from increased competition from Korean and Taiwanese manufacturers. Lifetime Service Center offers repair and reverse logistic solutions to the consumer electronics industry. It purchased inductors directly from said Defendants. [BN] Plaintiff is represented by: Allan Steyer, Esq. D. Scott Macrae, Esq. STEYER LOWENTHAL BOODROOKAS ALVAREZ & SMITH LLP One California Street, Suite 300 San Francisco, CA 94111 Telephone: (415) 421-3400 Facsimile: (415) 421-2234 Email: asteyer@steyerlaw.com smacrae@bamlawca.com - and - Arthur N. Bailey, Esq. R. Anthony Rupp, III, Esq. Marco Cercone, Esq. RUPP BASE PFALZGRAF CUNNINGHAM, LLC 424 Main Street, 1600 Liberty Building Buffalo, NY 14202 Tel: (716) 854-3400 Email: bailey@ruppbaase.com rupp@ruppbaase.com cercone@ruppbaase.com INTEREXCHANGE INC: Judge Certifies Class of 90,000 Au Pairs ----------------------------------------------------------- Robert Iafolla, writing for Reuters, reports that a Denver federal judge has certified a nationwide class of more than 90,000 au pairs in a lawsuit that accuses companies that recruit and place au pairs with families in the United States of conspiring to keep their wages low. U.S. District Judge Christine Arguello certified 18 separate classes of au pairs on Feb. 2, including a nationwide class alleging 15 companies authorized by the U.S. State Department to sponsor au pairs under the J-1 visa program violated federal antitrust law by fixing their pay at the same weekly rate. The plaintiffs' attorneys at Boies Schiller Flexner estimated total damages could exceed $2.5 billion. [GN] JOHNSON & JOHNSON: Opening Arguments Begin in Talcum Product Case ----------------------------------------------------------------- Amanda Bronstad, writing for Law.com, reports that opening arguments began in the second trial linking Johnson & Johnson's talcum powder products to mesothelioma. Law.com's Charles Toutant had this report on the contrasting stories told to jurors about what caused plaintiff Stephen Lanzo to be exposed to asbestos. Johnson & Johnson, which denies that its baby powder contains asbestos, blamed it on basement pipes and school buildings. Ms. Bronstad reached out to Mr. Toutant, who added this detail about the plaintiff, as told by Moshe Maimon of Levy Konigsberg during openings: "Maimon said Lanzo has had a lifelong love of hockey. He played it when he was younger and coached hockey teams as an adult. He said Lanzo used the defendant's powder after showering, and that Lanzo's wife, Kendra, would buy two large bottles of Johnson's Baby Powder each month." [GN] LE CORDON BLEU: Culinary Students' Class Action Nears Settlement ---------------------------------------------------------------- Nina Mehlhaf, writing for KGW8 News, reports that imagine paying $40,000 to go to a prestigious school, but only being taught enough to make minimum wage. That's what 2,200 students of a Portland cooking school said happened to them at the now-closed Le Cordon Bleu Culinary School. Their class-action lawsuit is now headed toward settlement after 10 years. Once this settlement is finalized, the school has agreed to pay back 44 percent of students' tuition or loan amount. Le Cordon Bleu Culinary School was above the downtown Portland Target store, but all 16 locations across the country closed down in 2017. The closures were unrelated to the lawsuit. Several big name Portland chefs graduated from there, and students say the culinary school billed itself as a prestigious, hard-to-get-into stepping stone to becoming a successful chef or owning your own restaurant. "I'm a shift suprerviser for Round Table Pizza, and for a year and a half I was at Subway managing over there," said 2008 graduate Carrie Rios. It's a far cry from her dream of owning her own restaurant or being a chef. She took out the $40,000 loan they said it cost to attend. That was more expensive than a 4-year bachelor's degree at the University of Oregon at that time. But the lawsuit says most graduates, including Rios, only ever get minimum wage jobs like dishwasher, bussing tables or bartenders. The suit said the students over-paid in a predatory loan process, and got the most basic skills for an entry-level position. "The whole application process, that was a complete lie they let in anybody as long as they had money or approval for a loan, they took them," said Ms. Rios. "This whole thing of it's so prestigious is all a lie and that made me real angry when I found out about it." Portland Attorney David Sugerman has been working on this case for 10 years. "The schools aren't allowed to sell education to someone who's not likely to benefit," said Mr. Sugerman. He discovered a secret deal between the school's Chicago-based parent company Career Education Corp. and loan company Sallie Mae that overcharged students by 44 percent so the loan company could pocket the money. On top of that, Mr. Sugerman says the promise of a good salary, in a chef-type job was not what was happening. "Instead these are jobs people could get off the street without ever going to culinary school that pay minimum wage. So now all you have is $40,000 of high interest debt." Ms. Rios will now get $17,000 back if all gets approved with the settlement. She wants to put it toward buying a house. "I just hope this is an awareness for other people to prevent them from scamming more innocent people," Ms. Rios said. To get the money, you will need to file a claim. You can check here if you qualify. Claim forms should be going out in March. Once the claim period starts, you will have 90 days to file your claim. If you don't file it by then, you lose your right to make a claim, and Career Education Corp. gets to keep the money. [GN] LG ELECTRONICS: No Deal Over Bootlooping LG Phones, Atty Said ------------------------------------------------------------- Dominik Bosnjak, writing for Android Headlines, reports that LG Electronics did not agree to a class-action settlement over widespread bootlooping issues with some of its smartphones earlier this month, according to law firm Girard Gibbs LLP which filed for litigation against the company last year. While the matter has ultimately been resolved as originally reported, the attorneys representing the plaintiffs issued a comment to clarify the case never received class-action status, so the settlement itself isn't class-action in nature, i.e. it cannot benefit the vast majority of the millions of people who purchased one of the Android devices that were the subject of the lawsuit. Instead, only several hundreds of consumers who participated in the litigation targeting the bootlooping issues of the LG G4, G5, V10, V20, and the Nexus 5X are legally entitled to the $700 rebate toward the purchase of a new LG phone or $425 in damages. Girard Gibbs also revealed that LG agreed to extend the warranty of the affected devices to 30 months from their date of purchase, using that as the basis for the rebate and compensation it offered. Those who haven't participated in the lawsuit but have a bootlooping device from the company that's been targeted by the litigation are recommended to contact LG directly and see if they're able to be compensated by the firm's customer service department or receive a replacement unit in light of recent developments but must be aware the company isn't legally compelled to comply with their requests. If that fails, Girard Gibbs says new complainants are welcomed to contact it, indicating that an identical lawsuit with another roster of plaintiffs may be in the works. The law firm filed to have the litigation classified as being class-action in nature on request of a Los Angeles-based federal court, though the move itself only allowed it to continue pursuing individual arbitrations against the South Korean tech giant on behalf of its clients. While its class-action request wasn't approved, its existence is likely what led to numerous media outlets reporting the settlement as such, prompting people who haven't participated in bringing the case to court to think that they're still able to join the settlement as they would be if it was defined as a class-action one. LG has been accused of delivering a number of devices with high bootlooping rates in recent times but none of its 2017 offerings exhibited similar problems. The term "bootloop" refers to an unusable smartphone state that has the device being stuck on its operating system boot screen, being unable to load up the OS -- Android, in LG's case -- that's powering it. [GN] LINCOLN, CA: Feb. 27 Status Conference in "MacCracken" ------------------------------------------------------ The United States District Court for the Eastern District of California issued an Order setting Status Conference in the case captioned RICHARD MACCRACKEN, et al. Plaintiffs, v. CITY OF LINCOLN, Defendant, Case No. 16-cv-01680-WHO (E.D. Cal.). The Court sets a Status Conference for February 27, 2018 at 3:00 p.m. If the parties file their motion for approval of the settlement agreement before that date, the hearing will be automatically vacated and no appearance will be required. A full-text copy of the District Court's January 4, 2018 Order is available at https://tinyurl.com/y7heffjg from Leagle.com. Richard MacCracken, on behalf of himself and all similarly situated individuals, Plaintiff, represented by David Emilio Mastagni -- davidm@mastagni.com -- Mastagni Holstedt, APC, Ace Thomas Tate -- atate@mastagni.com -- Mastagni Holstedt, APC & Isaac Sean Stevens -- istevens@mastagni.com -- Mastagni Holstedt, APC. City of Lincoln, Defendant, represented by Larry M. Kazanjian -- lkazanjian@pkwhlaw.com -- Palmer Kazanjian Wohl Hodson LLP. MAGNACHIP SEMICONDUCTOR: June 9 Proof of Claim Deadline Set ----------------------------------------------------------- Pomerantz LLP and The Rosen Law Firm, P.A. on Feb. 5 disclosed that the United States District Court for the Northern District of California has approved the following announcement of a proposed class action settlement that would benefit purchasers of common stock of MagnaChip Semiconductor Corp. (NYSE:MX): SUMMARY NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF CLASS ACTION TO: ALL PERSONS WHO PURCHASED THE COMMON STOCK OF MAGNACHIP SEMICONDUCTOR CORP. ("MAGNACHIP") BETWEEN FEBRUARY 1, 2012 AND MARCH 11, 2014, INCLUSIVE This Settlement pertains to remaining claims against Avenue Capital Management II, L.P. IF YOU ALREADY PROVIDED A PROOF OF CLAIM IN CONNECTION WITH THE PRIOR SETTLEMENT, YOU DO NOT NEED TO SUBMIT ANOTHER. THE NOTICE AND PROOF OF CLAIM FORM ARE AVAILABLE ON THE SETTLEMENT WEBSITE www.strategicclaims.net/MagnaChip, or by calling the Claims Administrator at 1-866-274-4004. YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States District Court for the Northern District of California, that a hearing will be held on May 10, 2018, at 2:30 p.m. in Courtroom 9 before the Honorable Jon S. Tigar, United States District Judge of the Northern District of California, 450 Golden Gate Avenue, San Francisco, CA 94102 (the "Settlement Hearing") to determine whether (1) the $6,200,000 Settlement of remaining claims and proposed Plan of Allocation should be approved as fair, reasonable, and adequate; (2) to finally determine whether the Order and Final Judgment as provided under the Stipulation should be entered; (3) to consider the application of Class Counsel for an award of Attorneys' Fees not to exceed 25% of the Gross Settlement Fund and reimbursement of expenses not to exceed $1,100,000, and for an Award to Class Representatives Keith Thomas and Herb Smith not to exceed $2,000 each; and (4) to consider any objections to the Settlement. If you already submitted a Proof of Claim to the Claims Administrator in this Action, you need not submit another. If you are a member of the Class and did not previously submit a Proof of Claim to the Claims Administrator in connection with the previous settlement in this Action, you must submit a Proof of Claim and Release postmarked no later than June 9, 2018. Unless you submit a written exclusion request to the Claims Administrator so that it is received no later than April 19, 2018, you will be bound by any judgment rendered in the Action whether or not you have submitted a Proof of Claim. You may object to the Settlement or exclude yourself from the Settlement as provided in the Notice available on www.strategicclaims.net/MagnaChip. Full contact information for the Claims Administrator and Class Counsel is also provided in the Notice. PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING THIS NOTICE. DATED: January 22, 2018 BY ORDER OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA [GN] MARRONE BIO: Court Grants Withdrawal of M. McGaughey ---------------------------------------------------- The United States District Court for the Eastern District of California issued an Order Granting Lead Plaintiff's Motion to Withdraw as Counsel in the case captioned SPECIAL SITUATIONS FUND III QP, L.P., SPECIAL SITUATIONS CAYMAN FUND, L.P, and DAVID M. FINEMAN, Individually and On Behalf of All Others Similarly Situated, Plaintiffs, v. MARRONE BIO INNOVATIONS, INC., PAMELA G. MARRONE, JAMES B. BOYD, DONALD J. GLIDEWELL, HECTOR ABSI, ELIN MILLER, RANJEET BHATIA, PAMELA CONTAG, TIM FOGARTY, LAWRENCE HOUGH, JOSEPH HUDSON, LES LYMAN, RICHARD ROMINGER, SHAUGN STANLEY, SEAN SCHICKEDANZ, and ERNST & YOUNG LLP, Defendants, Master No. 2:14-cv-2571-MCE-KJN (E.D. Cal.). Upon consideration of Lead Plaintiffs' Motion for Leave to Withdraw as Counsel, and for good cause shown, it is ordered that Michael J. McGaughey is withdrawn as a counsel of record. A full-text copy of the District Court's January 4, 2018 Order is available at https://tinyurl.com/ycgsv727 from Leagle.com. Special Situations Fund III QP, L.P., Special Situations Cayman Fund, L.P. & David M. Fineman, Plaintiffs, represented by Katie Rose Glynn -- kglynn@lowenstein.com -- Lowenstein Sandler LLP. Kent Oldham, Plaintiff, represented by Robert S. Green -- gnecf@classcounsel.com -- Green & Noblin, P.C. Marrone Bio Innovations, Inc., Pamela G. Marrone, James B. Boyd, Donald J. Glidewell, Elin Miller, Ranjeet Bhatia, Pamela Contag, Tim Fogarty, Lawrence Hough, Joseph Hudson, Les Lyman, Richard Rominger, Shaugn Stanley & Sean Schickedanz, Defendants, represented by Judson Earle Lobdell -- jlobdell@mofo.com -- Morrison & Foerster LLP. Hector Absi, Defendant, represented by John V. McDermott -- jmcdermott@bhfs.com -- Brownstein Hyatt Farber Schreck, LLP, pro hac vice, Jonathan Charles Sandler -- jsandler@bhfs.com -- Brownstein Hyatt Farber Schreck & Judson Earle Lobdell, Morrison & Foerster LLP. Piper Jaffray & Co., Roth Capital Partners, LLC, Jefferies, LLC & Stifel, Nicolaus & Company, Inc., Defendants, represented by Charlene Sachi Shimada -- charlene.shimada@morganlewis.com -- Morgan, Lewis & Bockius LLP & Lucy Han Wang -- lucy.wang@morganlewis.com -- Morgan, Lewis & Bockius LLP. Ernst & Young, LLP, Defendant, represented by Elizabeth Dianne Mann -- emann@mayerbrown.com -- Mayer Brown LLP & Stanley J. Parzen -- sparzen@mayerbrown.com -- Mayer Brown and Platt, pro hac vice. Special Situations Cayman Fund, L.P. & Special Situations Fund III QP, L.P., Movants, represented by Lawrence M. Rolnick -- lrolnick@lowenstein.com -- Lowenstein Sandler LLP, pro hac vice, Steven M. Hecht -- shecht@lowenstein.com -- Lowenstein Sandler LLP, pro hac vice & Thomas E. Redburn, Jr. -- tredburn@lowenstein.com -- Lowenstein Sandler LLP, pro hac vice. Marrone Investor Group, Movant, represented by Jon A. Tostrud -- jtostrud@tostrudlaw.com -- Tostrud Law Group, P.C. United States of America, Movant, represented by Todd A. Pickles, United States Attorney's Office. MDL 2353: Court Certifies Class of Consumers in Juice Label Suit ---------------------------------------------------------------- Lawrence I Weinstein, Esq. -- lweinstein@proskauer.com -- and Daniel Werb. Esq. -- dwerb@proskauer.com -- of Proskauer Rose LLP, in an article for The National Law Review, wrote that recently, a New Jersey federal district court judge refused to certify a class of consumers claiming an orange juice product was mislabeled as "pasteurized." In re: Tropicana Orange Juice Marketing and Sales Practices Litigation, 2018 WL 497071 (D.N.J. Jan. 22, 2018). According to plaintiffs, Tropicana's "Pure Premium" orange juice contained added natural flavoring in violation of FDA pasteurization standards. The court denied the class certification motion because plaintiffs failed to prove that common issues predominated under Rule 23(b)(3) of the Federal Rules of Civil Procedure. Since multiple named plaintiffs testified that they did not even see the word "pasteurized" on the product label, much less rely on it, class certification was put out to pasture. At the certification stage, the evidence showed that plaintiffs considered various factors when buying orange juice, including price, vitamin content, taste, reduced sugar content and name recognition. However, only one of seven named plaintiffs cited the product being pasteurized as a factor in her purchasing decision. One plaintiff did not recall seeing the word "pasteurized" on the label, and another admitted she did not even look at the label. Additionally, plaintiffs' own survey showed that over twenty percent of respondents would purchase the product even with knowledge it did not conform to the FDA's pasteurization standard, which "suggest[ed] a great variation in how putative subclass members would react to the knowledge that [Tropicana's Pure Premium] did conform to the standard." Id. at *8. On this evidence, the court held that questions of fact predominated over common issues with respect to all of plaintiffs' remaining claims for relief. [GN] MDL 2804: Howard County Plans to File Suit Over Opioid Crisis ------------------------------------------------------------- Kate Magill, writing for Howard County Times, reports that Howard County will take its first steps toward filing a lawsuit against drug companies that make powerful painkillers that have been linked to tens of thousands of overdose deaths nationwide. The county's Office of Law will start interviewing law firms as part of a plan to seek monetary damages related to the "tremendous amount of resources that local jurisdictions have had to devote to the [opioid] crisis," county spokeswoman Deidre McCabe said. Decisions on which manufacturing companies the county will sue, as well as the amount of money the county is seeking, won't be made until a firm has been selected, according to McCabe. The firm will also determine the court in which to pursue the county's case; McCabe said it could be a state circuit court. If it decides to take legal action, the county would join Baltimore, Anne Arundel, Harford and Montgomery counties and Baltimore City in suing drug makers. The county continues its battle against opioid overdoses, with 18 fatal and non-fatal overdoses in the county last month, compared to 10 in January 2017, according to police. In 2017, there were 228 fatal and non-fatal overdoses. A representative for the national Pharmaceutical Research and Manufacturers of America said the trade association does not comment on legal matters related to individual lawsuits, but that the association is "deeply committed" to combating the national opioid crisis. Kathleen Hoke, a law professor at University of Maryland's Francis King Carey School of Law and director of the Legal Resource Center for Public Health Policy, said that as more jurisdictions sue manufacturers, common claims fall under consumer-protection law, including fraudulent misrepresentation from manufacturers to consumers. "The theme being in some instances directly manipulating providers and patients into believing the drug would do things that it wouldn't do, and more importantly not disclosing the potential and significant negative consequences of starting to use the drugs at all," she said. Ms. Hoke said some jurisdictions may also claim the opioid crisis has caused a public nuisance, but that this could be a tougher legal claim to uphold in court. The next step for cases across the country, Ms. Hoke said, is the discovery phase, during which law firms will begin researching what manufacturers knew about the risks behind opioids and what they failed to disclose to the public. "Preliminarily there is certainly sufficient evidence to bring these claims," Ms. Hoke said. "The industry will fight this very hard." Ms. Hoke said it's possible that counties could choose to file a class-action suit, consolidating individual lawsuits. Some jurisdictions, including Anne Arundel County and Baltimore City, have also sued individual doctors if or acting as "pill mills" to push large amounts of drugs onto consumers. It's too early in the litigation process, Ms. Hoke said, to know how many of the lawsuits across the country will go to trial. She said that many of the jurisdictions are looking to recoup costs including, emergency response to overdoses, supplies of the lifesaving drug Naloxone and substance abuse counseling. "The local governments are going to stay in the game until they have to get out [because of dismissal] or they have a good reason to get because they've reached a settlement," she said. It's unclear, if Howard County files a lawsuit, who would pay the attorneys and other costs. [GN] MDL 2804: Lewis County to Look Into Opioid Crisis Lawsuit --------------------------------------------------------- Steve Virkler, writing for Watertown Daily Times, reports that Lewis County legislators were expected on Feb. 6 to take a second look at joining a class-action lawsuit against the major manufacturers of opioid drugs after handily rejecting it last fall. However, Legislator Jerry H. King, R-West Leyden, who is slated to reintroduce the resolution at the lawmakers' 5 p.m. meeting, said he will only support it if an amendment is made to allocate any awarded funding for a specific purpose. "I want it to be used for the purpose it was intended, not to run the county," said Mr. King, chairman of the legislative Ways and Means Committee. County legislators in November by a 6-2 vote opposed contracting with New York City law firm Simmons, Hanly, Conroy P.C., to join planned legal proceedings against manufacturers of prescription opiates, with only Legislator Richard A. Chartrand, D-Lowville, and now ex-Legislator Craig R. Brennan, R-Deer River, in favor. Most legislators at the time suggested they felt uncomfortable placing so much culpability on drug-makers. Mr. King, who voted against the resolution in November, said he still believes there is plenty of blame to go around. However, he said he could see the value of seeking settlement funding if it goes directly toward fighting the epidemic and is not just put into the county general fund, as money from a past settlement with a big tobacco company has been. "It needs to go where it will do the most good," Mr. King said. Any money received from opioid manufacturers would be best spent on ways to help residents battle drug addictions, he said. Mr. King also suggested the county lobby for insurance companies to pay for longer-term addiction treatment and find ways to keep addicts from going back to the environments that helped foster the addictions. Several other counties, including St. Lawrence, have already signed on with Simmons, Hanly, Conroy to participate in the legal action. The firm won't charge the counties any money unless the lawsuit results in a financial settlement from the companies. According to the resolution, "the intent of the County litigation against manufacturers of these addicting painkillers is to hold opioid manufacturers responsible for their fraudulent marketing tactics, declaring opioids safe for pain management, despite contrary medical statistics and studies. This deliberate and misleading marketing is a contributing cause to this crisis and the increased costs the County has incurred and continues to incur as a result of this crisis in our communities." The Legislature now has three new members: John V. Lehman, R- Indian River; Ronald J. Burns, R-Copenhagen, and Randall L. LaChausse, I-Beaver Falls. Legislators at the Feb. 6 meeting were also slated to consider $67,502.99 in one-time payments to six villages with water systems "so that overall economic development may improve where water infrastructures are properly maintained." The money would effectively reimburse the villages -- primarily Lowville -- for county taxes paid on watershed properties outside their municipal boundaries. With the county having some budgetary surplus from 2017, the move, if approved, would offer the villages and their water users some relief this year, Mr. King said. Legislators late last year discussed re-establishing a tax exemption for Lewis County villages on water or sewer properties located outside their boundaries but have been hesitant to take action, citing pending legal action. The city of Rome is challenging the assessment on its Boyd Dam and Tagasoke Reservoir property in the town of Lewis, suggesting it should be dropped from $18 million to $11.45 million. Further arguments and a ruling in the case are expected some time this year. [GN] MDL 2804: Marblehead Joins National Suit Over Opioid Crisis ----------------------------------------------------------- Chris Stevens, writing for Wicked Local, reports that a legal consortium takes aim at recouping expenses from manufacturers tied to the epidemic Marblehead has joined a number of other cities and towns by signing onto a lawsuit aimed at trying to help communities recoup some of the expenses tied to the opioid crisis. "We're at no risk," Town Administrator John McGinn told the Board of Selectmen during a recent meeting. "This is all done on a contingency basis." Mr. McGinn said Town Counsel was approached about joining in a series of lawsuits where legal teams are going after opioid manufacturers. However, the lawsuits are not focused on the individual and often heartbreaking stories and families tied to the epidemic. This suit is concerned about the communities that are suffering financially under the same burden. "In addition to the devastation caused to families, this crisis has placed enormous economic burdens on already limited public resources," said Attorney Richard Sandman, of Rodman, Rodman & Sandman out of Malden. The increase in opioid use and abuse has resulted in communities paying out-of-pocket for things like NARCAN, police task forces, education programs and first responder training, Sandman explained. NARCAN is an FDA approved nasal spray that when applied, counteracts the effects of an opioid overdose. It's a prime element in helping those with opioid addiction. Unfortunately, it's very expensive and cities and towns are paying for it on their own. Marblehead Police Chief Robert Picariello said his department keeps NARCAN on hand for when they visit homes, post overdose. They will offer to leave some. He said when he last purchased it cost about $70 per pack, which consisted of two-4mg doses. He said he hasn't seen the need impact his budget yet, "but it may in future years." Mr. McGinn said he couldn't begin to estimate what the financial costs have been for the community. Mr. Sandman's firm will work with town officials to identify costs, Mr. McGinn said before adding, "This is nothing unique to Marblehead. It's clearly been a problem for us just as it is for, well, I would say every community." Currently there are about 30 cities and towns that have signed the lawsuit and Sandman is expecting more to come. The legal team, according to Sandman, is a consortium of six national and two local law firms. "Our local team, known as MOLA (Massachusetts Opioid Litigation Attorneys), consists of Sweeney Merrigan Law and my firm, Rodman, Rodman & Sandman, which has represented municipalities in contamination cases for many years," he said. Communities all over the country have been submitting complaints on behalf of manufacturers and distributors of opioids. According to Mr. Sandman, often times doctors will treat opioid addiction with more opioids. "Distributors and manufacturers are required by the Controlled Substance Act (CSA), to report suspicious orders of opioids," he added. "Although many haven't been reporting it. That's a crime." The lawsuit will hold the manufacturers and distributors of three major corporations accountable, Mr. Sandman said. Sandman also noted this is a lawsuit, not a class action suit. "That's misconception," he said. "It's a litigation." Mr. Sandman said they are filing cases in the federal courts in Massachusetts which are then being consolidated nationally in a Multidistrict Litigation (MDL) for pretrial, discovery, and possible settlement discussions. "We believe the MDL offers Massachusetts cities and towns the best opportunity to achieve the greatest results while lessening the litigation burdens placed upon them," he said. This lawsuit seeks to help with past and future damages, meaning to provide funds for future problems while trying to fix past ones, Sandman said. They are only going after the manufacturers and distributors to hold them accountable for the harm that they've caused, he added. The lawsuit will be sent to Ohio to be reviewed and if a settlement is not reached, then the lawsuit will return to Massachusetts for trial. "Frankly, I don't think anyone is looking at this as way to get a windfall," Mr. McGinn said. Selectman Judy Jacobi asked if there were any time frame for the suit, but Mr. McGinn shook his head. "We really don't know," he said. "It could go on for awhile." [GN] MDL 2804: Opioid Multidistrict Litigation Pending ------------------------------------------------- Amanda Bronstad, writing for Law.com, reports that well, they didn't exactly reach the settlement the court has been pressing for, but lawyers in the opioid litigation had "a very long day" of presentations and meetings with U.S. District Judge Dan Polster on Jan. 31. That's according to Paul Hanly -- phanly@simmonsfirm.com -- co-lead plaintiffs counsel in the multidistrict litigation pending in Cleveland. Mr. Hanly, of Simmons Hanly Conroy, told me there were at least eight state attorneys general at the hearing. "There were no decisions of any kind made other than the judge is going to have a session in early March," he said. "He doesn't want any motions to be filed, he's not going to decide anything. He's very committed as he was in earlier hearings to exploring all avenues of potential resolution." Here's who didn't go: On the same day of the hearing, a coalition of "firms and civil rights leaders" including the Rev. Al Sharpton announced that they planned to create an "alternative track" for cities and counties that wanted to avoid the federal opioid MDL. In this opinion piece, Rev. Sharpton referenced attorneys Jay Edelson and Tom Girardi as being part of the coalition. Then he threw this zinger: That the MDL is "largely rural, white communities being represented by rural, white lawyers," which "leaves out the significant and rapidly growing number of African Americans suffering from this modern plague." Mr. Hanly's response? "Frankly, I find it incomprehensible." [GN] MENZIES AVIATION: Court Awards $416K Atty Fees in "Jimenez" ----------------------------------------------------------- The United States District Court for the Northern District of California, San Francisco Division, issued an Order granting Final Approval of Class Settlement, Award of Attorney's Fees and Costs, and Class Representative Incentive Award in the case captioned JESSICA JIMENEZ and ORLANDO MIJOS, individually and on behalf of all other current and former similarly situated California employees of Defendants, Plaintiffs, v. MENZIES AVIATION, INC., MENZIES AVIATION GROUP (USA), INC., and DOES 1 THROUGH 10, inclusive, Defendants, Case No. 15-CV-02392-WHO (N.D. Cal.). The Settlement Administrator will pay the Service Payment of $10,000.00 to Named Plaintiff Sara Wright, $6,500.00 to Named Plaintiff Jessica Jimenez and $3,500.00 to Named Plaintiff Orlando Mijos because the Court finds the Service Payment is fair and reasonable for the work she provided to the Class and Class Counsel. The Settlement Administrator will pay the Fee and Expense Award of $416,666.66, plus $199,030.47 in actual costs, to Class Counsel because Class Counsel's request falls within the range of reasonableness and the result achieved justified the award. Class Counsel's actual expenses in prosecuting this Lawsuit are approved as reasonably incurred. The Settlement Administrator will pay the PAGA Payment of $20,000. Of this amount, 75%, or $15,000.00 will be paid to the Labor and Workforce Development Agency and 25% or $5,000.00 will be distributed to Class Members. The Settlement Administrator will be paid Administration Costs of $55,000.00 for its services in administering the Settlement. A full-text copy of the District Court's January 4, 2018 Order is available at https://tinyurl.com/ya7o8xuo from Leagle.com. Jessica Jimenez, Orlando Mijos & Sara Wright, individually and on behalf of all other current and former similarly situated California employees of Defendants, Plaintiffs, represented by Graham Stephen Paul Hollis -- ghollis@grahamhollis.com -- GrahamHollis A.P.C. & Vilmarie Cordero -- vcordero@grahamhollis.com -- GrahamHollis APC. Menzies Aviation Inc & Menzies Aviation (USA) Inc, formerly known as Menzies Aviation Group (USA), Inc., Defendants, represented by Archana A. Manwani -- amanwani@foley.com -- Foley and Lardner & Christopher Gary Ward -- cward@foley.com -- Foley & Lardner LLP. METLIFE INC: Rosen Law Firm Files Securities Class Action --------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on Feb. 5 disclosed that it has filed a class action lawsuit on behalf of purchasers of the securities of MetLife, Inc. (NYSE: MET) between February 27, 2013 and January 29, 2018, both dates inclusive ("Class Period"). The lawsuit seeks to recover damages for MetLife investors under the federal securities laws. To join the MetLife class action, go to http://www.rosenlegal.com/cases-1279.htmlor call Phillip Kim, Esq. or Daniel Sadeh, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or dsadeh@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 throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) MetLife's practices and procedures used to estimate its reserves set aside for annuity and pension payments were inadequate; (2) MetLife had inadequate internal controls over financial reporting; and (3) as a result, defendants' statements about MetLife's business, operations and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. 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 April 6, 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://www.rosenlegal.com/cases-1279.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim or Daniel Sadeh of Rosen Law Firm toll free at 866- 767-3653 or via email at pkim@rosenlegal.com or dsadeh@rosenlegal.com Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. MIDLAND FUNDING: Ill. App. Allows "Raney" Suit to Proceed --------------------------------------------------------- The Appellate Court of Illinois, Fifth District, issued an Opinion affirming the judgment of the Circuit Court denying Defendant's motion to dismiss and to compel arbitration of counterclaims filed by the defendants-counter plaintiff in the case captioned MIDLAND FUNDING, LLC, Plaintiff and Counter- defendant-Appellant, v. TERESA RANEY and SHIRLEY DARNELL, Defendants and Counter-plaintiffs-Appellees, No. 5-16-0479 (Ill. App.). Darnell and Raney acquired consumer credit card accounts issued by Citibank, N.A. (Citibank), wherein they were provided with specified lines of credit for consumer purchases in exchange for paying at least the minimum amounts shown on monthly billing statements. Midland Funding alleged that it was the successor in interest to the Citibank accounts, that Midland Funding had purchased Darnell's and Raney's credit card account obligations from Citibank in the regular course of business, that Darnell and Raney had failed to make the monthly payments on said accounts and were in default on the accounts, and that Midland Funding was entitled to a judgment for the unpaid balances plus costs. Midland Funding alleged that it had purchased the accounts from Citibank. Raney and Darnell filed answers and affirmative defenses. They also filed class action counterclaims seeking to certify state- wide and nationwide classes and seeking damages based on purported violations of the Collection Agency Act, the Consumer Fraud and Deceptive Business Practices Act, and the Fair Debt Collection Practices Act. The counterclaims challenged Midland Funding's alleged practice of suing to collect debt purchased from others without sufficient proof of ownership of the debt. Midland Funding filed motions to dismiss the counterclaims pursuant to section 2-619 of the Code of Civil Procedure and to compel arbitration. Midland Funding argued that because the counterclaims were within the scope of a binding card agreement that included an agreement to arbitrate and a class action waiver provision (the Card Agreement), the class claims were barred and should be dismissed. Midland Funding argued that the arbitration provision in the Card Agreement was subject to the Federal Arbitration Act and that Midland Funding was entitled to elect arbitration as the forum within which to address the putative class claims alleged in the counterclaims. The circuit court entered its order denying Midland Funding's motion to dismiss and to compel arbitration. The circuit court found, inter alia, that Raney and Darnell were not subject to arbitration because there was no competent evidence that the Card Agreement containing the arbitration provision applied to them. The circuit court noted that the Card Agreement did not include the signature of any party, did not include information that it related to Darnell's or Raney's account, and did not indicate that Darnell or Raney had received it or had agreed to its terms. Generally, the standard of review for a decision on a motion to compel arbitration is whether there was a showing sufficient to sustain the circuit court's order. However, where the circuit court's decision is based on a legal analysis, the decision to deny the motion to compel arbitration is reviewable de novo. In this case, the circuit court did not hold an evidentiary hearing where it determined credibility issues but decided the issue as a matter of law. The Ill. App. finds that Midland Funding did not demonstrate when or how the generic Card Agreement containing the arbitration provision pertained to Darnell or Raney or that it was communicated to Darnell or Raney prior to subsequent credit card use. As noted by the circuit court, the Card Agreement itself did not contain any signature, name, or account information and included no indication that it was mailed or in any way communicated to Darnell or Raney. Instead, Darnell and Raney executed sworn statements that they had never seen the Card Agreement nor agreed to its terms. Accordingly, the Ill. App. finds that Midland Funding failed to show that it had communicated the arbitration provision to Darnell or Raney as a modification of the agreement or that Darnell or Raney received the arbitration provision modification before charging additional funds and accepting it as a modification of their agreements. The Court had just held, however, that the parties did not clearly and unmistakably enter into an agreement regarding arbitration. Darnell and Raney challenged the arbitration clause itself and whether it was communicated to them as a modification of their credit card agreement. Having concluded that Midland Funding failed to demonstrate that Darnell or Raney was subject to the generic Card Agreement in the record, the Court decline to adopt Midland Funding's view that the Card Agreement's arbitration language controls and requires claims regarding its application to be subject to arbitration. In failing to demonstrate when or how the Card Agreement's arbitration provisions were communicated to Raney or Darnell, Midland Funding failed to demonstrate that the agreement between it and Raney and the agreement between it and Darnell included the arbitration provisions found in the Card Agreement. Thus, the Court cannot conclude that the agreements governing the Darnell and Raney accounts contained mandatory arbitration clauses requiring the enforceability of the arbitration agreements to be decided by the arbitrator. In sum, the Ill. App. concludes that the circuit court properly determined that Midland Funding failed to demonstrate that it had communicated the arbitration provision to Darnell or Raney in order to modify their agreements. Accordingly, the circuit court's decision is affirmed. A full-text copy of the Ill. App.'s January 4, 2018 Opinion is available at https://tinyurl.com/y78jofyt from Leagle.com Theodore W. Seitz -- tseitz@dykema.com -- Dykema Gossett PLLC, Capitol View, 201 Townsend Street, Suite 900, Lansing, MI 48933; Heather L. Kramer -- hkramer@dykema.com -- Rosa M. Tumial†n -- rtumialan@dykema.com -- Jennifer A. Warner, Dykema Gossett PLLC, 10 South Wacker Drive, Suite 2300, Chicago, IL 60606, Attorneys for Appellant. David I. Cates, Chad M. Mooney, Cates Mahoney, LLC, 216 West Pointe Drive, Suite A, Swansea, IL 62226; Brendan M. Nester, Sean K. Cronin, Donovan Rose Nester, P.C., 201 South Illinois Street, Belleville, IL 62220, Attorneys for Appellees. MISSION CHINESE: Workers Sue for Racial Discrimination ------------------------------------------------------ Emily Saul, writing for The New York Post, reports that four former employees of cult favorite Mission Chinese are suing the eatery -- alleging in court papers the kitchen is a "hotbed of racial discrimination" that withheld pay and retaliated against workers for speaking out. Untold horrors unfolded in the back of the critically acclaimed restaurant, according to the proposed class action suit, including one staffer burning the arm of the restaurant's sole black kitchen employee with a spoon dipped in hot oil. Plaintiff Illana Engelberg claims in the papers she later discovered the same, scalded employee cowering under a counter, after the chef Eric Tran referred to him as a "f-king idiot." The burn victim was later fired for speaking out, according to the Manhattan Supreme Court suit, which targets the restaurant as well as chef-owner Danny Bowien and managers Jane Hem and Adrianna Varedi. Plaintiff Erin Lang, who is black, claims she was also mocked by Hem, who once saw some bills fall from her pocket and referred to the cash as "stripper money." Hem later told Lang her dreadlocked hair looked like "Grinch's fingers." When Lang confronted Hem about the racial comments and discrimination, she raised her arms and shouted, according to the complaint, "How dare you? I am blacker than you!" The suit states that Hem is not black or African-American. She inexplicably later tried to explain away the outburst to Lang, who identifies as queer, by saying she is an "Asian lesbian," the complaint states. The four ex-staffers leading the suit -- Lang, Engelberg, former server Bayley Blaisdell and former food runner Zayn Shaikh -- say they went to HR together last November but found it only worsened their work environment. One employee claims they heard Hem and Varedi say they would "turn up the screws" on the four staffers, while retaliation escalated from "kindergarten-like behavior to downright nasty behavior." The four eventually quit or were fired for bogus reasons, the papers say. "I think it's about time that Mission Chinese is held accountable for allowing rampant discrimination and relation to run wild," attorney Maimon Kirschenbaum, Esq. -- maimon@jhllp.com -- said. The suit, citing civil rights abuses and wage violation, requests back wages, front wages, and damages. "In nearly a decade of operations, Mission Chinese restaurants have continually invested in our staff and their training to ensure we provide a culture of acceptance and opportunity," the restaurant's lawyer, Robert Ontell, Esq. said in a statement. "It is disheartening and frustrating that any former staff person would choose to file a suit based on this unwarranted and inaccurate description of our business practices." [GN] MISSION CHINESE: Faces Class Action Over Racism, Unpaid Wages ------------------------------------------------------------- Taylor Rock, writing for The Daily Meal, reports that Mission Chinese in New York City is being sued by four former employees over alleged unpaid wages and for being a "hotbed of racial discrimination." Eater reports that in said suit, former staffers claim that black people were treated poorly and that management retaliated against workers who spoke out against discriminatory behavior and poor working conditions. (The Daily Meal has requested a copy of the lawsuit from the plaintiffs' attorney, Maimon Kirschenbaum.) Chef-owner Danny Bowien and managers Jane Hem and Adrianna Varedi are reportedly named in the lawsuit, which the plaintiffs hope to make a class action. "I purposely took [this job] because I was tired of working in hostile environments, with favoritism and verbal abuse," ex- server and plaintiff Erin Lang told Eater. "This place was exactly that." Lang also told Eater that she was denied promotions and saw her shifts reduced because of her race. The suit reportedly alleges that Hem used racial language with her, saying she wouldn't want to be with her "in a dark alley," using "hip hop" slang, and saying that Lang's dreadlocks looked like the "Grinch's fingers." According to Eater, the three other former employees on the suit did not personally experience racial discrimination, though they claim to have witnessed it -- and then allegedly faced retaliation from management after taking their concerns to human resources. Eater reported that the suit also alleges Mission Chinese paid less than the legal wage and deducted half-hour breaks from employees' earnings despite not actually allowing such breaks. In a statement to The Daily Meal, attorney Rob Ontell, who represents Mission Chinese, said: "In nearly a decade of operations, Mission Chinese restaurants have continually invested in our staff and their training to ensure we provide a culture of acceptance and opportunity. It is disheartening and frustrating that any former staff person would choose to file a suit based on this unwarranted and inaccurate description of our business practices." The popular Lower East Side establishment at 171 East Broadway has a three-star rating on its Yelp page. The menu offers cold and hot appetizers, chef specialties (like kung pao pastrami, koji fried chicken, clams in black bean sauce), rice, noodles, vegetables, and family packages ranging from $45 to $99 per person. [GN] MIZUHO BANK: Lack to Recover Fund Lost in Cryptocurrency Fraud ---------------------------------------------------------------- Joseph Lack, individually and on behalf of all others similarly situated, Plaintiff, v. Mizuho Bank, Ltd., a Japanese financial institution, and Mark Karpeles, an individual, Defendants., Case No. 18-cv-00617 (C.D. Cal., January 24, 2018), seeks actual, punitive or exemplary damages, restitution, reasonable attorneys' fees and costs and such other and further relief resulting from fraud, unjust enrichment and negligence. Karpeles owned and ran Mt. Gox KK, a business into buying and selling bitcoins using its trading platform with Mizuho as its banking partner who maintained Mt. Gox's operating accounts. Mizuho, a Japanese banking firm, likewise received transaction fees on every wire deposit that it processed into the exchange. Mt. Gox was under scrutiny by US authorities for alleged money laundering while Mizuho Bank allegedly loaned money to organized crime syndicates and was under investigation by Japan's Financial Services Agency. Eventually, Mizuho Bank decided to distance itself from Karpeles and Mt. Gox. Ultimately, in June 2013, Mizuho stopped processing international wire withdrawals for Mt. Gox altogether but continued to accept user deposits into the Mt. Gox Exchange. In September 2015, Karpeles was arrested by Tokyo police and formally charged with fraud and embezzlement in connection to his management of Mt. Gox after it went bankrupt. [BN] Lack joined Mt. Gox in early 2014 with $40,000 to his account which he never recovered after the bankruptcy. Plaintiff is represented by: Rafey S. Balabanian, Esq. J. Aaron Lawson, Esq. EDELSON PC 123 Townsend Street, Suite 100 San Francisco, CA 94107 Telephone: (415) 212-9300 Facsimile: (415) 373-9435 Email: alawson@edelson.com rbalabanian@edelson.com NORDSTROM INC: Court Narrows Claims in "Keating" Suit ----------------------------------------------------- In the case, MAUREEN KEATING, on her own behalf and on behalf of all others similarly situated, Plaintiff, v. NORDSTROM, INC., a Washington Corporation, Defendant, Case No. 3:17-cv-00030-SLG (D. Alaska), Judge Sharon L. Gleason of the U.S. District Court for the District of Alaska granted in part and denied in part the Defendant's Motion to Dismiss First Amended Complaint Under F.R.C.P. 12(b)(1) and 12(b)(6) and/or to Strike Allegations Under F.R.C.P. 12(f). Keating seeks to bring a class action on behalf of herself and residents of Alaska and California who have purchased goods from Nordstrom. Her First Amended Complaint ("FAC") alleges that Nordstrom has a pattern and practice of advertising false sales prices while regularly charging its customers more than the ticketed price. She also asserts that Nordstrom falsely claims that it is committed to delivering low prices to its customers and that it will not be undersold and that it price matches. The Plaintiff further alleges Nordstrom regularly advertises pre- season sales in which it purports to discount the prices of fashion items, which it buys in limited quantities at the purported full value. Finally, she contends that Nordstrom engages in other deceptive sales practices, including misleading representations that prices are reduced by 'more than' or 'up to' certain percentages, when the markdowns do not reflect the prominently displayed amounts, misrepresenting the savings of items which are regularly bought as multiple items and/or fails to apply the discounts it offers for multiple purchases. Ms. Keating's FAC then contains a list of various purchases she has made at Nordstrom over the last few years. On Feb. 16, 2017, Ms. Keating initiated the action. On June 9, 2017, she filed her FAC, alleging four causes of action: common law fraud; violations of California's Unfair Competition Law ("UCL"); violations of AS 45.50.471; and violations of California's Consumer Legal Remedies Act ("CLRA"). In July 2017, Nordstrom reimbursed Ms. Keating's credit card for the Feb. 12, 2015 and Feb. 15, 2017 overcharges. Ms. Keating seeks class certification. She defines the proposed class as all persons who reside in the States of Alaska and California and who within the applicable statute of limitations preceding the filing of the action purchased goods from Nordstrom which reflected a purported discount price whether by posted signage and/or by amendment to the affixed hang tag price, and who were not afforded the sales price. The putative class will also include those who purchased items that are regularly discounted for multiple purchases, and for whom the purported percentage of savings was misrepresented. The Alaska class will include all Nordstrom customers, because all were subject to deceptive sales practices including false advertising. The California class will include all Nordstrom customers who shopped during purported sales as a result of inducement of reduced prices and misleading and deceptive sales practice including a commitment to low prices and price matching, and who would not have made purchases but for those inducements and/or who relied upon Nordstrom's representations as to savings. On Aug. 7, 2017, Nordstrom filed the Motion to Dismiss Ms. Keating's FAC. It asserts that Ms. Keating lacks standing to bring her claims under Federal Rule of Civil Procedural 12(b)(1) and that the FAC fails to state any claims pursuant to Federal Rule of Civil Procedure 12(b)(6). Nordstrom also requests the Court strike Ms. Keating's allegations and class definitions pursuant to Federal Rule of Civil Procedure 12(f). Nordstrom asserts that the Court should strike the Plaintiff's conclusory accusations throughout the FAC, which are clearly irrelevant and impertinent because they are entirely untethered to any facts concerning the Plaintiff. It further requests the Court to strike the class definition as to California consumers, asserting the Plaintiff does not have standing to represent them. Judge Gleason granted in part and denied in part Nordstrom's Motion to Dismiss. She granted with leave to amend Nordstrom's Motion to Dismiss Ms. Keating's (i) claims as they relate to pre- season sales and multiple item discount; (ii) First Cause of Action or common law fraud; (iii) Second Cause of Action for violations of California's Consumer Legal Remedies Act; and (iv) Third Cause of Action for violations of Alaska Statute Section 45.50.471(b)(5). The Judge denied Nordstrom's Motion to Dismiss Ms. Keating's (i) Third Cause of Action for violations of Alaska Statute Section 45.50.471(b)(10), (11) and (12); (ii) Fourth Cause of Action for violations of California's Unfair Competition Law. She also granted Nordstrom's Motion to Strike Allegations under FRCP 12(f) as to Ms. Keating's claims relating to preseason sales, multiple item discount and her CLRA claim, and is denied as to all other claims. Nordstrom's opposition to Ms. Keating's Motion to Amend is due 14 days from the date of the Order. The Judge granted Nordstrom's Motion for Extension of Time to File Scheduling and Conference Planning Report as follows: the report will be filed within 14 days of the date of the Order. She denied Nordstrom's Motion to Strike Ms. Keating's Supplemental Authority in Support of Her Opposition. However, she has considered both parties' briefing and finds Veera v. Banana Republic inapposite. A full-text copy of the Court's Jan. 26, 2018 Order is available at https://is.gd/rzWdq6 from Leagle.com. Maureen Keating, on her own behalf and on behalf of all others similarly situated, Plaintiff, represented by Robert John Campbell, Caliber Law Group & Jason E. Skala -- jayskala@hotmail.com -- Law Office of Jason Skala, LLC. Nordstrom, Inc., a Washington Corporation, Defendant, represented by Brewster H. Jamieson -- jamiesonb@lanepowell.com -- Lane Powell LLC, Phillip Craig Cardon -- ccardon@sheppardmullin.com -- Sheppard, Mullin, Richter & Hampton LLP, pro hac vice & Shanna M. Pearce -- spearce@sheppardmullin.com -- Sheppard, Mullin, Richter & Hampton LLP, pro hac vice. NRG YIELD: Court Dismisses IRA Trust's Suit ------------------------------------------- Judge Andre G. Bouchard of the Court of Chancery of Delaware granted the Defendants' motion to dismiss with prejudice the case, IRA TRUST FBO BOBBIE AHMED, on behalf of similarly situated Class A stockholders of NRG YIELD, INC., Plaintiff, v. DAVID CRANE, JOHN F. CHLEBOWSKI, MAURICIO GUTIERREZ, KIRKLAND B. ANDREWS, BRIAN R. FORD, FERRELL P. MCCLEAN, CHRISTOPHER S. SOTOS and NRG ENERGY, INC., Defendants, C.A. No. 12742-CB (Del. Ch.). The action arises out of a reclassification of the shares of Yield that went into effect in May 2015. Yield's business model is to own a portfolio of income-producing energy generation and infrastructure assets from which dividends can be distributed to public stockholders--a model often referred to as a "yieldco." Since its formation in 2012, Yield has been controlled by NRG Energy, Inc. ("NRG"), which manages Yield's day-to-day affairs and is responsible for identifying and placing assets into Yield. After its initial public offering in 2013, Yield had two classes of stock, both of which were entitled to one vote per share. NRG then held approximately 65% of Yield's voting power through its ownership of all of Yield's Class B shares, and public stockholders held approximately 35% of Yield's voting power through their ownership of Class A shares. By 2015, NRG's voting control of Yield had been diluted to approximately 55% as a result of Class A shares being issued to acquire assets to transfer to Yield. Concerned that its voting control of Yield was in jeopardy if Yield continued to fund asset acquisitions with Class A shares, NRG proposed that Yield undertake a recapitalization where Class A stockholders would be issued one share of a new class of non- voting common stock for each Class A share they held. NRG intended for Yield to use the non-voting common stock as currency to acquire assets in the future. NRG's proposal was conditioned from the beginning on the receipt of the approval of a majority of the outstanding shares of Yield not affiliated with NRG, meaning a majority of Yield's outstanding Class A shares. Upon receipt of the proposal, Yield's board delegated to its standing Conflicts Committee the authority to evaluate and negotiate the proposal. The independence of the three members of the Conflicts Committee is not challenged. Through negotiations with the Conflicts Committee, NRG's proposal was revised so that newly-created Class C and Class D shares would be issued on a one-for-one basis to Class A and Class B stockholders, respectively, i.e., stockholders would receive one Class C share for every Class A share and one Class D share for every Class B share. The Class C and Class D shares would have the right to 1/100 of one vote per share instead of being non- voting, as initially proposed. NRG also agreed to amend a contract, under which Yield had a right of first offer on certain NRG assets, to include some additional assets. As finally negotiated, the proposal is referred to herein as the "Reclassification." In May 2015, the Reclassification received the necessary stockholder approvals and went into effect that same month. On Sept. 12, 2016, the Plaintiff, a Class A stockholder, filed the Complaint on behalf of a putative class of Class A stockholders, asserting that the members of the Yield board breached their fiduciary duties in connection with their approval of the reclassification, and that NRG breached its fiduciary duty as a controlling stockholder by causing Yield to undertake the Reclassification. They assert two claims. Count I asserts that the members of the Board breached their fiduciary duties in connection with their approval of the Reclassification. Count II asserts that NRG breached its fiduciary duty as the controlling stockholder of Yield by causing Yield to undertake the Reclassification. On Nov. 4, 2016, the Defendants filed a motion to dismiss the Complaint under Court of Chancery Rule 12(b)(6) for failure to state a claim for relief. The Court heard the motion on June 20, 2017. At the Court's request, the parties submitted supplemental briefing on Sept. 22, 2017 to address Vice Chancellor Slights's decision in In re Martha Stewart Living Omnimedia, Inc. Stockholder Litig., which was rendered after the oral argument. Judge Bouchard explains that the resolution of the Motion implicates three questions: (1) Whether Reclassification is a conflicted transaction subject to entire fairness review even though it nominally involved a pro rata distribution of shares; (2) If so, whether the analytical framework articulated in Kahn v. M&F Worldwide, Corp. ("MFW"), a squeeze-out merger case, should apply to the Reclassification; and (3) If so, whether that framework has been satisfied in the case from the face of the pleadings. He finds that the Plaintiff has pled sufficient facts for purposes of the Motion to warrant review of the Reclassification as a conflicted controller transaction that presumptively would be subject to entire fairness review. Having decided that the Reclassification should be analyzed as a conflicted controller transaction, the next issue is whether the MFW framework should be applied to analyze the Plaintiff's challenge to the transaction. The Judge concludes that it should. Judge Bourchard reasons that the animating principle of the MFW framework is that, if followed properly, the controlled company replicates an arm's-length bargaining process in negotiating and executing a transaction. In his opinion, the use of these types of protections should be encouraged to protect the interests of minority stockholders in transactions involving controllers, whether it be a squeeze-out merger, a merger with a third party, or one in which the minority stockholders retain their interests in the corporation. Because the MFW framework applies to the Reclassification, the operative question is whether the process implemented satisfied that framework. The Judge finds among other things that where the Proxy fully disclosed the Conflict Committee's deliberations, including its negotiation of improvements to the Reclassification as originally proposed, the failure to disclose different potential strategic alternatives to the Reclassification that the stockholders were not asked to approve does not state a disclosure claim under well-established precedent. He also finds that there was no partial disclosure violation concerning a non- existent analysis by Moelis of the value that may have been transferred to NRG. In sum, for the reasons stated, Judge Bouchard concludes that the Plaintiff has failed to plead facts sufficient to call into question satisfaction of any of the six elements set forth in the MFW framework. Thus, the Reclassification is subject to the business judgment rule, which the Plaintiff has made no effort to overcome. Accordingly, both of the Plaintiff's fiduciary duty claims fail to state a claim for relief. Therefore, the Judge granted the Defendants' motion to dismiss the Complaint with prejudice. A full-text copy of the Court's Jan. 26, 2018 Opinion is available at https://is.gd/IPcpME from Leagle.com. Peter B. Andrews -- pandrews@andrewsspringer.com -- Craig J. Springer -- pandrews@andrewsspringer.com -- & -- David M. Sborz - - dsborz@andrewsspringer.com -- of ANDREWS & SPRINGER LLC, Wilmington, Delaware; Jeremy S. Friedman -- jfriedman@fotpllc.com -- Spencer Oster -- soster@fotpllc.com -- & David Tejtel -- dtejtel@fotpllc.com -- of FRIEDMAN OSTER & TEJTEL PLLC, New York, New York; Jason M. Leviton jason@blockesq.com -- Joel Fleming -- joel@blockesq.com -- of BLOCK & LEVITON LLP, Boston, Massachusetts; Counsel for Plaintiff. William M. Lafferty -- wlafferty@mnat.com -- & D. McKinley Measley -- mmeasley@mnat.com -- of MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, Delaware; Counsel for Defendants John F. Chlebowski, Brian R. Ford, and Ferrell P. McClean. Brian C. Ralston -- bralston@potteranderson.com -- Andrew H. Sauder asauder@potteranderson.com -- & -- Mathew A. Golden -- mgolden@potteranderson.com -- of POTTER ANDERSON & CORROON LLP, Wilmington, Delaware; Counsel for Defendants David Crane, Mauricio Gutierrez, Kirkland B. Andrews, Christopher S. Sotos, and NRG Energy, Inc. OASIS POWER: "Gallagher" Sues Over Illegal Telemarketing Calls -------------------------------------------------------------- Patrick Gallagher, individually and on behalf of all others similarly situated, Plaintiff, v. Oasis Power, LLC d/b/a Oasis Energy, a Texas limited liability company, Defendant, Case No. 18-cv-00136 (D. Nev., January 24, 2018), seeks an injunction prohibiting Oasis from continuing to engage in illegal telemarketing and attorneys' fees and costs in violation of the Telephone Consumer Protection Act. Oasis Power is a supplier of electricity and natural gas, offering its services to consumers in deregulated energy markets. It regularly engages in mass telemarketing to consumers throughout the United States. Defendant contacted Gallagher using prerecorded telemarketing message that sought to convince Plaintiff to switch his energy supply services to Oasis which has resulted in invasion of privacy, harassment, aggravation and disruption of daily life. [BN] Plaintiff is represented by: David H. Krieger, Esq. HAINES & KRIEGER, LLC 8985 S. Eastern Avenue, Suite 350 Henderson, NV 89123 Tel: (702) 880-5554 Fax: (702) 385-5518 Email: dkrieger@hainesandkrieger.com - and - Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 Telephone: 954-400-4713 Email: mhiraldo@hiraldolaw.com - and - Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 400 Miami, FL 33132 Telephone: 305-479-2299 Email: ashamis@shamisgentile.com - and - Scott A. Edelsberg, Esq. KOPELOWITZ OSTROW 1 W. Las Olas Blvd., Suite 500 Fort Lauderdale, FL 33301 Telephone: (954) 449-4602 Email: edelsberg@kolawyers.com OKLAHOMA: Class Action Challenges Jail Debt-Collection System ------------------------------------------------------------- KTUL reports that a federal lawsuit filed Nov. 2 challenges the debt-collection system that jails poor Oklahomans for their inability to pay court fines and fees. Lawyers claim that when the plaintiffs were unable to pay, warrants were issued for their arrest and/or they were incarcerated for failure to pay the criminal court fines and costs. Linda Meachum's story begins in a bad place. "I was incarcerated for a misdemeanor," said Ms. Meachum. She spent a month in jail and was ordered to pay a fine and court costs of $200. It was money Ms. Meachum didn't have, so she set up a payment plan. "My payment plan was $40 a month," said Ms. Meachum. Which brings us to a massive class-action lawsuit against the Oklahoma Sheriffs' Association, and a collection agency named Aberdeen Enterprizes II, Inc. Ms. Meachum said she lost her job and was unable to pay the $40 a month. The lawsuit alleges her case was sent to Aberdeen, who then increased the minimum payment. "Aberdeen's minimum was $75," said Ms. Meachum. When she couldn't pay, the suit claims the courts issued a warrant, and Ms. Meachum was sent back to jail. Now that $200 fine has grown to more than $800. "And if you didn't come up with that, you going to jail," said Ms. Meachum. The Tulsa County Sheriff's Department and dozens of other sheriff departments are named as defendants in the lawsuit, but the list of plaintiffs is even longer. Thousands of people who claim to have similar stories to Ms. Meachum. Jill Webb, with Smolen, Smolen and Roytman Law Firm is one of the attorneys in the case. "They're putting people in jail, all the time, every day for not being able to pay," said Ms. Webb. "In America, we don't put people in prison for being poor." Ms. Webb said the Sheriffs' Association is making millions of dollars working with Aberdeen. "Everything that Aberdeen collects, the Sheriffs' Association gets a kickback," said Ms. Webb. Ms. Webb knows they're making waves, but says they're ready for a fight. KTUL reached out to the Sheriffs' Association and Aberdeen, but have not heard back. [GN] OSI SYSTEMS: Saxena White Files Securities Fraud Class Action ------------------------------------------------------------- Saxena White P.A. on Feb. 5 disclosed that it has filed a securities fraud class action lawsuit in the United States District Court for the Central District of California against OSI Systems, Inc. ("OSI" or the "Company") (NYSE:OSIS) on behalf of investors who purchased or otherwise acquired the common stock of the Company between August 21, 2013 and February 1, 2018 (the "Class Period"). A previous securities fraud class action filed against OSI asserted a class period of August 21, 2013 through December 6, 2017. The Class Period is being expanded to incorporate material new information that the Company disclosed after the close of trading on February 1, 2018. OSI designs and manufactures specialized electronic systems and components. It sells its products and provides related services in diversified markets, including homeland security, healthcare, defense and aerospace. Notably, OSI entered into a 15 year agreement with the Government of Albania in August of 2013 to provide turnkey services to their Security Division. On December 6, 2017, Muddy Waters Research published a report entitled "OSIS: Rotten to the Core" (the "Muddy Waters Report") which accused the Company of using corrupt and illegal methods to obtain contracts in both Albania and also in Mexico. Following the publication of the Muddy Waters report, the Company denied the facts set forth therein, calling the report "misleading." Then, after the close of trading on February 1, 2018, OSI announced that the SEC and the U.S. Department of Justice had both commenced investigations of the Company for FCPA violations and insider trading, and that in connection with these investigations, the Company had already "taken action with respect to a senior-level employee." As a result, on February 2, 2018, OSI stock fell nearly 20%, or $12.00 per share, to a new 52-week low of $54.60 per share. The Complaint asserts claims for violations of the Securities Exchange Act of 1934. The Complaint alleges that, throughout the Class Period, Defendants made false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (1) that OSI acquired the Albania concession through bribery or other illicit means; (2) that OSI transferred 49% of its project company associated with the Albania concession, S2 Albania SHPK, an entity purportedly worth millions, for consideration of less than $5.00; (3) that OSI engaged in other illegal acts, including improper sales and cash payments to government officials; (4) that these practices caused the Company to be vulnerable to potential civil and criminal liability, and adverse regulatory action; and (5) that, as a result of the foregoing, Defendants' statements about OSI's business, operations, and prospects, were materially false and/or misleading and/or lacked a reasonable basis. You may obtain a copy of the Complaint and join the class action at www.saxenawhite.com If you purchased OSI Systems, Inc. shares between August 21, 2013 and February 1, 2018, you may contact Lester Hooker (lhooker@saxenawhite.com) at Saxena White P.A. to discuss your rights and interests. If you purchased OSI Systems, Inc. shares during the Class Period of August 21, 2013 through February 1, 2018 and wish to apply to be the lead plaintiff in this action, a motion on your behalf must be filed with the Court by no later than February 5, 2018. You may contact Saxena White P.A. to discuss your rights regarding the appointment of lead plaintiff and your interest in the class action. Please note that you may also retain counsel of your choice and need not take any action at this time to be a class member. Saxena White P.A., with offices in Florida, New York, and Massachusetts, concentrates its practice on prosecuting securities fraud and complex class actions on behalf of institutions and individuals. [GN] PARALIA CORP: "Lopez" Employees Class Conditionally Certified ------------------------------------------------------------- In the case, PORFIRIO LOPEZ, PEDRO CANDELARIO TORRES, MARINO CUANUTENCOS, MIRYM UDY, RUPERTO EMIGDIO, JOSE ANGEL LOPEZ, ESTEBAN TOSHUA, FELIPE CRUZ, on behalf of themselves and all others similarly situated, Plaintiffs, v. PARALIA CORP. d/b/a DEL RIO DINER, BENSOHURST REST. CORP. d/b/a VEGAS DINER, THEODOROS VLAMIS, LARRY GEORGETON, DEMETRIOS "JAMES" VLAMIS, FRANK MAVROMICHALIS, jointly and severally, Defendants, Case No. 16-CV- 6973 (SLT)(PK)(E.D. N.Y.), Magistrate Judge Peggy Kuo of the U.S. District Court for the Eastern District of New York granted the Plaintiffs' Motion to Certify a Collective Action. The Plaintiffs were employed variously as dishwashers, line cooks, bussers, food preparers, servers, and/or hostess. All the Plaintiffs worked for the Defendants. The four individual Defendants are alleged to have owned, operated, or managed the Diners as a single, unified enterprise with common payroll practices, ownership, and staff. On Dec. 16, 2016, the Plaintiffs brought the action against the Defendants under the Fair Labor Standards Act ("FLSA"), and the New York Labor Law ("NYLL"). On May 1, 2017, they moved to conditionally certify a collective action pursuant to 29 U.S.C. Section 216(b). The Plaintiffs seek an order (1) conditionally certifying their FLSA minimum and overtime wage claims as an FLSA collective action on behalf of all non-management employees who worked at the Diners from Dec. 16, 2013 to the present; (2) approving the Notice of Lawsuit with Opportunity to Join and Consent to Become a Party Plaintiff forms; (3) directing the Defendants to furnish the Plaintiffs the names, last known addresses and telephone numbers of all the potential opt-in Plaintiffs; and (4) approving the deadline reminder notice for mailing the potential opt-in Plaintiffs. The Defendants oppose conditional certification and object to the content of the proposed Notice and Consent forms. They challenge the scope of the proposed class in two ways. First, the Defendants contend that the class definition of all non- management employees is overly broad, because tipped and non- tipped employees are, by definition, subjected to different pay policies. Second, the Defendants argue that the Plaintiffs have not alleged sufficient facts to subject the Vegas Diner to a collective action. The Court granted the parties leave to file supplemental memoranda of law. Magistrate Judge Kuo finds that the Plaintiffs have carried their burden of proving that all non-management employees who worked at the Diners may be similarly situated to the named Plaintiffs with respect to whether a FLSA violation has occurred. Accordingly, she granted the Plaintiffs' Motion, pursuant to Section 216(b), to conditionally certify the action as a collective action. Specifically, she approved conditional certification of the Plaintiffs' FLSA minimum and overtime wage claims as an FLSA collective action on behalf of all non-management employees who worked at the Del Rio Diner and the Vegas Diner from Dec. 16, 2013 to the date of the Order. She required the Defendants to provide the Plaintiffs' counsel, within 10 days of the Order, with a complete list in electronic form of names, mail addresses, and telephone numbers including cell phone numbers of their current and former employees from Dec. 16, 2013 -- three years before the filing of the action -- until the date of the Order. Magistrate Judge Kuo also approved the text of the Plaintiffs' Notice and Consent forms as modified in accordance with Section 6 of the Order. She permitted the Plaintiffs to circulate the Notice and Consent forms by certified mail to all non-managerial workers who were employed by the Defendants and who were denied minimum and overtime wages. She required the Defendants to post a copy of the Notice and Consent forms at the Vegas Diner, provided that it is still in business. The Magistrate Judge permitted all individuals similarly situated to the named Plaintiffs 60 days to opt into the action; and permitted the Plaintiffs to send a deadline reminder notice to all the potential opt-in Plaintiffs prior to the termination of the opt-in period. A full-text copy of the Court's Jan. 26, 2018 Memorandum and Order is available at https://is.gd/acyZgm from Leagle.com. Porfirio Lopez, Individually and on Behalf of All Others Similarly Situated, Pedro Candelario Torres, Individually and on Behalf of All Others Similarly Situated, Marino Cuanutencos, Individually and on Behalf of All Others Similarly Situated, Mirym Udy, Individually and on Behalf of All Others Similarly Situated, Ruperto Emigdio, Individually and on Behalf of All Others Similarly Situated, Jose Angel Lopez, Individually and on Behalf of All Others Similarly Situated, Esteban Toshua, Individually and on Behalf of All Others Similarly Situated & Felipe Cruz, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, represented by Taylor B. Graham -- Graham@PeltonGraham.com -- Pelton & Associates, PC & Brent E. Pelton -- Pelton@PeltonGraham.com -- Pelton & Associates, PC. Paralia Corporation, Jointly and Severally doing business as Del Rio Diner, Bensonhurst Rest. Corp., Jointly and Severally doing business as Vegas Diner, Theodoros Vlamis, Jointly and Severally, Larry Georgeton, Jointly and Severally, Demetrios "James" Vlamis, Jointly and Severally & Frank Mavromichalis, Jointly and Severally, Defendants, represented by Howard M. Wexler -- hwexler@seyfarth.com -- Seyfarth Shaw LLP, Lorie Elizabeth Almon -- lalmon@seyfarth.com -- Seyfarth Shaw LLP & Chryssa V.B. Valletta -- cvalletta@Seyfarth.com -- Seyfarth Shaw LLP. PEI WEI ASIAN DINER: "Rike" Seeks Unpaid Overtime Pay ----------------------------------------------------- Nicholas Rike, on behalf of himself and all others similarly situated, Plaintiffs, v. Pei Wei Asian Diner, LLC, Defendant, Case No. 18-cv-00102 (E.D. Mo., January 23, 2018), seeks to recover overtime compensation, unpaid wages, liquidated damages, and attorneys' fees and costs under the Fair Labor Standards Act. Defendant operates a restaurant chain with approximately 200 location in the United States where Plaintiff worked as an Assistant Manager in St. Louis, Missouri location. Rike regularly worked in excess of forty hours in each workweek, but was not compensated at one and one-half times their respective regular rates of pay for all hours worked over forty in each such workweek, says the complaint. [BN] Plaintiff is represented by: George A. Hanson, Esq. Alexander T. Ricke, Esq. STUEVE SIEGEL HANSON LLP 460 Nichols Road, Suite 200 Kansas City, MO 64112 Telephone: (816) 714-7100 Facsimile: (816) 714-7101 Email: hanson@stuevesiegel.com ricke@stuevesiegel.com - and - Gregg I. Shavitz, Esq. SHAVITZ LAW GROUP, P.A. 1515 S. Federal Highway Boca Raton, FL 33432 Telephone: (561) 447-8888 Facsimile: (561) 447-8831 Email: gshavitz@shavitzlaw.com - and - Michael Palitz, Esq. 830 3rd Avenue, 5th Floor New York, NY 10022 Telephone: (800) 616-4000 Email: mpalitz@shavitzlaw.com PERRY ELLIS: Pre-Certification Settlements Require Class Notice --------------------------------------------------------------- Vorys Sater Seymour and Pease LLP, in an article for Lexology, reports that the New York Court of Appeals (the state's highest court) recently issued a potentially game-changing decision on pre-certification settlements in class actions. In Desrosiers v. Perry Ellis Menswear, the Court ruled that an individual settlement in a purported class action requires notice be sent to all putative class members -- even though no class had been certified. Desrosiers involved two wage-hour cases, initially filed as class actions. In both cases, the plaintiffs accepted pre- certification, individual settlements and the defendants moved to dismiss their complaints accordingly. The plaintiffs did not oppose the dismissals (having already released their claims in their settlement). Instead, the plaintiffs requested that the courts allow them to provide notice of the proposed dismissal to putative class members. The defendants objected because either the time for moving for class certification had expired or because no class had been certified. The lower courts rejected the defense arguments. At issue on appeal was the interpretation of New York's Civil Practice Law and Rules (CPLR) Sec 908, which provides that "[a] class action shall not be dismissed, discontinued, or compromised without the approval of the court," and that "[n]otice of the proposed dismissal, discontinuance, or compromise shall be given to all members of the class in such manner as the court directs." The Court of Appeals (in a 4-3 decision) found that the text of CPLR 908 is ambiguous with respect to whether pre-certification notice is required. The Court rejected the defendants' argument that the reference to "class action" necessarily meant a "certified" class action. The Court explained that a New York appellate decision in 1982 holding that notices must be sent to putative class members when there was a pre-certification individual settlement had never been overruled, nor had the New York Legislature acted on the issue. Given this, the Court determined that CPLR 908 applies to class actions that are settled or dismissed even before the class has been certified. "As a result, notice to putative class members of a proposed dismissal, discontinuance, or compromise must be given." The majority dismissed concerns that its ruling will likely create problems for class action defendants: "Any practical difficulties and policy concerns that may arise . . . are best addressed by the legislature." This decision raises several practical considerations that employers must weigh when determining whether to settle a case pre-certification that is pending in state court. Who is a member of the class entitled to notice? And won't providing notice potentially stir up more litigants? As the dissent pointed out, because no class had been certified "it is unclear to whom notice was purportedly required. Not only would this uncertainty create administrative difficulties that would entail the expenditure of time and resources, the ultimate purpose of the notice appears, at most, to be to allow plaintiffs' counsel to identify more clients at the expense of the court and defendants." The Court's ruling may thus discourage early settlement because notice and class data are now required when an individual settlement occurs in a case that includes class allegations. [GN] PERSONAL HOME CARE: "Lemon" Action Seeks to Recover Overtime Pay ---------------------------------------------------------------- Iraida Lemon, on behalf of herself and all other similarly situated employees, Plaintiffs, v. Personal Home Care, LLC and Matthew Auman, Defendants, Case No. 18-cv-00212, (D. Md., January 23, 2018), seeks all wages due and owing pursuant to the Fair Labor Standards Act, Maryland Wage and Hour Law and Maryland Wage Payment and Collection Law. Lemon worked as an hourly-paid caretaker, personal care aide or provider for Personal Home Care, assisting elderly clients and offering personal care such as assistance with bathing, eating, cooking, toileting, laundry and light housekeeping. She usually works in excess of 40 hours in a workweek on multiple occasions, and was not paid overtime wages at the rate of time-and-one-half for hours worked in excess of a 40 in a workweek. [BN] Plaintiff is represented by: Judd G. Millman, Esq. Bruce M. Luchansky, Esq. Samuel C. Pinsky, Esq. LUCHANSKY LAW 606 Bosley Avenue, Suite 3B Towson, MD 21204 Telephone: (410) 522-1020 Facsimile: (410) 522-1021 Email: judd@luchanskylaw.com lucky@luchanskylaw.com sam@luchanskylaw.com PETROLEO BRASILEIRO: USS Agrees to $50MM Deal with PwC ------------------------------------------------------ Oliver Gill, writing for City A.M., reports that Britain's biggest pension fund on Feb. 5 confirmed it has agreed a $50m (GBP35m) settlement with PwC's Brazilian arm as part of the Petrobras corruption scandal. The Universities Superannuation Scheme (USS) on Feb. 5 announced the deal, which draws to a close a larger $3bn class action against the Brazilian oil giant, the big four auditor and certain former executives and directors. Last month a partial agreement was struck between shareholders and Petrobras -- which did not admit any wrongdoing under the deal -- after former executives were accused of accepting more than $2bn in bribes over a decade. Established in 1975 as the principal pension fund for employees at universities, the USS has fund assets of approximately GBP60bn and represents around 390,000 members. USS group general counsel Jeremy Hill said: "Further to the announcement made last month, we continue to lead this securities class action diligently and intensively, and we welcome this important additional step in the litigation process for the class. "We are pleased with the settlement agreement which has been reached with PwC Brazil, which we believe is in the best interests of the class and concludes an important stage in the action." The confirmation follows reports late on Feb. 2 that a final deal had been struck. "We were keen to put this protracted legal matter behind us, and a settlement was the best way to achieve this," said Marcia Avruch, a spokeswoman for PwC Brazil. [GN] PRINCESS CRUISES: Class Action Mulled Over Norovirus Outbreaks -------------------------------------------------------------- Hannah Moore, writing for Daily Mail Australia, reports that up to 16,000 Australians could be owed thousands in compensation because of outbreaks of norovirus on cruise ship the Sun Princess in late 2016 and early 2017. A class action is being investigated for passengers on the Carnival cruises ship, which was hit by eight consecutive outbreaks of gastro. Thomas Janson of Shine Lawyers told Nine News the ships were not cleaned properly in between journeys . Ideally, the ship would be dry docked for between two and three days to be sanitised. What we've been told is that there were very short turnarounds, usually of around two hours, to clean the ship before the next lot of passengers and new crew boarded. . . that's manifestly inadequate to sanitise a ship that's the size of a skyscraper,' he said. Mr Janson believes compensation would average out as triple the original price of a cruise on the Sun Princess, encompassing a full refund plus double that amount for damages. David Jones, a spokesman for Princess Cruises, has refuted Mr Janson's argument, telling Daily Mail Australia the cruise line leaves 'nothing to chance to maintain a healthy on-board environment'. "[We have] robust procedures that are in line with the highest international public health management standards," he said. The risk of becoming ill while on a cruise holiday is tiny -- in fact, a factor of just 0.02%. Last year, 265,000 Australians and New Zealanders cruised on Princess's locally based ships during a period in which norovirus and influenza were at times widespread in the shore-side community in Australia. "In spite of these challenges, the overwhelming majority of our guests enjoyed trouble free cruise holidays as did the more than 1 million Australians who cruised industry wide." The spokesman said it was 'absurd' to suggest up to 16,000 people could have come down with novovirus on the Sun Princess during that time. "Australians spend more nights on Princess ships than on any other cruise line and the high proportion of repeat business is testament to their well placed loyalty and confidence in the onboard environment," he said. The Sun Princess can hold up to 2000 passengers per voyage, and more than 900 crew members. [GN] PROFESSIONAL TRANSPORT: Branch Administrators Class Decertified --------------------------------------------------------------- In the case, PEGGY JO SMITH individually and on behalf of similarly situated individuals, Plaintiff, v. PROFESSIONAL TRANSPORTATION INC., and RONALD D. ROMAIN individually and as president and secretary of Professional Transportation, Inc., Defendants, Case No. 3:13-cv-00221-RLY-MPB (S.D. Ind.), Judge Richard L. Young of the U.S. District Court for the Southern District of Indiana, Evansville Division, granted PTI's motion to decertify the collective class. In the action, Smith, individually and on behalf of similarly situated individuals, alleges that the Defendants violated the Fair Labor Standards Act ("FLSA") when they failed to pay Branch Administrators overtime compensation or when they failed to classify Branch Administrators as exempt and pay them as prescribed by the Act. The parties stipulated to the conditional certification of the following class under Section 16(b) of the FLSA, 29 U.S.C. Section 216(b): All individuals who were employed or are currently employed by PTI as a Branch Administrator at any time between Nov. 10, 2011, and Jan. 9, 2015. PTI has moved to decertify the conditional class arguing that Smith cannot show that any common policy or practice violates the FLSA. Judge Young, having reviewed the parties' briefs, their designated evidence, and the applicable law, finds that PTI's motion to decertify the collective class should be granted. The Judge says Smith's allegations may be read to claim that PTI improperly classified her and the Opt-In Plaintiffs as non- exempt, when they should have been classified as exempt and paid at least $455 per week. However, Smith points to no statute, regulation, or case law that requires an employer to classify employees as exempt because they perform some amount of managerial work. The statutes and regulations instead require that employees who are classified as non-exempt be paid for all hours that they work at a minimum rate, and compensated for overtime work. Therefore, he will decline to certify a collective class action on this ground. With respect to Smith's theory that PTI had an unwritten policy that required Branch Administrators to work more than their authorized hours, but not pay them for those hours, regardless of whether they were regular time or overtime, the Judge finds that individualized issues predominate over common ones. A simple comparison of the testimony provided by Smith and Coffey evidences the problem. Even though Smith and Coffey had similar BA Agreements for the same territory, there is no common policy from which a jury or the court could determine that PTI violated the FLSA. Although each of them say that they worked more Branch Administrator hours than were authorized in their BA Agreements and that they were not paid for additional time, those statements alone do not constitute a PTI policy. The evidence supports that PTI's policy was to pay Branch Administrators for all excess administrative time for which they sought payment, even if the time was not preapproved. Under the circumstances presented, the Judge is left with the firm impression that factual differences predominate over any common ones, and that Smith's proposed method for determining damages would prejudice PTI. For the reasons stated, Judge Young granted PTI's Motion to Decertify Collective Action. A full-text copy of the Court's Jan. 26, 2018 Order is available at https://is.gd/8BO5pm from Leagle.com. PEGGY JO SMITH, individually and on behalf of similarly situated individuals, Plaintiff, represented by Joseph H. Cassell -- jhcassell@eronlaw.net -- ERON LAW OFFICE, PA & Terry D. Smith -- tsmith@smithlawoffices.net -- LAW OFFICES OF TERRY D. SMITH. PROFESSIONAL TRANSPORTATION INC., Defendant, represented by Brian D. Burbrink, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, Christopher C. Murray , OGLETREE DEAKINS NASH SMOAK & STEWART, P.C., Jia Li , OGLETREE, DEAKINS, NASH, SMOAK & STEWART PC, John A. Drake , OGLETREE, DEAKINS, NASH, SMOAK & STEWART PC, Libby Yin Goodknight, KRIEG DEVAULT LLP & Patrick F. Hulla, OGLETREE DEAKINS NASH SMOAK & STEWART, PC. RONALD D. ROMAIN, individually and as president and secretary of Professional Transportation, Inc., Defendant, represented by Brian D. Burbrink -- brian.burbrink@ogletree.com -- OGLETREE, DEAKINS, NASH, SMOAK & STEWART, Christopher C. Murray -- christopher.murray@ogletree.com -- OGLETREE DEAKINS NASH SMOAK & STEWART, P.C., Jia Li -- jia.li@ogletree.com -- OGLETREE, DEAKINS, NASH, SMOAK & STEWART PC, John A. Drake -- john.drake@ogletree.com -- OGLETREE, DEAKINS, NASH, SMOAK & STEWART PC, Libby Yin Goodknight -- lgoodknight@kdlegal.com -- KRIEG DEVAULT LLP & Patrick F. Hulla -- patrick.hulla@ogletree.com -- OGLETREE DEAKINS NASH SMOAK & STEWART, PC. RUTHERFORD COUNTY, TN: June 25 Settlement Fairness Hearing Set -------------------------------------------------------------- If you paid court-imposed fees arising from a misdemeanor or traffic case in Rutherford County, and were supervised on probation by Providence Community Corrections, Inc. ("PCC") or Rutherford County, at any time from October 1, 2011 to October 5, 2017, your rights may be affected by a class action settlement. What is this lawsuit about? A class action civil rights lawsuit was filed against Rutherford County, Tennessee, PCC and other individual defendants relating to fees or other costs arising from misdemeanor or traffic cases in the Rutherford County courts and probation practices in Rutherford County. Defendants deny any wrongdoing or liability. The Court has not decided who is right and who is wrong. The Parties have agreed to settle to avoid the uncertainties and expenses of ongoing litigation. What are the terms of the settlement? Each eligible Settlement Class Member who was supervised by or paid fees to (a) PCC after October 1, 2011 or (b) Rutherford County's Probation Department in or after March 2016 solely for purposes of paying court-imposed financial obligations, and submits a valid Claim Form by April 27, 2018, will receive a portion of the $14,300,000 settlement fund as determined by the Settlement Administrator in accordance with the Settlement. Settlement Class Members will also receive injunctive relief against Rutherford County and may have their fees waived if they petition the court and earn below 125% of the federal poverty line. How do I know if I am affected? If you paid court-imposed fees arising from a misdemeanor or traffic case in Rutherford County, and were supervised on probation by Providence Community Corrections, Inc. ("PCC") or Rutherford County, at any time from October 1, 2011 to October 5, 2017, your rights may be affected. You may be eligible to receive a payment from the settlement fund if during the relevant time (a) you were supervised by PCC or (b) were supervised by Rutherford County between March 2016 and October 5, 2017 solely due to an inability to pay court fees and costs. What are my legal rights? If you stay in the Settlement Class, you will be legally bound by its terms and you will release your claims against Defendants. You will need to file a Claim Form before April 27, 2018 in order to receive the benefits of the Settlement. If you Opt Out of the Settlement Class, you will not receive benefits from the Settlement, but you will keep your rights to sue Defendants for these claims and will not be bound by the terms of the Settlement. To Opt Out, you must act before April 27, 2018. If you Object, you stay in the Settlement Class and can object to the Settlement. To object, you must act by April 27, 2018 to ensure your objection is considered by the Court. If you are a valid Settlement Class member, you have the right to enter your appearance in this matter through an attorney. The Proposed Settlement. The Court will hold a Final Approval Hearing on June 25, 2018 at 10:00 a.m., to determine whether the proposed settlement is fair, reasonable, and adequate, and to approve requested attorneys' fees up to $1,381,115, plus reimbursement of reasonable, actual out-of-pocket expenses incurred in the litigation, and incentive awards of up to $10,000 for each of the Named Plaintiffs. The hearing is at the United States District Court for the Middle District of Tennessee located in Room 800 at 801 Broadway, Nashville, TN 37203. How can I get more information? For more information, including specific instructions on how to file a claim, object, Opt Out and request to speak at the hearing, as well as about the attorneys representing the class and their request for fees and costs, call 1-888-805-9120, write to: PCC Rutherford Settlement, c/o Dahl Administration LLC, PO Box 3614, Minneapolis, MN 55403-0614, or visit www.PCCRutherfordSettlement.com SANTANDER CONSUMER: Court Denies "Lindblom" Class Certification --------------------------------------------------------------- In the case, APRIL LINDBLOM, individually and on behalf of all others similarly situated, Plaintiff, v. SANTANDER CONSUMER USA, INC., Defendant, Case No. 15-cv-0990-BAM (E.D. Cal.), Magistrate Judge Barbara A. McAuliffe of the U.S. District Court for the Eastern District of California denied the Plaintiff's Motion for Class Certification. Santander is a specialized consumer finance company focused in large part on vehicle financing. On March 11, 2007, the Plaintiff signed a Retail Installment Contract to purchase a 2006 Jeep Liberty from Michael Automotive Center, in Madera, California. She purchased this vehicle with a loan from Drive Financial Services, which through a merger, was renamed Santander Consumer USA. Following her vehicle purchase, the Plaintiff occasionally made her loan payments over the internet or by telephone. In order to do so, Santander directed her to use Western Union's Speedpay service. Santander often encouraged the use of Speedpay to allow customers to pay immediately and avoid late charges. To use Speedpay, the Plaintiff and similarly situated class members were charged a fee of $10.95 per transaction, ostensibly by third-party payment processor, Western Union, for the payment processing service. However, prior to April 2017, Western Union and Santander contractually agreed that Western Union would return a portion of all Speedpay fees collected to Santander as profit. The amount of fees retained by Santander varied based on the volume of transactions and the method of payment customers used for Speedpay, but at times, Santander would retain over 99% of the $10.95 Speedpay fee. While the Plaintiff was informed by Western Union of the fee when she used the Speedpay service, the Contract between Santander and the Plaintiffs did not expressly mention or provide for a Speedpay fee. At the time the Plaintiff paid the Speedpay fees, she was unaware that Santander retained part of the fee charged by Western Union. While the Plaintiff owned the vehicle, she was charged a Speedpay fee on more than 40 occasions. On approximately two of those occasions, the Speedpay fee was waived. After she made over 65 total monthly payments, the Plaintiff was unable to stay current on her loan obligation and her car was repossessed in 2014. The Plaintiff challenges the legality of the Speedpay fees retained by Santander under Section 1692f(1) of the Fair Debt Collections Practices Act and in turn, its California counterpart the Rosenthal Fair Debt Collections Act. Section 1692f(1) makes it unlawful for a debt collector to collect any amount unless such amount is expressly authorized by the agreement creating the debt or permitted by law. She contends that the Speedpay fees violate the Rosenthal Act because Santander retains a portion of the fee as compensation. The Plaintiff filed the putative class action alleging that Santander has engaged in a uniform course of conduct with respect to hundreds of thousands of customers in California. From those customers, the Plaintiff alleges that Santander has violated the Rosenthal Act by retaining millions of dollars in Speedpay fees which are neither allowed by state law nor authorized under the retail installment sales contracts between Santander and the members of the Class. The Plaintiff's operative complaint seeks to certify a single statewide California class based on individuals who paid Speedpay fees as all individuals in the state of California, who, during the applicable limitations period, paid a convenience fee through Western Union's Speedpay service in connection with any consumer loan held and/or serviced by Santander. In the alternative, the Plaintiff proposed a modified class definition in her reply brief: All Santander customers, who have, since Oct. 30, 2013, paid a Speedpay fee to Santander, or who have, prior to the date of certification, asserted that the statute of limitations should be equitably tolled in the case. Judge McAuliffe considers it inappropriate to grant the class certification. In denying the motion, he limits its findings to the motion's most obvious deficiencies in satisfying Rule 23(a)'s typicality and adequacy requirements. As proposed by the Plaintiff, the class definition includes individuals who paid Speedpay fees during the applicable limitations period, which is on or after Oct. 30, 2013. The Plaintiff, however, is not a member of that class. Her last Speedpay fee was beyond the one-year statute of limitations; the Plaintiff last used Speedpay on Aug. 22, 2012. Absent equitable tolling, she is not within the class definition. The Plaintiff's claim does not arise within the statute of limitations. Hence, the Judge finds that she cannot be an adequate representative. Turning to the related question of typicality, Judge McAuliffe finds that the Plaintiff's case is not like the case in Hanlon v. Chrysler Corp., where the named class representatives included a broad cross-section of claimants, representing the interests of all the potential subclasses. Instead, the situation is closer to that in Hanon v. Dataproducts, where the potential defense plaintiff is likely to face is exclusive to her and not the class. The Plaintiff has a unique defense against her which makes her claims atypical of the class. Ultimately, either the Plaintiff is defined out of the class by operation of the definition which incorporates a one-year statute of limitations rendering her an inadequate representative, or she is by definition atypical of the class because she is vulnerable to a defense that is unique to only her. For the reasons he stated, Judge McAuliffe denied the Plaintiff's motion for class certification. At the hearing on the Plaintiff's Motion for Class Certification, the counsel for the Plaintiff indicated that he could identify different potential class representatives who might be better suited to represent the interests of the class, given the Court's concerns regarding adequacy and typicality. Following the hearing, the Plaintiff filed a motion to intervene to include several alternative class representatives. The only motion currently before the Court is whether it should certify a class action based on the Plaintiff's current class definition. The Judge did not address the motion to intervene. A full-text copy of the Court's Jan. 26, 2018 Order is available at https://is.gd/ShJH8Q from Leagle.com. April Lindblom, Plaintiff, represented by D. Frank Davis -- fdavis@davisnorris.com -- Davis & Norris, LLP, pro hac vice, John E. Norris -- jnorris@davisnorris.com -- Davis & Norris, LLP, pro hac vice, Kristan B. Rivers -- krivers@davisnorris.com -- David & Norris LLP, pro hac vice, Wesley W. Barnett , Davis & Norris, LLP, pro hac vice & Benjamin P. Tryk -- ben@tryklaw.com -- Tryk Law, PC. Santander Consumer USA Inc., Defendant, represented by Chad R. Fuller -- chad.fuller@troutman.com -- Troutman Sanders LLP, David S. Reidy -- dreidy@mcguirewoods.com -- McguireWoods LLP, Marc A. Lackner, Mcguirewoods LLP, R. Frank Springfield -- fspringfield@burr.com -- Burr & Forman, LLP, pro hac vice, Virginia Bell Flynn -- virginia.flynn@troutman.com -- Troutman Sanders LLP, pro hac vice, Zachary D. Miller -- zmiller@burr.com -- Burr & Forman, LLP, pro hac vice & Justin M. Brandt -- justin.brandt@troutman.com -- Troutman Sanders LLP. SARBANAND FARMS: Fined $149,000 on Breaks and Meals --------------------------------------------------- Emily Hamann, writing for Herald Net, reports that a Whatcom County blueberry farm has been fined $149,000 after a state investigation found violations related to late or missed rest breaks and meal periods for hundreds of workers. Sarbanand Farms in Sumas received the largest fine of its kind, according to the state Department of Labor & Industries. Investigators started looking into the farm's practices in August after farmworker Honesto Silva Ibarra fell ill while at the farm, was hospitalized and later died. The three different L&I teams investigated workplace safety, pesticide concerns and employment standards. The team looking into workplace safety sought to find out if Ibarra's death was related to his work on the farm -- the investigation found no related violations. An autopsy conducted by the King County Medical Examiner's Office determined that Ibarra died from natural causes not related to occupational issues, the L&I release stated. The team looking into pesticide use on the farm also found no violations. The fine is a result of the investigation into employment standards, which includes issues like wages, hours worked and rest and meal breaks. About half that fine, $73,000, is from L&I; the rest is from the Whatcom County District Court, where the civil infraction is filed, according to an L&I press release. "These violations are serious. Meal and rest breaks are especially important for farm workers," said Elizabeth Smith, assistant director of L&I's Fraud Prevention and Labor Standards. "It's physical labor, and they often work long hours outside in the elements. They need regular breaks, and they're required by law to get them." Sarbanand Farms told L&I that it has corrected the violations, according to an L&I press release. L&I will conduct a follow-up inspection to ensure those corrections are still in place. The farm, along with its parent company Munger Farms, also got hit with a class action lawsuit on behalf of more than 600 migrant farmworkers who picked blueberries on the company's farms in Washington and California, including in Sumas, during the 2017 season. The lawsuit alleges that Sarbanand "violated federal anti- trafficking laws through a pattern of threats and intimidation that caused its H-2A workforce to believe they would suffer serious harm unless they fully submitted to Sarbanand's labor demands." The H-2A program is a special type of visa specifically designed to help farms bring in seasonal workers from other countries. Workers in the program must be paid a special minimum wage, which in Washington during the 2017 blueberry season was $13.38. At Sarbanand Farms, H-2A workers live onsite, in housing that was built for them, and are given meals, the cost of which is deducted from their paycheck. Ibarra, who was from Mexico, was at the farm on an H-2A visa, as were Barabaro Rosas and Guadalupe Tapia, the two plaintiffs specifically named in the suit. After Ibarra was hospitalized, about 60 workers went on a one-day strike to protest working conditions at the farm. According to the lawsuit, workers were fed unhealthy food, and sometimes there wasn't enough for all the workers, or they were given small portions. They were also not provided shade in the fields, and weren't given enough water, the lawsuit says. "You came here to suffer, not for vacation," California workers were allegedly told by a Munger manager, according to the lawsuit. In Sumas, the workers -- many of whom were transferred there after working the earlier blueberry season at Munger Farms in California -- were told they were required to work "unless they were on their death bed," the lawsuit alleges. That speech "had the intended effect of informing all the H-2A foreign workers that they should not report sickness or workplace injuries to management," the lawsuit says. After the one-day strike Aug. 4, all the workers who participated in the strike were fired. According to the lawsuit, they were told they had one hour to gather their belongings and leave, or the farm would contact the police and immigration authorities. Owners of a neighboring property offered the workers temporary shelter, and many of them moved into a makeshift camp on that farm. Ibarra died at Harborview Hospital in Seattle on Aug. 6. [GN] SHERWOOD, AR: Faces New Lawsuit Filed Over Hot-Check Court ---------------------------------------------------------- Linda Satter, writing for Arkansas Online, reports that a new lawsuit filed in federal court in Little Rock mirrors the allegations in a 2016 lawsuit backed by two civil-rights organizations that targeted Sherwood's hot-check court and was settled in November. The lawsuit was filed on behalf of Tamatrice Williams, one of hundreds of people who both lawsuits said were subjected for years to unconstitutional practices in the court, such as jailing people for being unable to pay fines. It seeks compensatory and punitive damages against the city. On Nov. 14, attorneys for the city and its hot-check judge, Milas "Butch" Hale, joined five Sherwood residents who sued over the practices in signing a 20-page agreement that put an end to the case. The residents were backed by the American Civil Liberties Union of Arkansas and the national Lawyers' Committee for Civil Rights Under the Law. The agreement, over which U.S. District Judge James Moody Jr. agreed to retain jurisdiction for two years, stipulates that the court will no longer jail people who can't afford to pay court fines and fees imposed for bouncing a check. It also requires the court to evaluate each defendant's ability to pay before determining a sentence. The city didn't concede that it had violated the plaintiffs' rights, but it acknowledged that several new practices were put into place after the lawsuit was filed, and Hale attended a training program offered by the state's Administrative Office of the Courts. In its mandatory annual training sessions for state judges, the administrative office began placing an emphasis on concerns about debt-collection practices that had been raised by the U.S. Department of Justice in a letter to state courts across the country. The concerns were similar to those raised in the lawsuit, which reflected a national movement to rein in many constitutionally suspect practices in the nation's low-level courts. At the time the agreement was signed, Judge Moody was considering a request by the plaintiffs to reinstate the case. He had thrown the case out of federal court, saying its issues first needed to be addressed in the state courts. The plaintiffs disputed that four of the five plaintiffs still had "ongoing" cases in state court as a result of hot-check charges that, despite being filed against them years earlier, still had lingering payments due as a result of fines imposed for failing to pay earlier fines, and fees on each round of fines. The defendants, and Judge Moody, said the cases were still considered ongoing. Asked on Feb. 2 about how the allegations in the new suit differ from those in the settled case, attorney Mike Laux of Little Rock said the 8th U.S. Circuit Court of Appeals in St. Louis, which has jurisdiction over federal courts in Arkansas, "has held that allegations against a city claiming it runs an unconstitutional debtors' prison state a viable cause of action for monetary damages as long as there are no pending criminal charges and the litigant is not challenging the underlying condition. This is a very important distinction." The lawsuit Mr. Laux filed on Williams' behalf -- which, coincidentally, was randomly assigned to Moody -- emphasizes that Williams "does not challenge her underlying hot check convictions or fines imposed for those conviction(s), . . . does not allege that her underlying hot check convictions or fines were invalid . . . [and] does not challenge any state court judgments." "Judge Moody's rulings were based on doctrines that do not apply to an individual such as Tammy Williams seeking monetary damages," Mr. Laux said in an email. "It may be unclear how it proceeds down the road, but as pled, it should be impervious to dismissal under Rule 12(b)(6), which is what happened to Dade," as the other case led by Charles Dade of Sherwood is known. Michael Mosley, an Arkansas Municipal League attorney who represented Sherwood and Judge Hale in the previous case, said on Feb. 2 that he hadn't yet had time to thoroughly review the new lawsuit, but, "The city denies any wrongdoing alleged and will defend the litigation." "For nearly 20 years," Mr. Laux said in an email, "Tammy Williams, a hard-working mother of five, was repeatedly harassed, threatened, arrested and jailed pursuant to an unconstitutional official policy at the City of Sherwood which turned nominal bounced checks in 1997 into thousands and thousands of dollars, padding its ill-gotten coffers on her back. It is only fair that Ms. Williams be reasonably compensated for this tragic upending of her life. She deserves justice and we hope to secure it for her." Mr. Laux didn't say whether he might later seek class-action status for the lawsuit or if he is aware of any other potential lawsuits with similar allegations on behalf of other individuals. [GN] SOLARCITY CORP: Ct. Awards $4.5M in Attorneys' Fee in "Lucero" -------------------------------------------------------------- In the case, JOSE ALBINO LUCERO JR., Plaintiff, v. SOLARCITY CORP., et al., Defendants, Case No. 15-cv-05107-RS (N.D. Cal.), Judge Richard Seeborg of the U.S. District Court for the Northern District of California granted the Plaintiff's counsel $4,500,000 fee award, and the three representative Plaintiffs $2,500 each, for a total of $7,500, incentive award. The application of the Plaintiff's counsel to recover attorney fees was heard in conjunction with the motion for final approval of the parties' settlement of the class action. The counsel seeks a fee award in the amount of $5 million, representing one- third of the settlement fund. Upon review of the entire record, including the counsel's contingent risk, delay in payment, skill demonstrated, and results achieved, Judge Seeborg finds an upward adjustment to a 30% recovery is warranted. Although there may sometimes be sound reasons to apply such a percentage to the class' net recovery after deducting administration costs and incentive awards, in this instance an appropriate award can be calculated by applying the percentage to the $15 million settlement fund. Accordingly, the fee application is granted in the amount of $4,500,000, which, as previously noted, is inclusive of all expenses and costs incurred by the counsel. The representative Plaintiffs in the action and in the related action that is encompassed in the settlement also seek incentive awards of $5,000 each, for a total of $15,000. Given the estimated recovery of individual class members, and all other circumstances, the Judge holds that an appropriate incentive award to the representative Plaintiffs is $2,500 each, for a total of $7,500. A full-text copy of the Court's Jan. 26, 2018 Order is available at https://is.gd/kYN0Pf from Leagle.com. Jose Albino Lucero Jr., on Behalf of himself and all Others Similarly Situated, Plaintiff, represented by Joel Dashiell Smith -- jsmith@bursor.com -- Bursor & Fisher, Joshua David Arisohn -- jarisohn@bursor.com -- Bursor Fisher, P.A., pro hac vice, Reuben D. Nathan -- rnathan@nathanlawpractice.com -- Nathan & Associates, APC, Scott A. Bursor -- scott@bursor.com -- Bursor & Fisher, P.A., pro hac vice, Yeremey O. Krivoshey -- ykrivoshey@bursor.com -- Bursor Fisher, P.A. & Lawrence Timothy Fisher -- ltfisher@bursor.com -- bursor & Fisher, P.A. SolarCity Corp., Defendant, represented by Randall Scott Luskey - - rluskey@orrick.com -- Orrick Herrington & Sutcliffe, LLP, Claudia Yvette Sanchez Wilson, SolarCity Corporation Legal Department, Elyse D. Echtman -- eechtman@orrick.com -- Orrick Herrington Sutcliffe LLP, pro hac vice, Jonathan A. Direnfeld -- jdirenfeld@orrick.com -- Orrick, Herrington and Sutcliffe LLP, pro hac vice & Tiffany Cheung -- tcheung@mofo.com -- Morrison & Foerster LLP. Lead Genesis, Inc., Defendant, represented by Jeffrey Michael Rosenfeld -- jeff@KRInternetLaw.com -- Kronenberger Rosenfeld, LLP & Karl Stephen Kronenberger -- karl@KRInternetLaw.com -- Kronenberger Rosenfeld, LLP. SOUTH BRISTOL, NY: Tom Golisano Pledges Property Tax Class Action ----------------------------------------------------------------- Mary Esch, writing for Associated Press, reports that billionaire Tom Golisano says he tried stringing up fishing line, spraying smelly repellent and even posting a wolf decoy, but nothing could rid his lakeside vacation home of the Canada geese that turned his lawn into a minefield of poop. His next line of attack? Refusing to pay his $90,000 school tax bill until officials in the Finger Lakes town of South Bristol find a way to control the birds. "This past summer it was horrible. We'd drive in and find 100 to 200 geese parked on our lawn," said Mr. Golisano, founder of payroll company Paychex and former owner of the Buffalo Sabres hockey team. "You can't walk barefoot, can't play Frisbee, can't have your grandchildren run around . . . . Here I am paying all this money in taxes and I can't use my property because of the geese droppings." Mr. Golisano also owns a home in Naples. His stand over bird poop is just one part of his one-man protest campaign against a taxation system he believes is flawed and inequitable. He's pledging to file a class-action lawsuit on behalf of other upstate homeowners who believe they are being overtaxed. And he recently launched a website, TaxMyPropertyFairly.com, to give ordinary taxpayers the tools to challenge their property tax bills. Mr. Golisano contends that tax assessors often lack the training, time and expertise to accurately assign property values that determine what share of the local tax collection each homeowner pays. "A lot of people are suffering significant injustice because of the assessment system," said the 76-year-old Golisano, founding member of the New York Independence Party and three-time candidate for governor. Escaping high taxes was part of the reason Mr. Golisano changed his permanent home address to Naples, Florida, nearly a decade ago. In 2010, he spent $200,000 in legal fees to get the property taxes on his home in Mendon, near Rochester, reduced from $200,000 to $60,000. He said western New York is notorious for high property taxes. While his wife, tennis Hall of Famer Monica Seles, pays about $4,000 a year in taxes on her New York City condo assessed at $800,000, Mr. Golisano said a home with that assessed value in Rochester-area Monroe County would have a $28,000 tax bill. Mr. Golisano's fight over the bird poop in the town South Bristol, population 1,600, is based on the argument that the value of his Canandaigua Lake property is driven down by the flocks of wild geese that congregate there and it's government's duty to solve the problem. Town Supervisor Daniel Marshall disagrees. "It's a resident's problem to take care of, not the town's," he said. Mr. Marshall said no other shoreline residents have complained about the geese. "It is a lake, after all." New York's Department of Environmental Conservation says the state has an overpopulation of non-migrating Canada geese and it's causing problems for some homeowners, farmers, golf courses and parks. But it says nuisance wildlife on private property isn't the responsibility of the municipality. The agency recommends numerous ways to shoo them off, including those Golisano has tried. When it's a community-wide problem, the DEC suggests local officials may want to hire a "goose control officer" and devise a coordinated control plan. That's what Golisano wants. For now, the tax fight remains unresolved. Mr. Golisano says his next step is to seek a reduced property assessment based on the goose scourge. Mr. Golisano, whose net worth is listed by Forbes at $3.4 billion, is renowned for his generosity to health care, higher education and opportunities for those with intellectual and developmental disabilities. There are three children's hospitals named for him, in Fort Myers and Rochester and Syracuse in New York. But he doesn't want his pocket picked by local tax assessors or anyone else. In November, he sued the remodeler of his yacht for overcharging him on furnishings. A jury awarded him $50,000, which he said he'll add to the $2.5 million he recently donated for the Mr. Golisano Autism Center being built in Rochester. "It's the principle," he said. [GN] SOUTHCROSS ENERGY: Franchi Seeks to Halt Sale to Midstream ---------------------------------------------------------- Anthony Franchi, individually and on behalf of all others similarly situated, Plaintiff, v. Southcross Energy Partners, L. Southcross Energy Partners GP, LLC, Bruce A. Williamson, David W. Biegler, Andrew A. Cameron, Nicholas J. Caruso, Jr., Jason H. Downie, Jerry W. Pinkerton, Randall S. Wade, American Midstream Partners, LP, American Midstream Partners GP, LLC and Cherokee Merger Sub LLC, Defendants, Case No. 18-cv-00179 (N.D. Tex., January 24, 2018), seeks to enjoin defendants and all persons acting in concert with them from proceeding with, consummating or closing the acquisition of Southcross by American Midstream Partners, LP, American Midstream GP, LLC and Cherokee Merger Sub LLC, or rescinding it in the event defendants consummate the merger. The Plaintiff also seeks rescissory damages, costs of this action, including reasonable allowance for plaintiff's attorneys' and experts' fees and such other and further relief under the Securities Exchange Act of 1934. Unitholders of Southcross Energy will receive 0.160 common units of American Midstream for each common unit they own. Immediately following completion of the merger, it is expected that Southcross current unitholders will own approximately 5% of the outstanding American Midstream common units. The complaint says merger documents omitted the valuation analyses performed by Jefferies LLC, its financial advisor, including the discounted cash flow analysis of American Midstream. Said disclosure of projected financial information is material because it provides stockholders with a basis to project the future financial performance of a company, and allows stockholders to better understand the financial analyses in support of its fairness opinion. Southcross provides natural gas gathering, processing, treating, compression and transportation services and natural gas liquids, fractionation and transportation services. [BN] Plaintiff is represented by: Joe Kendall, Esq. Jamie J. McKey, Esq. KENDALL LAW GROUP, PLLC McKinney Avenue, Suite 700 Dallas, TX 75204 Tel: (214) 744-3000 Fax: (214) 744-3015 (fax) Email: jkendall@kendalllawgroup.com jmckey@kendalllawgroup.com - and - RIGRODSKY & LONG, P.A. 300 Delaware Avenue, Suite 1220 Wilmington, DE 19801 Telephone: (302) 295-5310 Facsimile: (302) 654-7530 - and - RM LAW, P.C. 1055 Westlakes Drive, Suite 300 Berwyn, PA 19312 Telephone: (484) 324-6800 Facsimile: (484) 631-1305 SPOKEO INC: High Court Denies Certiorari to Review Remand Opinion ----------------------------------------------------------------- The New Jersey Law Journal Editorial Board is disappointed that the United States Supreme Court recently denied certiorari to review the Ninth Circuit's remand opinion in Spokeo, Inc. v. Robins. Spokeo Inc. operates a "people search engine" which provides information about potential employees. Plaintiff Thomas Robins filed a federal class action against Spokeo alleging that it provided inaccurate information about him in violation of the federal Fair Credit Reporting Act, which requires the implementation of procedures to assure maximum accurate reporting. A district court in California dismissed the case for lack of Article III standing, but the U.S. Court of Appeals for the Ninth Circuit reversed. In May 2016, the U.S. Supreme Court vacated the Ninth Circuit's judgment and remanded to that court to determine whether plaintiff had suffered a concrete injury, or "injury in fact," which required plaintiff to establish "an invasion of a legally protected interest" that is both "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." The Supreme Court found that the circuit had failed to consider the "concreteness" requirement and erroneously focused only on the separate and distinct "particularization" prong of the "concreteness and particularization" test. A concrete injury generally requires more than a mere procedural violation of a statute, or of a statutory right providing the ability to file a suit. Accordingly, the court remanded to the Ninth Circuit to determine (in the first instance) whether Spokeo's false reporting or inaccurate information relating to Robins' education, family and job status was sufficiently concrete. In August 2017, a Ninth Circuit panel unanimously found that Robins had standing because the FCRA violations were actually alleged to cause, and could cause, real or concrete harm to the plaintiff's employment opportunities. The court stated that the alleged inaccuracies were more likely to cause concrete injury, than for example, reporting his zip code incorrectly. Although the errors in the credit report tended to overstate Robins' income, job and educational status, that did not preclude his allegation that prospective employers passed over his application thinking he appeared overqualified for the jobs for which he was applying. Spokeo petitioned for certiorari again. It argued that there has been "widespread confusion" in application of the standing requirements and that Robin's injuries are too speculative. That confusion is well-illustrated by the fact that on a single day in January, the Third Circuit revived a putative class action under the FCRA based on a data breach with no alleged misuse of the data (In re Horizon Healthcare Services, Inc.), and the Seventh Circuit affirmed dismissal of a class action under the Cable Communications Policy Act because former customers had not alleged any concrete injury stemming from improper retention of personal information. (Gubala v. Time Warner Cable). We hope that the Supreme Court grants certiorari to develop and clarify the "concrete and particularized" pleading requirements of Article III standing as soon as another case with a similar issue is before the court. [GN] SQUARE ENIX: Faces Suit Over Hoshi no Dragon Quest's Loot Boxes --------------------------------------------------------------- Madeline Ricchiuto, writing for Bleeding Cool, reports that technically, Hoshi no Dragon Quest features a gacha system, but the Japanese gacha system is very similar to western games' loot boxes. That said, 8 players are seeking a class action lawsuit against developer Square Enix over the gacha system in Hoshi no Dragon Quest. Now, because this is a Japanese class-action suit mostly being reported by Japanese gaming sites, there's a few layers of possible translation error that we're looking at here. Going by reports on Sankei and Nlab, it would appear that the lawsuit stems from the claims of 8 players who assert that the explanation and odds for the game's gacha system are different than the actual drop rates, which violates Japan's prize marking law. Those players filed a lawsuit in the Tokyo District Court seeking ù 3,350,000 JPY or approximately $30,552.00 USD. The players are seeking damages for the ù 980,000 JPN spent from November 20th, 2015 to March 28th, 2016 in-game attempting to win items using Hoshi no Dragon Quest's gacha system. Specifically, the players argue that the "Legend Treasure Chest Fukubiki" gacha, which was provided from October 15, 2015 to March 14, 2016, did not drop the 11 types of 5 soba" items at the rates outlined in the game. The case was initially filed December 4, 2017 and saw it's first oral argument on January 25, 2018. During January's oral arguments, Square Enix called for a dismissal of claims. A spokesperson for Square Enix commented on the lawsuit saying, "We will clarify our claims in litigation, we will not comment at this stage." Depending on the outcome of this suit, it could be something of landmark in gamers' ongoing quest to kill in-game loot boxes which started this fall with the controversial appearance of weapons in loot boxes in games like Destiny 2, Middle-earth: Shadow of War, and Star Wars: Battlefront II. The controversy spawned due to players' concerns of a pay-to-win structure but rapidly developed into a conversation about laws and whether loot boxes need to be regulated as a form of gambling. [GN] STATE FARM: Spine Care's Suit Remains in District Court ------------------------------------------------------- In the case, SPINE CARE DELAWARE, LLC, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al., Civil Action No. 17-1816 (D. Del.), Judge Mark A. Kearney of the U.S. District Court for the District of Delaware denied Spine Care's motion for reconsideration because it fails to identify a manifest error in law in the Court's denial of its motion to remand. Spine Care, a Delaware medical treatment facility, sued State Farm insurance company in state court claiming the insurer fails to pay personal injury protection claims to its insureds under its automobile policies. The parties agree State Farm is an Illinois citizen. Spine Care seeks in excess of $75,000 and, if it can state a claim, hopes to recover damages as a class representative for non-parties similarly situated. State Farm timely removed based solely on diversity jurisdiction. State Farm then moved to dismiss Spine Care's case. Spine Care moved to remand the case back to state court arguing the Court lack subject matter jurisdiction because absent, the unnamed class members "almost certainly" include Illinois citizens and their possible non-diverse presence in the possible class would extinguish our ability to exercise diversity jurisdiction. The Court denied remand because it has original jurisdiction based on Spine Care's and State Farm's diverse citizenship and the citizenship of unnamed possible class members who are not, and will not be, parties does not affect its jurisdiction analysis. Spine Care asks the Court to reconsider its denial of its remand motion because of a manifest error of law. It asks the Court to consider the citizenship of unknown class members a month after the removal and months before a class may be certified. It asks the Court to hold, for apparently the first time, the possibility it may later certify a class which may include an Illinois insured or claimant "contaminates" its exercise of diversity jurisdiction upon removal. Spine Care argues 28 U.S.C. Section 1367 (enacted in 1990) and the Supreme Court's 2005 decision in Exxon Mobil Corp. v. Allapatah Serv., Inc. abrogates or supersedes the caselaw relied upon by the Court in denying remand. Judge Kearney holds that studying the facts underlying Spine Care's arguments readily confirms the lack of merit in applying these principles to today's issue. He finds that the Court has original jurisdiction over the named parties based on diversity because Spine Care is a Delaware limited liability company and maintains its principal place of business in Delaware. Both State Farm entities are Illinois corporations and both their principal places of business are in Illinois and the parties do not dispute the amount in controversy requirement is satisfied. For these reasons, Judge Kearney denied Spine Care's motion for reconsideration because it fails to identify a manifest error in law in the Court's denial of its motion to remand. A full-text copy of the Court's Jan. 26, 2018 Memorandum is available at https://is.gd/6NUfxI from Leagle.com. Spine Care Delaware, LLC, on behalf of themselves and all others similarly situated, Plaintiff, represented by John S. Spadaro -- jspadaro@johnsheehanspadaro.com -- John Sheehan Spadaro, LLC. State Farm Mutual Automobile Insurance Company & State Farm Fire and Casualty Company, Defendants, represented by Colin M. Shalk - - cshalk@casarino.com -- Casarino Christman Shalk Ransom & Doss, P.A., Gavin Reinke -- gavin.reinke@alston.com -- Alston & Bird, LLP, pro hac vice & Kyle G.A. Wallace -- kyle.wallace@alston.com -- Alston & Bird, LLP, pro hac vice. STEINHOFF: Faces Possible Class-Action Style Lawsuits in Europe --------------------------------------------------------------- Fin24 reports that Steinhoff is now facing at least two possible class-action style lawsuits in Europe, as aggrieved investors try and recoup losses from its share price plunge. On Feb. 2 a Dutch investor association said it wants to take the global retail conglomerate to court over publishing incorrect and misleading financial statements. In December 2017 German law firm TILP said it had filed a lawsuit against the firm. Steinhoff has its headquarters in Stellenbosch but is registered in the Netherlands and falls under Dutch law. The international retail group has been under a cloud since its former CEO Markus Jooste stepped down in early December amid a still-ongoing accounting scandal. Since its share price crashed in the wake of Mr. Jooste's abrupt resignation, some R200bn in shareholder value has been erased. In a media statement posted to its website on Feb. 2, the Dutch Vereniging van Effectenbezitters (VEB) said that Steinhoff had published "inaccurate and misleading information about the company in at least two annual reports (2015 and 2016) and various press releases". "Steinhoff also wrongly maintained the accuracy of this information," it said. The firm's finances are being investigated by forensic auditors PwC, and it has said that investors can no longer rely on the veracity of its 2015 and 2016 financial statements. Steinhoff's share price has fallen by over 80% since the news of Mr. Jooste and the PwC investigation broke. On Feb. 5 at 11:30 it was trading at R6.14 a share on the JSE. 'Misleading statements' The VEB said on Feb. 2 it wants a court in Amsterdam to declare that Steinhoff was responsible for making a number of incorrect and misleading statements around its financial situation. If a court were to declare this, it would constitute a first step in opening Steinhoff up to possible class-action style lawsuits. The VEB argued that, due to the incorrect information made public by Steinhoff, investors bought and held onto Steinhoff shares at too high a price. Its director Paul Koster told De Telegraaf that, if a judge were to rule that Steinhoff is responsible for the losses, the investor association could recover damages. Steinhoff's leadership, who appeared before Parliament, meanwhile said they could not yet say when the PwC investigation would be complete. This investigation, they said, would show the extent of financial irregularities at the firm. The retailer has, however, referred its former CEO Markus Jooste to the Hawks, based on initial feedback from PwC. In addition to VEB, German law firm TILP also filed a lawsuit against Steinhoff on December 19 on behalf of an aggrieved shareholder. It has also filed a petition requesting a lawsuit under Germany's Capital Markets Model Case Act, which it says would allow more shareholders and bondholders the opportunity to jointly litigate their claim before a court. Local trade union the Public Servants Association, for one, has said it would likely join legal action against the company. Steinhoff did not immediately reply to a request for comment. [GN] SYNGENTA AG: Court Sets Status Conference in Mass Tort Actions -------------------------------------------------------------- The United States District Court for the Southern District of Illinois issued an Order Setting Settlement Status Conference in the case captioned IN RE SYNGENTA MASS TORT ACTIONS. Poletti, et al. v. Syngenta AG, et al. No. 3:15-cv-01221-DRH and Tweet et al. v. Syngenta AG et al. No. 3:16-cv-00255-DRH. Case No. 3:15-cv- 01221-DRH. (S.D. Ill.). The United States District Court for the District of Kansas entered a judgment following a class jury verdict in favor of Plaintiffs in the Kansas class action. On September 11, 2017, the Minnesota class trial began before Judge Miller. On September 25, 2017, Settlement Counsel for Plaintiffs and Syngenta entered into an agreement on broad terms of settlement, and the jury in the Minnesota class trial was dismissed. A full-text copy of the District Court's January 4, 2018 Order is available at https://tinyurl.com/ycglwecs from Leagle.com. Ellen K. Reisman, Special Master, Pro Se. Wiemers Farms, Inc., Plaintiff, represented by Gerardo L. Guerra -- guerra@onderlaw.com -- OnderLaw, LLC. All Plaintiffs in Case 15-1221, Plaintiff, represented by William W. Blair -- blair@onderlaw.com -- OnderLaw, LLC, Amanda Scott Williamson -- amanda@hgdlawfirm.com -- Heninger, Garrison et al., Anna M. Carroll -- acarroll@hgdlawfirm.com -- Heninger, Garrison et al., pro hac vice, Brian E. Jorde, Domina law Group, PC LLO, 2425 S. 144th Street, Omaha, Nebraska. 68144, Brian Leighton Kinsley, Crumley Roberts, 2400 Freeman Mill Rd Greensboro, NC, 27406, Caroline U. Hollingsworth -- caroline@hgdlawfirm.com -- Heninger, Garrison et al., Christopher B. Hood -- chood@hgdlawfirm.com -- Heninger, Garrison et al., David Alan Domina, Domina law Group, PC LLO, 2425 S. 144th Street, Omaha, Nebraska. 68144, Derek P. Sieck -- sieck@onderlaw.com -- OnderLaw, LLC, Evan C. Murphy -- murphy@onderlaw.com -- OnderLaw, LLC, Jacqueline Desiree Dodd, Heninger, Garrison et al., James G. Onder -- onder@onderlaw.com -- Onder, Shelton et al., Justin M. Durel, OnderLaw, LLC, Mark Ekonen mark@hgdlawfirm.com -- Heninger, Garrison et al., Michael J. Quillin -- quillin@osclaw.com -- OnderLaw, LLC, Peter H. Burke -- info@burkeharvey.com -- Burke Harvey LLC, Stephanie L. Rados - - rados@onderlaw.com -- Onder, Shelton, et al., LLC, Taylor Christopher Bartlett -- taylor@hgdlawfirm.com -- Heninger, Garrison et al., pro hac vice, W. Lewis Garrison, Jr. wlgarrison@hgdlawfirm.com -- Heninger, Garrison et al., pro hac vice, W. Todd Harvey -- info@burkeharvey.com -- Burke Harvey LLC, William L. Barton, IV, OnderLaw, LLC & William L. Bross -- wlbross@hgdlawfirm.com -- Heninger, Garrison et al. Syngenta AG, Syngenta Crop Protection AG, Syngenta Corporation, Syngenta Crop Protection, LLC, Syngenta Biotechnology, Inc. & Syngenta Seeds, Inc., Defendants, represented by Michael J. Nester -- mnester@drnpc.com -- Donovan Rose Nester PC, Anne Kathleen Collesano -- anne.collesano@kirkland.com -- Kirkland & Ellis, Devin Allan DeBacker -- devin.debacker@kirkland.com -- Kirkland & Ellis, Devin Charles Ringger -- devin.ringger@kirkland.com -- Kirkland & Ellis, pro hac vice, Edwin U. John, Kirkland & Ellis, Jeffery D. Nye, Kirkland & Ellis, pro hac vice, Jessica Marie Pettit -- jessica.pettit@kirkland.com -- Kirkland & Ellis LLP, pro hac vice, Jordan M. Heinz -- jordan.heinz@kirkland.com -- Kirkland & Ellis LLP, Joseph J. Stroble -- coverby@bradley.com -- Bradley Arant et al, Leslie M. Smith -- leslie.smith@kirkland.com -- Kirkland & Ellis LLP, Marcy Gray Blattner -- marcy.blattner@kirkland.com -- Kirkland & Ellis LLP, Michael D. Jones -- michael.jones@kirkland.com -- Kirkland & Ellis, Michael Onufer -- michael.onufer@kirkland.com -- Kirkland & Ellis LLP, Patrick F. Philbin -- patrick.philbin@kirkland.com -- Kirkland & Ellis, Ragan Naresh -- ragan.naresh@kirkland.com -- Kirkland & Ellis, Sarah J. Schultes -- sarah.schultes@kirkland.com -- Kirkland & Ellis LLP & Shiran Zohar -- shiran.zohar@kirkland.com -- Kirkland & Ellis LLP. T-MOBILE USA: Court Denies Bid to Dismiss 2nd Amended "Boone" ------------------------------------------------------------- In the case, DEAN BOONE, individually and on behalf of others similarly situated, Plaintiff, v. T-MOBILE USA INC., Defendant, Civ. No. 17-378-KM-MAH (D. N.J.), Judge Kevin McNulty of the U.S. District Court for the District of New Jersey granted Boone's motion for leave to file the third amended complaint, and denied the T-Mobile's motion to dismiss Boone's second amended complaint. Mr. Boone resides in Mahwah, New Jersey. T-Mobile is a corporation that provides telephone and data services throughout the country. Boone seeks to certify nationwide and New Jersey classes based on T-Mobile's purported violations of the FCRA and NJ FCRA. On April 21, 2016, Boone went to a T-Mobile store in Paramus, New Jersey, and asked a T-Mobile employee about available cell phone plans and rates. Boone made it clear that he did not want his credit report accessed if a "hard" credit inquiry would be required. The employee confirmed that T-Mobile would conduct a soft inquiry and not a hard inquiry. Boone did not sign any agreement, did not agree to any services, and did not provide written consent for a hard inquiry. Nonetheless, T-Mobile obtained his credit report through a hard credit inquiry. T- Mobile has "routinely and systematically" obtained such hard inquiries on prospective customers without a permissible purpose or written consent. Those prospective customers form the putative classes. Boone seeks to represent classes of prospective T-Mobile customers who, like him, were allegedly subject to improper hard credit inquiries. In his second amended complaint, Boone defines two putative classes of putative customers for whom T-Mobile conducted hard inquiries on "false pretenses": a. FCRA False Pretense Class: All persons within the United States who had a hard credit inquiry performed on his or her credit by T-Mobile who had not previously authorized a hard inquiry within the five years prior to the filing of the Complaint until the date of final judgment in the action. b. NJ False Pretense Class: All persons within New Jersey who had a hard credit inquiry performed on his or her credit by T-Mobile who had not previously authorized a hard inquiry within the five years prior to the filing of the Complaint until the date of final judgment in the action. On Jan. 19, 2017, Boone filed a complaint against T-Mobile on behalf of himself and all others similarly situated for purported violations of the Fair Credit Reporting Act ("FCRA") and the New Jersey Fair Credit Reporting Act ("NJ FCRA"). T-Mobile moved to dismiss the complaint on Feb. 27, 2017. On March 17, 2017, Boone filed an amended complaint. T-Mobile moved to dismiss the amended complaint on April 14, 2017. On June 15, 2017, Boone and T-Mobile attended a scheduling conference before the Hon. Michael A. Hammer. At the scheduling conference, T-Mobile consented to Boone's filing a second amended complaint. Boone filed that second amended complaint on June 28, 2017. On July 26, 2017, T-Mobile filed the motion to dismiss the second amended complaint for failure to state a claim and for lack of standing. On Aug. 24, 2017, Boone sought leave to file a third amended complaint, which T-Mobile opposes. In his proposed third amended complaint, Boone proposes two additional classes of prospective customers for whom T-Mobile sought hard inquiry credit reports for an "impermissible purpose": a. FCRA Impermissible Purpose Class: All persons within the United States who had a hard credit inquiry performed on his or her credit by T-Mobile, who had not authorized a hard inquiry, thereby obtaining a persons' credit report without any permissible purpose, within the five years prior to the filing of the Complaint until the date of final judgment in the action. b. NJ FCRA Impermissible Purpose Class: All persons within New Jersey who had a hard credit inquiry performed on his or her credit by T-Mobile, who had not authorized a hard inquiry, thereby obtaining a persons' credit report without any permissible purpose, within the five years prior to the filing of the Complaint until the date of final judgment in the action. As the titles suggest, any FCRA class would seek relief under the federal FCRA, while any NJ FCRA class would seek relief under the NJ FCRA. T-Mobile argues that (a) Boone lacks Article III standing, (b) Boone fails to state a claim under the FCRA or the NJ FCRA, and (b) Boone's request to submit a third amended complaint should be denied. Judge McNulty cannot find at this, the pleading stage, that Boone has not alleged actual damages under the FCRA as a matter of law. The motion to dismiss on the grounds that (a) civil false pretenses claims cannot be asserted against corporate entities; (b) Boone's complaint should be dismissed for failure to cite the specific subsection authorizing private rights of action under the FCRA; (c) T-Mobile had permissible purposes for obtaining Boone's credit report; and (d) there are no allegations that T- Mobile made a calculated attempt to mislead anyone in connection with obtaining credit reports, is denied. As to Boone's NJ FCRA claims T-Mobile, the Judge finds that Boone has stated a claim under the NJ FCRA. T-Mobile's motion to dismiss Boone's NJ FCRA claims is therefore denied. First, a private right of action exists against corporate entities under the NJ FCRA. Second, T-Mobile did not have permissible purposes to obtain Boone's credit report through a hard inquiry. ird, as discussed in subsection III.B.1(d), Boone has alleged that T- Mobile attempted to mislead consumers in connection with obtaining a credit report. Finally, Judge McNulty will grant Boone permission to file the third amended complaint. He says, first, Boone's proposed amendments do not threaten to prejudice T-Mobile. Second, the amendment would not be futile. Boone aligns the putative classes with the legal theories under which he seeks relief. Third, while Boone's repeated amendments have caused some delays, it does not appear that the third amended complaint will cause any further serious postponements. For the foregoing reasons, Judge McNulty finds that Boone has established Article III standing and has adequately stated claims under the FCRA and the NJ FCRA. The motion to dismiss is therefore denied. He granted Boone leave to file the third amended complaint. A full-text copy of the Court's Jan. 26, 2018 Opinion is available at https://is.gd/bBi9E6 from Leagle.com. DEAN BOONE, individually, and on behalf of all others similarly situated, Plaintiff, represented by JEFFREY JOSEPH CIARLANTO -- ciarlanto@prolawpa.com -- PROFY PROMISLOFF & CIARLANTO, P.C., RICHARD HAN KIM -- jonghankim@paulhastings.com -- THE KIM LAW FIRM, LLC., DRUCILLA HUGHES TIGNER, THE KIM LAW FIRM & KEVIN J. KOTCH, FERRARA LAW GROUP, P.C. T-MOBILE USA INC., Defendant, represented by READE WILLIAM SELIGMANN -- reade.seligmann@alston.com -- Alston & Bird LLP. TAURUS: Faces Class Action Over Defective Pistols ------------------------------------------------- Ray Simon, writing of Daily Hornet, reports that careful there, butterfingers. That loaded handgun you're holding could actually be more dangerous than a . . . loaded handgun. Getting shot is never a good thing, but shot by your own pistol, by a combination of your clumsiness and Taurus' allegedly shoddy craftsmanship, well that's just a bad day. It's enough to make the unfortunate victim pray the bullet strikes a vital organ. The class action lawsuit blames the problem on a manufacturing defect in at least 9 models of Taurus Millenium pistols that can cause them to unintentionally discharge when dropped or -- perhaps even more dangerous -- when the safety is on, according to the lawsuit. If you own one of the following models being recalled, don't walk, RUN -- but not so fast you drop your pistol -- to make the end of the claims period, which was February 6. Literally. So if you own one of the Taurus pistols listed below but have not filed a claim, thinking you're going to be cut in on any compensation, think again. You're SOL. Should've been quicker on the draw. Gun owners who do meet the claims deadline have 3 options per the $239 million settlement agreement: a cash payment, enhanced warranty, or safety training. Owners of the recalled pistols can receive up to $200 cash in exchange for their defective piece, or may have the guns inspected and repaired for free. Recalled Taurus pistols include: * PT-111 Millennium * PT-132 Millennium * PT-138 Millennium * PT-140 Millennium * PT-145 Millennium * PT-745 Millennium * PT-609; PT-640 * PT-24/7 The 'Pro" series of each of these handguns is also being recalled for the same issue, Taurus said. The recall affects about one million firearms, give or take. In addition to the terms above, Taurus has agreed to publish free online training videos and instructions on how to properly operate and handle the guns. The company is covering all shipping and handling costs, but says members should review their state and federal regulations before sending firearms through the mail. Detailed instructions can be found on the settlement website. [GN] TEXAS: Prison Officials Agree to Deal on Wallace Pack Housing ------------------------------------------------------------- Gabrielle Banks, writing for The Houston Chronicle, reports that Texas prison officials and lawyers reached a tentative settlement in a landmark class action lawsuit February 2, agreeing to provide air conditioning at a geriatric prison outside of Houston and resolving lawsuits involving inmates who died or were injured by excessive heat during oppressivesummers in other state lockups. The proposed agreement at the Wallace Pack Unit in Navasota could have lasting ramifications for thousands of inmates at more than 100 prisons statewide, the majority of which do not provide air conditioning on the housing units. Texas prison officials have acknowledged nearly two dozen inmates have died of heatstroke in prison units since 1998. State Sen. John Whitmire, D-Houston, a longtime advocate for updating the aging infrastructure at prisons, called the deal "a game changer" for top brass at the Texas Department of Criminal Justice, and especially for inmates and employees who live and work in torrid Texas weather. "It's certainly a departure from the position that TDCJ and the state has taken as long as I can remember," he said. Whitmire said installing cooling systems will be expensive, but the prison's leaders have shown they are willing to invest in making the Pack Unit safer. "I'm certain there will be discussions as we go forward as to what would be the next logical step -- to see what other units can be made safer and more habitable for people who have been placed there and for the workers." Court must approve U.S. District Judge Keith Ellison, who has overseen the Pack case and several wrongful heat death cases from the start, offered "enormous congratulations all around" at an impromptu hearing in Houston via teleconference with a team of lawyers from state Attorney General Ken Paxton's office, Edwards Law and the Texas Civil Rights Project who were involved in lengthy settlement negotiations. The settlement will have to be presented to the court for approval. "The case literally raised life-or-death issues," the judge told them. "It's a triumph all the way around for the state, the inmates and the lawyers, and I feel enormously lucky to have been a small part of it." Jason Clark, a TDCJ spokesman, said the deal resolves the 2014 class action lawsuit over air conditioning as well as individual lawsuits involving eight heat deaths and one injury during heat waves in 2011 and 2012. "The agreement would end the protracted legal proceeding and provide additional safeguards for offenders at the Pack Unit who may be susceptible to extreme heat," Clark said. Jeff Edwards, Esq. -- jeff@edwards-law.com -- lead attorney for a group of Pack inmates who launched the class action suit, said he was gratified by the state's willingness to come to the negotiating table and thrilled for his clients. "Six inmates took on a state system with $3 billion in resources and accomplished what they sought out to do from the very start," he said. "Unless we provide the same basic rights to inmates in terms of dignity, safety and medical care, everybody's rights are at risk." Ellison said the proposed settlement was "nothing less than fundamental change in the daily existence of hundreds of men -- transformative change." 'A civil rights movement' For the inmates, a resolution would mark significant progress. Shanda Carter said the settlement was startling news for her 39- year-old husband Michael, a diabetic former Pack resident who was among of busloads of inmates transferred to Leblanc Unit under the judge's order last summer protect him from the heat. He called her January 31 when rumors of a deal began to circulate. Carter, 51, of Seabrook, said the settlement means she no longer has to fear that his life is in danger. "I worried that he'd tell them he was sick and they would ignore him and tell him to go back to his bunk and he'd end up dying," she said. She said she hoped the deal would have a ripple effect. "It's like a civil rights movement, you accomplished something new to history," she said. The comprehensive deal calls for temporary cooling systems to be installed at the Pack Unit dormitories for all inmates with permanent systems to be installed with approval from the Texas Legislature. The cost of the systems is still being assessed. The state also agreed to transport heat-sensitive inmates from Pack in air-conditioned buses. Other claims settled In addition to air conditioning at the Pack Unit, the state has agreed to settle claims over eight deaths and one injury related to heat exposure. Experts testified that heat deaths were preventable, a finding echoed by Dr. Tyson Pillow, an emergency physician at Ben Taub and director of the emergency medicine residency program at Baylor College of Medicine. Indoors or outdoors, the most important factor in preventing heat exhaustion and heat stroke is prevention, rather than treatment, he said. "Heat in a room will lead to your body compensating, sweating, dehydration, heat exhaustion and, at the extreme heat stroke," he said. "A very hot room could lead to the same symptoms and disease process." Elderly people and people who take certain medicines are especially at risk, he said. At an emergency injunction hearing in June, inmates testified they became dizzy and vomited from the heat. Texas prison officials provided documentation that 22 inmates had died from heat stroke at 15 Texas prisons since 1998. This threat compelled Ellison to order air conditioning for heat- sensitive inmates. Ellison ruled in July that the indoor heat at Pack was life- threatening for vulnerable inmates, writing in a scathing opinion that the summer conditions amounted to "cruel and unusual punishment." He ordered the prison to provide cool housing units during the summer months for medically sensitive inmates, but he gave TDCJ officials the flexibility to fulfill his order as they saw fit. Citing the prohibitive cost of installing air conditioning, officials opted to ship more than 1,000 inmates from the Pack Unit to prisons that already had air conditioning. Additional inmates were transferred to make room for the Pack evacuees. But Ellison's ruling was only temporary, and the case had been set for trial in March. That trial has now been canceled. [GN] THORN GROUP: Chair Steps Down Following Class Action Settlement --------------------------------------------------------------- Roma Christian, writing for ChannelNews, reports that Radio Rentals owner, Thorn Group, has announced its Chairman Joycelyn Morton is stepping down, following its recent $6.1 million settlement with ASIC for consumer lease breaches. Ms Morton will step down as Chair, however, will remain a Director until a replacement is appointed. Non-executive Director, David Foster, has been named Chairman in the interim. Mr Foster was formerly the CEO of Suncorp Bank, with several other non-executive directorships in government and private placements. The company's board has expressed its thanks for Ms Morton's seven-year Chairmanship, including her actions in the recent Radio Rentals' ASIC settlement. Thorn Group owned Radio Rentals stores faced a class action from Sydney-based law firm, Maurice Blackburne, who represented over 200,000 consumers from its 'Rent Try $1 Buy' lease. Following an agreement with ASIC, Thorn Group agreed to remediate various fees and expenses of $6.1 million, plus pay a civil penalty of $2 million. The company also agreed to several changes within its consumer lease operations. Thorn Group Radio Rentals stores are not associated with South Australian owned Radio Rentals outlets. In South Australia, Thorn Group trades as Rentlo Reinvented. Ms Morton affirms her departure is at the "right time", and will compliment a "refreshed board": "During my time as chair we achieved a great deal under difficult circumstances. We have a refreshed board, new leadership team, completed the ASIC settlement and appointed a new CEO who will commence on February 15. I therefore believe this is the right time for me to hand over to a new chair." [GN] TOSHIBA CORP: "Lightsey" Suit Removed to South Carolina ------------------------------------------------------- The case captioned Richard Lightsey and Jessica Cook, and others similarly situated, Plaintiffs, v. Toshiba Corporation, Defendant, Case No. 2017-cp-25-0414 (S.C. Com. Pleas, October 3, 2017) was removed from the Court of Common Pleas of Hampton County, South Carolina, to the United States District Court for the District of South Carolina on January 23, 2018, and assigned Case No. 18-cv-00190. Plaintiffs allege that Toshiba executed a guarantee in which it allegedly agreed to pay for losses suffered at the VC Summer Project where South Carolina Electric & Gas Company and the South Carolina Public Service Authority were constructing two nuclear power units. [BN] Toshiba is represented by: Mark H. Wall, Esq. Thomas B. Boger, Esq. WALL TEMPLETON & HALDRUP, P.A. Post Office Box 1200 Charleston, SC 29402 Tel: (843) 329-9500 Facsimile: (843) 329-9501 E-mail: Mark.Wall@walltempleton.com Tommy.Boger@walltempleton.com - and - David B. Leland, Esq. Paul A. Solomon, Esq. Paul M. Kerlin, Esq. SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP 1440 New York Avenue, N.W. Washington, DC 20005-2111 Telephone: (202) 371-7000 Facsimile: (202) 393-5760 E-mail: David.Leland@skadden.com Paul.Solomon@skadden.com Paul.Kerlin@skadden.com Plaintiffs are represented by: Algernon Gibson Solomons, III, Esq. Daniel Alvah Speights, Esq. SPEIGHTS & RUNYAN 2015 Boundary Street, Suite 239 Beaufort, SC 29902 Tel: (800) 348-3805 Website: www.speightsrunyan.com TOYOTA MOTORS: Faces Class Action Over Defects in Prius Cars IPM ---------------------------------------------------------------- David A. Wood, writing for CarComplaints.com, reports that a Toyota Prius intelligent power module (IPM) recall and warranty extension weren't good enough for a California driver who filed a lawsuit against the automaker. According to the lawsuit, 2010-2016 Toyota Prius cars have defects in the hybrid systems that cause the cars to stall, including while traveling at highway speeds. The lawsuit references a 2014 Toyota warranty extension (ZE3) for about 711,000 model year 2010-2014 Prius cars nationwide. The extension involves the intelligent power module (IPM) located inside the inverter assembly and covers failure of the IPM and other internal inverter components potentially damaged by IPM failure. This condition is indicated by diagnostic trouble codes P0A94, P324E, P3004 or P0A1A. If any of those codes exist, Toyota says various warning lights will illuminate and the car will enter fail-safe mode, also called limp-home mode. To qualify for the warranty extension, Prius owners must have had repairs made under a 2014 IPM recall. Toyota recalled nearly 700,000 model year 2010-2014 Prius cars in 2014 because of the intelligent power modules (IPMs) with sensors that can become damaged by high temperatures. As mentioned in the warranty extension, the recall described warning lights activating and the Prius going into limp-home mode. Toyota also said the hybrid system could completely shut down and cause the Prius to stall. The recall, which began in March 2014, saw Toyota dealers update software for the motor/generator control and hybrid electronic control units. For a vehicle that had already experienced a failure of the inverter before the software update, the dealer replaced the inverter assembly. The plaintiff says Toyota's previous actions didn't solve the IPM problems because the automaker wanted to save money on parts, and the software Toyota used allegedly did nothing but cause more problems. According to the plaintiff, the software update affected the ability of the cars to accelerate properly. Calling the Toyota Prius recall a "sham," the plaintiff says drivers, occupants and others on the roads are at risk because the automaker took the cheap way out. The California lawsuit also alleges replacing the IPM can cost thousands of dollars and replacing one bad module with another faulty IPM does nothing to help the car. Included in the proposed class-action are current and former California owners and lessees of 2010-2016 Prius cars who paid their own money related to the intelligent power modules. The Toyota Prius IPM lawsuit was filed in the Los Angeles County Superior Court of California -- Jevdet Rexhepi, et al., v. Toyota Motor Sales USA Inc. The plaintiff is represented by Beasley, Allen, Crow, Methvin, Portis, & Miles PC, Cuneo Gilbert & LaDuca LLP, DiCello Levitt & Casey, and Fazio Micheletti LLP. CarComplaints.com has complaints submitted by owners of the Toyota Prius cars named in the IPM lawsuit. [GN] TRUDY GILMOND: Court Denies Bid to Decertify Net Winners Class -------------------------------------------------------------- The United States District Court for Western District of North Carolina, Charlotte Division, certified the Net Winner Class in the case captioned KENNETH D. BELL, in his capacity as court- appointed Receiver for Rex Venture Group, LLC d/b/a ZeekRewards.com, Plaintiff, v. TODD DISNER, in his individual capacity and in his capacity as trustee for Kestrel Spendthrift Trust; TRUDY GILMOND; TRUDY GILMOND, LLC; JERRY NAPIER; DARREN MILLER; RHONDA GATES; DAVID SORRELLS; INNOVATION MARKETING, LLC; AARON ANDREWS; SHARA ANDREWS; GLOBAL INTERNET FORMULA, INC.; T. LEMONT SILVER; KAREN SILVER; MICHAEL VAN LEEUWEN; DURANT BROCKETT; DAVID KETTNER; MARY KETTNER; P.A.W.S. CAPITAL MANAGEMENT LLC; LORI JEAN WEBER; and a Defendant Class of Net Winners in ZEEKREWARDS.COM; Defendants, No. 3:14cv91 (W.D.N.C.), more than two and a half years ago. Net Winner Class members Darlene Armel, Ronald Cox, Frank Scheuneman, Edward Rourke, Theresa Bridie, Marc Kantor, Paola Kantor, Tim Rice, Wayland Woods and two movants listed only as D.W. and T.H. (collectively "Movants") filed a motion to intervene in this action and decertify the class or alter the Final Judgments issued. The Court denied the Movants' Motion for Class Decertification. In the Certification Order, the Court explained the basis for the certification of the Class and responded to the same concerns over commonality and alleged conflicts expressed in the Movants' motions. While acknowledging the challenges of a defendant class action and the due process concerns of those opposed to the Class, the Court concluded that the Court is firmly convinced a class action is the only means to reasonably and efficiently resolve the Receiver's claims against 9,400 Net Winners. The Receiver's Motion seeking Final Judgments against the remaining Movants who chose not to disagree with the amount of their net winnings or for whom the Receiver accepted their alternate amount was filed on June 27, 2017. In the Notice by the Court related to the Receiver's June 27 motion the Court stated that the Court expects to rule on the Receiver's Motion and enter Final Judgments as appropriate on or after July 31, 2017. Final Judgments were accordingly entered on August 14, 2017. Movants filed the present motion on September 11, 2017. Therefore, despite being on notice that any filing challenging the Receiver's motion seeking Final Judgments should have been made before July 31, 2017, Movants failed to do so. The Movants seek to decertify the Net Winner Class on the grounds that Class Counsel has not adequately protected the interests of the members of the Class. Movants criticize class counsel for unnecessarily conceding the existence of a Ponzi scheme, not deposing the Receiver's expert or challenging the expert's findings, and not vigorously arguing that the expert's calculations were flawed and unreliable. Courts are in agreement that speculation as to the basis for certain strategic decisions made by counsel for the Class is not a sufficient basis to show that counsel for the Class is not adequate. The Court finds that class counsel has adequately represented the Class in accordance with the facts and applicable law. In addition to arguing that class counsel was inadequate, Movants contend that potential conflicts existed where class counsel represented a member of the Class in another action related to the Ponzi scheme. Courts have generally held that the mere existence of parallel representation does not create an insurmountable conflict of interest. Further, Courts are in general agreement that speculative conflicts resting on strings of suppositions do not preclude a finding that class counsel is adequate. The Court finds that Movants' arguments herein as to purported conflicts are entirely speculative and do not render Class counsel inadequate. Finally, courts are appropriately reluctant to decertify classes in late stages of litigation. Indeed, the Court may not disturb its prior certification absent some significant intervening event or a showing of compelling reasons to re-examine the question. A full-text copy of the District Court's January 4, 2018 Order is available at https://tinyurl.com/y6vnub9p from Leagle.com. Kenneth D. Bell, in his capacity as court-appointed Receiver for Rex Venture Group, LLC d/b/a ZeekRewards.com, Plaintiff, represented by Irving M. Brenner -- ibrenner@mcguirewoods.com -- McGuireWoods LLP & Matthew E. Orso -- morso@mcguirewoods.com -- McGuireWoods LLP. Kenneth D. Bell, in his capacity as court-appointed Receiver for Rex Venture Group, LLC d/b/a ZeekRewards.com, Plaintiff, Pro Se. Trudy Gilmond, Defendant, Pro Se. Trudy Gilmond, LLC, Defendant, Pro Se. Jerry Napier, Defendant, Pro Se. Darren Miller, Defendant, Pro Se. Rhonda Gates, Innovation Marketing LLC, Aaron Andrews & Shara Andrews, Defendants, represented by James Kevin Edmundson -- kevin@edmundsonpllc.com -- Edmundson PLLC, pro hac vice. Global Internet Formula, Inc., T. Lemont Silver & Karen Silver, Defendants, represented by William James Jonas, III -- jonas@wjamesjonas.com -- W. James Jonas III, P.C., pro hac vice. Durant Brockett & Defendant Class, Defendants, represented by James Kevin Edmundson, Edmundson PLLC. David Kettner, Defendant, Pro Se. Mary Kettner, Defendant, Pro Se. Defendant Class of Net Winners in ZeekRewards.com, Defendant, represented by James Kevin Edmundson, Edmundson PLLC & Gabriel L. Mathless -- gabrielmathless@mvalaw.com -- Moore & Van Allen PLLC. UNITED STATES: Judge to Review ACLU-NJ's Class Action Against ICE ----------------------------------------------------------------- Daniel J. Munoz, writing for TAPinto, reports that three Indonesian Christians taking sanctuary in a Highland Park church will be able to return home, after a federal judge issued an order halting their deportation. On Feb. 2, U.S. district judge Esther Salas issued a temporary restraining order to Immigrations and Custom Enforcement (ICE) agents, preventing them from moving forward with any deportation attempts of Indonesian Christians living in New Jersey without legal status. Currently, three Indonesian Christians are taking sanctuary in the Reformed Church of Highland Park. ICE has a policy of not pursuing deportations on individuals while they're residing in places of worship. As a result, a person with deportation orders might stay in a religious site indefinitely. Other "sensitive locations" include schools and hospitals. In January, ICE removed courthouses from the category. The order means that the three Indonesian Christians, Pangemanan of Highland Park, Arthur Jemmy of Edison and Yohanes Tasik of Woodbridge, can return to their homes without concern of being detained and deported by ICE agents, according to Rev. Seth Kaper-Dale, an immigrants' rights activist and head of the church. Jemmy has been in the church since October 2017 and Tasik since mid-January. ICE's de facto policy has been to not detain undocumented immigrants while they're in a place of worship, and so often, they'd reside at the site indefinitely. "We are extremely heartened and relieved," said Farrin Anello, a senior staff attorney with the ACLU-NJ, whose involved with the case. The hold will be in place indefinitely, while Salas reviews the class action suit brought forward by the New Jersey Civil Liberties Union (ACLU-NJ) on behalf of Pangemanan and two Indonesian residents who were detained by ICE. Pangemanan came into the church on the morning of Jan. 25, after ICE agents tried to detain him just as he was about to drive his daughter to school. That same morning, ICE detained two other Indonesians, Roby Sanger of Metuchen and Gunawan Liem of Franklin Park, who are also plaintiffs in the class action suit. The two are being held at the Essex County Jail and it is uncertain if they will be released in light of the decision. A spokesperson for ICE could not be immediately reached for comment. With the order in place for the next few weeks, Pangemanan, Jemmy and Tasik can return to their homes without worry they'd be scooped up and detained by ICE agents. "I just thank God," Pangemanan said. The argument of the class action suit, filed by the ACLU-NJ's Immigrants' Rights Project, was two-fold. It argued first, that the plaintiff's detention and deportation would deprive them of a constitutionally-guaranteed right to apply for asylum. Second, the suit argued that U.S. law prohibits deportation back to a country where the person could face religious persecution and violence. It's uncertain how long Jemmy, Pangemanan and Tasik will be shielded by operations by ICE agents. The hold is only in effect until Salas makes a decision on the case, Mr. Anello noted. The plaintiffs will have to their written arguments by Feb. 16, the plaintiff's by March 2, and counter-arguments from the plaintiffs by March 9. "I feel strongly that there is not a huge risk for going back a normal life for the next five weeks," Rev. Kaper-Dale told congregants at an impromptu celebratory church service on the morning of Feb. 3. Allen noted the order only prohibits deportation and transfer between facilities, say from the Essex County Jail to one in California. No mention is made of detention, so strictly speaking, ICE agents could still arrest Jemmy, Pangemanan and Tasik. Though Allen was doubtful that ICE would detain the three, as was Rev. Kaper-Dale. "It would be really concerning in my mind, if after a judge has taken the step to say what this judge said on Feb. 2, if ICE continued to round people up in put them in detention," Rev. Kaper-Dale said. Rev. Kaper-Dale added: "Part of me feels like we should try to live normal lives, knowing that there is a risk, but not living with the same level of fear of that risk." The order came just a few days after Pangemanan had a health episode, with his blood pressure rising to a worrisome level, according to Rev. Kaper-Dale. "It was purely driven by the anxiety of what was going on," Rev. Kaper-Dale said. "I told him about the passport thing and he started shaking and he couldn't stop shaking for three hours." TAPinto New Brunswick is partnering with ProPublica to track hate crimes in the region. The partnership is part of a nationwide project to track and report bias incidents across the country. [GN] UNITED STATES: Class Action Against HSS Over CSR Payments Pending ----------------------------------------------------------------- Katie Keith, writing for Health Affairs, reports that in late January 2018, two additional insurers separately filed complaints against the Department of Health and Human Services (HHS) for failing to reimburse marketplace insurers for cost-sharing reductions (CSRs) for 2017. These lawsuits were brought by the Montana Health CO-OP and the Sanford Health Plan. The Montana Health CO-OP offers marketplace coverage in Montana and Idaho and is suing for nearly $5.3 million; the Sanford Health Plan, which is based in South Dakota and offers marketplace coverage in North Dakota, South Dakota, and Iowa, is suing for about $1.6 million. This now makes at least four lawsuits, one of which is a class action, brought against HHS in the Court of Federal Claims for failure to make CSR payments. All four lawsuits make claims for CSR payments from October, November, and December of 2017; the class action additionally includes CSR payments for 2018. The Sanford Health Plan appears to be the first non-CO-OP entity that has filed a lawsuit challenging the government's failure to make CSR payments, and three of the cases (all but the class action) are being handled by the same law firm. (For those keeping score, you might consider this to be five lawsuits if you count the recent litigation brought by New York and Minnesota to contest the government's refusal to provide the "CSR component" of funds for their Basic Health Programs.) All four lawsuits make claims that are similar to those outlined here: that the government's failure to make CSR payments violates Section 1402 of the Affordable Care Act (ACA) and an implied-in- fact contract between HHS and insurers. (An "implied-in-fact" contract is an agreement evidenced by the conduct of the parties, even though not reduced to written form.) First, the insurers argue that Section 1402 and implementing regulations 1) require insurers to reduce cost-sharing for certain silver marketplace plans; and 2) require the federal government to make CSR payments even in the absence of a congressional appropriation. As both the Montana Health CO-OP and Sanford Health Plan argued in their complaints, "regardless of whether Congress appropriated sufficient funds to HHS to make the CSR payments, the government's statutory obligation to make such payments, and plaintiff's right to those payments, remains." Second, the insurers point to CSR payments made in 2014, 2015, 2016, and nine months of 2017 as well as "actions of agency officials" to bind the government to make CSR payments. They argue that the ACA, its regulations, and these government actions collectively constituted a clear offer by the government that insurers accepted by offering marketplace coverage in 2017. This formed an implied-in-fact contract that HHS then breached for CSR payments during October, November, and December of 2017. These lawsuits are being filed even as stakeholders near a resolution in the House v. Azar litigation over the federal government's authority to make CSR payments in the absence of an explicit appropriation from Congress. At the same time, the government requested an additional extension of time in the class action lawsuit on CSR payments brought by Common Ground Healthcare Cooperative, from January 29 to February 20, 2018. Common Ground recently amended its class action lawsuit on risk corridor payments to include CSR payments. Because this change to add CSRs was not made until November 2017 and this new potential class on CSRs raises "significant and new issues that are different from those raised in the risk corridors portion of the case," the government requests additional time to coordinate within the Department of Justice and with HHS. In the meantime, Common Ground's claims on risk corridor payments continue to move forward following class certification on January 8, 2018. On January 26, Common Ground filed a motion requesting approval of a plan to notify potential members of the class (i.e., insurers that offered qualified health plans in the 2016 benefit year whose allowable costs were more than 103 percent of their target amounts); this motion was granted on February 1, 2018. In a separate risk corridors case brought by the Oregon Health CO-OP for about $25 million, the government asked for a stay pending a decision by the Court of Appeals for the Federal Circuit in one of two other risk corridors cases that were argued on January 10, 2018. Little Sisters And March For Life To Appeal Injunction On Trump Birth Control Rule To Ninth Circuit On January 26, 2018, the Little Sisters of the Poor Jeanne Jugan Residence filed a notice of appeal in California v. Trump to the Court of Appeals for the Ninth Circuit. The appeal will challenge the district court's nationwide preliminary injunction- obtained by California and four other states-that blocks the implementation of HHS's interim final rules from October 2017. These rules grant broad exemptions to organizations with religious or moral objections from the Affordable Care Act's (ACA's) requirement that many health plans cover contraception without cost-sharing. The Little Sisters have now appealed both cases -- one in California and one in Pennsylvania -- where attorneys general challenged the Trump administration's rules. In December 2017, the Little Sisters filed a notice of appeal to the Third Circuit in similar litigation in Pennsylvania where the district court judge also issued a preliminary injunction, albeit using slightly different reasoning, that similarly blocked implementation of these rules. Also on January 26, Judge Haywood Gilliam of the United States District Court for the Northern District of California granted a petition to intervene in California v. Trump by the March for Life Education and Defense Fund. In doing so, he incorporated his reasoning from when he allowed the Little Sisters to intervene: The judge concluded that March for Life did not have a right to intervene because its interests are adequately represented by the Trump administration; he did, however, grant them permission to intervene, recognizing that they had a strong interest in the outcome of the case. Five days later, the March for Life (like Little Sisters) filed a notice of appeal to the Ninth Circuit. GAO Finds Small Percentage Of Potentially Improper Or Fraudulent Marketplace Enrollment From 2015 On January 23, the Government Accountability Office (GAO) issued a new analysis of the enrollment process for the 2015 plan year and found a small percentage-about 1 percent-of enrollment in the 37 states that relied on HealthCare.gov in 2015 to be potentially improper or fraudulent. The GAO undertook this analysis in response to a request from seven Republican members of Congress, including Sen. Orrin Hatch and Reps. Greg Walden, Kevin Brady, and Fred Upton, and has produced similar reports and made previous recommendations to improve quality assurance in marketplace enrollment. All marketplaces are required to assess and verify applicant information and eligibility for coverage and premium subsidies that make health insurance more affordable. To verify applicant information such as citizenship or validate a Social Security Number (SSN), HealthCare.gov uses data from federal sources such as the Department of Homeland Security and the Social Security Administration (SSA). If an applicant's information does not match those data sources, HealthCare.gov will generate an "inconsistency" that the applicant must typically resolve by, for instance, submitting relevant documentation. For this study, GAO analyzed eligibility and enrollment data for about 8 million subsidy-eligible applicants for plan year 2015. GAO specifically identified those 1) who had an inconsistency regarding citizenship, status as a national, or lawful presence; 2) whose information did not match records with the Social Security Administration (SSA); or 3) who were reportedly deceased. GAO did not analyze data on income, residency, or incarceration. GAO found that the vast majority of the 8 million applicants provided information that allowed the marketplace to verify citizenship or status and match SSA records -- about 43,000 had a data matching inconsistency related to citizenship while 33,000 had an inconsistency regarding their SSN. Although HealthCare.gov did not actively resolve SSN inconsistencies for the 2015 plan year (and having an SSN is not a requirement for eligibility), the marketplace has since upgraded its system and adopted procedures in May 2017 to verify SSNs through documentation provided by applicants. GAO also found that HealthCare.gov did not always identify individuals as deceased in a timely manner. Some deceased applicants or enrollees were, for instance, automatically reenrolled in coverage. Although the marketplace checks an applicant's information against death information from SSA before he or she is enrolled initially, it does not reverify this information prior to reenrollment. About 17,000 accounts received or maintained subsidized coverage after their reported date of death, which was associated with about $23 million in advance premium tax credits. Of these 17,000 policies, about 3,000 policies began after the applicant's reported date of death. HHS told GAO that the agency is exploring ways to identify enrollees who may be deceased and should be unenrolled from coverage. Minnesota To Receive $130 Million In Pass-Through Funding For 2018 On January 26, 2018, HHS issued a letter to notify Minnesota officials that the state would be receiving pass-through funding of $130,719,696 for the 2018 calendar year (which is slightly less than anticipated in 2017). The pass-through funding is pursuant to Minnesota's approved waiver under Section 1332 of the ACA. Under the waiver, Minnesota established a reinsurance program, known as the Minnesota Premium Security Plan, and asked to waive the ACA's single risk pool requirement. In approving Minnesota's waiver in 2017, HHS had estimated that the state would receive approximately $139 million in pass- through funding for the reinsurance program for 2018. The amount of pass-through funding for calendar years 2018 through 2022 will be calculated and communicated by HHS to the state on an annual basis. [GN] UNITED STATES: Court Denies Bid to Dismiss "Ibrahim" Suit --------------------------------------------------------- Judge Darrin P. Gayles of the U.S. District Court for the Southern District of Florida denied the Respondents' Motion to Dismiss the case, Farah IBRAHIM, Ibrahim MUSA, Khalid Abdallah MOHMED, Ismail JIMCALE ABDULLAH, Abdiwali Ahmed SIYAD, Ismael Abdirashed MOHAMED, and Khadar Abdi IBRAHIM, on behalf of themselves and all those similarly situated, Plaintiffs/Petitioners, v. Juan ACOSTA, Assistant Field Officer Director, Miami Field Office, Immigration and Customs Enforcement; David HARDIN, Sheriff of Glades County; Marc J. MOORE, Field Office Director, Miami Field Office, Immigration and Customs Enforcement; Thomas HOMAN, Acting Director, Immigration and Customs Enforcement; Kirstjen NIELSEN, Secretary of Homeland Security, Defendants/Respondents, Case No. 17-cv-24574-GAYLES (S.D. Fla.). There are approximately 4,800 Somali nationals with outstanding orders of removal who live in the United States. For decades, Somali nationals were seldom removed from the United States, in large part due to Somalia's lack of a functioning central government. Instead, Somali nationals with final removal orders -- including some of the Petitioners -- were placed under Orders of Supervision ("OSUPs"). The OSUPs authorized Somali nationals to remain in the United States and seek employment, provided they complied with periodic check-in requirements and other conditions of release. Until recently, only a small fraction of the Somali nationals with outstanding removal orders were ever actually removed to Somalia. However, in 2017, following a change in policy, United States Immigration and Customs Enforcement ("ICE") began deporting Somalis with increased frequency. On Dec. 7, 2017, ICE agents attempted to deport the Petitioners to Somalia. The Petitioners were bound and shackled and placed on a chartered airplane departing from a Louisiana detention center. The flight landed in Dakar, Senegal, for refueling. While accounts differ as to whether the plane remained grounded due to mechanical or crew-rest issues, it is not disputed that the plane remained grounded at the Dakar airport for approximately 23 hours. For unclear reasons, the flight could not continue to Somalia and was forced to return to the United States. On Dec. 9, 2017, the plane landed in Miami, Florida. The Petitioners remained bound and shackled for the entirety of the 48-hour trip, including the 23-hour holdover in Senegal. Upon landing in Miami, some Petitioners were taken to the Krome Service Processing Center while others were placed in the Glades County Detention Center, where they remain detained. The Petitioners allege they were subjected to inhumane conditions and egregious abuse as the plane sat on the runway in Senegal. They were left to urinate on themselves when the plane's lavatories overfilled with human waste. In addition, they allege that ICE agents and/or government contractors physically assaulted them and subjected them to verbal abuse and threats. The Petitioners assert that their immigration circumstances have changed based on the escalation of Al-Shabaab-related violence in Somalia and the government's failed attempt to repatriate them to Somalia. They further contend that the international news attention surrounding the botched deportation flight have exacerbated the changed circumstances that make their return to Somalia unsafe. The Petitioners propose to represent a class that would include the 92 Somali men and women present on the December 7th deportation flight, as well as all Somali nationals with final orders of removal within the jurisdiction of the Miami ICE Field Office. They seek to reopen their removal cases to assert claims for asylum, withholding of removal, or relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment based on new circumstances that did not exist at the time their initial removal orders were entered. They argue that if they are removed prior to the filing and adjudication of motions to reopen, their ability to seek meaningful relief will effectively be foreclosed. The Petitioners filed this habeas petition pursuant to 28 U.S.C. Section 2241 and 28 U.S.C. Section 1331, raising claims under the Immigration and Nationality Act ("INA"), the Convention Against Torture, and the Due Process Clause of the Fifth Amendment of the United States Constitution, and seeking temporary stays of their removal. They seek to stay their removals until they have meaningful opportunities to move to reopen their immigration cases based on changed circumstances and have their cases heard. Before the Court is the Respondents' Motion to Dismiss for Lack of Subject Matter Jurisdiction. On Dec. 18, 2017, the Petitioners filed their Class Action Complaint and Emergency Motion for Temporary Restraining Order and/or Stay of Removal ("Motion"). The Court held an emergency hearing on Dec. 19, 2017. At the hearing, the government posited that the Court lacked subject-matter jurisdiction over the action. The Court ordered jurisdictional briefing and, on Jan. 8, 2018, heard argument on the jurisdictional issue. While the Court recognizes that the executive branch has broad discretion to carry out removal orders, Judge Gayles finds that the Court has jurisdiction in the case to prevent an unlawful exercise of that discretion against these specific Petitioners. As applied in these circumstances, the jurisdictional bar in 8 U.S.C. Section 1252(g) would preclude the Petitioners from raising their new legal claims in a manner which comports with the law, in violation of the Suspension Clause. Therefore, he finds that the jurisdiction stripping provisions of the REAL ID Act are unconstitutional as applied to the Petitioners, based on the extraordinary circumstances of the case, because it suspends their right to habeas relief without providing an adequate and effective alternative. Therefore, the Judge concludes that it has subject-matter jurisdiction. Accordingly, Judge Gayles denied the Respondents' Motion to Dismiss. The Respondents are temporarily enjoined from removing the Petitioners from the United States until the Court issues an Order on the Motion for Temporary Restraining Order, which the Court now construes as a Motion for Preliminary Injunction. The terms of the Court's Orders Staying Removal will remain in effect until further order of the Court. The parties will appear before the Court on Feb. 1, 2018, at 10:00 a.m. for a Status Conference. They will be prepared to discuss a briefing schedule on the merits of the Motion for Class Certification and Motion for Preliminary Injunction. Pursuant to Rule 65(a)(2), they will also be prepared to discuss whether the Court should consolidate a trial on the merits with the hearing on the Motion for Preliminary Injunction. A full-text copy of the Court's Jan. 26, 2018 Order is available at https://is.gd/ShJH8Q from Leagle.com. Farah Ibrahim, Ibrahim Musa, Khalid Abdallah Mohmed, Ismail Jimcale Abdullah, Abdiwali Ahmed Siyad, Ismael Abdirashed Mohamed & Khadar Abdi Ibrahim, on behalf of themselves and all those similarly situated, Plaintiffs, represented by Andrea Nahra Crumrine -- acrumrine@aijustice.org -- Americans for Immigrant Justice, Andrea Montavon-McKillip -- amontavon@legalaid.org -- Legal Aid Service of Broward County, Inc., Benjamin Richard Casper -- caspe010@umn.edu -- James H. Binger Center for New Americans, Lee Gelernt, America Civil Liberties Union, pro hac vice, Lisa M. Berlow-Lehner -- llehner@aijustice.org -- Americans for Immigrant Justice, Michele Garnett McKenzie, The Advocates for Human Rights, pro hac vice & Rebecca Ann Sharpless -- rsharpless@law.miami.edu -- University of Miami School of Law Immigration Clinic. Assistant Field Office Director, U.S. Immigration and Customs Enforcement, Juan Acosta, Field Office Director, U.S. Immigration and Customs Enforcement, Miami Office, Marc J. Moore, Acting Director, U.S. Immigration and Customs Enforcement, Thomas Homan & Secretary of Homeland Security, Kirstjen Nielsen, Defendants, represented by Dexter Lee, United States Attorney's Office, Sheetul S. Wall, U.S. Department of Justice Office of Immigration Litigation & Anthony D. Bianco, U.S. Department of Justice Civil Division Office of Immigration Litigation. Sheriff of Glades County, David Hardin, Defendant, represented by Dexter Lee, United States Attorney's Office & Anthony D. Bianco, U.S. Department of Justice Civil Division Office of Immigration Litigation. UNITED STATES: Court Denies Limpin's Request for Counsel -------------------------------------------------------- In the case, MELCHOR KARL T. LIMPIN, et al., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant, Case No. 17-CV-1729-JLS (WVG) (S.D. Cal.), Judge Janis L. Sammartino of the U.S. District Court for the Southern District of California denied without prejudice the Plaintiff's Motion Requesting Appointment of Counsel Pursuant to 28 U.S.C. Section 1915(e)(1). In support of his request for counsel, the Plaintiff reiterates the allegations of his Complaint. The Plaintiff asserts he will likely prevail on the merits of his claims for various reasons. He asserts he requires counsel for the complexity of legal issues involved in this suit such as pursuing preliminary and declaratory relief injunctions. He also alleges this case requires development of further facts and he cannot do this easily given his pro se and indigent status. Judge Sammartino finds that the Plaintiff has not satisfied the standards for appointment of counsel under 28 U.S.C. Section 1915(e)(1). First, the Plaintiff's success on the merits is still unclear at the early stage of litigation. The Defendant has filed a motion to dismiss his complaint; this motion has not yet been opposed nor ruled upon, thus, the Judge cannot at this time determine the Plaintiff's likelihood of success on the merits. Second, in the present Motion, the Plaintiff demonstrates his ability to articulate his claims. The Plaintiff provides an in-depth analysis of legal authority that he believes support his allegations. The Plaintiff has also successfully filed a Complaint (along with various accompanying motions), has been granted permission to proceed in forma pauperis, and has even filed a petition for permission to appeal the Court's order denying class action certification. The Judge finds that neither the interests of justice nor any exceptional circumstances warrant appointment of counsel at this time, and denied the Plaintiff's motion. The denial is without prejudice should the Plaintiff later be able to make the requisite showing of exceptional circumstances. A full-text copy of the Court's Jan. 26, 2018 Order is available at https://is.gd/XQcvuK from Leagle.com. United States of America, Defendant, represented by Hans Chen, U.S. Department of Justice, Civil Division & Caroline Clark Prime, U S Attorney's Office. UNITED STATES: Court Dismisses "Rohland" Suit --------------------------------------------- Judge Margaret M. Sweeney of the U.S. Court of Federal Claims granted the Defendant's motion to dismiss the case, WILLIAM J. ROHLAND, Plaintiff, v. THE UNITED STATES, Defendant, Case No. 17- 1175C (Fed. Cl.). The Plaintiff is currently serving a life sentence in Pennsylvania state prison. His sentence was imposed in October 2007, and he has been incarcerated since approximately June 2006. He has unsuccessfully sought federal habeas relief on the basis of an allegedly defective sentencing order. The Plaintiff, on behalf of himself and unnamed others, filed his complaint in the instant action on Aug. 30, 2017. He complains of conduct by various individual federal and state actors and the federal government generally. Attached to the complaint was an "Affidavit of Fact" in which he alleges that Judge Saparito, by stipulation and process, admitted to having violated Article IV and Amendments Four, Five, Six, Eight, and Fourteen of the United States Constitution. He further alleges therein that Judge Saparito waived any immunity he might have based on his lack of attempt to preserve and defend his temporal limit. The Plaintiff contends that Judge Saparito's actions in not effecting payment of the $1 billion owed to him amount to a breach of the settlement agreement and thus the use, trespass, and destruction of the Plaintiff's private res. Further, he avows that Judge Saparito failed in his fiduciary duty to protect him against kidnapping perpetrated by the Pennsylvania Department of Corrections, and that Judge Saparito and Chief Judge Conner conspired to deny him an absolute, plain course at law in his 2017 habeas action. According to the Plaintiff, the alleged breach of the settlement agreement amounts to a Fifth Amendment taking by the government. The "res" to which he makes repeated references as being illegally taken is ostensibly composed of his patents, trust, droits, intellectual property, work products, and marks. He lists the following Defendants in his action on the second page of his complaint: Michael Fedor of the Pennsylvania Treasury Bureau of Unclaimed Property; Pennsylvania State Treasurer Joe Torsella; United States Attorney General Jeff Sessions, United States Secretary of the Treasury Steven Terner Mnuchin; Mr. Kauffman; Robert Monahue, Krisandra Capozzi, and Frank Capozzi (the three named Defendants in Capozzi); Judge Saparito; Chief Judge Conner; and the United States federal government. After filing the complaint, the Plaintiff filed separate motions for class certification, a jury trial, and leave to proceed in forma pauperis. In an Oct. 12, 2017 Opinion and Order, the Court granted the Plaintiff's motion for leave to proceed in forma pauperis, denied his motion for a jury trial due to the "nonexistence of jury trials" in the Court of Federal Claims, and reserved ruling on his motion for class certification pending a response from the Defendant. The Defendant has subsequently moved for dismissal for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims ("RCFC") and, alternatively, for failure to state a claim upon which relief can be granted pursuant to RCFC 12(b)(6). The Plaintiff failed to respond to the Defendant's motion despite being granted a sua sponte extension to do so. Judge Sweeney has considered all of the parties' arguments. To the extent not discussed, they are unpersuasive, without merit, or immaterial. She finds that the Plaintiff has failed to meet his burden of demonstrating that the Court has subject matter jurisdiction over any of his claims. In any event, the Plaintiff's claims before the Court are so insubstantial, implausible, foreclosed by prior decisions, or otherwise completely devoid of merit as not to involve a federal controversy. She also finds that Court lacks jurisdiction to (1) entertain claims against parties other than the federal government, (2) review the decisions of state courts and other federal courts, (3) entertain plaintiffs constitutional claims, (4) entertain claims sounding in tort, and (5) entertain previously filed claims that are pending in another court. Further, although the Court of Federal Claims has jurisdiction to entertain contract, takings, and patent claims generally, the Plaintiff has failed to state a claim upon which the Court can grant relief. Therefore, Judge Sweeney granted the Defendant's motion to dismiss for lack of subject matter jurisdiction, and denied as moot the Defendant's motion to dismiss for failure to state a claim upon which relief can be granted. She also denied as moot all other pending motions. The Plaintiff's complaint is dismissed without prejudice. No costs. The clerk is directed to enter judgment accordingly. A full-text copy of the Court's Jan. 26, 2018 Opinion and Order is available at https://is.gd/F7cVLR from Leagle.com. UNITED STATES: Court Grants $160M Settlement in "Haggart" Suit -------------------------------------------------------------- In the case, DANIEL and KATHY HAGGART, et al., For Themselves and As Representatives of a Class of Similarly Situated Persons, Plaintiffs, v. UNITED STATES, Defendant, Case No. 09-103L (Fed. Cl.), Judge Charles F. Lettow of the U.S. Court of Federal Claims granted the Class Counsel's Motion for Approval of the Settlement. The action concerns land previously held as a right-of-way by Burlington Northern and Santa Fe Railway Company in the State of Washington. That right-of-way was converted into a recreational trail pursuant to Section 208 of the National Trails System Act Amendments of 1983. In February 2009, the Plaintiffs filed a complaint alleging that this conversion constituted a taking of their property without just compensation. A class of 521 members, owning 659 parcels of land, was initially certified, and then split into six subclasses. The Court then ruled on cross-motions for summary judgment, finding the government liable to certain class members within Subclass Two and Categories A through D of Subclass Four while also granting the government summary judgment as to class claimants in Subclass Four, Category E. In all other respects, summary judgment was denied: The Court reserved some questions of ownership for trial, did not address liability for Subclasses One, Three, Five, or Six, and did not address issues of valuation. Starting in April of 2013, the parties engaged in extensive mediation with Senior Judge John Weise, eventually reaching a settlement in February 2014. Of the 521 claimants and their 659 parcels of land, the settlement would dismiss the claims of 268 class members and their corresponding 343 parcels, without compensation, and then pay $110 million to the remaining 253 class members as just compensation for the alleged taking of their 316 parcels, plus interest, attorneys' fees, and litigation costs. The Court held a fairness hearing in March 2014, approved the settlement, and entered final judgment. In so doing, the Court awarded attorneys' fees to class counsel through a common fund. An appeal of the Court's final judgment was sought by Mr. and Mrs. Woodley as class members. Although receiving just compensation under the settlement, the Woodleys challenged the Court's approval of the settlement on the ground that the class counsel had not provided information in written form that would enable class members to cross-check calculations of the settlement amount to be received by them individually. They also challenged the award of attorneys' fees based on a common fund. In the appeal, the government abandoned the position it had taken at the fairness hearing and supported the Woodleys, but it did not itself file an appeal or raise any additional issues on appeal. The Federal Circuit vacated the approval of the Settlement Agreement on the ground that sufficient information in written, as contrasted to oral, form had not been provided to enable the Woodleys and class members generally to comparatively calculate their individual awards, and reversed the Court's award of attorneys' fees under the common-fund doctrine. The case was remanded for further action by the Court. The Court denied the government's motion. After the parties' remand-oriented motions practice had abated, on Aug. 11, 2017, the Plaintiffs filed a motion for approval of the settlement. The government responded in opposition, objecting to the Settlement Agreement on the grounds it had raised in its prior post-remand motions. On Sept. 25, 2017, the Court issued a revised draft notice, proposing changes to the draft notice that had been submitted by class counsel. Its draft was issued in advance of a hearing held on Oct. 20, 2017, at which further revisions and objections to the notice were considered. After incorporating additional changes suggested by the parties to the proffered notice and addressing the objections raised by the government at that hearing, the Court preliminarily approved the settlement, scheduled a fairness hearing, prescribed the notice to be issued to the class, and ordered class counsel to provide notice of both the settlement and the fairness hearing to class members. The fairness hearing was held on Dec. 18, 2017 in Seattle, Washington, to enable as many class members as possible to attend and participate in the proceedings. Judge Lettow finds that the numerous objections raised by the government to the fairness of the Settlement Agreement are ultimately unconvincing, whether considered individually or taken together. The government objects to any modification to the settlement, claiming that a modified agreement would cease to be binding upon the government and would require a return to negotiations. The Judge says he simply cannot satisfy this objection in a way that is fair to the rest of the class. Overturning the entire Settlement Agreement to rectify an admitted mutual mistake by the parties would be grossly unfair to the class. So, while the mistaken inclusion of the three class members is unfortunate, he will not make any changes to the Agreement but will retain the three class members in the group to receive awards. The government also objects to the fairness of the Settlement Agreement due to three separate agreements entered between class counsel and four class members: the Woodleys, Faramarz Ghoddoussi, Westpoint Properties, LLC, and Annop Chaipatanapong. The Judge finds that because these separate agreements do not affect the terms of the Settlement Agreement itself and have been fully disclosed and addressed extensively at the fairness hearing, he has considered them comprehensively and concludes that they do not render the Settlement Agreement unfair. Judge Lettow rejects the government's objections to the contingent fee agreements because the class members have been fully informed as to the agreements, as shown both by the renewed notice to the class and in commentary at the fairness hearing. At the fairness hearing, after discussion of the contingent fee agreements, many of the class members commented, noting their approval of the fee arrangements and expressing their concern that class counsel has not been paid despite eight years of work. The sentiment among class members in attendance was not that class counsel would be overpaid or that the class members were being treated unfairly, but rather that the government was seeking to use the issue of contingent fee agreements to stall and work against class members' interests. Finally, as to the government objection to any use of RCFC 54(b) to bifurcate the judgments in the case, separating attorneys' fee determinations from the approval of the Settlement Agreement, the Judge does not find any just reason for delay. The government has made evident that it intends to appeal. Efficiency therefore favors addressing fees and merits separately because attorneys' fees will continue to accumulate through the appeal, which would then necessitate multiple, redundant proceedings. For the reasons stated, Judge Lettow granted the Class Counsel's Motion for Approval of the Settlement. He directed the clerk to enter judgment in the total amount of $159,636,521.65, consisting of $110,000,000 in principal and $49,636,521.65 in interest as of December 18, 2017, for prevailing class members. Interest continues to accrue at the rate of 4.2%, compounding annually from the dates of the taking, Oct. 27, 2008 and Nov. 25, 2008, until the date of payment by the government. The judgment is payable to the class counsel for distribution to the class according to the terms of the Settlement Agreement and the Opinion and Order. The final judgment to this effect will be entered under Rule 54(b) of the Rules of the Court of Federal Claims because there is no just reason for delay. The clerk will issue judgment in accord with this disposition. After all proceedings respecting this settlement have been completed and the Court's judgment is final, the Court will address attorneys' fees and expenses under Section 304(c) of the Uniform Relocation Act, 42 U.S.C. Section 4654(c). A full-text copy of the Court's Jan. 26, 2018 Opinion and Order is available at https://is.gd/fvQMjw from Leagle.com. DANIEL HAGGART, AND & KATHY HAGGART, Husband and Wife, For Themselves and As Representatives of a Class of Similarly Situated Persons, Plaintiffs, represented by Thomas Scott Stewart -- Stewart@swm.legal -- Stewart Wald & McCulley LLC. SUBCLASS TWO PLAINTIFFS, Plaintiff, Pro Se. SUBCLASS FOUR PLAINTIFFS, Plaintiff, Pro Se. GORDON ARTHUR WOODLEY, Personal Counsel for Kittinger Deed Claimants & DENISE L. WOODLEY, Plaintiffs, represented by David Charles Frederick, Kellogg, Hansen, et al. WESTPOINT PROPERTIES, LLC, C/O FARAMARZ GHODDOUSSI, Plaintiff, represented by Richard Browning Sanders, Goodstein Law Group. CLEVELAND SQUARE, LLC, RC TC MERIDIAN RIDGE, LLC, TWOSONS LLC, GRETCHEN CHAMBERS, DENNIS CRISPIN, DEBLOIS PROPERTIES, LLC, c/o David and Debra Deblois, STAR L. EVANS, MICHAEL B. JACOBSEN, FRANCES JANE LEE, SUSAN B. LONG, CLAUDIA MANSFIELD, FREDERICK P. MILLER, SUSAN L. MILLER, PBI ENTERPRISES, LLC, MICHAEL G. RUSSELL, ELANA RUSSELL, JAMES M. SATHER, KELLY J. SATHER, JAMES E. STRANG, D. MICHAEL YOUNG, JULIA H. YOUNG, MOLLY A JACOBSEN, LESLIE MILSTEIN, ALISON L. WEBB & PATRICIA STRANG, Plaintiffs, represented by Michael R. Scott -- michael.scott@hcmp.com -- Hillis Clark Martin & Peterson P.S. WILLIAM AMES, Plaintiff, Pro Se. USA, Defendant, represented by Lucinda J. Bach, U.S. Department of Justice. UNITED STATES: Feb. 16 Deadline for "Schneider" Case Mngt Plan -------------------------------------------------------------- In the cases, WILLIAM SCHNEIDER, et al., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. PAUL F. SEFER, et al., Plaintiffs, v. UNITED STATES OF AMERICA, and RAILS-TO TRAILS, Conservancy, Defendant. LAZY HORSE RANCH, et al., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. TIMOTHY M. GRAY, et al., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant, Case Nos. 8:99CV315, 4:99CV3056, 4:99CV3154 (D. Neb.), Magistrate Judge Michael D. Nelson of the U.S. District Court for the District of Nebraska has entered an order regarding the parties' detailed case management plan following decertification. Pursuant to the Court's Order Granting the parties' Joint Motion to Decertify the Class Action and Approving the Parties' Notice Plan, the case has now been decertified as a class action and all individual claimants should have been identified. The parties anticipated submitting a detailed case management plan following decertification. Accordingly, Magistrate Judge Nelson ordered that on or before Feb. 16, 2018, the parties will file a status report and detailed case management plan with the Court, containing, at a minimum, the following information: (i) the status of the required declassification notices and any individual claimants that sought joinder; (ii) whether the Plaintiffs will request leave to file an amended complaint; (iii) the need for additional discovery; (iv) anticipated dispositive motion deadlines; and (v) readiness to set a trial date(s). Upon the Court's receipt of the status report and detailed case management plan, a planning conference will be set by telephone with the undersigned magistrate judge to discuss case progression through a trial date. A full-text copy of the Court's Jan. 26, 2018 Order is available at https://is.gd/TW5ncM from Leagle.com. Paul F. Seger, Plaintiff, represented by Andrew W. Cohen, OFFICE OF U.S. SENATOR EDWARD J. MARKEY, Ann D. White, ANN D. WHITE LAW OFFICES, Boyd W. Strope, STROPE, GOTSCHALL LAW FIRM, Cecilia Fex -- fex@ackersonlaw.com -- ACKERSON, KAUFFMAN LAW FIRM, Howard J. Sedran -- hsedran@lfsblaw.com -- LEVIN, FISHBEIN LAW FIRM, Jeffrey Klafter , BERNSTEIN, LITOWITZ LAW FIRM, Marc H. Edelson, HOFFMAN, EDELSON LAW FIRM, Max W. Berger -- mwb@blbglaw.com -- BERNSTEIN, LITOWITZ LAW FIRM, Michael B. Hyman, MUCH, SHELIST LAW FIRM & Stephen D. Mossman , MATTSN, RICKETTS LAW FIRM. Karen M. Seger, Douglas W. Matschullat & Helen Sue Matschullat, Plaintiffs, represented by Andrew W. Cohen, OFFICE OF U.S. SENATOR EDWARD J. MARKEY, Ann D. White, ANN D. WHITE LAW OFFICES, Boyd W. Strope, STROPE, GOTSCHALL LAW FIRM, Howard J. Sedran, LEVIN, FISHBEIN LAW FIRM, Jeffrey Klafter, BERNSTEIN, LITOWITZ LAW FIRM, Marc H. Edelson HOFFMAN, EDELSON LAW FIRM, Max W. Berger, BERNSTEIN, LITOWITZ LAW FIRM, Michael B. Hyman, MUCH, SHELIST LAW FIRM & Stephen D. Mossman, MATTSON, RICKETTS LAW FIRM. David Schwaninger & Dewane Spilker, Plaintiffs, represented by Andrew W. Cohen, OFFICE OF U.S. SENATOR EDWARD J. MARKEY, Cecilia Fex, ACKERSON, KAUFFMAN LAW FIRM, Daniel J. Millea -- dmillea@zelle.com -- ZELLE, HOFMANN LAW FIRM, Eric E. Caugh -- ecaugh@zelle.com -- ZELLE LAW FIRM, pro hac vice & Stephen D. Mossman, MATTSON, RICKETTS LAW FIRM. United States of America, Defendant, represented by Laurie A. Kelly -- laurie.kelly@usdoj.gov -- U.S. ATTORNEY'S OFFICE & Luther L. Hajek, U.S. DEPARTMENT OF JUSTICE - ENVIRONMENT & NATURAL RESOURCES. Rails-to-Trails, Conservancy, Defendant, represented by Richard A. Allen -- raallen@zsrlaw.com -- ZUCKERT, SCOUTT LAW FIRM, pro hac vice. William Schneider, Intervenor, represented by Cecilia Fex, ACKERSON, KAUFFMAN LAW FIRM, Eric E. Caugh, ZELLE LAW FIRM, pro hac vice & Stephen D. Mossman, MATTSON, RICKETTS LAW FIRM. US STEEL: Seeks Dismissal of Donora Zinc Works Lawsuit ------------------------------------------------------ Gideon Bradshaw, writing for Observer-Reporter, reports that it's up to a Washington County judge to decide whether a group of Mon Valley property owners can proceed with their lawsuit against U.S. Steel Corp. over the Donora Zinc Works' alleged legacy of heavy metal contamination. Judge Michael J. Lucas heard arguments on the company's motion for summary judgment, seeking dismissal of the civil complaint. His ruling is pending. The property owners who brought the suit allege the zinc works -- which U.S. Steel subsidiary American Steel & Wire operated from 1915 to 1957 -- emitted fine particles of hazardous substances including zinc, cadmium, lead and arsenic that now must be removed through professional remediation. In one among a number of arguments U.S. Steel's lawyers made in requesting the dismissal, they pointed to the statute of limitations on the lawsuit's claim under the Hazardous Sites Cleanup Act. The state law allows parties to bring a civil action within 20 years of discovering the release of a hazardous substance. The steelmaker's attorneys allege that period lapsed decades ago, pointing to a report prepared the year after a temperature inversion trapped heavily polluted air in the valley around Donora, killing at least 20 people and leaving thousands more ill. "Here, the release of arsenic, cadmium, zinc and lead was discovered at the latest in 1949 when the United States Public Health Service released its final report describing the emissions and reporting on the findings of such emissions in air sampling data," attorney Kathy Condo, Esq. -- kcondo@babstcalland.com -- wrote in a filing. Lawyers for plaintiffs Louise Kowall and Evelyn Vehouc, both of Donora, and Donna Kopecek of Charleroi, whose child and grandchildren live in a home she owns in Donora, argued the suit should proceed. "The fact that this risk began many years ago, but has never been fully understood, does not eliminate plaintiffs' rights," attorney Michael Jacks, Esq. -- mike@jackslegal.com -- wrote in another filing. The lawsuit names U.S. Steel and USX Corp. -- the name the company adopted from 1986 to 2001 before reverting to the previous one -- as defendants. It seeks designation as a class action, with the named plaintiffs as proposed class representatives. It cites a study published in March that reportedly found "elevated levels of hazardous materials including arsenic, lead, cadmium and zinc" in soil seven miles from the zinc works, specifically attributed to the former mill. U.S. Steel's lawyers also asserted the other three claims in the lawsuit -- negligence, nuisance and trespass -- are also barred by a two-year statute of limitations because the plaintiffs "knew of the alleged contamination on their property more than two years prior to filing the lawsuit on July 7, 2017." Condo's filing noted Jacks discussed soil sampling with the local historical society in March 2015 and sought permission from property owners the following month to conduct sampling on their property. He provided a toxicologist's expert report and sampling data to the plaintiffs, who weren't his clients at the time, in September 2015. Condo argued it wasn't necessary for the plaintiffs to have the expert opinion to trigger the two-year window on bringing those claims. She also pointed to "widely known and available" information about the source of the alleged emissions dating back to lawsuits that garnered publicity in the 1930s. Jacks maintained the various historical materials she cited wouldn't have alerted his clients to the contamination in their properties, or to the former zinc works as the alleged source. For his clients, he wrote, "the problem of hidden and dangerous heavy metals lingering on their topsoil and in dust in their homes was a problem totally unknown to them until, at the earliest, testing and analysis showed there to be a potential problem in September 2015 and, more likely, until those analyzed results were linked to the smelter by the March 2017 article." [GN] WEST WIND: Fond-du-Lac Plane Crash Survivors File Class Action -------------------------------------------------------------- Lyle Adriano, writing for Insurance Business Mag, reports that the survivors of the Fond-du-Lac plane crash have filed a lawsuit against airline West Wind Aviation, claiming that the company violated safety protocols. The lawsuit also named Athabasca Basin Development, a company which owns a 65% share of the airline, as a defendant. The court document, filed late last month by Merchant Law Group, claims that the airline traumatized passengers who were allegedly left to fend for themselves. Claims made by the lawsuit include general, special exemplary and punitive damages, as well as costs and "other relief the court may allow," the documents said. As of January 29, none of the claims detailed in the lawsuit have been tested in court, Prince Albert Daily Herald reported. The statement of claim said that passengers were forced to wait to board the plane outdoors on a cold runway, additionally alleging that the airline took no steps to de-ice the runway and plane. Moments after take-off, the airplane suddenly suffered a malfunction and subsequently crashed. The passengers allegedly did not receive any direction or instructions from pilots or flight staff during the crash, the claim read. The lawsuit also said that there was no warning from the pilot or flight staff that the plane experienced problems during the crash. Injuries to the passengers listed by the suit include broken vertebrae, pelvis, arms, ribs, ankles, noses, other broken and fractured bones, punctured lungs and internal bleeding, facial injuries and lacerations, death, PTSD and severe emotional stress. Some claimants also suffered mental shock and distress as a result of the disaster. The airline has issued a response following the lawsuit. "We are hearing that legal proceedings may be initiated. If this does come to pass, we certainly will respect the legal process and its due diligence processes," West Wind vice-president of business development and corporate services Dennis Baranieski told CBC. [GN] WILLIAM K'S: Ex-Workers' Minimum Wage Class Action Pending ---------------------------------------------------------- Phil Fairbanks, writing for The Buffalo News, reports that in mid-December, during a radio interview, Gov. Andrew M. Cuomo declared his opposition to New York's lower minimum wage for restaurant workers and said it exploits immigrants and women. A month later, in his State of the State address, Mr. Cuomo followed up by ordering public hearings into the so-called "tip credit" and suggested again it was an issue of "fairness and decency." But while Mr. Cuomo was doing that, lawmakers at Buffalo City Hall were taking a far different path. At the urging of a waterfront restaurant owner, the Common Council voted to create a new, lower minimum wage for restaurant workers who were previously entitled to the city's much higher living wage. Even more important, perhaps, the lower hourly wage -- it dropped from $13.06 to $7.50 -- was adopted as some of those same workers sought the higher living wage from their employer, William K's restaurant, which contracts with the city. Six of those workers are now suing the restaurant and its owners, Molly and William Koessler, in Buffalo federal court. "I naively sat around and waited for her to make it right," said Katie Lane, a former server at William K's. "I also thought, 'What can I do?' " Ms. Lane and five other workers are suing the Koesslers in an effort to collect $75,000 in back pay they believe is owed to them. The workers claim in their civil suit that, as a contractor for the city, William K's was required to pay Buffalo's living wage, but never did. "I wasn't even making as much as the kid scooping ice cream next door," said Chris Keroack, a former server at the Erie Basin Marina restaurant near The Hatch. Mr. Keroack and Lane said they knew nothing about the higher minimum wage until the city's Living Wage Commission alerted them to discrepancies in their pay. The commission also informed the Koesslers of their obligation to pay the higher minimum wage of $13.06 an hour and reminded them that, unlike state law, there was no "tips" exemption in Buffalo's living wage ordinance. Workers say the restaurant didn't budge and, in December 2016, Molly Koessler appeared at a commission hearing and told members she had asked Mayor Byron W. Brown for "assistance." Two weeks later, with the dispute still unsettled, the commission recommended the Koesslers make restitution to their workers. The panel also warned them that, if they failed to do so, it would recommend that City Hall end its contract with the restaurant. The city's response was to change the law, not enforce it. "The State of New York is moving to protect restaurant workers and the City of Buffalo is moving backward," said Nicole Hallett, director of the Community Justice Clinic at the University at Buffalo School of Law. Ms. Hallett doesn't know why the Council did what it did, or if the Koesslers' played a role in influencing Brown or the Council. The mayor declined to comment. "It wasn't intended to hurt anyone," said Niagara Council Member David Rivera. "The whole idea was to make sure everyone earned a wage they could live on." Mr. Rivera, who sponsored the legislation that led to the lower minimum wage, expressed surprise when told about its impact on workers at William K's. He also wasn't aware of Mr. Cuomo's proposal to do away with the tip credit -- which allows a lower minimum wage for workers who earn tips -- and he left the door open to adopting a similar change in Buffalo's ordinance. "There's no perfect law," he said. "If there's a better way to protect the workers, I'm open to it." Despite its enforcement actions against William K's, the Living Wage Commission took no position on the creation of a new lower minimum wage for restaurant workers covered by the ordinance. The commission, in a statement explaining its position, said the changes were viewed "as a reasonable way to resolve the question of how to handle tipped workers -- something that the original drafters of the law were not likely to have considered, as it is an unusual situation for a living wage law to apply to tipped workers." The civil suit filed by the six former workers at William K's is not the only federal court case against the Koesslers. A class action suit by about 25 former banquet servers at Acqua and other Koessler restaurants claims the owners charged a 20 percent "service charge" on all banquet bills but did not share the money with servers. In 2016, U.S. Magistrate Judge Leslie G. Foschio denied the Koesslers' motion to dismiss the case. In their motion, the Koesslers argued that the 20 percent fee was a service charge, not tip income for the servers. Their lawyers also said in court papers, "Documentary evidence also shows that the named plaintiffs were paid an hourly wage well in excess of the amount required under New York minimum wage law." Lawyers for the Koesslers declined to comment further on the two suits and the Koesslers did not respond to requests for comment.. The latest William K's lawsuit came on the heels of Cuomo's announced opposition to continuing New York's tip credit. In his State of the State, the governor referred to widespread abuses by tipping-related businesses such as restaurants and car washes. He also noted that 70 percent of all tipped workers are women and that African-American workers are tipped less than white workers. Advocates for a change in the law also point to research showing that tipping practices lead to a higher rate of sexual harassment in the workplace. "There's a lot of abuse in the restaurant business," said Ms. Hallett. She said the UB clinic took on the William K's suit because of those well-documented abuses. She also thinks it raises questions about the city's priorities -- workers or business -- and how it spends taxpayers' money. The lawsuit claims the city, which leases the site to the Koesslers, invested $900,000 in the waterfront venue over the years. In return for that investment and a contract to operate there, there was an expectation the owners would pay a living wage, not the lower minimum wage, Ms. Hallett said. "By making it lower for servers, the city took a step in the wrong direction," said Genevieve Rados, a law student representing the workers. Ms. Lane and Mr. Keroack said they never knew they were entitled to the higher living wage and that it's clear now that the Koesslers kept that from them. "I've always been a waitress and always earned $7.50 an hour," said Lane. "I didn't question it." [GN] * Employers Face Wave of Background Check-Related Class Actions --------------------------------------------------------------- Roy Maurer, writing for Society for Human Resource Management, reports that organizations that conduct pre-employment background checks in 2018 will need to focus on compliance in the wake of increased class-action litigation and adapt to screening more workers in nontraditional employment relationships. FCRA Class-Action Lawsuits Will Continue Employers faced a wave of class-action lawsuits alleging technical violations under the Fair Credit Reporting Act (FCRA) -- like failure to provide notice to applicants in a stand-alone format and getting written permission before running a background check -- in 2017. That's even after the 2016 U.S. Supreme Court ruling in Spokeo v. Robins holding that plaintiffs must prove "concrete injury" in class-action lawsuits under the FCRA. The Supreme Court stated in its opinion that plaintiffs could not allege procedural violations, "divorced from any concrete harm," which requires an injury to be "actual or imminent, not conjectural or hypothetical." But instead of clearing up the issue, the court's decision to send the case back to the Ninth Circuit Court of Appeals to determine whether the plaintiff in the case suffered real harm has led to confusion among courts across the country. "Lower courts have continued to allow plaintiffs access to federal courts with a simple allegation of a bare procedural violation or technical inaccuracy, resulting in forum-shopping by plaintiffs for the court most likely to rule in their favor," said Melissa Sorenson, executive director of the National Association of Professional Background Screeners (NAPBS). "The impact of these decisions, post Spokeo, is the encouragement of FCRA, data breach and other privacy-related class-action litigation where no evident harm is yet suffered by plaintiffs," said Vu Do, vice president of compliance at PreCheck, a leading background screening provider for the health care industry. There are numerous ways that an employer can be sued for technical violations, explained Robert Drusendahl, president of The Pre-Check Company, a screening firm in Westlake, Ohio. "For example, presenting an indemnification of liabilities at the same time as an applicant release can be construed as too confusing, leading to a claim. Or, just a statement by the job applicant that receipt of a post-adverse action letter preceded a pre- adverse action letter can lead to a claim," he said. "It's important to understand that Spokeo established a threshold, but not a barrier to litigation," said Henry Chalmers -- henry.chalmers@agg.com -- co-chair of the litigation group at law firm Arnall Golden Gregory in Atlanta. "Even in a favorable interpretation of Spokeo for employers, there are still situations in which plaintiffs could have a viable claim for violations of the FCRA based on disclosures and authorization forms. Pivot points seem to be whether the plaintiffs allege that they had a negative employment outcome as a result of the background check, or whether they would have acted differently if they had received what they would argue is a compliant disclosure form." The Supreme Court will take the Spokeo case up again later this year after the Ninth Circuit found that the plaintiff in the case did have standing to sue. But regardless of the ultimate decision, employers must remain vigilant in complying with even the finer points of the FCRA. "In no way did the Supreme Court decision in the Spokeo case mean employers could relax obligations for FCRA compliance and it did not mean employers had the right to ignore the technicalities of the FCRA," explained Les Rosen, an attorney and the CEO of Employment Screening Resources, a background screening firm based in the San Francisco area. "Employers will always need to ensure that they are in compliance with their FCRA obligations and that they are working with a background check provider that understands the FCRA inside and out." Screening of Contingent Workforce Will Grow Employers will need to figure out how to adapt their screening processes to the fast-growing contingent workforce in 2018. Contingent workers -- staff not on the employer's payroll -- may be engaged for a particular project or time period and be self- employed or employed by a third party. According to the Bureau of Labor Statistics, nearly four out of five employers use some form of nontraditional staffing such as hiring freelancers, temporary workers or independent contractors on an as-needed basis. Yet many organizations do not realize they potentially face the same liability exposure from their contingent workforce as from their own employees. "Whether the individual is an employee, independent contractor or otherwise, the worker represents the employer's brand, therefore, background screening -- particularly when access to people or sensitive material is involved -- is a critical risk mitigation tool, regardless of the worker's classification," Sorenson said. Clare Hart, CEO of global screening firm Sterling Talent Solutions in New York City, said more third-party employment agencies, such as for freelancers, are realizing they need to screen gig workers. "This recognition comes as a result of both expectation on behalf of their customers or users and from litigation which has held on-demand providers accountable for screening practices." Employers should have contingent workers go through the same screening as regular employees to protect against allegations of disparate treatment and insisting in service contracts that contingent workers be subject to employment screens before they appear for work. "Who will be doing the background screening, and what does the screening cover?" said Montserrat Miller -- montserrat.miller@agg.com -- an attorney with Arnall Golden Gregory, based in Washington, D.C. "Depending on the sensitivity of the population or information the workers will be working with, I would want to clearly understand what type of screen is being performed." [GN] * Judicial Panel Orders MDLs on Six Matters ------------------------------------------- Amanda Bronstad, writing for Law.com, reports that the U.S. Judicial Panel on Multidistrict Litigation ordered MDLs in six matters. The panel, citing the increased number of cases, sent 40 cases alleging bacterial infections in Sorin 3T heater-cooler devices to U.S. District Judge John Jones in the Middle District of Pennsylvania, in what would be his first MDL. The panel also sent 167 cases alleging transmission defects in Ford vehicles to U.S. District Judge Andre Birotte in the Central District of California. Also of note: Dicamba herbicide cases went to U.S. District Judge Stephen Limbaugh in the Eastern District of Missouri, where defendant Monsanto is headquartered. And antitrust cases over Restasis eye drops went to defendant Allergan's choice, the Eastern District of New York, before U.S. District Judge Nina Gershon. No word yet on diabetes drugs Onglyza and Kombiglyze. [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, 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. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. * * * End of Transmission * * *