/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/180301.mbx C L A S S A C T I O N R E P O R T E R Thursday, March 1, 2018, Vol. 20, No. 44 Headlines AARON BROTHERS: "Basile" Wage Suit Remanded to State Court AARP INC: Faces Class Action Over Insurance Commissions ACADIA PHARMA: Court Approves $2.925MM "Rihn" Class Settlement ACRE MORTGAGE: Court Grants Bid to Dismiss "James" RESPA Suit ASSOCIATED MATERIALS: Court Narrows Claims in "Harney" BANK MUTUAL: Lawsuits over Associated Banc-Corp Deal Dropped DELTA AIR: Appeal in First Bag Fee Antitrust Suit Still Pending BAYER CONSUMER: 2d Cir. Affirms Dismissal of "Kommer" Suit BHP: Faces Class Action Over Worker's Casual Status BIG HEART: Faces Class Action Over Contaminated Dog Food BITCONNECT INT'L: Silver Miller Files Class Action Lawsuit BITCONNECT INT'L: Faces Another Securities Class Action in Fla. BNSF RAILWAY: Court Issues Protective Order in "Sumlin" CALIFORNIA: Pro Se Complaint Failed to Survive Screening CALIFORNIA: Prisoner Sleep Deprivation Suit Moved to Sacramento CENTURY FINANCIAL: Faces "Teele" Suit in Connecticut CF ARCIS: CF Arcis IV Added as Defendant in "Hart" CHARLES SCHWAB: Court Denies Arbitration of ERISA Claims CMRE FINANCIAL: Court Grants Joint Move to Dismiss "Crooks" Suit CORE CIVIC: Faces "Gonzalez" Suit in W.D. of Texas CRAZY HORSE: 4th Cir. Affirms Arbitration Denial in "Degidio" DELTA AIR: Still Faces Capacity Antitrust Litigation DEPOMED INC: Derivative Litigation Stayed DEVRY UNIVERSITY: Averts Class Action Over Post-Graduate Stats DON HUMMER TRUCKING: Faces "Ratliff" Suit in S.D. of Iowa DUKE UNIVERSITY: Mintz Levin Discusses Antitrust Class Action EI DUPONT: GenX Found in West Va. Wells, NC Class Action Ongoing ENVISION HEALTHCARE: Faces Class Action Over "Balance Billing" FARMERS RESTAURANT: "Stephens" Conditional Certification OK'd FEDERAL SAVINGS: Court Grants Bid to Dismiss "Baugh" RESPA Suit FMM ENTERPRISES: Court Grants TRO in "Glass" FLSA Suit FOREVER 21: Court Dismisses Suit Over Illegally Collected Tax FOX NEWS: Faces "Burbon" Suit in Southern District New York FRITO-LAY INC: $6.5MM "Acosta" Suit Settlement Has Prelim OK FUYAO GLASS: Judge Allows Workers' Class Action to Proceed GARDNER, MA: Seeks Dismissal of Class Action Over Water System GENERAL MOTORS: Faces Class Action Over Faulty Air-Conditioning GEO GROUP: Court Allows Immigrants' Class Action to Proceed GM LAW: Faces Class Action Over Student Loan Fraud HARRIS COUNTY, TX: Bail System Unconstitutional, 5th Cir. Rules HOOTERS OF AMERICA: Faces "Factor" Suit in N.D. Georgia HORIZON PHARMA: Court Dismisses "Schaffer" Securities Suit HUAWEI DEVICE: Consumers Can Amend Nexus 6P Class Action HYUNDAI MOTORS: Recent Class Action Ruling Alarms Plaintiffs Bar INTEREXCHANGE INC: Class Action to Impact U.S. Au Pair Program J&B CLEANERS: Faces "Paredes" Suit in S.D. New York JOHNSON & JOHNSON: Stockholders File Securities Class Action JUNO THERAPEUTICS: Faces Class Action Over Celgene Merger KABBAGE INC: Court Strikes Class Allegations in TCPA Suit L'OREAL USA: Motion to Dismiss Hair Product Class Action Nixed LJM FUNDS: April 10 Lead Plaintiff Motion Deadline Set LENDER PROCESSING: Third Party Defendants in "Lemieux" Dismissed LOMA NEGRA: Argentina Class Action Suit Still Ongoing MARTHA STEWART: Court Won't Review Ruling in "Raden" Suit MASTERCARD: Squire Patton Attorneys Discuss Interchange Fee Case MCDONALD'S CORP: Blind Customers File Class Action in Chicago MDL 2804: Niagara County's Civil Suit Over Opioid Crisis Ongoing MIDWAY IMPORTING: Faces "Rivera" Suit in C.D. California MONRO INC: Settles FLSA Class Action for $1.95 Million MONTRES JOURNE NY: Faces "Thorne" Suit in S.D. of New York NBTY INC: Court Dismisses "DeBernardis" Consumer Fraud Suit NCAA: Fights $40MM Fee Bid in Antitrust Class Action NEIMAN MARCUS: Appeal in "Tanguilig" Suit Still Ongoing NEIMAN MARCUS: "Rubenstein" Settlement Motion Due March 14 NEIMAN MARCUS: Proceeds in "Ohle" Class Settlement Distributed NEIMAN MARCUS: "Attia" Class Action Remains Stayed NEIMAN MARCUS: "Nguyen" Suit in California Remains Stayed NEIMAN MARCUS: "Connolly" Suit Remains Stayed NEIMAN MARCUS: Facing Class Suit by Healthcare Plan Beneficiary NEIMAN MARCUS: Faces NY Class Suit by Visually Impaired NEIMAN MARCUS: Settlement of Cyber-Attack Suits Still Pending NISSAN MOTORS: CSC Suit Struggles to Obtain Class Certification OHIO HOSPICE: Court Denies Bid to Dismiss Count III in "Spano" PAGEDALE, MO: Class Action Plaintiffs Agree with Consent Decree PARK STERLING: Merger Class Suits Dismissed PCL CONSTRUCTION: Stay in Power Outage Suit Stay Extended PELLA: Settles Class Action Over ProLine Windows for $25.75MM QUEST DIAGNOSTICS: Dismissal of Amended Antitrust Suit Affirmed RADIOSHACK CORP: Obtains Favorable Ruling in ERISA Class Action RAINERI JEWELERS: Faces "Thorne" Suit in S.D. New York REMINGTON: Bankruptcy Linked to Defective Rifles, Critic Says RENT-A-CENTER: Court Won't Stay Briefing on Arbitration Bid ROGER DUBUIS: Faces "Thorne" Suit in S.D. New York REUTERS AMERICA: Faces "Sullivan" Suit in S.D. New York SAMSUNG ELECTRONICS: Must Face Class Action Over Battery Life SAN FRANCISCO, CA: $20K Atty Fees in Misappropriation Suit Upheld SENTRY CREDIT: Court Grants Judgment on Pleadings in "Riccio" SHINOLA/DETROIT: Faces "Thorne" Suit in S.D. New York STRAIGHT PATH: Delaware Stockholders Class Suit Remains Stayed STRAIGHT PATH: "Zacharia" Deal Awaits Court Approval STUSSY INC: Faces "Fischler" Suit in E.D. New York SUPER MICRO: Hagens Berman Files Securities Class Action Lawsuit SWEET HOME: "Williams" Class of HHAs/DCWs Conditionally Certified SYNERGY PHARMA: Brower Piven Files Securities Class Action TEVA PHARMA: Hearing to Impose Provigil Accord Set for Apr. 23 TEVA PHARMA: Consolidated Multidistrict Suit on AndroGel Ongoing TEVA PHARMA: 2 Class Members Seek Appeal from Ciprofloxacin Pact TEVA PHARMA: Still Faces Class Action Suit on Venlafaxine Accord TEVA PHARMA: Still Defends Class Action on Lamotrigine Agreement TEVA PHARMA: Antitrust Breaches Suit over Niaspan Accord Ongoing TEVA PHARMA: Has Tentative Pact to Settle Lidoderm Litigation TEVA PHARMA: Enters into Settlement with Aggrenox End Payers TEVA PHARMA: Class Suits over Takeda Pharma Pact Still Ongoing TEVA PHARMA: Suits on Namenda IR Settlement Pact Still Pending TEVA PHARMA: Unit Still Faces Antitrust Suit over Intuniv Accord TEVA PHARMA: Still Faces Antitrust Suit on Price-Fixing Matters TEVA PHARMA: Awaits Court Order Dismissing Conn. Securities Suit TEVA PHARMA: Conn. Suit over Stock Purchase Plan Still Pending TEVA PHARMA: Seeks to Transfer Securities Suit to Connecticut THREE AND SEVENTY-THREE: Faecs "Olsen" Suit in S.D. of New York TOYOTA MOTOR: ADR Deadline in "Robey" Suit Moved to March 7 ULTA BEAUTY: Zimmerman Law Files Nationwide Class Action UNITED STATES: Faces "Trinh" Suit in C. Dist. Calif. VICE MEDIA: Faces Class Action in California WASHINGTON: Bid to Certify of Questions of Law to High Ct. Denied WYNDHAM RESORT: Abbott's Opt Out Bid in "McGrath" Deal Denied * ERISA Class Action Settlements Cost Employer $927.8MM in 2017 ********* AARON BROTHERS: "Basile" Wage Suit Remanded to State Court ---------------------------------------------------------- Judge M. James Lorenz of the U.S. District Court for the Southern District of California granted the Plaintiff's motion to remand the case, HEATHER BASILE, Plaintiff, v. AARON BROTHERS, INC. et al., Defendants, Case No. 3:17cv485-L(NLS) (S.D. Cal.). The Plaintiff filed a complaint in State court asserting numerous California Labor Code violations and violation of California Business and Professions Code Section 17200 on behalf of non- exempt employees of Defendants Aaron Brothers and Michaels Stores, Inc. The Plaintiff alleged that the Defendants failed to (1) provide meal and rest breaks as required by law; (2) pay minimum and regular wages, including to cover missed meal and rest breaks; (3) pay overtime wages; (4) indemnify for necessary business expenses; (5) provide accurate wage statements; and (6) timely pay all wages due upon separation from employment. The Defendants removed the action to the Court under 28 U.S.C. Sections 1453 and 1446 based on diversity jurisdiction under the Class Action Fairness Act ("CAFA"). In their notice of removal, the Defendants asserted that the Plaintiff's claims as pled place more than $5 million in controversy. In her motion to remand, the Plaintiff challenges this assertion. She does not dispute that other jurisdictional requirements are met. In the first and second causes of action, the Plaintiff alleged that the Defendants failed to provide the statutory-mandated meal and rest breaks. The Defendants contend these claims place $3.6 million at issue. The calculation is based on the evidence that (1) the average shift during the relevant period was 6.42 hours, i.e., long enough to trigger the duty to provide a meal period and a rest period; (2) 91.5% of the shifts were longer than 3.5 hours, i.e., long enough to trigger the duty to provide a rest period; and (3) that the employees worked 3.83 days per week on average. In addition, the calculation is based on the assumption of one alleged meal break and rest break violation per employee per week. The Plaintiff counters that the assumption is unsupported and unreasonable. For the rate of violation, the Defendants rely solely on the Plaintiff's allegations in the complaint. The Plaintiff alleged a systematic pattern of violations, a pattern and practice of not providing proper breaks, and that the violations occurred regularly as a result of a common policy and practice. Although these allegations indicate that violations were regular, they do not speak to their frequency, and are therefore insufficient to support the assumption of any particular rate of violation. Furthermore, employees worked only 3.83 days per week on average. The Plaintiff's qualified allegations and the short work week further undermine the Defendants' assumption that each violation occurred once every week for every employee. In her third cause of action, the Plaintiff alleged that the Defendants failed to pay minimum and regular wages. The Defendants contend the wage claim places at least $2.4 million at issue. They base their calculation in part on the assumption of one hour of unpaid time per employee per week. The Plaintiff disputes its reasonableness. The assumption is based solely on the complaint. Although the complaint alleged the circumstances of the violations and their regularity, it does not speak to frequency. The Defendants' assumption of one unpaid hour per week per employee is therefore unsupported. It is further undermined by the fact that the average workweek was only 3.83 days per week. In her sixth cause of action, the Plaintiff alleged that the Defendants did not provide an accurate itemized statement with each wage payment. The Defendants contend that this claim places at least $500,000 at issue. They base their calculation on the evidence that they employed at least 450 employees at any time during the relevant time, and paid them bi-weekly. They further assumed that each wage statement was inaccurate. The Plaintiff disputes this assumption. The Defendants present no evidence in support of their assumption, but rely on the Plaintiff's allegations. As discussed, the Plaintiff's allegations regarding the circumstances giving rise to the violations and their systematic nature do not speak to their frequency. The Defendants' assumption is therefore unsupported. In the seventh cause of action, the Plaintiff alleged that the Defendants did not timely pay all wages due upon separation from employment and that they made final wage payments with a pay card. The Defendants argue that the claim puts $3.9 million at issue. The Plaintiff counters that the amount is unsupported. The Defendants' average shift evidence is not on point. They calculated the average starting with Feb. 1, 2013; however, the alleged violations reach only to Feb. 1, 2014. Because of the uncertainty regarding the average shift for purposes of calculating the employees' daily wages, the Defendants' ultimate calculation is unsupported. Finally, the Defendants argue that the Plaintiff's request for attorneys' fees places an additional $1.7 million at issue. Statutory attorneys' fees may be aggregated to arrive at the amount in controversy. The Plaintiff argues, however, that the calculation is not properly supported. The Defendants did not meet their burden to establish the amount in controversy as to any of the claims they discussed in their opposition. Their fee calculation is therefore unsupported. Judge Lorenz concludes the Defendants did not meet their burden by a preponderance of the evidence to show that the amount in controversy exceeds $5 million. He therefore granted the Plaintiff's motion to remand. A full-text copy of the Court's Jan. 31, 2018 Order is available at https://is.gd/dDjoNV from Leagle.com. Heather Basile, individually and on behalf of all similarly situated employees of Defendants in the State of California, Plaintiff, represented by Nicole R. Roysdon -- nroysdon@grahamhollis.com -- GrahamHollis APC. Aaron Brothers, Inc., a Delaware Corporation & Michaels Stores, Inc., a Delaware Corporation, Defendants, represented by Gregory W. Knopp -- gknopp@akingump.com -- Akin Gump Strauss Hauer and Feld LLP & Jonathan S. Christie -- christiej@akingump.com -- Akin Gump Strauss Hauer & Feld. AARP INC: Faces Class Action Over Insurance Commissions ------------------------------------------------------- Monica Pais, writing for Courthouse News Service, reported that a class action claims AARP is pocketing millions by duping unsuspecting seniors and disabled individuals into paying artificially inflated prices for Medicaid supplemental health insurance policies. In a federal complaint filed in Fort Pierce, Florida on Feb. 8, lead plaintiff William Sacco claims AARP is collecting unconscionable commissions on insurance policies it sells in partnerships with co-defendants UnitedHealth Group Inc. and UnitedHealthcare Insurance Company. Mr. Sacco, who is represented by Scott Bursor from Bursor & Fisher PA, claims that AARP refers to these commissions as "royalty" payments for the use of its intellectual property, and fails to disclose that they are collected by charging seniors and disabled individuals an additional amount over and above the insurance premium paid to UnitedHealthcare. "Defendants' motive to term a commission payment a "royalty" is two-fold: it allows AARP to avoid oversight by insurance regulators, and it allows AARP to avoid paying taxes on the income it generates through insurance sales," Mr. Sacco says. According to the complaint, AARP is violating the Florida Insurance Code because even though it does not have a license to operate as an insurance agent in Florida, it still acts as a "de facto agent" for UnitedHealth by selling and renewing "AARP Medigap" insurance policies in exchange for a 4.95 percent commission. The complaint alleges that similar Medigap policies offered by other companies have lower costs, but AARP secretly charges its clients unlawful insurance agents' commissions to maximize its profits. "AARP earns substantial revenue through business partnerships with large insurance companies, like defendant UnitedHealth, to sell its own AARP-branded insurance policies," the complaint says. Mr. Sacco claims UnitedHealth is AARP's largest business partner, and says that according to the organizations own 2010-2012 financial statements, 65 percent of its royalty income comes from the sale or renewal of UnitedHealth insurance products. AARP's program offers Medicare-related insurance such as Part D prescription drug insurance, Medicare Advantage and Medigap. The complaint claims that any consumer who wants to purchase Medigap coverage from UnitedHealth needs to buy the AARP Medigap plan, and thus they are contributing to AARP's illegal commissions without even knowing about it. "In 2012, AARP generated $704 million in revenues from its so called royalties, which is nearly three times higher than income generated from membership dues, and makes up 52% of AARP's 2012 total operating revenue," the complaint says. Mr. Sacco says that AARP and UnitedHealth are scheming and taking advantage of unsuspecting senior citizens who have placed their trust in them. He is seeking compensatory damages on claims of conversion, unjust enrichment and fraudulent concealment. Mark Bagley, a media relations representative for AARP, said that they are reviewing the lawsuit details, but that "it is immediately apparent that the allegations are meritless." Attorney for Plaintiff: Scott A. Bursor, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Telephone: (212) 989-9113 Facsimile: (212) 989-9163 Email: scott@bursor.com ACADIA PHARMA: Court Approves $2.925MM "Rihn" Class Settlement -------------------------------------------------------------- The United States District Court for the Southern District of California issued an Order granting Plaintiffs' Motion for Final Approval of Class Action Settlement, Attorney's Fees and Expense in the case captioned JEFF RIHN, individually and on behalf of all others similarly situated, Plaintiff, v. ACADIA PHARMACEUTICALS INC., ULI HACKSELL AND STEPHEN R. DAVIS, Defendants, Case No. 15-cv-00575 BTM-DHB (S.D. Cal.). The claims were premised on allegations that Defendants knowingly and recklessly made materially false and misleading statements regarding the timing and status of Acadia's New Drug Application (NDA) for its lead product candidate, Nuplazid, pimavanserin. These false and misleading statements allegedly artificially inflated stock prices of Acadia between November 10, 2014 and March 11, 2015 (Class Period). Rule 23(a) sets forth four prerequisites for class certification: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. The Court finds that all four of these requirements have been satisfied. The numerosity requirement is satisfied if the class is so numerous that joinder of all members is impracticable. The proposed class is numerous, consisting of 27,830 Class Members. There are common questions of fact and law concerning whether Defendants made materially false and misleading statements regarding the status and timing of Acadia's NDA for Nuplazid (pimavanserin). Plaintiffs' claims are typical because they allege that they purchased publicly traded securities of Acadia during the Class Period and were damaged because Defendants artificially inflated the price of Acadia securities through their dissemination of false and misleading statements about the NDA. It appears that Plaintiffs and their counsel will fairly and adequately protect the interests of the class. They have vigorously prosecuted the case thus far and it does not appear that there are any conflicts of interest. The predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation and focuses on the relationship between the common and individual issues. Here, the damages for each class member would be small. Therefore, class members would have little motivation to pursue individual cases. Furthermore, due to the common issues in this case, it is desirable to litigate the claims in one forum to ensure consistency of rulings and findings. The parties are unaware of any competing litigation, and the Court need not be concerned regarding any difficulties with management of the class action due to this settlement. In sum, the Court finds that the requirements of Rule 23(a) have been satisfied and certifies the Settlement Class under Rule 23(b)(3). Terms of the Settlement The settlement provides for a gross payment of $2,925,000. The settlement amount will be paid into escrow and, after paying attorneys' fees and expenses approved by the Court, and other costs of settlement, the net settlement amount will be distributed among the class members with recognized losses who timely submit valid Proof of Claim and Release Forms. Legal Standard Before approving a class action settlement, the court must determine whether the proposed settlement is fair, reasonable, and adequate. In reaching this determination, courts consider a number of factors, including: (1) the strength of the plaintiff's case; (2) the risk, expense, complexity, and likely duration of further litigation; (3) the risk of maintaining class action status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed and the stage of the proceedings; (6) the experience and views of counsel; (7) the presence of a governmental participant; and (8) the reaction of the class members to the proposed settlement. Strength of Plaintiffs' Case and Risk, Complexity, Expense, and Duration of Litigation Plaintiffs would face substantial risks in continued litigation, which would undoubtedly be time-consuming and costly. Lead Plaintiffs would have faced a great deal of difficulty in obtaining the necessary documents and depositions as the events alleged in the CCAC took place as long as four and a half years ago, and the company is under new management. The relevant documents may have been misplaced, former employees may be difficult to locate, and the memories of the parties involved in the actions alleged in the CCAC may have faded. The complexity of the allegations would have required the retention of additional FDA experts, serving third party document subpoenas, and countless depositions. Amount Offered in Settlement The settlement amount of $2,925,000 represents approximately 15% of the damages recoverable by Class Members in the Action. Accordingly, the benefit provided to the class members is substantial. Stage of Proceedings and Experience and Views of Counsel Lead Counsel, on behalf of Lead Plaintiffs, conducted an extensive investigation into the facts alleged in the Action, including reviewing FDA documents, press releases, SEC filings, conference call transcripts, and analyst reports. Prior to settlement, the Court had denied Defendants' motion to dismiss but had not yet ruled on Defendants' motion for reconsideration of the order denying the motion to dismiss. Reaction of the Class Members The reaction of Class Members has been positive. No objections have been filed and there has only been one request for exclusion. Lack of Collusion Because this settlement was reached prior to class certification, the Court examines the Settlement for evidence of collusion. There is no indication of collusion. Lead Counsel seeks a fee award totaling 25% of the Settlement Fund. This percentage of recovery is typical and does not represent a disproportionate distribution of the settlement to counsel. Notice to the Class Here, Kurtzman Carson Consultants LLC (KCC), pursuant to the Preliminary Approval Order, mailed the Settlement Notice to 27,830 potential Class Members beginning on June 30, 2017. The Settlement Notice and the Proof of Claim form were also made available on www.AcadiaSecuritiesSettlement.com, which has been visited 7,463 times as of August 23, 2017. The Publication Notice was published in Investor's Business Daily and posted by PR Newswire on July 10, 2017. Additionally, KCC set up a toll-free telephone helpline to accommodate potential Class Members who had questions regarding the Settlement. The help line received 90 calls as of August 23, 2017. Final Approval The Court grants final approval of the Settlement. Attorneys' Fees Plaintiffs seek attorneys' fees in the amount of $731,250, 25% of the anticipated $2,925,000 Settlement Fund. Here, a rough calculation of the lodestar comes to $709,630. Based on the lodestar, the multiplier is 1.03. Courts have routinely enhanced the lodestar to reflect the risk of non- payment in common fund cases. To restrict Class Counsel to the hourly rates they customarily charge for non-contingent work here payment is assured would deprive them of any financial incentive to accept contingent-fee cases which may produce nothing. Courts have therefore held that counsel are entitled to a multiplier for risk. Multipliers of 1 to 4 are commonly found to be appropriate in common fund cases. Accordingly, the 1.03 multiplier is within the range or reasonableness. Therefore, the lodestar cross-check supports the reasonableness of the requested fees of $731,250. A full-text copy of the District Court's January 22, 2018 Order is available at https://tinyurl.com/ya23uu39 from Leagle.com. Jeff Rihn, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by David C. Walton -- davew@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP. Oklahoma Firefighters Pension & Retirement System, Plaintiff, represented by Henry Montague Willis -- hmw@ssdslaw.com -- Schwartz Steinsapir Dohrmann and Sommers. Daniel P. Fay & Teresa L. Fay, Plaintiffs, represented by Alexander Louis Burns -- alexander.burns@ksfcounsel.com -- Kahn Swick Foti LLC, pro hac vice & Ramzi Abadou ramzi.abadou@ksfcounsel.com, Kahn Swick Foti LLP. Acadia Pharmaceuticals Inc., Uli Hacksell & Stephen R. Davis, Defendants, represented by Blake M. Zollar -- bzollar@cooley.com -- Cooley LLP, Koji F. Fukumura -- kfukumura@cooley.com -- Cooley Godward Kronish & Peter M. Adams -- padams@cooley.com -- Cooley Godward Kronish. Roger G. Mills, Defendant, represented by Koji F. Fukumura, Cooley Godward Kronish & Peter M. Adams, Cooley Godward Kronish. Ahmad Ahmad, Movant, represented by James Hail James Hail -- jim@doylelowther.com -- Doyle Lowther. Russ Belden, Movant, represented by Elaine T. Byszewski - elaine@hbsslaw.com -- Hagens, Berman, Sobol & Shapiro, LLP. Paul Levine, Movant, represented by Barbara A. Rohr -- brohr@faruqilaw.com -- Faruqi & Faruqi LLP, Benjamin Heikali bheikali@faruqilaw.com, Faruqi & Faruqi LLP, Katherine M. Lenahan -- klenahan@faruqilaw.com -- Faruqi & Faruqi LLP, pro hac vice, Lubna M. Faruqi -- lfaruqi@faruqilaw.com -- Faruqi & Faruqi LLP, pro hac vice, Megan Sullivan -- msullivan@faruqilaw.com -- Faruqi & Faruqi LLP, pro hac vice & Richard William Gonnello -- rgonnello@faruqilaw.com -- Faruqi & Faruqi LLP, pro hac vice. Robert E. Pries, Lisa Hancock & Solomon A. Monderer, Movants, represented by Brian O. O'Mara -- bomara@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP. ACRE MORTGAGE: Court Grants Bid to Dismiss "James" RESPA Suit ------------------------------------------------------------- In the case, RENITA JAMES, Plaintiff, v. ACRE MORTGAGE & FINANCIAL, INC., Defendant, Civil Action No. RDB-17-1734 (D. Md.), Judge Richard D. Bennett of the U.S. District Court for the District of Maryland granted the Defendant's Motion to Dismiss and/or for Summary Judgment. The Class Action Complaint in the case alleges in one count that the Defendant violated the Real Estate Settlement Procedures Act ("RESPA") by entering into a kickback scheme whereby it received unearned fees from Genuine Title, LLC for referrals. The alleged kickback scheme in the case involves Genuine Title which has an extensive history with the Court. In December 2013, Edward and Vickie Fangman (represented by the same counsel involved in the case) filed a complaint against Genuine Title involving essentially identical allegations in the Circuit Court of Baltimore County that was removed to the Court in January 2014. The Fangmans alleged that Genuine Title, in exchange for the referral of title services on their mortgage loan, paid cash kickbacks to loan brokers and provided marketing materials for free or at a drastically-reduced rate for various loan officers who were part of the mortgage lending process. On Jan. 2, 2015, the plaintiffs in Fangman filed a First Amended Complaint naming other financial institutions, including E Mortgage Management, LLC. That First Amended Complaint in Fangman alleged violations of RESPA, Maryland's state-law analog to RESPA, and the Maryland Consumer Protection Act. The Fangman plaintiffs further alleged that Genuine Title and its affiliated marketing companies provided Free Marketing Materials and/or "Referring Cash" payments without disclosure on HUD-1 settlement documents. They filed a Second Amended Complaint on May 20, 2015, adding additional parties and clarifying some of their previous allegations. Following discovery concerning Genuine Title's business practices and relationship with other lenders, some defendants have struck class settlements which have been the subject of public filings and class notices. The Court granted final approval of the E Mortgage settlement on May 31, 2017. Meanwhile, the Consumer Financial Protection Bureau ("CFPB") and the Maryland Attorney General initiated an enforcement action in the Court on Jan. 22, 2015 against Wells Fargo Bank, N.A. and JPMorgan Chase Bank, N.A. predicated on similar schemes involving Genuine Title. The CFPB and Attorney General also filed an enforcement action on April 29, 2015 directly against Genuine Title, its principals, and affiliates arising out of the same alleged scheme. The CFPB issued a press release on April 29, 2015 in which the CFPB outlined the enforcement action against Genuine Title based on the same facts alleged by the Fangman Plaintiffs. On May 1, 2015, the CFPB and Maryland Attorney General announced a settlement with Genuine Title, and the Court entered a Stipulated Final Judgment and Order approving the settlement. The settlement orders in these enforcement actions explicitly contemplate related litigation by affected consumers. Plaintiff James closed her loan with Acre on Dec. 21, 2012 and filed the action on June 23, 2017. The Plaintiff's Class Action Complaint asserts a RESPA claim based on an alleged kickback scheme between Genuine Title and Brian and Jeffrey Krasner, who were employees of Acre from May 2012 to January 2013. The Krasners allegedly created their own company in 2008, Morgan Management, to receive these personal kickbacks. Plaintiff James seeks to represent the purported class of all individuals in the United States who were borrowers on a federally related mortgage loan originated or brokered by Acrefor which Genuine Title provided a settlement service, as identified in Section 1100 on the HUD-1, between Jan. 1, 2009, and Dec. 31, 2014. Acre ultimately filed the currently pending Motion to Dismiss and/or for Summary Judgment. The Plaintiff's counsel, who has been in possession of Genuine Title's records since 2014 and who processed the data by June 2015, has filed the following seven class actions against other lenders who, like the defendants in Fangman, allegedly engaged in kickback schemes with Genuine Title: (i) Edmondson v. Eagle National Bank, et al., Civil Case No. RDB-16-3938 (D. Md.); (ii) Dobbins, et al. v. Bank of America, N.A., Civil Case No. RDB-17- 540 (D. Md.); (iii) Callum v. Priority Financial Services, Civil Case No. RDB-17-0623 (D. Md.); (iv) James v. Acre Mortgage & Financial, Civil Case No. RDB-17-1734 (D. Md.); (v) Baugh, et al. v. The Federal Savings Bank, Civil Case No. RDB-17-1735 (D. Md.); (vi) Ryman v. First Mortgage Corporation, Civil Case No. RDB-17- 1757 (D. Md.); (vii) Bezek, et al. v. First Mariner Bank, Civil Case No. RDB-17-2902 (D. Md.). On Oct. 31, 2017, Miles & Stockbridge, defense counsel in both Edmondson (RDB-16-3938) and Bezek (RDB-17-2902), requested a consolidated hearing on ripe motions to dismiss. The Plaintiffs' counsel, Smith, Gildea & Schmidt, agreed to a consolidated hearing for the ripe motions to dismiss in five of the seven cases -- namely, Edmondson (RDB-16-3938); Dobbins (RDB-17-540); James (RDB-17-1734); Baugh (RDB-17-1735); and Bezek (RDB-17- 2902). Generally, the motions to dismiss in these five cases present statute of limitations and equitable tolling issues. The Court conducted the requested consolidated hearing on Jan. 16, 2018. The Plaintiff concedes that RESPA's one-year statute of limitations would bar the lawsuit, which was filed more than four years after the Plaintiff closed her loan and two years after her counsel processed Genuine Title's data. However, the parties dispute whether equitable tolling saves her claim. The Defendant's motion alternatively requests summary judgment in its favor, but the Defendant agreed at oral argument to focus the analysis upon the motion to dismiss standard under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Judge Beneett holds that even if the Plaintiff can establish that she was pursuing her rights diligently with or without credit for her counsel's actions, he Court cannot ignore the role the Plaintiff's counsel has played in determining the timing of the action -- and the other pending cases related to the Genuine Title kickback scheme. In June 2015, the Judge finds that the Plaintiff's counsel had access to Genuine Title's buyers' names, addresses, telephone numbers, property addresses, settlement dates, lender and in some cases mortgage broker information, information sufficient to uncover the scheme in this case. Even if the Plaintiff's counsel's knowledge is not relevant to the due diligence analysis, the counsel's in-depth investigation into Genuine Title's records certainly bears heavily on the question of whether "extraordinary circumstances" stood in the Plaintiff's way and prevented timely filing. The Judge further holds that the Plaintiff fails to fulfill the extraordinary circumstances element required to equitably toll her claim. The Plaintiff proffers no amendment to the pleadings that could overcome this conclusion, and no amount of discovery would aid the Judge's analysis of the Plaintiff's claim for equitable tolling. As the Plaintiff has failed to establish the extraordinary circumstances element, the Judge needs not determine whether the Plaintiff was diligently pursuing her rights. While the parties here earnestly contest the content of the due diligence requirement in the wake of Menominee, he finds no reason to address those contentions. For the reasons stated, Judge Bennett granted the Defendant's Motion to Dismiss. A full-text copy of the Court's Jan. 31, 2018 Memorandum Opinion is available at https://is.gd/KxflBA from Leagle.com. Renita James, Plaintiff, represented by Megan Aileen Benevento -- mbenevento@jgllaw.com -- Joseph Greenwald and Laake, P.A., Melissa Lynn English -- menglish@sgs-law.com -- Smith Gildea & Schmidt LLC, Michael Paul Smith -- psmith@sgs-law.com -- Smith Gildea and Schmidt LLC, Sarah A. Zadrozny -- szadrozny@sgs- law.com -- Smith, Gildea & Schmidt, LLC, Timothy Francis Maloney -- tmaloney@jgllaw.com -- Joseph Greenwald and Laake PA & Veronica Byam Nannis -- vnannis@jgllaw.com -- Joseph Greenwald and Laake PA. Acre Mortgage & Financial, Inc., Defendant, represented by Ari Karen -- akaren@offitkurman.com -- Offit Kurman. ASSOCIATED MATERIALS: Court Narrows Claims in "Harney" ------------------------------------------------------ The United States District Court for the District of Oregon issued an Opinion and Order granting in part and denying in part Defendant's Motion to Dismiss the case captioned MICHAEL HARNEY and OZZIE GILBERT, individually and on behalf of all others similarly situated, Plaintiffs, v. ASSOCIATED MATERIALS, LLC, dba AMI, a Delaware limited liability company, and ASSOCIATED MATERIALS INCORPORATED, dba AMI, a Delaware corporation, Defendants, Case No. 3:16-cv-1587-SI (D. Ore.). As alleged in the Second Amended Complaint, AMI sells and distributes vinyl siding (Siding) throughout the United States for installation on homes and commercial buildings. Named Plaintiff Michael Harney is a resident of Beaverton, Oregon, and lived in a house clad with AMI's vinyl siding. While preparing his house for sale, Mr. Harney found blistering and distortion problems with the Siding. Mr. Harney completed a Warranty Inquiry Packet to make a claim for repair, refinishing, or replacement of the siding. AMI denied Mr. Harney's claim stating, "our findings conclude that your particular concern is not the result of a manufacturing defect covered by the warranty." Plaintiffs allege that AMI has received numerous warranty claims alleging a manufacturing or design defect in the Siding. Rather than notify consumers about the defects, Plaintiffs claim, AMI has intentionally embarked on a campaign to blame any distortion in the Siding on external or 'unusual heat sources. Plaintiffs bring five claims for relief against AMI: (1) breach of express warranty; (2) breach of implied warranties; (3) unjust enrichment; (4) unlawful trade practices; and (5) declaratory judgment and injunctive relief. Identification of a Defect AMI argues that Plaintiffs have alleged only injury and have failed to identify either a design or engineering defect. Because each of Plaintiffs' claims rest upon an allegation that AMI's Siding was defective, AMI argues, insufficient description of the precise defect renders each of Plaintiffs' claims insufficient under Rule 8(a) of the Federal Rules of Civil Procedure. Plaintiffs respond that to state a claim for breach of warranty, Plaintiffs need allege only that the product did not perform as promised or, in the case of implied warranty, failed of its essential purpose. Plaintiffs further argue that they have sufficiently alleged a defect in AMI's siding. Plaintiffs are correct. In alleging that the Siding became distorted and deformed, and that siding should not become distorted and deformed when exposed to normal weather conditions, Plaintiffs have sufficiently alleged that AMI's product is defective. To require a sophisticated statement of the mechanical or chemical failings of the Siding would place a prohibitively high burden on plaintiffs at the pleading stage, and would go beyond the requirements of Rule 8(a). Breach of Implied Warranty Plaintiffs claim that the Siding failed its essential purpose and that AMI breached the implied warranties of fitness and merchantability. AMI moves to dismiss this claim on the bases that Plaintiff Harney is not in privity with AMI and Plaintiff Gilbert's implied warranty claim is time-barred under Georgia law. Plaintiff Harney Oregon does not require privity for a consumer who has suffered property damage to recover under an implied warranty claim. Although the Second Amended Complaint does not specifically allege how and when Plaintiff Harney came to own the AMI Siding, it does state that his previous home, the Moon Valley Terrace Residence, had AMI Siding that he observed to be blistering and distorting when he prepared the home for sale in Summer 2015. Plaintiff Harney is therefore in the normal distribution chain of AMI's products. Plaintiffs have thus sufficiently alleged the existence of property damage. Plaintiff Gilbert Georgia applies a four-year statute of limitations to claims of breach of implied warranty. Plaintiff Gilbert alleges that she was impeded from discovering the defective nature of the Siding because of AMI's affirmative acts of concealment regarding the inherent defects of its Siding. Plaintiff Gilbert does not, however, point to any particular communication or act of concealment on the part of AMI. Such an allegation, therefore, is more legal conclusion than factual allegation and is insufficient to support an inference that the tolling exception for fraudulent concealment applies to Plaintiff Gilbert's claim. Because Plaintiff Gilbert has not alleged sufficient facts to demonstrate that the statute of limitation should be tolled, her claim for breach of implied warranty is time-barred. Unjust Enrichment AMI argues that Plaintiffs cannot maintain an unjust enrichment claim because the Warranty bars such a claim, because that claim is time-barred, and because Plaintiffs conferred no benefit on AMI. Because the Court agrees that the Warranty bars Plaintiffs' unjust enrichment claim, and that it is time-barred, the Court does not reach AMI's third argument. AMI also argues that Plaintiffs' unjust enrichment claims are time-barred. Oregon's statute of limitations for unjust enrichment claims is six years, and accrues when the benefit is received. Georgia's statute of limitations for unjust enrichment claims is four years, and accrues on the date that suit on the claim can first be brought. Plaintiffs argue that the statute of limitations should be tolled due to AMI's fraudulent concealment. Plaintiffs plead no facts giving rise to a reasonable inference of affirmative concealment of the Siding's defects on the part of the Defendants. Because the Siding for Plaintiff Harney's home was purchased in 2002, and Plaintiff Gilbert bought the Siding in 2000, both of their claims for unjust enrichment are, in addition to being barred due to the existence of an enforceable contract, time-barred. Unlawful Trade Practices AMI argues that Plaintiffs' unlawful trade practices claim must be dismissed because Plaintiffs do not adequately allege that they detrimentally relied on AMI's alleged unlawful trade practices, and AMI's alleged misrepresentations are non- actionable puffery. Plaintiffs respond that they have sufficiently pleaded reliance as to the affirmative misrepresentations, and that reliance is not required for a failure to disclose claim. Affirmative Misrepresentations Reliance To prevail on a claim of affirmative misrepresentation under ORS Section 646.608(1)(e) (misrepresentations of characteristics, uses, benefits) and (g) (misrepresentations of quality, standard, or grade), a plaintiff must prove: (1) a violation of ORS 646.608(1); (2) causation (as a result of); and (3) damage (ascertainable loss). Plaintiffs have not pleaded facts that allege a third-party reliance theory. Plaintiffs have not pleaded factual allegations that they relied on AMI's representations or that such representations were communicated to them before purchasing the Siding or the house. Instead, Plaintiffs claim in a conclusory fashion that they reasonably relied on AMI's representations and failures to disclose, to their detriment, but plead no factual allegations to support this legal conclusion. Plaintiff Harney has not alleged that he relied on any of AMI's representations or that someone else communicated those representations to him before purchasing, or even that Harney relied on someone else's reliance. Plaintiffs, thus, have not pleaded reliance on AMI's statements sufficient to state a claim for affirmative misrepresentation. Puffery Plaintiffs have not alleged facts demonstrating any reliance on AMI's statements before purchasing or owning the Siding. The Court need therefore not determine whether AMI's statements are non-actionable puffery. Plaintiffs are correct, however, in noting that in both Georgia and Oregon, whether a party's statements are non-actionable puffery is often a question of fact for the jury. Failure to Disclose Under ORS Section 646.608(1)(t), it is an unlawful trade practice to fail to disclose any known material defect or material nonconformity at the time that the goods are tendered. Plaintiffs allege that Defendants violated the Oregon and Georgia unfair trade practices laws because: (1) The Siding did not have the approvals, characteristics, uses, benefits, grade, qualities, and standards represented by AMI, (2) The Siding was not of a particular standard, quality, or grade, and (3) AMI knew, or in the exercise of reasonable care should have known, that the Siding contained material defects and AMI failed to disclose such defects. Neither party cited, nor could the Court find, any case requiring a plaintiff to have relied on an omission by the defendant to state a claim under Ga. Code Ann. Section 10-1-372. Given the similarities between Georgia and Oregon unlawful trade practices statutes described above, Plaintiffs need not plead reliance in a failure to disclose theory for claims brought under ORS Section 646.638(1) or Ga. Code Ann. Section 10-1-372. Plaintiffs, thus, have sufficiently alleged causation under both laws. Accordingly, Defendants' Motion to Dismiss for failure to state a claim is granted in part and denied in part. Defendants' motion is granted as to Plaintiff Gilbert's implied warranty claim, and both Plaintiffs' unjust enrichment claims, which are dismissed with prejudice. Defendants' motion is also granted as to Plaintiffs' unlawful trade practices claims based on affirmative misrepresentation, which are dismissed without prejudice. Defendants' motion is denied as to all other claims, including Plaintiffs' unlawful trade practices claims based on Defendants' failure to disclose. A full-text copy of the District Court's January 18, 2018 Opinion and Order is available at https://tinyurl.com/yc6mw9as from Leagle.com. Michael Harney, on his own behalf and on behalf of all others similarly situated, Plaintiff, represented by Alex M. Nelson -- anelson@bensonpc.com -- Benson, Kerrane, Storz & Nelson, P.C., pro hac vice, Michael J. Lowder -- mlowder@bensonpc.com -- Benson, Kerrane, Storz & Nelson, P.C., pro hac vice, Robert W. Wilkinson -- rwilkinson@balljanik.com -- Ball Janik, LLP & Anthony T. Blake -- ablake@balljanik.com -- Ball Janik, LLP. Ozzie Gilbert, Plaintiff, represented by Robert W. Wilkinson, Ball Janik, LLP & Anthony T. Blake, Ball Janik, LLP. Associated Materials, LLC., a Delaware limited liability company doing business as Alside Building Products, Inc & Associated Materials Incorporated, a Delaware corporation doing business as Gentek Building Products, Inc. doing business as Alside Building Products, Inc., Defendants, represented by Daniel M. Kavouras -- dkavouras@bakerlaw.com -- Baker & Hostetler LLP, pro hac vice, Michael K. Farrell -- mfarrell@bakerlaw.com -- Baker & Hostetler LLP, pro hac vice, Sam A. Camardo -- scamardo@bakerlaw.com -- Baker & Hostetler LLP, pro hac vice & Darin M. Sands -- sandsd@lanepowell.com -- Lane Powell, PC. BANK MUTUAL: Lawsuits over Associated Banc-Corp Deal Dropped ------------------------------------------------------------ Bank Mutual Corporation said in its Form 10-Q report for the quarterly period ended September 30, 2017, that plaintiffs have agreed to dismiss their class action lawsuits challenging the Company's merger deal with Associated Banc-Corp. As disclosed in the Company's quarterly report on Form 10-Q for the quarter ended June 30, 2017, and in the Proxy Statement/Prospectus dated September 15, 2017, relating to the special meeting of shareholders on October 24, 2017, related to pending merger with Associated (the "Proxy Statement/Prospectus"), on July 28, 2017, two substantially identical purported class action complaints, each by various individual plaintiffs, were filed with the Wisconsin Circuit Court for Milwaukee County on behalf of the respective named plaintiffs and seeking to represent other Company shareholders against the Company, the members of the Company's board, and Associated in connection with the proposed merger between Associated and the Company. The lawsuits were captioned Schumel et al. v. Bank Mutual Corporation et al., case no. 2017CV006201, and Paquin et al. v. Bank Mutual Corporation et al., case no. 2017CV006202. Both complaints alleged state law breach of fiduciary duty claims against the Bank Mutual board for, among other things, seeking to sell Bank Mutual through an allegedly defective process, for an allegedly unfair price and on allegedly unfair terms. On August 30, 2017, a third purported class action complaint, captioned Wollenburg et al. v. Bank Mutual Corporation et al., case no. 2017CV007312, was filed in the Wisconsin Circuit Court for Milwaukee County, purportedly on behalf of the same class of shareholders and against the same defendants as the prior two complaints. The Wollenburg complaint asserted similar allegations as the prior two complaints, and further alleged that the preliminary proxy statement/prospectus filed with the Securities and Exchange Commission ("SEC") contained various alleged misstatements or omissions. The Paquin, Schumel, and Wollenburg complaints alleged that Associated aided and abetted the directors' alleged breaches of fiduciary duty. On September 13, 2017, Associated filed a notice of removal of the Paquin, Schumel, and Wollenburg actions to the United States District Court for the Eastern District of Wisconsin; however, on October 11, 2017, that Court remanded the three actions back to Wisconsin Circuit Court. On September 6, 2017, a fourth purported class action complaint, captioned Parshall et al. v. Bank Mutual Corporation et al., case no. 17-CV-1209, was filed in the United States District Court for the Eastern District of Wisconsin, purportedly on behalf of the same class of shareholders and against the same defendants as the prior complaints. The Parshall complaint criticized the adequacy of the merger consideration and alleged that Bank Mutual, the members of the Bank Mutual board and Associated allegedly omitted and/or misrepresented certain information in the registration statement of which the Proxy Statement/Prospectus formed a part in violation of securities laws and related SEC regulations. The Company, Associated and the other defendants believe that the claims asserted in the four lawsuits were without merit and that the disclosures in the Proxy Statement/Prospectus were adequate under the law. However, to avoid the risk that the lawsuits might delay or otherwise adversely affect the consummation of the merger and to minimize the expense of defending such actions, on October 13, 2017 the Company and Associated determined to voluntarily make certain supplemental disclosures related to the merger. It was stated that nothing in those disclosures was to be deemed an admission of the legal necessity or materiality under applicable law of any of such disclosures. The Company and Associated specifically denied that any further disclosure was required to supplement the Proxy Statement/Prospectus under applicable law. In light of the supplemental disclosures, on October 13, 2017, the plaintiffs in the four lawsuits agreed to dismiss their individual claims with prejudice. Effective February 1, 2018, pursuant to the terms of the Merger Agreement, BKMU was merged with and into Associated, with Associated continuing as the surviving entity in the Merger. Following the Merger, Bank Mutual's wholly owned banking subsidiary will merge with and into Associated's wholly owned banking subsidiary, Associated Bank, N.A., with Associated Bank, N.A. continuing as the surviving entity in the Bank Merger. The Bank Merger is expected to occur in late second quarter or early third quarter 2018. Bank Mutual Corporation is the third largest financial institution holding company headquartered in Wisconsin based on total assets. DELTA AIR: Appeal in First Bag Fee Antitrust Suit Still Pending --------------------------------------------------------------- Delta Air Line, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017, that the plaintiffs' appeal in the First Bag Fee Antitrust Litigation remains pending. In May-July 2009, a number of purported class action antitrust lawsuits were filed against Delta and AirTran Airways ("AirTran"), alleging that Delta and AirTran engaged in collusive behavior in violation of Section 1 of the Sherman Act in November 2008 based upon certain public statements made in October 2008 by AirTran's CEO at an analyst conference concerning fees for the first checked bag, Delta's imposition of a fee for the first checked bag on November 4, 2008 and AirTran's imposition of a similar fee on November 12, 2008. The plaintiffs sought to assert claims on behalf of an alleged class consisting of passengers who paid the first bag fee after December 5, 2008 and seek injunctive relief and unspecified treble damages. All of these cases have been consolidated for pre-trial proceedings in the Northern District of Georgia. On July 12, 2016, the Court issued an order granting the plaintiffs' motion for class certification. On October 7, 2016, the U.S. Court of Appeals granted the defendants' petition for interlocutory review of this order, and that appeal remains pending. On March 29, 2017, the District Court granted the defendants' motions for summary judgment. The plaintiffs have filed an appeal to the U.S. Court of Appeals, and that appeal remains pending. Delta Air Lines, Inc. is a major American airline, with its headquarters and largest hub at Hartsfield-Jackson Atlanta International Airport in Atlanta, Georgia. BAYER CONSUMER: 2d Cir. Affirms Dismissal of "Kommer" Suit ---------------------------------------------------------- In the case, JAMES KOMMER, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. BAYER CONSUMER HEALTH, a division of Bayer AG, MSD CONSUMER CARE, INC., BAYER CONSUMER CARE HOLDINGS LLC, BAYER HEALTHCARE LLC, BAYER CORPORATION, Defendants-Appellees, Case No. 17-1772 (2d Cir.), the U.S. Court of Appeals for the Second Circuit affirmed the judgment of the district court dismissing Kommer's request for injunctive relief for lack of Article III standing, and the balance of the complaint for failure to state a claim. Kommer brought the putative class action in the U.S. District Court for the Southern District of New York, alleging that the Defendants' marketing of their product, "Dr. Scholl's Custom Fit Orthotic Inserts," constitutes a deceptive business practice and false advertising under New York General Business Law ("GBL") Sections 349 and 350. In essence, the complaint alleges that Kommer and other consumers were led to believe incorrectly that the orthotics -- which they purchased in prepackaged sizes, over- the-counter at retail stores such as Walmart -- were "custom fit" in the sense that they were individually designed for each consumer's specific feet. On motion of the Defendants, the district court dismissed the request for injunctive relief for lack of Article III standing, and the balance of the complaint for failure to state a claim. Kommer challenges the district court's determination that he lacks Article III standing to seek injunctive relief on behalf of himself and the putative class. He challenges the district court's determination that his complaint fails to state a claim under GBL Sections 349 and 350. The Appellate Court considered Kommer's arguments and find them to be without merit. Kommer fails to establish a likelihood of future harm. Accordingly, he has no standing under Article III to enjoin the Defendants' sales practices, and the court properly deemed him precluded from seeking that relief. Moreover, an independent review of the allegations and relevant state law confirms that the complaint fails to state a claim. This is so for substantially the reasons articulated in the district court's May 18, 2017 Memorandum and Order. In particular, the complaint fails to plausibly allege that the Defendants engaged in conduct likely to mislead a reasonable consumer acting reasonably under the circumstances, a required element of both claimed violations of the GBL. The court therefore properly dismissed the case. For these reasons, the Second Circuit affirmed the judgment of the district court. A full-text copy of the Second Circuit's Jan. 31, 2018 Order is available at https://is.gd/7Gqvx5 from Leagle.com. ROBERT J. BERG -- rberg@mdpcelaw.com -- (with Jeffrey I. Carton - - jcarton@denleacarton.com -- on the brief), Denlea & Carton LLP, White Plains, NY, for Plaintiff-Appellant. EUGENE A. SCHOON -- eschoon@sidley.com -- (with James D. Arden -- jarden@sidley.com -- on the brief), Sidley Austin LLP, New York, NY and Chicago, IL, for Defendants-Appellees. BHP: Faces Class Action Over Worker's Casual Status --------------------------------------------------- Adelle Chua, writing for HRD, reports that a mine operator and a labour-hire firm are facing class action led by a worker who was denied pay claims because of his casual status. Chandler Macleod hired Simon Turner for BHP to operate a truck at the Mt. Arthur coal mine in the NSW Hunter Valley, but Mr. Turner suffered spinal injuries after his truck was hit by a coal excavator in 2015. Mr. Turner, 47, was totally incapacitated but both companies refused to pay him the industry standard accident compensation because he was classified as a casual worker, ABC News reported. He receives $411 per week instead of the $1,800 per week he would have received under the award as a permanent employee. "I hate it. We do exactly the same job, work the same hours and are exposed to the same dangerous conditions, yet they pay us about half of what the BHP employees get," Mr. Turner said. The class action is brought by more than 400 mine workers who alleged that BHP, Chandler Macleod and another labour-hire firm, Tesa, hired them as casuals to avoid paying them entitlements worth $20,000 per annum. The claimants allege that BHP was involved with Chandler Macleod and Tesa over a period of six years to casualise its workforce. "We want to be treated as normal humans and [be] paid exactly the same as everyone else for doing the same job and working the same hours . . . you can't go and get a loan, you can do anything, they say you're casual," Mr. Turner said. They set out to show the contractors at the mine are treated exactly like the permanent employees: Both groups are expected to work a full roster, published up until the end of 2019 and both are required to submit leave requests to BHP up to four weeks in advance. Lawyer Rory Markham said the class action would challenge the legal basis for employing casual mine workers and would have implications for mining companies across Australia. Mt Arthur is the largest coal mine in NSW, with a production workforce, including direct employees and labour hire contractors, of about 1,900 people. [GN] BIG HEART: Faces Class Action Over Contaminated Dog Food -------------------------------------------------------- Lisa Fletcher, writing for ABC7, reports that an ABC7 investigation exposed the euthanasia drug, pentobarbital, in the national brand pet food, Gravy Train. The class action lawsuit was filed in a US District Court in California against "Big Heart Brands," owned by Smucker's and the maker of Gravy Train. Big Heart Brands is also the maker of Meow Mix, Milk Bone, Kibbles'n Bits, 9 Lives, Natural Balance, Pup-Peroni, Gravy Train, Nature's Recipe, Canine Carry Outs, Milo's Kitchen, Alley Cat, Jerky Treats, Meaty Bone, Pounce and Snausages. The suit alleges the company "knowingly, recklessly and/or negligently is selling contaminated dog food containing pentobarbital, a substance largely used to euthanize animals." As pointed out in our initial investigation, pentobarbital would never be used on animals intended for food, as that would be illegal. So where is it coming from? "It comes from euthanasia of animals using that euthanasia drug. If they say it doesn't come from dogs, cats and horses where does it come from? It doesn't come from outer space," says Dr. Nicholas Dodman, Chief Scientific Officer for the Center for Canine Behavior Studies and Former Director of the Animal Behavior Program and Tufts University. [GN] BITCONNECT INT'L: Silver Miller Files Class Action Lawsuit ---------------------------------------------------------- Silver Miller recently announced that a class action lawsuit was commenced on behalf of individuals and entities who held investments at the recently-shuttered BitConnect cryptocurrency exchange and lending platform. The lawsuit was filed in the United States District Court for the Southern District of Florida and is captioned Wildes, et al. v. BitConnect International PLC, et al., Case No. 9:18-cv-80086-DMM (the "Lawsuit"). Any member of the putative class may move the Court to serve as lead plaintiff through counsel of his/her/its choice or may choose to do nothing and remain an absent class member. If you wish to serve as lead plaintiff in the Lawsuit, however, you must move the Court no later than April 13, 2018 to appoint you as the lead plaintiff. If you wish to discuss the Lawsuit or have any questions concerning this notice or your rights or interests as they relate to the Lawsuit, please contact plaintiffs' counsel David C. Silver of Silver Miller at (954) 516-6000 or DSilver@SilverMillerLaw.com The Complaint alleges that BitConnect International PLC, BitConnect Ltd., BitConnect Trading Ltd., and the companies' U.S.-based Directors and affiliates/promoters operated a Ponzi scheme that -- through an army of highly-compensated recruiters who lured in investors through social media channels -- fraudulently promoted exorbitant monthly and daily returns on investments that were actually nothing more than reallocated funds from other investors. According to the lawsuit, the defendants also engaged in a fraudulent and unregistered offering and sale of securities that violated numerous state and federal securities laws, including Sections 5, 12(a), 15, and 17(a) of the Securities Act of 1933, 15 U.S.C. Secs. 77e, 77l(a), 77o, and 77q(a). The Lawsuit pleads that the Court rescind all investments in BitConnect; require BitConnect to account for all funds raised from BitConnect investors; and adjudicate that BitConnect and its affiliates violated multiple securities laws. The plaintiffs are represented by Silver Miller -- http://www.silvermillerlaw.com-- a cryptocurrency investor law firm, with actions currently pending against the Coinbase, Kraken, and Cryptsy exchanges as well as against Initial Coin Offering promoters Tezos and Monkey Capital. [GN] BITCONNECT INT'L: Faces Another Securities Class Action in Fla. --------------------------------------------------------------- Nikhilesh De, writing for CoinDesk, reports that yet another lawsuit seeking class-action status has been filed in Florida against BitConnect, constituting the third legal action of its kind to be initiated in the state and the fifth overall in the U.S. Florida residents Andrew Kline, Dusty Showers and Lena Hunt, along with Rhode Island resident Charles Mabra, filed the lawsuit in the U.S. District Court of the Middle District of Florida on Feb. 7, public records show. Additional suits have been filed in Minnesota and Kentucky. Like the previous lawsuits filed in the past month, this one names Bitconnect's various arms as defendants. Among the defendants cited in this instance are BitConnect director Glenn Arcaro and affiliate Ryan Maasen, as well as other unknown entities involved in the alleged Ponzi scheme. The suit claims that BitConnect sold unregistered securities in the state and committed fraud by overstating the possible returns that users who purchased the BitConnect tokens would see. The plaintiffs also alleged that the defendants violated Florida trade and securities laws, as well as the applicable laws in Rhode Island. The plaintiffs are seeking a jury trial, which would result in damages being levied against the defendants if they are successful. Proceeds would repay investors, as well as provide for the costs of the trial, according to the document. Just last month, BitConnect saw its assets frozen after a previous lawsuit was filed by aggrieved investors. In the wake of the closure of BitConnect's lending platform, the price of its BCC token has fallen, tumbling from above $300 to roughly $2.90 as of press time. In January, regulators in Texas and North Carolina moved against BitConnect ahead of a planned token sale, issuing cease-and- desist notices before the lending platform closure announcement later that month. [GN] BNSF RAILWAY: Court Issues Protective Order in "Sumlin" ------------------------------------------------------- The United States District Court for the Central District of California, Eastern Division, issued a Stipulated Protective Order in the case captioned HENRY SUMLIN and BRIAN LEE, individually and on behalf of all others similarly situated, Plaintiffs, v. BNSF RAILWAY COMPANY, and DOES 1-50, Defendants, Case No. 5:17-cv-02364-JFW(KKx) (C.D. Cal.). The parties stipulate, "It is the intent of the parties that information will not be designated as confidential for tactical reasons and that nothing be so designated without a good faith belief that it has been maintained in a confidential, non-public manner, and there is good cause why it should not be part of the public record of this case." The protections conferred by the Stipulation and Order cover not only Protected Material, but also (1) any information copied or extracted from Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected Material. A full-text copy of the District Court's January 18, 2018 Order is available at https://tinyurl.com/yags3m9v from Leagle.com. Henry Sumlin, individually and on behalf of others similarly situated & Brian Lee, individually and on behalf of all others similarly situated, Plaintiffs, represented by Craig J. Ackermann -- cja@ackermanntilajef.com -- Ackermann and Tilajef PC, David S. Winston, Winston Law Group, P.C., Jonathan Melmed -- jm@melmedlaw.com -- Melmed Law Group PC & Sam Vahedi, Ackermann and Tilajef, 1180 South Beverly Drive, Suite 610. Los Mario J.es, California 90035 PC. BNSF Railway Company, Defendant, represented by Amanda Pade Ellison -- apellison@jonesday.com -- Jones Day, Amanda C. Sommerfeld -- asommerfeld@jonesday.com -- Jones Day, Charles W. Shewmake -- Charles.Shewmake@tklaw.com -- Thompson and Knight LLP, Donald J. Munro -- dmunro@jonesday.com -- Jones Day, pro hac vice & Koree Blyleven -- kblyleven@jonesday.com -- Jones Day. CALIFORNIA: Pro Se Complaint Failed to Survive Screening -------------------------------------------------------- The United States District Court for the Eastern District of California issued a Screening Order dismissing for failure to state a claim the case captioned DARRON DANIELS, et al., Plaintiffs, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendants, Case No. 1:17-cv-01510-AWI- BAM (E.D. Cal.). Plaintiff Darron Daniels (Plaintiff) is a state prisoner proceeding pro se and in forma paueris, in this civil rights action pursuant to 42 U.S.C. Section 1983. The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity and/or against an officer or employee of a governmental entity. To survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Plaintiff purports to bring this action on behalf of himself and three other inmates: Travis Washington, Jr., Omar Samuels, and Michael Anthony Miller. Plaintiff alleges that California voters adopted California Constitution Article I, Section 32 (Proposition 57) as law, which purportedly declares that inmates are to serve only their primary offense. Plaintiff contends that since its adoption, defendants have failed to cause Proposition 57's language to be given effect by way of moratorium, and thus remedy is with the courts. Plaintiff was informed by Defendants Kane and Jones that they lack jurisdiction to effectuate California Constitution Article I, Section 32. Plaintiff purports to bring claims for violation of the California Constitution, along with claims for violation of the Fifth, Eighth and Fourteenth Amendments to the United States Constitution. Plaintiff seeks declaratory and injunctive relief. Plaintiff seeks to bring a class action or representative action on behalf of other inmates. However, he may not do so. A non- attorney proceeding pro se may bring his own claims to court, but he may not represent others. Plaintiff sues several State entities for alleged constitutional violations. Most of Plaintiff's allegations fail to assert the requisite causal link between the challenged conduct, a specific defendant, and a clearly identified constitutional violation. Under Section 1983, Plaintiff must demonstrate that each named defendant personally participated in the deprivation of his rights. Plaintiff may not attribute liability to a group of defendants, but must set forth specific facts as to each individual defendant's" deprivation of his rights. Plaintiff names the CDCR, California State Superior Courts, Parole Hearing Board, and the Attorney General for the State of California as defendants in this action. Plaintiff is informed that the Eleventh Amendment prohibits federal courts from hearing a Section 1983 lawsuit in which damages or injunctive relief is sought against state agencies (such as CDCR) and individual prisons, absent a waiver by the state or a valid congressional override. The Eleventh Amendment bars suits which seek either damages or injunctive relief against a state, 'an arm of the state, its instrumentalities, or its agencies. Plaintiff's claim is not cognizable under Section 1983 as it asserts only a violation or misinterpretation of state law. Section 1983 provides a remedy only for violation of the Constitution or law or treaties of the United States. State courts "are the ultimate expositors of state law. Plaintiff has not alleged that he qualifies for parole consideration under the requirements of Proposition 57. In a Section 1983 lawsuit, Plaintiff is restricted to limited procedural challenges and cannot proceed if he seeks to challenge the validity or duration of his sentence. Federal courts may order a new parole suitability hearing only under very limited circumstances that are not alleged here. The Court is not convinced that there is mandatory language in Proposition 57 creating a constitutionally protected liberty interest in parole eligibility, of which Plaintiff cannot be deprived without due process. Parole consideration of a person who is eligible under Proposition 57 is discretionary and is a matter of state law. Plaintiff may not transform a state-law issue into a federal one merely by asserting a violation of due process. The violation of state regulations, rules and policies of the CDCR, or other state law is not sufficient to state a claim for relief under Section 1983. Nonetheless, the Court will grant Plaintiff leave to amend to allege that standards for parole have been met, and the minimum procedures adequate for due-process protection of that interest have not been met, to the extent Plaintiff can do so in good faith. In this instance, Plaintiff fails to state a claim for relief on his federal claims for violations of 42 U.S.C. Section 1983. Liberally construing the claims in the complaint, it appears that Plaintiff is bringing state law claims for false imprisonment. As Plaintiff has failed to state any cognizable federal claims in this action, the Court declines to exercise supplemental jurisdiction over Plaintiff's state law causes of action. Plaintiff's complaint fails state a claim upon which relief may be granted under section 1983. A full-text copy of the District Court's January 18, 2018 Order is available at https://tinyurl.com/y6v3s7dv from Leagle.com. Darron Daniels, Plaintiff, Pro Se. Travis Washington, Jr., Plaintiff, Pro Se. Omar Samuels, Plaintiff, Pro Se. Michael Anthony Miller, Plaintiff, Pro Se. CALIFORNIA: Prisoner Sleep Deprivation Suit Moved to Sacramento --------------------------------------------------------------- SFGate reports that two lawsuits that claim certain state prisoners suffered severe sleep deprivation during noisy suicide and welfare checks have been moved from federal court in San Francisco to Sacramento. U.S. District Judge Vince Chhabria of San Francisco ordered the transfer to the Sacramento-based federal court for the Eastern District of California on Feb. 9, a day after holding a hearing on the state's request for dismissal of the lawsuits and on whether to transfer the cases. The federal court in Sacramento is the home of the settlement of a 1990 class action lawsuit concerning mental health treatment of prisoners. That settlement was held in 2013 to require regular suicide and welfare checks of prisoner held in isolation in Security Housing Units, in which inmates generally spend 22 and one-half hours per day in their cells. Since 2015, according to the lawsuits, guards have completed each check by striking a metal wand against a metal pad outside the door of each cell. Electronics in the wand record the time and location of the check. The inmates claim the loud clanging causes sleep deprivation and related medical problems amounting to cruel and unusual punishment. The state attorney general's office had asked Judge Chhabria to dismiss the lawsuits, saying that the two cases were precluded by the previous class-action settlement. Judge Chhabria did not rule on the request for dismissal in his brief order transferring the cases. That decision will now be made by the new judge handling the lawsuits in Sacramento. That jurist is expected to be U.S. District Judge Kimberly Mueller, who is presiding over the settlement of the mental health case. Although Judge Mueller won't necessarily be influenced by the proceedings before Judge Chhabria, prisoners' advocate Verbena Lea said she was heartened that Judge Chhabria expressed concern about the alleged sleep deprivation during the hearing on Feb. 8. Ms. Lea is a member of the PHSS Committee to End Sleep Deprivation, which is part of the Bay Area-based Prisoner Hunger Strike Solidarity Coalition. "I'm hoping that once (Mueller) has the case in front of her, she will make the right decision and conclude the sleep deprivation is a constitutional violation," Ms. Lea said. [GN] CENTURY FINANCIAL: Faces "Teele" Suit in Connecticut ---------------------------------------------------- A class action lawsuit has been filed against Century Financial Services, Inc. The case is styled as Kyonda Teele, individually and on behalf of all others similarly situated, Plaintiff v. Century Financial Services, Inc. d/b/a Century Healthcare Collection In Connecticut and John Does 1-25, Defendants, Case No. 3:18-cv-00320 (D. Conn., February 22, 2018). Century Financial Services Inc. is a provider of professional accounts receivable management services to healthcare providers in Connecticut, Massachusetts and Rhode Island.[BN] The Plaintiff appears PRO SE. CF ARCIS: CF Arcis IV Added as Defendant in "Hart" -------------------------------------------------- The United States District Court for the Western District of Washington, Seattle, issued an order approving the stipulation dismissing Defendant CF ARCIS X Holdings LLC and adding DEFENDANT CF ARCIS IV HOLDINGS LLC in the case captioned LAWRENCE HART, CLYDE STEPHEN LEWIS, JAMES PRESTI, and MICHAEL RALLS, individual and on behalf of all others similarly situated, Plaintiffs, v. CF ARCIS VII LLC d/b/a THE CLUB AT SNOQUALMIE RIDGE, d/b/a TPC AT SNOQUALMIE RIDGE, and d/b/a SNOQUALMIE RIDGE GOLF CLUB, et al., Defendants, No. C17-01932 RSM (W.D. Wash.). Plaintiffs seek to add CF Arcis IV Holdings, LLC, as a named defendant. Plaintiffs and the Arcis Defendants therefore agree to ask that the Court amend the case caption to read as follows: LAWRENCE HART, CLYDE STEPHEN LEWIS, JAMES PRESTI, and MICHAEL RALLS, individual and on behalf of all others similarly situated, Plaintiffs, v. CF ARCIS VII LLC d/b/a THE CLUB AT SNOQUALMIE RIDGE, d/b/a TPC AT SNOQUALMIE RIDGE, and d/b/a SNOQUALMIE RIDGE GOLF CLUB, CF ARCIS IV HOLDINGS, LLC, ARCIS EQUITY PARTNERS, LLC, BLAKE S. WALKER, individually and on behalf of the marital community of BLAKE S. WALKER and JANE DOE WALKER, and BRIGHTSTAR GOLF SNOQUALMIE, LLC, Defendants. The Court ordered that Defendant CF Arcis X Holdings, LLC d/b/a Arcis Golf is dismissed from this case under Fed. R. Civ. P. 41(a)(1)(A)(ii), and CF Arcis IV Holdings, LLC, is added as a Defendant. A full-text copy of the District of Court's January 22, 2018 Order is available at https://tinyurl.com/ydgtdyfw from Leagle.com. Lawrence Hart, Clyde Stephen Lewis, James Presti & Michael Ralls, individually and on behalf of all others similarly situated, Plaintiffs, represented by Adrienne McEntee -- amcentee@tmdwlaw.com -- TERRELL MARSHALL LAW GROUP PLLC & Beth E. Terrell -- bterrell@tmdwlaw.com -- TERRELL MARSHALL LAW GROUP PLLC. CF Arcis VII LLC, doing business as The Club at Snoqualmie Ridge, d/b/a TPC at Snoqualmie Ridge, and d/b/a Snoqualmie Ridge Golf Club, Arcis Equity Partners, LLC, Blake S. Walker, individually and on behalf of the marital community of Blake S. Walker and Jane Doe Walker & CF Arcis IV Holdings, LLC, Defendants, represented by Rebecca J. Francis -- rebeccafrancis@dwt.com -- DAVIS WRIGHT TREMAINE & Stephen M. Rummage -- steverummage@dwt.com -- DAVIS WRIGHT TREMAINE. CHARLES SCHWAB: Court Denies Arbitration of ERISA Claims -------------------------------------------------------- The United States District Court for the Northern District of California issued an Order denying Defendant's Motion to Compel Arbitration in the case captioned MICHAEL F. DORMAN, individually as a participant in the SCHWAB PLAN RETIREMENT SAVINGS AND INVESTMENT PLAN and on behalf of a class of all those similarly situated, Plaintiff, v. CHARLES SCHWAB & CO. INC.; CHARLES SCHWAB & CO INC.; SCHWAB RETIREMENT PLAN SERVICES INC.; CHARLES SCHWAB BANK; CHARLES SCHWAB INVESTMENT MANAGEMENT, INC.; JOHN DOES 1-50; and XYZ CORPORATIONS 1-5, Defendants, Case No. 17-cv-00285-CW (N.D. Cal.). Before the Court is Defendant's motion to compel individual arbitration of Plaintiff Michael F. Dorman's claims against Defendants and to stay or dismiss this action while the arbitration is pending. Alternatively, Defendants move to stay the action pending a ruling by the Supreme Court in Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th Cir. 2016). The Charles Schwab Corporation (Charles Schwab) and its subsidiaries, Charles Schwab & Co. Inc. and Charles Schwab Bank (the Schwab entities), provide a wide range of financial services, including wealth management, securities brokerage, banking, money management, custody, and financial advisory services. Dorman was employed at Charles Schwab & Co., Inc. for six years, until he left the company. Shortly after starting his employment, he completed a Uniform Application for Securities Industry Registration or Transfer (Form U-4), which is required for all registered representatives under the Financial Industry Regulatory Authority (FINRA) rules. Dorman electronically signed an Acknowledgment of the Schwab Investor Financial Consultant Compensation Plan (Compensation Plan Acknowledgment). The Compensation Plan describes the compensation structure of a financial consultant (FC) like Dorman. The Acknowledgment contains a section entitled 11.0 Arbitration of Disputes. The Federal Arbitration Act (FAA) provides that any agreement within its scope shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. The FAA represents a liberal federal policy favoring arbitration agreement, notwithstanding any state substantive or procedural policies to the contrary. Defendants contend that the Plan Document, Form U-4, and the Compensation Plan Acknowledgment are valid agreements that require arbitration under the FAA. Defendants provide no authority supporting their contention that a plan document executed after the participant has ceased participation in the plan can bind the participant to arbitration. But there is no indication that the plan's mandatory arbitration clause was enacted after the plaintiff ceased all participation in the plan. The remaining cases cited by Defendants are similarly unavailing because, in each case, the plan document was in effect while the plaintiff participated in the plan. The Plan Document therefore does not bind Dorman. Defendants argue that Form U-4's arbitration provision encompasses Dorman's claims because the provision covers any dispute, claim or controversy between Dorman and Schwab. Defendants read this provision out of context. The arbitration provision does not apply to any dispute between Dorman and Schwab, but only those that are required to be arbitrated under the rules, constitutions, or by-laws of the SROS indicated in Section 4. Section 4 of Form U-4 lists a number of SROs, or self- regulatory organizations such as FINRA, but mentions nothing whatsoever about the Plan. Defendants fail to explain adequately why the language of this provision encompasses Dorman's claims. The Compensation Plan Acknowledgment arbitration and class action provisions are limited to claims arising out of or relating to the financial consultant's employment or the termination of employment. Dorman's claims, which arise not under the Compensation Plan but under the SchwabPlan, are therefore governed by the claims procedures of the SchwabPlan. Because the arbitration provisions cited by Defendants do not encompass Dorman's claims, they do not require him to submit his claims to arbitration. Even if the arbitration provisions cited by Defendants encompassed Dorman's claims, the provisions could not be enforced. Dorman brings his claims pursuant to Sections 502(a)(2) and 502(a)(3) on behalf of the plan. He cannot waive rights that belong to the Plan, such as the right to file this action in court. The Court recently resolved this question in a similar case, Cryer v. Franklin Templeton Res., Inc., 2017 WL 4410103 (N.D. Cal. Oct. 4, 2017). There, a release and class action waiver signed by the plaintiff could not be enforced against the plaintiff's Section 502(a)(2) claims brought on behalf of the plan. Relying on Bowles v. Reade, 198 F.3d 752 (9th Cir. 1999), the Court explained that a plan participant cannot settle, without the plan's consent, a Section 502(a)(2) breach of fiduciary duty claim seeking a return to the plan and all participants of all losses incurred and any profits gained from the alleged breach of fiduciary duty. Here, too, enforcement of the arbitration and class action provisions would violate the principles set forth in Bowles v. Reade. Dorman brings Sections 502(a)(2) and 502(a)(3) claims seeking to restore losses incurred by the Plan. As a result, he cannot release the right to file a claim in court or the right to file a class action, both of which belong to the Plan. The Court denies Defendants' motion to compel arbitration. A full-text copy of the District Court's January 18, 2018 Order is available at https://tinyurl.com/yayq995r from Leagle.com. Michael F. Dorman, individually as a participant in the SCHWAB PLAN RETIREMENT SAVINGS AND INVESTMENT PLAN and on behalf of a class of all those similarly situated, Plaintiff, represented by James A. Bloom -- jbloom@schneiderwallace.com -- Schneider Wallace Cottrell Konecky Wotkyns LLP, Kyle Geoffrey Bates -- kbates@schneiderwallace.com -- Schneider Wallace Cottrell Konecky Wotkyns LLP & Todd M. Schneider -- tschneider@schneiderwallace.com -- Schneider Wallace Cottrell Konecky Wotkyns LLP. Charles Schwab & Co. Inc., The Charles Schwab Corporation, Schwab Retirement Plan Services Inc., Charles Schwab Bank & Charles Schwab Investment Management, Inc., Defendants, represented by Howard Shapiro -- howshapiro@proskauer.com -- Proskauer Rose, LLP, Lowell Harry Haky, Charles Schwab and Co., Inc. Office of Corporate Counsel, Mai Petersen Klaassen, Charles Schwab, Myron D. Rumeld -- mrumeld@proskauer.com -- Proskauer Rose, Ronald Scott Kravitz -- rkravitz@sfmslaw.com -- Shepherd, Finkelman, Miller & Shah, LLP, Stacey C.S. Cerrone -- scerrone@proskauer.com -- Proskauer & Tulio Dock Chirinos -- tchirinos@proskaue.com -- Proskauer Rose LLP. Charles R. Schwab, Joseph R. Martinetto, Martha Tuma, Jay Allen, Dave Callahan, John C. Clark & Walter W. Bettinger, III, Defendants, represented by Howard Shapiro, Proskauer Rose, LLP, Myron D. Rumeld, Proskauer Rose & Ronald Scott Kravitz, Shepherd, Finkelman, Miller & Shah, LLP. CMRE FINANCIAL: Court Grants Joint Move to Dismiss "Crooks" Suit ---------------------------------------------------------------- The United States District Court for the Southern District of California issued an Order granting the Joint Motion to Dismiss the case captioned TANEESHA CROOKS, individually and on behalf of all others similarly situated, Plaintiff, v. CMRE FINANCIAL SERVICES, INC., Defendant, Case No. 17-cv-00270-H-JLB (S.D. Cal.). Plaintiff Crooks and Defendant filed a joint motion to dismiss the action with prejudice as to Plaintiff Crooks and without prejudice as to the putative class. The Court has considered the factors identified in Diaz v. Trust Territory of the Pacific Islands and is satisfied that dismissal would not be collusive or prejudicial to the putative class members. 876 F.2d 1401, 1408 (9th Cir. 1989). Accordingly, the Court grants the joint motion. A full-text copy of the District Court's January 18, 2018 Order is available at https://tinyurl.com/y778dw7d from Leagle.com. Taneesha Crooks, Individually and On Behalf of All Others Similarly Situated, Plaintiff, represented by Abbas Kazerounian - - ak@kazlg.com -- Kazerounian Law Group, APC, Joshua B. Swigart - - josh@westcoastlitigation.com -- Hyde & Swigart, Yana A. Hart -- yana@westcoastlitigation.com -- Hyde & Swigart & Daniel G. Shay - - DanielShay@SanDiegoBankruptcyNow.com -- Law Offices of Daniel G. Shay. CMRE Financial Services, Inc., Defendant, represented by David J. Kaminski -KaminskiD@cmtlaw.com -- Carlson and Messer. CORE CIVIC: Faces "Gonzalez" Suit in W.D. of Texas -------------------------------------------------- A class action lawsuit has been filed against Core Civic, Inc. The case is styled as Martha Gonzalez, individually and on behalf of all similarly situated, Plaintiff v. Core Civic, Inc., Defendant, Case No. 1:18-cv-00169 (W.D. Tex., February 22, 2018). CoreCivic, formerly the Corrections Corporation of America, is a company that owns and manages private prisons and detention centers and operates others on a concession basis.[BN] The Plaintiff is represented by: Thomas H. Padgett , Jr., Esq. The Buenker Law Firm 2060 North Loop West, Suite 215 Houston, TX 77018 Tel: (713) 868-3388 Fax: (713) 683-9940 Email: tpadgettlaw@gmail.com CRAZY HORSE: 4th Cir. Affirms Arbitration Denial in "Degidio" ------------------------------------------------------------- The United States Court of Appeals, Fourth Circuit, issued an Opinion affirming District Court's judgment denying Defendant's Motion to Compel Arbitration in the case captioned ALEXIS DEGIDIO, individually and on behalf of all others similarly situated, Plaintiff-Appellee, v. CRAZY HORSE SALOON AND RESTAURANT INC, d/b/a Thee New Dollhouse, Defendant-Appellant, and JOSEPH B. HARGADON, Third Party Defendant, No. 17-1145 (4th Cir.). This appeal concerns the enforceability of arbitration agreements that were executed more than a year after this litigation began. Degidio alleged that Crazy Horse misclassified her and other putative class members as independent contractors and that it further violated the minimum wage and overtime provisions of the Fair Labor Standards Act FLSA, 29 U.S.C. Section 201 et seq. Degidio also claimed that Crazy Horse violated the South Carolina Payment of Wages Act SCPWA, S.C. Code Section 41-10-10 et seq., by failing to pay entertainers the appropriate minimum wages, improperly denying them overtime wages, and inappropriately withholding the entertainers' tips. In support of its motion to compel arbitration, Crazy Horse submitted signed declarations in which entertainers explained why they chose to sign the agreement. All of the entertainers stated that they preferred to be independent contractors because they enjoyed having the freedom to work at other clubs, set their own work schedules, and keep the money they received in tips. Crazy Horse also filed an affidavit from its CFO Laura Watson explaining that Crazy Horse had begun entering arbitration agreements with entertainers in November 2014. The district court entered an order denying Crazy Horse's motion to compel arbitration, the court found that Crazy Horse had obtained the arbitration agreements through a unilateral, unsupervised, and misleading pattern of communication with absent class members initiated more than a year after the pendency of this case. It thus declined to enforce the arbitration agreements. Crazy Horse now appeals this decision. The Federal Arbitration Act (FAA) adopted a liberal federal policy favoring arbitration agreements. The FAA recognizes that arbitration is an expeditious way to resolve disputes and conserve judicial resources. It accordingly requires that courts stay any suit or proceeding pending arbitration of any issue referable to arbitration under an agreement in writing for such arbitration. Pursuant to this directive, courts generally respect contractual agreements to settle disputes via arbitration. Courts must place arbitration agreements on an equal footing with other contracts. However, the policy undergirding the FAA is not without limits. A litigant may waive its right to invoke the Federal Arbitration Act by so substantially utilizing the litigation machinery that to subsequently permit arbitration would prejudice the party opposing the stay. The arbitration agreements that Crazy Horse presented to potential plaintiffs painted a false picture of the entertainers' legal posture. Specifically, the agreements suggested that the entertainers' ability to keep tips and set their own schedules was a result of their designation as independent contractors, and that this designation would be imperiled if the entertainers joined Degidio's suit. In their declarations, the entertainers appear to have been operating under the misunderstanding that they would be able to keep their tips and flexible work schedule only if they were independent contractors, and that they would be able to assure themselves of that status only by signing the arbitration agreements. But the benefits that seemingly led the entertainers to sign arbitration agreements are available to both employees and independent contractors alike. The FLSA requires that employers pay a minimum wage and overtime rates to their employees. It does not prevent parties whether they be businesses, employees, or independent contractors from getting together to settle most questions of wages and scheduling to their mutual satisfaction. In other words, while the parties cannot circumvent the FLSA with a simple contractual declaration, they remain free to determine most features of their relationship. Insofar as the entertainers signed the arbitration agreements because they thought that employment status would deprive them of any say-so over the conditions of their employment, the agreements are misleading. The agreements in this case were all obtained after potential plaintiffs met with Crazy Horse's CFO or counsel. The setting here was ripe for duress: Not only were arbitration agreements executed without knowledge of the court and in the context of an employment relationship in which the employer alone could profess the requisite legal expertise. They falsely suggested that participation in the lawsuit would deprive potential plaintiffs of important professional rights. The combination of these circumstances rendered defendant's conduct indefensible from the get-go. The district court was right to describe the circumstances here as distinct and disturbing and it correctly denied enforcement of these sham agreements. The Fourth Circuit said it respects the admirable care and patience of that court in the face of obviously trying circumstances. The judgment of the district court is affirmed and the case remanded for further proceedings consistent with this opinion. A full-text copy of the Fourth Circuit's January 18, 2018 Order is available at https://tinyurl.com/yayq995r from Leagle.com. James Leon Holt, Jr., -- jholt@jsyc.com -- JACKSON, SHIELDS, YEISER & HOLT, Cordova, Tennessee, for Appellant. Jamisen A. Etzel -- jetzel@carlsonlynch.com -- CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP, Pittsburgh, Pennsylvania, for Appellee. Gary Lynch -- glynch@carlsonlynch.com -- CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP, Pittsburgh, Pennsylvania, for Appellee. DELTA AIR: Still Faces Capacity Antitrust Litigation ---------------------------------------------------- Delta Air Line, Inc. continues to defend against claims in the Capacity Antitrust Litigation, the airline said in its Form 10-K report filed with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017. In July 2015, a number of purported class action antitrust lawsuits were filed alleging that Delta, American, United and Southwest had conspired to restrain capacity. The lawsuits were filed in the wake of media reports that the U.S. Department of Justice had served civil investigative demands upon these carriers seeking documents and information relating to this subject. The lawsuits have been consolidated into a single Multi- District Litigation proceeding in the U.S. District Court for the District of Columbia. In November 2016, the District Court denied the defendants' motion to dismiss the claims, and the matter is now proceeding through discovery. Delta believes the claims in these cases are without merit and is vigorously defending these lawsuits. Delta Air Lines, Inc. is a major American airline, with its headquarters and largest hub at Hartsfield-Jackson Atlanta International Airport in Atlanta, Georgia. DEPOMED INC: Derivative Litigation Stayed ----------------------------------------- The United States District Court for the Northern District of California issued an Order granting Parties' Joint Stipulation to stay the Derivative Litigation captioned GERALD ROSS, Derivatively and on Behalf of DEPOMED, INC., Plaintiff, v. JAMES P. FOGARTY, KAREN A. DAWES, ARTHUR J. HIGGINS, LOUIS J. LAVIGNE, JR., WILLIAM T. MCKEE, GAVIN T. MOLINELLI, ROBERT G. SAVAGE, PETER D. STAPLE, JAMES L. TYREE, SAMUEL R. SAKS, M.D., JAMES A. SCHOENECK, DAVID B. ZENOFF, SRINIVAS G. RAO, M.D., PH.D. and R. SCOTT SHIVELY, Defendants, and DEPOMED, INC., Nominal Defendant, Case No. 3:17-cv-06592-JST (N.D. Cal.), until and through the resolution of the motion to dismiss that is anticipated to be filed in the related securities class action lawsuit against Depomed, Inc., Arthur J. Higgins, James A. Schoeneck, and August J. Moretti, captioned Huang v. Depomed, Inc., et al., No. 3:17- cv-04830, in the United States District Court for the Northern District of California (the "Securities Class Action"). The Parties believe that a stay of the Derivative Action will promote the efficient and orderly administration of justice by coordinating the Derivative Litigation with the Securities Class Action. The Derivative Litigation (including all discovery) shall be stayed until 30 days after the earlier of the following of events: (a) the Securities Class Action is dismissed in its entirety with prejudice; or (b) Defendants file an answer to any complaint in the Securities Class Action. If the stay of proceedings expires, the Parties will meet and confer and submit a proposed scheduling order governing further proceedings in the Derivative Litigation, including the date by which Defendants must answer or otherwise plead. All hearings or conferences currently scheduled, including the Case Management Conference currently scheduled for January 31, 2018, is postponed until after the stay of the Derivative Litigation expires. Should discovery proceed in the Securities Class Action, or in any other subsequent derivative action based on substantially the same factual allegations underlying the Derivative Litigation and/or in connection with any threatened related derivative action (including any books and records demand made by a Depomed, Inc. shareholder), and the Derivative Litigation continues to be stayed by virtue of this Stipulation, a further Stipulation or Court Order, Plaintiff will promptly be given copies of any written discovery responses, documents, and deposition transcripts prepared and/or produced by any Defendants and/or any non-party, such as are relevant to the claims or defenses in the Derivative Litigation, pursuant to a mutually agreed upon protective order governing the use of confidential information. The provision of any such discovery materials will not constitute waiver of, or in any way limit, Defendants' right to move to dismiss the Derivative Litigation for failure to adequately plead demand futility, or make a pre-suit demand. A full-text copy of the District Court's January 18, 2018 Order is available at https://tinyurl.com/yba7km3e from Leagle.com. Gerald Ross, Plaintiff, represented by Benjamin Heikali -- bheikali@faruqilaw.com -- Faruqi & Faruqi, LLP & Stuart Jay Guber -- sguber@faruqilaw.com -- Faruqi & Faruqi, LLP, pro hac vice. James P. Fogarty, Karen A. Dawes, Arthur J. Higgins, Louis J. Lavigne, Jr., William T. McKee, Gavin T. Molinelli, Robert G. Savage, Peter D. Staple, James L. Tyree, Samuel R. Saks, James A. Schoeneck, David B. Zenoff, Srinivas G. Rao, R. Scott Shively & Depomed, Inc., Defendants, represented by Michael A. Mugmon -- michael.mugmon@wilmerhale.com -- Wilmer Cutler Pickering Hale & Dorr LLP & Rebecca A. Girolamo -- becky.girolamo@wilmerhale.com - - Wilmer Cutler Pickering Hall & Dorr LLP. DEVRY UNIVERSITY: Averts Class Action Over Post-Graduate Stats -------------------------------------------------------------- Lorraine Bailey, writing for Courthouse News Service, reported that despite DeVry University's $49 million settlement with the Federal Trade Commission over false advertising, a federal judge ruled on Feb. 12 that DeVry graduates cannot sue the for-profit college for falsely claiming 90 percent of its graduates found a job in their chosen field six months after graduation. Last year, private for-profit college DeVry University mailed 173,000 refund checks worth more than $49 million to former students as part of a settlement with the FTC over its deceptive advertisements. The FTC accused DeVry of lying about its graduates' employment records and post-graduation income to lure students into enrolling. Specifically, the FTC said DeVry falsely claimed, "As a result of obtaining a DVU degree, for at least the last 30 years, 90 percent of DVU graduates who were actively seeking employment landed or obtained new jobs in their field of study within six months of graduation," and that 90 percent of DeVry graduates from a specific year obtained the same results. The school also falsely told potential students that the average earnings of DeVry graduates were 15 percent higher than the average earnings for graduates from other colleges, according to the FTC. Thirty-nine DeVry graduates filed a class action against DeVry based on the same allegations of misconduct, claiming they relied on the 90 percent post-graduation employment statistics when deciding to enroll but were unable to find a job in their field of study within six months of graduation. But U.S. District Judge Manish Shah dismissed the students' lawsuit on Feb. 12 because they cannot show their damages are measureable. "Based on the allegations, it would seem that the difference between the true value and the inflated value can only be based on speculative post-graduate career prospects and earning potential," Judge Shah wrote in a 15-page opinion. The students do not claim they were promised a certain employment outcome or that they considered enrolling in another school with better post-graduation employment rates, the judge stated. "A consumer-fraud complaint need not allege a precise damages amount or a fully-developed mathematical model for calculating damages. But it needs to allege facts sufficient to show that plaintiffs suffered actual, measurable, non-speculative damages. The complaint here falls short," Judge Shah said. DeVry operates more than 50 campuses, plus online classes, and enrolled 29,000 to 49,000 new students each year from 2008 to 2014. It charged $609 per credit hour for the first seven credit hours, then $365 for each credit hour after that. A full-time student seeking a five-term associate degree during these years paid $39,585 in tuition and a full-time student in the eight-term business administration program paid total tuition of $75,516. Most DeVry students, however, attend part time and pay a higher overall cost. DON HUMMER TRUCKING: Faces "Ratliff" Suit in S.D. of Iowa ---------------------------------------------------------- A class action lawsuit has been filed against Don Hummer Trucking Corporation. The case is styled as Jerome Ratliff, Jr., individually and on behalf of all others similarly situated, Plaintiff v. Don Hummer Trucking Corporation an Iowa corporation, Defendant, Case No. 3:18-cv-00023-RGE-SBJ (S.D. Iowa, February 22, 2018). Don Hummer Trucking provides transportation services across America.[BN] The Plaintiff is represented by: Ann E Brown, Esq. ANN BROWN LEGAL, PC 600 THIRD STREET SOUTHEAST SUITE 302 CEDAR RAPIDS, IA 52401 Tel: (319) 826-2250 Fax: (319) 826-2252 Email: ann@annbrownlegal.com DUKE UNIVERSITY: Mintz Levin Discusses Antitrust Class Action ------------------------------------------------------------- Bruce D. Sokler, Esq. -- BDSokler@mintz.com -- of Mintz Levin Cohn Ferris Glovsky and Popeo PC, in an article for Lexology, wrote that the Federal Trade Commission and Department of Justice issued guidance in the waning days of the Obama administration reminding HR professionals and others that the antitrust laws could apply in the employment arena, particularly with respect to hiring and compensation matters. There was some question about how vigorously the Trump Administration's antitrust enforcement would be in this area, but those questions should no longer exist. 2018 is already turning out to likely be an important year regarding antitrust attacks on "no-poach" agreements between businesses, with a class being certified in a major damage action and the head of the Department of Justice Antitrust Division indicating last month that criminal indictments based upon such agreements would be shortly forthcoming. Executives and HR Departments should recognize the significant risks associated with express or implied agreements or "understandings" -- or even "gentlemen's agreements" -- where businesses agree not to hire (or poach) each other's employees or executives. On February 1, 2018, a federal district court in North Carolina certified a class of all persons employed during the period from January 1, 2012 to the present as a faculty member with an academic appointment at the Duke or University of North Carolinas Schools of Medicine. In the antitrust lawsuit seeking treble damages, a Duke radiologist alleged that the deans at Duke and UNC medical school had agreed not to permit lateral moves of faculty between the schools. (The court declined to extend to class to include non-faculty physicians, nurses, and skilled medical staff on manageability grounds, but indicated that they could bring their own separate suit.) Seaman v. Duke University, et al., No 1:15-CV-462 (M.D.N.C. Feb.1., 2018). During the Obama Administration, the Antitrust Division brought a number of civil lawsuits against Silicon Valley companies, including Adobe, Apple, Google, Intel, Intuit, and Pixar alleging that each entered into no-poach agreements with their competitors. All ended in consent decrees. The inevitable class action lawsuits followed, and the companies ultimately ponied up nearly $1 billion to settle them. Near the end of the Obama Administration, in October 2016, the Antitrust Division and the Federal Trade Commission issued "Antitrust Guidelines for Human Resource Professionals". The Guidelines indicated that the government would no longer pursue no-poach and wage-fixing agreements as civil cases, but would instead bring criminal prosecutions. Moreover, the companies targeted would not have to be business competitors -- it would sufficient if they competed for the same employees. Last month, during a panel discussion at a conference, the head of Antitrust Division for the Trump Administration, Makan Delrahim, confirmed that the Division has several active criminal investigations and indicated: "In the coming couple of months you will see some announcements [of criminal charges], and to be honest with you, I've been shocked about how many of these [no- poach agreements] there are, but they're real." He suggested that companies that continued such agreements after October 2016 would be pursued criminally, but those who abandoned those agreements with the announcement of the Guidelines would only be targeted with a government civil suit. If businesses did not get their houses in order before with respect to no-poach and wage understandings, they are well advised to do so now. In addition to government exposure, this area will become an increasingly attractive target for plaintiff class action lawyers. [GN] EI DUPONT: GenX Found in West Va. Wells, NC Class Action Ongoing ---------------------------------------------------------------- The Fayetville Observer's Greg Barnes and The Associated Press report that GenX has been found in wells near a Chemours plant in West Virginia, raising concerns there about contaminated drinking water. The News Journal of Wilmington, Delaware, reports Chemours is testing drinking water this month near its Washington Works plant in Parkersburg, per a U.S. Environmental Protection Agency request. The EPA's acting water protection director, Kate McManus, had said in a January letter to Chemours that GenX was found in four wells near the facility, and the agency is concerned about area drinking water contamination like in North Carolina. The chemical is used to make nonstick cookware and other products, and has been linked to several forms of cancer in animal studies. North Carolina started investigating GenX in July, after news broke that researchers had found it and similar compounds in the Cape Fear River downstream in Wilmington. Chemours agreed to stop discharging GenX into the river, but it has since been discovered in more than 250 private wells around the facility. Thousands of people from Cumberland County to the coast are now drinking bottled water as a result. The state cut off and capped a Chemours discharge pipe to the Cape Fear River in November. Less than two weeks later, GenX was found in the river at a concentration of 2,300 parts per trillion, more than 16 times higher than the 140 parts per trillion the state considers safe. Researchers are investigating whether the GenX came from soil surrounding the plant or from another source. Researchers are also testing rainwater surrounding Chemours to determine whether GenX may be spreading by air as well as water. More than 100 people from southeastern North Carolina have joined a class-action lawsuit seeking $5 billion in damages from DuPont and Chemours, which took over production of DuPont's fluoroproducts in 2015. The lawsuit says that DuPont and Chemours knew the chemicals were "extremely dangerous" even in small doses and that they poured them into the water and the air "simply to avoid the expense of taking safety precautions." The lawsuit was filed by Cohen Milstein Sellers & Toll, the firm that is handling a class-action lawsuit involving the Flint, Michigan, water crisis. DuPont began producing GenX at its Fayetteville Works plant in 2009 as a safer alternative to perfluorooctanoic acid, which the company called C8. Last year, DuPont settled a lawsuit for $671 million that was filed on behalf of people living near the Chemours plant in Parkersburg. The lawsuit alleged that for decades, DuPont dumped C8 into the Ohio River knowing it was a human health hazard. DuPont produced C8 at the Fayetteville Works plant from 2002 to 2009, when it switched to GenX. [GN] ENVISION HEALTHCARE: Faces Class Action Over "Balance Billing" -------------------------------------------------------------- Kaplan Fox & Kilsheimer LLP on Feb. 12 disclosed that a class action was filed February 8, 2018, in the United States District Court for the Middle District of Florida against physician staffing firm Envision Healthcare Corporation and its affiliates, EmCare Holdings Inc., Emcare Inc., and Baxley Emergency Physician Services LLC, (collectively, "Envision"). Plaintiff's Complaint alleges that Envision manages hospital emergency departments in Florida, which includes treating patients and providing administrative services, such as billing and collections for emergency medical services rendered. The complaint generally alleges that Envision violated Florida law when "balance-billing" patients for emergency medical services. The Complaint alleges that "balance-billing" occurs when a healthcare provider holds a patient liable for any remaining charges not covered by the patient's health insurance company. Balance-billing most often occurs when a patient receives medical care outside their insurance network. However, the Complaint alleges that even when patients obtains emergency treatment at an in-network hospital, they may still be balance-billed because unbeknownst to the patient at the time of treatment, the treating physicians was affiliated with or employed by Envision. Accordingly, even patients that sought in-network healthcare may receive surprise medical bills weeks or months later. The Complaint alleges that Florida is one of several states that has passed laws to prohibit providers, like Envision, from balance- billing emergency room patients due to their lack of choice in obtaining in-network medical treatment in emergency situations. According to the Complaint, Envision has consistently ignored Florida's balance-billing law by continuing to deceptively and fraudulently bill and collect payments from former patients. As a result of Envision's actions, the Complaint alleges that former patients are owed damages for amounts collected by Envision for its unlawful balance-billed charges. Plaintiff seeks damages on behalf of all Florida patients impacted by Envision's practices and an injunction preventing Envision and its affiliates from balance-billing patients in the future. The patient-consumers are represented by Frederic S. Fox, Laurence D. King, Donald R. Hall, Matthew B. George, and Aaron L. Schwartz of Kaplan Fox & Kilsheimer LLP, and Marc A. Wites of the Wites Law Firm. Plaintiff's counsel has extensive experience in prosecuting class actions and recovering damages for affected consumers. Plaintiff's counsel is also investigating whether Envision violated balance-billing laws in other states, including California, Illinois, and New Jersey. Consumers who would like more information about this lawsuit or investigation should visit www.kaplanfox.com or call Aaron L. Schwartz at (800) 290-1952. For more information about this press release or lawsuit, please contact: Frederic S. Fox KAPLAN FOX & KILSHEIMER LLP 850 Third Avenue, 14th Floor New York, New York 10022 (800) 290-1952 (212) 687-1980 Fax: (212) 687-7714 E-mail: ffox@kaplanfox.com Laurence D. King KAPLAN FOX & KILSHEIMER LLP 350 Sansome Street, Suite 400 San Francisco, California 94104 (415) 772-4700 Fax: (415) 772-4707 E-mail: lking@kaplanfox.com Marc A. Wites WITES LAW FIRM 4400 North Federal Highway Lighthouse Point, FL 33064 Telephone: (954) 526-2729 Email: Mwites@witeslaw.com [GN] FARMERS RESTAURANT: "Stephens" Conditional Certification OK'd ------------------------------------------------------------- In the case, SHAYN STEPHENS et al., Plaintiffs, v. FARMERS RESTAURANT GROUP et al., Defendants, Civil Action No. 17-1087 (TJK) (D. D.C.), Judge Timothy J. Kelly of the U.S. District Court for the District of Columbia granted in part and denied in part the Plaintiffs' conditional-certification motion. The Defendant operates five restaurants in the D.C. metropolitan area: three in the District of Columbia (Founding Farmers DC, Farmers Fishers Bakers, and Farmers & Distillers), one in Maryland (MoCo's Founding Farmers), and one in Virginia (Founding Farmers Tysons). The Plaintiffs, eight current and former employees at the restaurants, claim that the Defendants' conduct violated the minimum wage and overtime provisions of the federal Fair Labor Standards Act of 1938 ("FLSA"), the minimum wage and overtime provisions of the D.C. Minimum Wage Act ("DCMWA"), the sick leave provisions of the D.C. Accrued Sick and Safe Leave Act of 2008 ("Sick Leave Act"), the minimum wage and overtime provisions of the Maryland Wage and Hour Law, and the payment requirements of the Maryland Wage Payment and Collection Law. They have brought their case as a putative opt-in collective action under the FLSA and D.C. law, and as a putative Rule 23 opt-out class action under D.C. and Maryland law. The Plaintiffs claim that the Defendants engaged in various allegedly improper employment practices, including requiring the employees to use their own money to purchase uniforms including, but not limited to, specific denim chambray shirts, suspenders, black non-slip shoes, aprons, and bow ties, and to clean, starch, and press their uniforms; (ii) requiring the employees to purchase equipment for use while at work, including, but not limited to, bottle openers, corkscrews, black lighters, and black click-top pens; and (iii) requiring the employees to attend pre- shift meetings before each shift that lasted on average 15 to 20 minutes, and employees were not compensated for time spent at the meetings. The Defendants allegedly applied these practices to the named Plaintiffs and to similarly situated employees, namely servers, wait staff, and bartenders. Since the Amended Complaint was filed, the Plaintiffs have submitted opt-in consents from five additional putative class members that seek to participate in the action. The Plaintiffs now seek conditional certification of an opt-in collective action under federal and D.C. law. Judge Kelly will grant conditional certification with respect to the Plaintiffs' minimum wage claim, except that certification is not granted with respect to (i) the Plaintiffs' allegations regarding uncompensated pre-shift meetings at the Founding Farmers Tysons restaurant in Virginia or (ii) the alleged "homework" policy. He finds that the pre-shift work at the Virginia restaurant is properly included in the claim related to non-tipped work, even though the Plaintiffs have not met their burden on their claim that pre-shift work at the Virginia restaurant was uncompensated. While Plaintiffs do not seek to expand the scope of the proposed class, they do seek to add a new and distinct factual theory with little foundation in their operative complaint. Not only does the Amended Complaint fail to assert any allegation regarding "homework," it also contains no description of the "training" period during which the homework was allegedly assigned. The Judge will grant conditional certification with respect to the Plaintiffs' overtime claim only as it relates to allegations regarding uncompensated pre-shift meetings. Certification of the overtime claim is denied in all other respects, including with respect to the Plaintiffs' aggregation-of-hours and homework allegations. He finds that the Plaintiffs here have submitted multiple declarations from other servers who were in a position to know about the alleged practice, but they fail to corroborate it. The Plaintiffs have thus failed to establish that their evidence rests on anything more than speculation, and so conditional certification will be denied with respect to the alleged aggregation-of-hours policy. As explained in the context of Plaintiffs' minimum wage claim, the Judge will not grant certification with respect to the alleged "homework" policy, because the Plaintiffs did not include that policy in their Amended Complaint. The same result applies here. As to sick leave claim, conditional certification will be granted with respect to the sick leave claim. The Judge is not convinced that such differences preclude conditional certification, because the key issue is whether the Defendants had a common policy of denying sick leave to eligible employees, not how individual employees were affected. Of course, he says, the Defendants may move for decertification after discovery if they believe that the differences among class members are too stark to permit class- wide adjudication. Judge Kelly holds that any opt-in Plaintiffs will be allowed to assert claims extending as far back in time as each relevant statute of limitations allows. Neither the Plaintiffs' declarations nor the Defendants' submissions contain any suggestion that the policies at issue changed from mid-2014 onward. Having addressed the substance of the conditional-certification analysis, the Judge turns to administrative matters, starting with the use of sub-classes. The Plaintiffs bring their claims on behalf of servers working in D.C., Maryland, and Virginia. Each jurisdiction also has somewhat different procedural mechanisms. He presents an overview of these differences that suffices to show why establishing a separate sub-class for each jurisdiction where employees worked is prudent for case- management purposes: a. District of Columbia Sub-Class: (i) Substantive Claims - Minimum wage, overtime, and sick leave claims under the FLSA and D.C. Law; and (ii) Procedural Aspects - FLSA collective action, D.C. collective action (with possible conversion into a D.C. class action) b. Maryland Sub-Class: (i) Substantive Claims - Minimum wage and overtime claims under the FLSA and Maryland law; and (ii) Procedural Aspects - FLSA collective action, Maryland putative class action. c. Virginia Sub-Class: (i) Substantive Claims - Minimum wage claim under the FLSA, with no claim relating to uncompensated pre-shift meetings; and (ii) Procedural Aspects: FLSA collective action. These sub-classes likely overlap, because some putative class members may have worked in multiple jurisdictions. For example, Plaintiff Calvillo worked in D.C. and Maryland. For these reasons, Judge Kelly granted and denied in part the Plaintiffs' conditional-certification motion. Conditional certification is granted, with the following limitations: First, the putative class is limited to servers. Second, conditional certification is not granted with respect to the following factual allegations: (a) the Plaintiffs' "homework" allegations; (b) their allegations regarding uncompensated time at pre-shift meetings insofar as they relate to the Founding Farmers Tysons restaurant in Virginia; and (c) the Plaintiffs' allegation that Defendants failed to aggregate hours worked at different restaurants for overtime purposes. Third, the putative class will be divided into three sub-classes, one for each of the three relevant jurisdictions (the District of Columbia, Maryland, and Virginia). Fourth, the Defendants will be required to produce names, mailing addresses, and email addresses for notice purposes within the next twenty days but, absent a further order of the Court, will not be required to produce telephone numbers or to include notices with paychecks mailed to employees. The opt-in period will last 60y days from when notice is sent. Fifth, the Judge did not approve the Plaintiffs' proposed form of notice. Instead, he directed the parties to will meet, confer, and submit to the Court a revised form of notice consistent with the foregoing Opinion by Feb. 9, 2018. The Judge denied the Defendants' motion for leave to file a surreply. The Defendants sought leave to file a surreply in order to address a suggestion in the Plaintiffs' reply that the putative class includes "bussers." His ruling, by limiting the class to servers, has obviated any need for briefing on that issue, and therefore the surreply motion will be denied. A full-text copy of the Court's Jan. 31, 2018 Memorandum Opinion and Order is available at https://is.gd/N5OaU6 from Leagle.com. SHAYN STEPHENS, ANITA CLARK, VANESSA CALVILLO, SYLVIA RACHAELl KROHN, DESMOND PITT & JEANIE WILLIG, Plaintiffs, represented by Gregory K. McGillivary -- gkm@wmlaborlaw.com -- WOODLEY & MCGILLIVARY, LLP, Theodore R. Coploff -- trc@wmlaborlaw.com -- WOODLEY & MCGILLIVARY, Sarah M. Block, WOODLEY & MCGILLIVARY & Molly Ann Elkin -- mae@wmlaborlaw.com -- WOODLEY & MCGILLIVARY. AUSTIN HALL & SHANNON STOREY, Plaintiffs, represented by Sarah M. Block, WOODLEY & MCGILLIVARY & Molly Ann Elkin, WOODLEY & MCGILLIVARY. FARMERS RESTAURANT GROUP, DANIEL SIMON & MICHAEL VUCUREVICH, Defendants, represented by Joy Catherine Einstein -- jeinstein@shulmanrogers.com -- SHULMAN, ROGERS, GANDAL, PORDY & ECKER. P.A. & Meredith Sarah Campbell -- mcampbell@shulmanrogers.com -- SHULMAN, ROGERS, GANDAL, PORDY & ECKER, P.A. FEDERAL SAVINGS: Court Grants Bid to Dismiss "Baugh" RESPA Suit --------------------------------------------------------------- In the case, D'ALAN E. BAUGH, et al., Plaintiffs, v. THE FEDERAL SAVINGS BANK, Defendant, Civil Action No. RDB-17-1735 (D. Md.), Judge Richard D. Bennett of the District Court for the District of Maryland granted the Defendant's Motion to Dismiss. The Class Action Complaint in the case alleges that the Defendant FSB violated the Real Estate Settlement Procedures Act ("RESPA") by entering into a kickback scheme whereby it received unearned fees from Genuine Title, LLC for referrals. The Class Action Complaint in the case alleges in one count that the Defendant violated the Real Estate Settlement Procedures Act ("RESPA") by entering into a kickback scheme whereby it received unearned fees from Genuine Title, LLC for referrals. The alleged kickback scheme in the case involves Genuine Title which has an extensive history with the Court. In December 2013, Edward and Vickie Fangman (represented by the same counsel involved in the case) filed a complaint against Genuine Title involving essentially identical allegations in the Circuit Court of Baltimore County that was removed to the Court in January 2014. The Fangmans alleged that Genuine Title, in exchange for the referral of title services on their mortgage loan, paid cash kickbacks to loan brokers and provided marketing materials for free or at a drastically-reduced rate for various loan officers who were part of the mortgage lending process. On Jan. 2, 2015, the plaintiffs in Fangman filed a First Amended Complaint naming other financial institutions, including E Mortgage Management, LLC. That First Amended Complaint in Fangman alleged violations of RESPA, Maryland's state-law analog to RESPA, and the Maryland Consumer Protection Act. The Fangman plaintiffs further alleged that Genuine Title and its affiliated marketing companies provided Free Marketing Materials and/or "Referring Cash" payments without disclosure on HUD-1 settlement documents. They filed a Second Amended Complaint on May 20, 2015, adding additional parties and clarifying some of their previous allegations. Following discovery concerning Genuine Title's business practices and relationship with other lenders, some defendants have struck class settlements which have been the subject of public filings and class notices. Meanwhile, the Consumer Financial Protection Bureau ("CFPB") and the Maryland Attorney General initiated an enforcement action in the Court on Jan. 22, 2015 against Wells Fargo Bank, N.A. and JPMorgan Chase Bank, N.A. predicated on similar schemes involving Genuine Title. The CFPB and Attorney General also filed an enforcement action on April 29, 2015 directly against Genuine Title, its principals, and affiliates arising out of the same alleged scheme. The CFPB issued a press release on April 29, 2015 in which the CFPB outlined the enforcement action against Genuine Title based on the same facts alleged by the Fangman Plaintiffs. On May 1, 2015, the CFPB and Maryland Attorney General announced a settlement with Genuine Title, and the Court entered a Stipulated Final Judgment and Order approving the settlement. The settlement orders in these enforcement actions explicitly contemplate related litigation by affected consumers. Plaintiffs Baugh and Penny Frazier closed their loans with FSB on March 29, 2013 and Sept. 23, 2013. The Complaint on behalf of these Plaintiffs was filed on June 23, 2017, over three years after the Plaintiffs closed their loans. The Plaintiffs seek to represent the proposed class of all individuals in the United States who were borrowers on a federally related mortgage loan originated or brokered by The Federal Savings Bank for which Genuine Title provided a settlement service, as identified in Section 1100 on the HUD-1, between Jan. 1, 2009, and Dec. 31, 2014. The Complaint alleges that Genuine Title paid kickbacks in the form of referring cash, free marketing materials, and marketing credits. The free marketing materials were paid by Genuine Title and/or by Competitive Advantage Media Group, LLC ("CAM"). The Complaint further alleges that from 2012 to 2014, FSB referred approximately 1,000 loans to Genuine Title, and in return, FSB received kickbacks from Genuine Title and/or CAM in exchange for the referrals. FSB moved for dismissal and/or summary judgment. At the hearing on Jan. 16, 2018, all parties agreed to focus the analysis upon the motion to dismiss standard under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Plaintiff's counsel, who has been in possession of Genuine Title's records since 2014 and who processed the data by June 2015, has filed the following seven class actions against other lenders who, like the defendants in Fangman, allegedly engaged in kickback schemes with Genuine Title: (i) Edmondson v. Eagle National Bank, et al., Civil Case No. RDB-16-3938 (D. Md.); (ii) Dobbins, et al. v. Bank of America, N.A., Civil Case No. RDB-17- 540 (D. Md.); (iii) Callum v. Priority Financial Services, Civil Case No. RDB-17-0623 (D. Md.); (iv) James v. Acre Mortgage & Financial, Civil Case No. RDB-17-1734 (D. Md.); (v) Baugh, et al. v. The Federal Savings Bank, Civil Case No. RDB-17-1735 (D. Md.); (vi) Ryman v. First Mortgage Corporation, Civil Case No. RDB-17- 1757 (D. Md.); (vii) Bezek, et al. v. First Mariner Bank, Civil Case No. RDB-17-2902 (D. Md.). On Oct. 31, 2017, Miles & Stockbridge, defense counsel in both Edmondson (RDB-16-3938) and Bezek (RDB-17-2902), requested a consolidated hearing on ripe motions to dismiss. The Plaintiffs' counsel, Smith, Gildea & Schmidt, agreed to a consolidated hearing for the ripe motions to dismiss in five of the seven cases -- namely, Edmondson (RDB-16-3938); Dobbins (RDB-17-540); James (RDB-17-1734); Baugh (RDB-17-1735); and Bezek (RDB-17- 2902). Generally, the motions to dismiss in these five cases present statute of limitations and equitable tolling issues. The Court conducted the requested consolidated hearing on Jan. 16, 2018. The Plaintiffs concede that RESPA's one-year statute of limitations would bar this lawsuit, which was filed over three years after they closed their loans and two years after their counsel processed Genuine Title's data. However, the parties dispute whether equitable tolling saves the Plaintiffs' claim. Judge Bennett holds that even if the Plaintiffs can establish that they were pursuing their rights diligently with or without credit for their counsel's actions, this Court cannot ignore the role the Plaintiffs' counsel has played in determining the timing of the action -- and the other pending cases related to the Genuine Title kickback scheme. In June 2015, the Judge finds that the Plaintiffs' counsel had access to Genuine Title's buyers' names, addresses, telephone numbers, property addresses, settlement dates, lender and in some cases mortgage broker information, information sufficient to uncover the scheme in the case. Even if the Plaintiffs' counsel's knowledge is not relevant to the due diligence analysis, the counsel's in-depth investigation into Genuine Title's records certainly bears heavily on the question of whether "extraordinary circumstances" stood in the Plaintiffs' way and prevented timely filing. The Judge further holds that the Plaintiffs have not demonstrated that their case presents one of those rare instances where it would be unconscionable to enforce the limitation period against them and gross injustice would result. The Plaintiffs' counsel has already secured significant awards for their efforts to hold Genuine Title and other financial institutions accountable for violating RESPA. Genuine Title went bankrupt, and the Plaintiffs do not allege that the Defendant continues to receive illegal kickback payments through deceiving Plaintiffs or their fellow class members. The Judge says the Plaintiffs allege that between 2009 and 2014, they were deprived of kickback-free settlement services and impartial and fair competition and paid more for their settlement services because kickbacks were paid instead of lower charges to the consumers. While the purported class may have some interest in accountability and financial compensation, the Congress firmly expressed an interest in providing certainty to the real estate market when it set the RESPA statute of limitations at one year. Given this context, the Judge says it would not be unconscionable or grossly unjust to enforce RESPA's one-year statute of limitations. To hold otherwise would completely write out the one year statute of limitations for RESPA violations. For the reasons stated, Judge Bennett granted the Defendant's Motion to Dismiss. A full-text copy of the Court's Jan. 31, 2018 Memorandum Opinion is available at https://is.gd/tl79WJ from Leagle.com. D'Alan E. Baugh & Penny Frazier, Plaintiffs, represented by Megan Aileen Benevento -- mbenevento@jgllaw.com -- Joseph Greenwald and Laake, P.A., Melissa Lynn English -- menglish@sgs-law.com -- Smith Gildea & Schmidt LLC, Michael Paul Smith -- mpsmith@sgs- law.com -- Smith Gildea and Schmidt LLC, Sarah A. Zadrozny -- szadrozny@sgs-law.com -- Smith, Gildea & Schmidt, LLC, Timothy Francis Maloney -- tmaloney@jgllaw.com -- Joseph Greenwald and Laake PA & Veronica Byam Nannis -- vnannis@jgllaw.com -- Joseph Greenwald and Laake PA. The Federal Savings Bank, Defendant, represented by Ari Karen -- akaren@offitkurman.com -- Offit Kurman. FMM ENTERPRISES: Court Grants TRO in "Glass" FLSA Suit ------------------------------------------------------ The United States District Court for the Southern District of California issued an Order granting Temporary Restraining Order regarding improper communications with the punitive class in the case captioned TYRELL GLASS; DUSTIN SCHNATZ; and JORDAN TERRADO, individually and on behalf of all others similarly situated, Plaintiffs, v. FMM ENTERPRISES, INC; EC LENDING, LLC; GTPD ENTERPRISES, INC; CYNTHIA WASH; RYAN MCAWEEENEY; NEIL BILLOCK, and DOES 1-10 jointly and severally, Defendants, Case No. 3:17- cv-0563-JAH-KSC (S.D. Cal.). Plaintiffs brought a class action against Defendants alleging labor law violations, including the Fair Labor Standards Act (FLSA). Plaintiffs' filed a Motion to Prohibit Ex Parte Communications with Potential Members of the Class, which is scheduled to be heard by this Court. The purpose of a temporary restraining order (TRO) is to preserve the status quo before a preliminary injunction hearing may be held; its provisional remedial nature is designed merely to prevent irreparable loss of rights prior to judgment. Plaintiffs' contend that they will suffer irreparable harm if the Court denies their request for a TRO Plaintiffs' contend Defendants' actions irreparably harm Plaintiffs' ability to conduct a thorough investigation when Defendants direct their employees and other potential class members to provide false information regarding their pay, hours and other working conditions. Pre-certification communication between defendants and potential plaintiffs is generally permitted. It is critical, however, that potential plaintiffs receive accurate and impartial information regarding the status, purposes and effects of the class action. The Court finds there is a high probability of irreparable harm, if as alleged here, potential plaintiffs are being urged by Defendants to sign declarations which they know to be false. Since Plaintiffs have demonstrated the possibility of immediate and irreparable injury, it need not demonstrate a strong likelihood of success on the merits to prevail here. However, based on the Court's review of the pleadings presented, Plaintiffs have shown some likelihood of success on the merits of their claim. Also, the Court has considered the hardships placed on Defendants' by granting this TRO, and finds any hardship marginal in contrast to the irreparable harm that could befall potential class members. A full-text copy of the District Court's January 18, 2018 Order is available at https://tinyurl.com/yc95qbea from Leagle.com. Tyrell Glass, individually and on behalf of all other similarly situated, Dustin Schnatz, individually and on behalf of all other similarly situated & Jordan Terrado, individually and on behalf of all other similarly situated, Plaintiffs, represented by Gregory E. Mauro -- greg@jameshawkinsaplc.com -- James Hawkins, APLC, Jason J. Thompson -- jthompson@sommerspc.com -- Sommers Schwartz PC, pro hac vice, Jesse Lee Randol Young -- jyoung@sommerspc.com -- Sommers Schwartz, pro hac vice, James R. Hawkins James@jameshawkinsaplc.com -- James Hawkins APLC & Trenton R. Kashima -- trk@classactionlaw.com -- Finkelstein & Krinsk, LLP. FMM Enterprises, Inc., jointly and severally, as, GTPD Enterprises, Inc., jointly and severally, as, Cynthia Walsh, jointly and severally, as, Ryan McAweeney, jointly and severally, as & Neil Billock, jointly and severally, as, Defendants, represented by Kara D. Siegel -- ksiegel@paulplevin.com -- Paul, Plevin, Sullivan & Connaughton LLP. FOREVER 21: Court Dismisses Suit Over Illegally Collected Tax ------------------------------------------------------------- The United States District Court for the Southern District of New York issued an Opinion granting Defendant's Motion to Dismiss the case captioned LAURA TOGUT, on behalf of herself and all others similarly situated, Plaintiff, v. FOREVER 21, INC. and FOREVER 21 RETAIL, INC., Defendants, No. 17 Civ. 5616 (S.D.N.Y.). Plaintiff purchased twenty items of clothing from Defendants' website, Forever21.com, for delivery in New York City. Each item was priced below $110 and, combined, totalled $283.40. Plaintiff ultimately paid Defendants a total of $306.30 for her items, of which $22.90 was labelled a tax. The monies Defendants collected from Plaintiff under the label of a tax were not paid to the Department. Plaintiff alleging causes of action for unjust enrichment, conversion, and money had and received which arise out of Togut's purchase of items on Defendants' website for which she alleges Defendants unlawfully charged her retail sales tax. Plaintiff's Complaint alleges that Defendants improperly collected retail sales tax on purchases Plaintiff made from Defendants' website and which were shipped to her in New York City, a retail sales tax exempt jurisdiction. Defendants contend that Plaintiff's Complaint must be dismissed both because Plaintiff has failed to follow the New York State administrative remedy proscribed by New York Tax Law Section 1139 and because Plaintiff has failed plausibly to state a claim. New York Tax Law Section 1139 states that a consumer who seeks the return of sales tax erroneously, illegally or unconstitutionally collected or paid to a person required to collect tax must apply for a refund to the state tax commission. The Second Circuit has held that the refund process is the 'exclusive remedy available to any person for the review of tax liability imposed' under state sales tax law, and no determination or proposed determination of tax or determination on any application for refund shall be enjoined or reviewed by any action or proceeding other than a proceeding under article seventy-eight of the New York civil practice law and rules. Estler v. Dunkin' Brands, Inc., 691 F. App'x 3, 5 (2d Cir. 2017). The Court finds that Plaintiff's conclusory allegation is insufficient to merit wading into Estler's jurisprudential opening. The court in Kupferstein, which addressed a situation akin to the one hypothesized by the Second Circuit and presented here, provides guidance. There, a plaintiff alleged that a merchant overcharged her sales tax, which the plaintiff termed an undisclosed fee. After recognizing that the contested fee was sales tax and construing plaintiff's complaint to allege that the defendant collected the excess sales taxes without remitting them to the taxing authorities, the court chose not to credit what it found as simply speculation by the plaintiff when there was nothing more than a sheer possibility that a defendant has acted unlawfully. The same situation is present here. Based exclusively on information and belief, Plaintiff contends that Defendants have not remitted the collected monies to the Department. No further alleged facts or documents have been presented in support. Alone, this is not enough to establish jurisdiction by a preponderance of the evidence. Defendants' motion to dismiss is granted. A full-text copy of the District Court's January 15, 2018 Opinion is available at https://tinyurl.com/yaw9nud2 from Leagle.com. Laura Togut, on behalf of herself and all others similarly situated, Plaintiff, represented by Lee Scott Shalov -- lshalov@mclaughlinstern.com -- McLaughlin and Stern, LLP & Bradley Jason Bartolomeo -- bbartolomeo@mclaughlinstern.com -- McLaughlin and Stern, LLP. Forever 21, Inc. & Forever 21 Retail, Inc., Defendants, represented by David George Keyko -- david.keyko@pillsburylaw.com -- Pillsbury Winthrop Shaw Pittman, LLP. FOX NEWS: Faces "Burbon" Suit in Southern District New York ----------------------------------------------------------- A class action lawsuit has been filed against Fox News Network, LLC. The case is styled as Luc Burbon and on behalf of all other persons similarly situated, Plaintiff v. Fox News Network, LLC, Defendant, Case No. 1:18-cv-01662 (S.D. N.Y., February 22, 2018). Fox News is an American basic cable and satellite television news channel owned by the Fox Entertainment Group, a subsidiary of 21st Century Fox.[BN] The Plaintiff is represented by: AviNaveh, Esq Law Office of Avi A. Naveh 175 Varick Street 3rd Floor New York, NY 10014 Tel: (646) 881-4471 Email: court@navehlaw.com FRITO-LAY INC: $6.5MM "Acosta" Suit Settlement Has Prelim OK ------------------------------------------------------------ In the case, DANIEL ACOSTA, et al., Plaintiffs, v. FRITO-LAY, INC., et al., Defendants, Case No. 15-cv-02128-JSC (N.D. Cal.), Judge Jacqueline Scott Corley of the U.S. District Court for the Northern District of California granted the (1) Plaintiffs' motion for preliminary approval of class and collective action settlement, and (2) Plaintiffs' motion to dismiss Greg Frye as the class representative and the Named Plaintiff. The Plaintiffs were and are truck drivers employed by the Defendants who work in San Francisco as well as other various counties in California. Plaintiffs Acosta, Jose Hernandez, Dennis Easley, Orlando Castillo, and Greg Frye filed the action in the Superior Court of the State of California for the County of San Francisco on Feb. 25, 2015 alleging failure to provide meal rest periods, failure to pay minimum wages for all time worked, associated pay check stub and waiting time penalties, and unfair business practices. The Plaintiffs brought six claims: (1) Labor Code Sections 226.7 and 512; (2) Labor Code Section 226.7 and Section 12 of the IWC Wage Orders; (3) Failure to Pay Minimum Wage; (4) Labor Code Section 203; (5) Labor Code Section 226; and (6) California Business and Professions Code 17200 et seq. - Unfair Business Practices. On March 5, 2015, the Plaintiffs filed a First Amended Complaint ("FAC") alleging the same claims. The Defendants answered the FAC on May 8, 2015 and removed the case to the district on May 11, 2015. On Nov. 3, 2015, the Plaintiffs' counsel moved to withdraw as the counsel for named Plaintiff Greg Frye. The motion was granted on Nov. 23, 2015. On June 7, 2016, the parties attended a full-day mediation with court-appointed mediator Arthur Siegel but were unable to reach a settlement. The parties returned for a second mediation on April 25, 2017 with Michael Dickstein. After a full day of negotiations the parties reached a settlement whose terms are memorialized in the Stipulation and Settlement of Class Action Claims. The class consists of 254 long haul or "over-the-road" drivers employed by Defendants in California from Feb. 25, 2011 to July 31, 2017. Now pending before the Court are two motions: (1) the Plaintiffs' motion for preliminary approval of class and collective action settlement, and (2) the Plaintiffs' motion to dismiss Greg Frye as a class representative and named plaintiff. The parties agree to the certification of the class to include all the Plaintiffs. The Plaintiffs agree to file a Second Amended Complaint to add causes of action for penalties under the California Private Attorney's General Act ("PAGA") and for unpaid wages under the FLSA so that these causes of action can be settled and released through the Settlement Agreement. The Settlement Agreement establishes a common fund of $6.5 million dollars inclusive of attorney's fees, costs and expenses, service payments to the named Plaintiffs, payment to the Labor Workforce Development Agency ("LWDA"), employee-owed taxes, and administration costs including settlement administration fees. The common fund will be allocated in the following manner: (1) $1.625 million, or 25% to Plaintiffs' counsel as a Fee Award; (2) $60,000 to Plaintiffs' counsel as a Costs Award; (3) $20,000 to each named Plaintiff for a total of $80,000 as a Service Award; (4) $50,000 representative of penalties recoverable under PAGA and payable to the LWDA, 75% or $37,500 of which will be paid to the LWDA and the remaining 25% or $12,500 will remain in the payout fund; and (5) $15,000 for administration expenses. The Plaintiffs' counsel has incurred $36,000 in expenses to date. All the class members will receive a state law award. All the class members who opt into the FLSA collective action by submitting a consent form will also receive a federal law award. The parties agreed and submitted a revised notice and an errata to the Settlement Agreement. The revised Notice includes the changed deadline of 60 days to opt-out of the class action, opt- in to the FLSA award, or object to the settlement. The errata for the Settlement Agreement reflects the same changes, consistent with the Notice. All consent forms will be submitted to the settlement administrator who will certify to the counsel of both parties whether the forms were timely submitted. If the consent form is defective, the form will be returned to the class member who will be informed of the defect and given 15 days to return the consent form to the settlement administrator. If the consent form is not returned within 15 days it will be untimely and rejected. Within 10 days of the Settlement Agreement's effective date, the Defendants will wire the settlement administrator the entire common fund amount of $6.5 million plus employer-owed taxes into a qualified settlement account set up by the settlement administrator for distribution. After deducting the fees award, costs award, service awards, payment to LWDA, and administration fees, the remaining amount will be labeled the "Payout Fund," the entirety of which will be distributed to the class members. Eighty-percent of the Payout Fund will be allocated to the payment of the state law awards. All the class members will receive a state award on a pro-rata basis based on the number of weeks worked compared to the number of weeks worked by all class members. Twenty-percent of the Payout Fund will be allocated to the payment of federal funds. Payment for federal claims will be determined by the same pro-rata formula used for state funds. Twenty-five percent of all award payments to class members will be called the "Wage Portion" where payroll deductions will be made for state and federal withholding taxes and other payroll deductions. Seventy-five percent of all award payments will represent the "Non-Wage Portion" and include interest and penalties sought in the action. Within 20 days of the Settlement Agreement's execution Defendants will provide the settlement administrator with a "Class List and Data Report" identifying each Plaintiffs' name, current mailing address, telephone number, social security number, and the representative number of weeks each Plaintiff worked during the class period. The Defendants will provide each Plaintiff's work week information to the settlement administrator no later than 30 days after the close of the class period. The settlement administrator has the authority to make payments of all the awards set out in the Settlement Agreement. The Fees, Costs, and Service Awards will also be paid by the settlement administrator within 20 days of the effective date. The settlement administrator will also calculate the individual awards for the class members and will be responsible for issuing the payments and calculating and withholding all the state and federal taxes owed by the class members. Checks paid to class members will remain valid for 120 days from the date of their issuance and may thereafter be automatically canceled if not cashed. The funds from voided checks will be distributed to cy pres to the United Way Bay Area Matchbridge Program, an organization that supports Bay Area youth in gaining employment skills to break the cycle of poverty. The settlement administrator is responsible for mailing the notice of settlement and the FLSA consent form. After the hearing, at the Court's instruction, the parties added the language to the Notice regarding: (1) not opting out of the state award and opting into the federal law award results in class members receiving both awards, (2) the right to object to the settlement, including the amount of attorneys' fees sought, and who to serve the objection on, (3) the final approval hearing date of May 3, 2018, and (4) the date the Plaintiffs will file the attorney fee motion and that a copy of the motion will be available on Plaintiffs' counsel's website. Having carefully reviewed the briefs and having had the benefit of oral argument on Jan. 16, 2018, Judge Corley granted the Plaintiffs' motion for preliminary approval of the class and collective action settlement, and motion to dismiss Greg Frye as a named Plaintiff and class representative. The Plaintiffs' counsel is instructed to add the following two items to the Notice: (1) March 15, 2018 as the deadline for filing its attorney's fees motion, and (2) the website link where the fee motion will be available. The Judge concludes Mr. Frye is an inadequate class representative. The parties stipulated, as a term in the Settlement Agreement, to dismiss Mr. Frye as a named Plaintiff. The parties further agree Mr. Frye may remain as a class member and collect any recovery he is entitled to. The Order disposes of Docket Nos. 68 and 69. A full-text copy of the Court's Jan. 31, 2018 Order is available at https://is.gd/J7Hf6x from Leagle.com. Daniel Acosta, Jose Hernandez, Dennis Easley & Orlando Castillo, Plaintiffs, represented by Daniel Myers Kopfman -- dkopfman@wagnerjones.com -- Law Offices of Wagner Jones, Andrew Butler Jones, Esq. -- ajones@wagnerjones.com -- Wagner & Jones, Lawrence Mark Artenian -- lartenian@wagnerjones.com -- Wagner Jones Kopfman & Artenian LLP & Nicholas John Paul Wagner -- kschemen@wagnerjones.com -- Law Offices of Wagner & Jones. Greg Frye, Plaintiff, pro se. Frito-Lay, Inc., FL Transportation Inc. & PEPSICO, Inc., Defendants, represented by Daniel Francisco De La Cruz -- ddelacruz@sheppardmullin.com -- Sheppard, Mullin, Richter, Hampton, LLP, Ashley Teiko Hirano -- ahirano@sheppardmullin.com - - Sheppard Mullin Richter and Hampton LLP, Hali Michelle Anderson -- evanderson@sheppardmullin.com -- Sheppard Mullin Richter and Hampton LLP & Samantha D. Hardy -- shardy@sheppardmullin.com -- Sheppard, Mullin, Richter & Hampton. FUYAO GLASS: Judge Allows Workers' Class Action to Proceed ---------------------------------------------------------- Thomas Gnau, writing for Dayton Daily News, reports that a federal judge has granted class-action status to Fuyao Glass America workers and former workers in a lawsuit against the company. The class-action status will include current and former Fuyao production workers in the last three years, and attorneys for those suing Fuyao now have permission to contact those people. The workers involved in the lawsuit so far -- about 13 -- have alleged that the Moraine manufacturer of auto safety glass has not properly paid workers for overtime work or did not completely relieve them of duties for unpaid meal breaks and other times. The company has denied the allegations and is fighting the lawsuit, which was first filed in Dayton's federal court last June by a former Fuyao employee. "The allegations in the complaint and the plaintiffs' declarations agree that defendant's (Fuyao's) staff share similar primary job duties and responsibilities and are alleged to be victims of the same policy, decision and practice to deny them overtime pay," wrote Judge Thomas Rose, in a decision dated Feb. 7. "This suffices to consider plaintiffs and putative collective members and sub-class members similarly situated for purposes of conditional certification," Judge Rose added. The judge ordered Fuyao to give plaintiffs' attorneys a list of prospective class members -- people who have worked for Fuyao in the last three years. Fuyao has 14 days to provide the plaintiffs' attorneys the workers' and former workers' names, job positions, last-known mailing addresses, last-known telephone numbers, email addresses and other information. Attorneys for those suing Fuyao have also asked to give workers and former workers 60 days to "opt in" to the lawsuit, Judge Rose wrote. (In an amended filing, Judge Rose raised that number to 90 days.) Attorneys may contact workers via U.S. postal mail and email. Earlier this month, Scott Young, an attorney for Fuyao, said: "Fuyao Glass America (FGA) denies any allegations by the plaintiffs that they were not properly paid by FGA." Mr. Young and his colleagues then took the position "that class certification is not appropriate." [GN] GARDNER, MA: Seeks Dismissal of Class Action Over Water System -------------------------------------------------------------- Paula J. Owen, writing for Telegram.com, reports that the city is seeking to have a lawsuit filed against it and two of its water consultants dismissed, arguing it was not filed within the statute of limitation and that the city is immune to liability on the issue. The suit alleges that the city and the companies hired to manage its water supply were negligent and sold, supplied and distributed corrosive water to residents and businesses. In response, the city of Gardner, through its legal counsel, Jason Crotty -- jcrotty@piercedavis.com -- of Pierce, Davis & Pierritano LLP in Boston, is seeking to have the Worcester court dismiss the suit. In December, lawyer Michelle Blauner -- mblauner@shulaw.com -- of the firm Shapiro Haber & Urmy in Boston filed the class action lawsuit 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 were allegedly damaged by corrosive water. The city and its water companies knew for years they could fix the problem by adjusting the water chemistry with an additive, according to the complaint. The class action suit was filed in Worcester Superior Court by Gardner resident Janice Magliacane, who alleges the water supply was "unreasonably corrosive" and "unreasonably damaged" the hot water heating systems of Gardner residents. The suit contends the city "failed to implement its own corrosion control plan and failed to take other actions which the City knew would mitigate coil corrosion." In addition, Ms. Magliacane alleges that the coil corrosion problem could have been avoided if the city added orthophosphate to its water treatment system to inhibit corrosion of the distribution system piping and plumbing, as required by state law. However, the city contends that the incident Ms. Magliacane's lawsuit is based on occurred before 2010, yet she did not bring it to the city's attention until October 2017. In a news release, City Solicitor John M. Flick asserts that the suit was not filed within the two-year statute of limitation. "To the extent Ms. Magliacane's claims occurred on or before October 12, 2015, they are now time barred for failure to present her claims within two years and likely by the three-year statute of limitations as well," the city contends in its argument. "In addition, her presentment letter failed to allege nuisance as a potential claim. Massachusetts law is clear, on this point." Additionally, the city argues that, even if Ms. Magliacane is able to "overcome her failures to comply with the Massachusetts Tort Claims Act," her suit must be dismissed because the city is immune from liability. According to state law, a municipality cannot be held liable for "(A)ny claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation," the argument contends. A municipality can only be liable for a harm when an "affirmative act" by the municipality "originally caused" the harm, not a failure to act by a public employer, the city argues. "On the contrary, she faults the City for failing to change the alkalinity of the water," the city argues. "Ms. Magliacane's allegations merely present an alleged omission by the City, not an affirmative act by any City employee in any aspect of the incident . . . Simply put, the City must weigh the benefit of adding a chemical to its drinking water supply that will benefit a small percentage of the water using population versus the possible future harm to the greater percentage of the City's water using population. Thus, the issue is a matter of public policy and planning therefore, a discretionary act." When the city sought approval from the state to build the Crystal Lake and Snake Pond wastewater treatment plants, a consultant recommended adding orthophosphate to the water to protect the pipes in the late 1990s, according to Ms. Blauner. 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. 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. The EPA later determined the alkalinity of the water was very low, Ms. Blauner 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. It is unknown if the city added the chemical. [GN] GENERAL MOTORS: Faces Class Action Over Faulty Air-Conditioning --------------------------------------------------------------- Courthouse News Service reported that a class of motorists claims General Motors sold them vehicles with faulty air-conditioning systems despite advertising tri-zone automatic climate change with separate settings for the driver, front-seat passenger and back-seat passengers. GEO GROUP: Court Allows Immigrants' Class Action to Proceed ----------------------------------------------------------- Democracy Now reports that a federal appeals court has ruled a group of immigrants detained at the for-profit Aurora ICE Processing Center in Colorado can proceed with their class action lawsuit against the prison's owner, GEO Group. The men accuse GEO Group of forcing detained immigrants to clean the prison without pay, under threat of solitary confinement. The men are also accusing GEO Group of breaking labor laws by paying detained immigrants only $1 a day. [GN] GM LAW: Faces Class Action Over Student Loan Fraud -------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that a federal class action accuses the GM Law Firm and three Florida attorneys of fraud, malpractice and conversion in "so-called 'private student loan resolution services.'" Attorney for Plaintiff: Daniel Gamez, Esq. GAMEZ LAW FIRM, PC 501 W. Broadway, Suite 800 San Diego, CA 92101 HARRIS COUNTY, TX: Bail System Unconstitutional, 5th Cir. Rules --------------------------------------------------------------- Cameron Langford, writing for Courthouse News Service, reported that the Fifth Circuit on Feb. 14 affirmed that Texas' biggest county unconstitutionally imposes cash bail on poor misdemeanor defendants, but vacated an injunction requiring the county to release them from custody within 24 hours. U.S. District Judge Lee Rosenthal ruled in April 2017 that Harris County unconstitutionally favored those who can afford cash bail by having magistrates set bail at probable cause hearings with a fee schedule based on the charges. Judge Rosenthal's injunction took effect in July last year, and after a hearing in October, the Fifth Circuit agreed that a preliminary injunction was justified. But the panel on Feb. 14 dialed back Judge Rosenthal's order for Harris County to release on unsecured personal bonds all misdemeanor defendants who have not had a probable cause hearing within 24 hours of their arrest. Unsecured personal bonds do not require upfront fees. Writing for a unanimous three-judge panel, Fifth Circuit Judge Edith Clement Brown vacated the injunction and remanded the case to Judge Rosenthal. Judge Brown advised Judge Rosenthal to expand the deadline by which Harris County must provide probable causing hearings to misdemeanor arrestees from 24 to 48 hours. "We conclude that the federal due process right entitles detainees to a hearing within 48 hours," Judge Brown wrote in a 26-page order. Judge Brown, a George W. Bush appointee, made other suggestions on how Rosenthal should craft the injunction on remand, but said the Fifth Circuit will leave the details up to Judge Rosenthal. Judge Brown suggested keeping in place Judge Rosenthal's order that Harris County pretrial services staff interview misdemeanor arrestees about their finances within 24 hours of their arrest. The panel advised Judge Rosenthal to include a clause in her injunction that if misdemeanor defendants sign an affidavit stating they cannot pay the preset money bail, and have not been released on an unsecured bond, they are entitled to a hearing before a magistrate within 48 hours of their arrest. "At the hearing, the arrestee must have an opportunity to describe evidence in his or her favor, and to respond to evidence described or presented by law enforcement," Judge Brown wrote in a template for the new injunction. That suggestion addresses evidence that Harris County magistrates and sheriff's officers habitually told defendants not to say anything during the hearings so as not to incriminate themselves. Harris County's chief public defender Alex Bunin leads a program that began in July 2017, in which his office provides counsel for defendants at these probable cause hearings. He told Courthouse News in January that his public defenders were stopping defendants from speaking on the record. "So instead of having defendants confess, they are represented by a lawyer who speaks for them and protects their rights," Mr. Bunin said. To hold the magistrates accountable for declining to reduce bail from the preset amount to an affordable one, the Fifth Circuit suggested that on remand Judge Rosenthal order the magistrates to explain their reasons for the decision, on the record. The panel disagreed with Judge Rosenthal's laser focus on defendants' ability to pay bail, one of five factors that judges are to consider in setting bail under Texas law, and said Rosenthal did not give sufficient weight to judges' interest in ensuring defendants show up for hearings. Though Texas and federal law say judges must customize a defendant's bail amount based on their circumstances, evidence presented during an eight-day hearing in March last year showed that Harris County's magistrate and criminal judges imposed the scheduled bail amount 90 percent of the time, even for homeless people. Lead plaintiff Maranda ODonnell sued Harris County in May 2016, after she was arrested on a misdemeanor charge of driving with an invalid license and a magistrate judge set her bail at $2,500. She claimed the county's system of using a fee schedule to set bail based on the charges violates Fifth and 14th Amendment rights to due process and equal protection. She named as co-defendants Harris County's 16 criminal court judges, its sheriff and five magistrate judges who set bond at probable cause hearings. Judge Rosenthal agreed with Ms. O'Donnell's key claim that setting bail higher than defendants can afford is de facto preventive detention, which is illegal for misdemeanor defendants in Texas. But the Fifth Circuit rejected that, finding that Judge Rosenthal's order amounted to an automatic right to pretrial release for misdemeanor arrestees. This is "too broad a reading of the law," Judge Brown wrote, noting that "Texas courts have never sought to eliminate the use of bail bonds." The Harris County criminal court judges sought dismissal of the claims against them because judges are not liable when enforcing state law in their judicial capacity. But the Fifth Circuit credited Ms. O'Donnell's claims that the criminal judges set rules on how to set bail, so they are effectively policy makers, meaning they can be held liable as county officials for a policy that infringes on constitutional rights under Section 1983 of the Civil Rights Act. The panel did, however, dismiss Harris County Sheriff Ed Gonzalez from the lawsuit because, Judge Brown said, he has no policymaking authority. He cannot release a defendant from jail in defiance of a bail set by a magistrate or criminal judge. The dismissal is poetic justice for Sheriff Gonzalez, who has been opposed to the county's defending its bail system since the litigation's early stages. The county has spent more than $5 million on outside counsel fighting the class action. Then-Sheriff-elect Gonzalez submitted an affidavit in November 2016 in which he said he agreed with Ms. O'Donnell. "I believe that the current operation of the money bail system, including the sheriff's active participation in that system, violates the United States Constitution," he wrote. The bail bond industry, not surprisingly, denounced Judge Rosenthal's preliminary injunction, arguing in friend-of-the- court filings that there is no constitutional right to affordable bail and that bail bondsmen help courts run smoothly because they track down clients who do not show up for hearings. Criminal justice reform advocates credit Rosenthal for revealing that the status quo in Harris County, which held 50,000 bail hearings for misdemeanor defendants in 2015, too often sees poor petty criminals pressured to accept plea bargains to avoid spending weeks in jail. Ms. O'Donnell is represented by attorneys with Washington, D.C.- based Civil Rights Corps, which has filed similar lawsuits in several other states. It opened another front with a Jan. 21 filing of a challenge to the bail policies in Dallas. Assistant Harris County Attorney Robert Soard told the Texas Tribune he is pleased the Fifth Circuit reined in Rosenthal's mandate for the county to release most misdemeanor defendants on personal bonds. "The Fifth Circuit agreed that money bail could be used after an assessment of risk in accordance with Texas law," he said in a statement. He added that the appellate court's proposed injunction "provides a framework for a settlement." HOOTERS OF AMERICA: Faces "Factor" Suit in N.D. Georgia ------------------------------------------------------- A class action lawsuit has been filed against Hooters of America, LLC. The case is styled as Rebecca Factor, individually and on behalf of all others similarly situated, Plaintiff v. Hooters of America, LLC a Georgia limited liability corporation, Defendant, Case No. 1:18-cv-00792-MHC-CMS (N.D. Ga., February 22, 2018). Hooters of America, LLC is engaged in operating and franchising restaurants.[BN] The Plaintiff is represented by: Adian Miller, Esq. Morgan & Morgan, PLLC - Atl 191 Peachtree St., NE, Suite 4200 P.O. Box 57007 Atlanta, GA 30343 Tel: (404) 496-7332 Email: armiller@forthepeople.com - and - Rachel Soffin, Esq. Morgan & Morgan, P.A. - T.FL 201 N. Franklin Street 7th Floor Tampa, FL 33602 Tel: (813) 223-5505 Fax: (813) 222-2434 Email: rsoffin@forthepeople.com HORIZON PHARMA: Court Dismisses "Schaffer" Securities Suit ---------------------------------------------------------- The United States District Court for the Southern District of New York issued an Order granting Defendant's Motion to Dismiss the case captioned GEORGE S. SCHAFFER, et al., Plaintiffs, v. HORIZON PHARMA PLC, et al., Defendants, No. 16-CV-1763 (JMF) (S.D.N.Y.). In this putative class action, Plaintiffs bring securities fraud claims against Horizon Pharma PLC (Horizon), a number of Horizon's executives, (Individual Defendants), and various underwriters (Defendants). Plaintiffs allege that Horizon and the Individual Defendants made certain material misstatements and omissions in connection with its Prescriptions-Made-Easy or PME program and, in so doing, committed securities fraud in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Securities Exchange Commission (SEC) Rule 10b-5, 17 C.F.R. Section 240 (Exchange Act claims). The Amended Complaint also contains claims against the Underwriter Defendants in addition to Horizon and the Individual Defendants under Sections 11, 12(a)(2), and 15 of the Securities Act of 1933 (Securities Act claims). In reviewing a motion to dismiss pursuant to Rule 12(b)(6), a court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. The Court will not dismiss claims unless Plaintiffs have failed to plead sufficient facts to state a claim to relief that is facially plausible, that is, one that contains factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, Exchange Act Claims Plaintiffs first seek to hold Defendants liable for securities fraud under Sections 10(b) and 20(a) of the Exchange Act and Securities Exchange Commission Rule 10b-5. To state a claim that Defendants made material misrepresentations or omissions in violation of Section 10(b) and Rule 10b-5, Plaintiffs must allege (1) a material misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation. Material Misrepresentations or Omissions Plaintiffs' Exchange Act claims are based on three categories of statements: (1) Statements Relating to the Relationship Between Horizon and the PME Pharmacies; Statements Relating to Alleged Improper Business Practices; and Statements Relating to the Alleged Improper Practices. Statements Relating to the Relationship Between Horizon and the PME Pharmacies Plaintiffs claim that the captive nature of the pharmacies is evidenced by the transferring of prescriptions from one pharmacy to another. But that claim suffers from a fundamental defect: the source for it is a civil complaint that does not even mention Horizon. The civil complaint alleges that a minority owner of both Halsted Pharmacy and Clybourn Park not Horizon transferred prescriptions from one pharmacy to the other. Thus, Plaintiffs provide no allegations plausibly linking Horizon to the prescription-swapping allegations. In short, although Plaintiffs certainly establish that Horizon and the PME pharmacies had close and synergistic relationships, they fall short of establishing that the pharmacies were dominated financially and operationally by Defendants, let alone captive (whatever that means). It follows that Plaintiffs fail to establish that Defendants' statements about Horizon's relationships with the PME pharmacies were false or misleading within the meaning of the Exchange Act. Statements Relating to Alleged Improper Business Practices Horizon's Direction of the Pharmacies Plaintiffs' first allegation fails because it is not sufficiently particularized to establish that Horizon itself directed the pharmacies to refill prescriptions without authorization. As an initial matter, the allegation that Clybourn Park's management instructed employees to auto-refill prescriptions bears no direct nexus to Horizon. By contrast, the information attributed to a Linden Care employee does allege that Horizon instructed the pharmacy to place all prescriptions on auto-refill, but it falls short for a separate reason: it is not pleaded with sufficient specificity. Notably, the Amended Complaint does not allege that Horizon instructed Linden Care, or any pharmacy for that matter, to do anything without a patient's authorization. Plaintiffs' allegation that Horizon instructed its pharmacies to withhold pricing information from patients also lacks sufficient particularity. Here too, one unnamed rank-and-file employee claims that he was instructed at an unknown time, in an unknown place, and by an unknown person not to tell patients the price of the drugs or what their insurance company was being billed. Without more information regarding who instructed him and whether Horizon had any connection to the directive the Court finds this allegation to be lacking sufficient particularity to support the probability that the witness possessed the information alleged. Horizon's Direction of Its Employees First, the allegations in the Amended Complaint do not support the conclusory assertion that Horizon improperly directed its sales representatives to mislead doctors about the price of its drugs. Plaintiffs cite two confidential sources as support for their assertion: one who states that he was instructed to focus on the benefits of the program and another who was directed to tell doctors that there would be minimal copay to the patient if the prescription went through a specialty pharmacy. Regardless, Horizon's pricing model was no secret. To the extent it was, Plaintiffs point to no obligation for Horizon salespersons to affirmatively disclose the intricacies of their business model to every prescribing physician. Plaintiffs' second claim that Horizon directed its employees to provide gifts to doctors in order to influence their prescribing choices also falls short. Even taken together, however, these allegations demonstrate only that Horizon and its employees sought to cultivate relationships with doctors no doubt because its business model depended on physicians prescribing Horizon's drugs. In fact, given that the fees paid to doctors are publicly available it is telling that Plaintiffs cannot muster anything more significant than the allegations relating to Dr. Yee. Put simply, securities plaintiffs cannot meet the heightened pleading standards imposed by Rule 9 and the PSLRA with such conclusory claims of undisclosed wrongdoing. Statements Relating to the Alleged Improper Practices Plaintiffs' arguments here can be easily dismissed. First, Plaintiffs fail to allege that Horizon employed improper practices in connection with the PME program. Without a plausible allegation that Horizon acted or directed its employees or pharmacies to act improperly or illegally, Horizon's statements concerning its compliance with laws, regulations, and its own Code of Conduct cannot have been misstatements. Second, Horizon explicitly disclosed that it was exposed to the risk that our employees [and third parties] may engage in fraudulent or other illegal activity and that despite adopting an internal code of conduct, it is not always possible to identify and deter misconduct by our employees and other third parties, and the precautions we take to detect and prevent this activity may not be effective. Nor were these risk warnings themselves misleading, as Plaintiffs argue, because Horizon was presently violating such laws and regulations. Aside from the fact that Plaintiffs have failed to allege any underlying violations, no reasonable investor would interpret such a generic risk warning as an assurance of present compliance. Scienter In any event, Plaintiffs' Exchange Act claims are subject to dismissal for a related, albeit independent, reason: failure to adequately plead scienter. In this Circuit, a plaintiff may satisfy the scienter pleading requirement in either of two ways: by alleging facts (1) showing that the defendants had both motive and opportunity to commit the fraud or (2) constituting strong circumstantial evidence of conscious misbehavior or recklessness. The latter requires allegations of either actual intent or conscious recklessness, a state of mind approximating actual intent, and not merely a heightened form of negligence. More specifically, a plaintiff must allege conduct by a defendant that is, at the least, conduct which is highly unreasonable and which represents an extreme departure from the standards of ordinary care to the extent that the danger was either known to the defendant or so obvious that the defendant must have been aware of it. As a general matter, courts have approved of claims when plaintiffs have specifically alleged defendants' knowledge of facts or access to information contradicting their public statements. Under such circumstances, defendants knew or, more importantly, should have known that they were misrepresenting material facts related to the corporation. In this case, Plaintiffs make no attempt to establish scienter with respect to each Individual Defendant. By itself, that warrants dismissal of their Exchange Act claims. But even on their own terms, Plaintiffs' allegations of scienter fall short. Motive and Opportunity Plaintiffs' motive and opportunity arguments can be swiftly rejected. Plaintiffs do not allege that any Defendant sold shares during the Class Period. The Second Circuit has made clear, however, that it is not sufficient to allege goals that are possessed by virtually all corporate insiders, such as the desire to maintain a high credit rating for the corporation or otherwise sustain the appearance of corporate profitability or the success of an investment, or the desire to maintain a high stock price in order to increase executive compensation. S. Cherry St., LLC v. Hennessee Grp. LLC, 573 F.3d 98, 109 (2d Cir. 2009). That is all Plaintiffs do here. Because they fail to allege that Defendants received a "concrete and personal" benefit from the alleged scheme, and certainly do not allege that each Defendant received such a benefit, they fail to demonstrate a cognizable motive. Circumstantial Evidence of Conscious Misbehavior or Recklessness Plaintiffs fall short of adequately alleging either actual intent or conscious recklessness on the part of Defendants. Moreover, Plaintiffs' allegations of misconduct are ultimately less compelling than the nonculpable explanation presented by Defendants: that Horizon's stock price declined when it became clear to the market that the PME program was bound to fail. Notably, the risks that led to that failure were disclosed to investors over and over again. Additionally, as Plaintiffs themselves note, Horizon itself engaged a third party to review its practices even before it received the Department of Justice subpoena. It makes little sense that Defendants would engage a third party to undertake such a review if they were involved in committing (or covering up) a fraud. In short, Plaintiffs fail to adequately plead scienter and their Exchange Act claims must be dismissed. Securities Act Claims In contrast to their Exchange Act claims, Plaintiffs' claims under Sections 11, 12(a)(2), and 15 of the Securities Act do not require a showing of scienter, reliance, or loss causation. Instead, Plaintiffs need only show that Defendants issued or signed a registration statement containing an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Nevertheless, the parties acknowledge that the alleged misstatements in the Offering Documents concern the same underlying allegations discussed above in connection with the Exchange Act claims namely Horizon's captive relationship with the PME pharmacies, which it used to direct those pharmacies to implement improper business practices. Indeed, Plaintiffs' Securities Act claims track their Exchange Act claims often verbatim. It follows that Plaintiffs' Securities Act claims must be and are dismissed for failure to adequately plead a material misrepresentation or omission as well. Items 303 and 503 With respect to Item 303, Plaintiffs claim that Defendants' failure to disclose its relationship with the PME pharmacies and its improper business practices created substantial uncertainty" about the Company's future operating performance. But Plaintiffs fail to identify any adverse economic event or trend that occurred prior to the Offering that was not disclosed in the Offering Documents. Nor do Plaintiffs plead, with any specificity, facts establishing that Defendants possessed any actual knowledge of the purported trend or event. Plaintiffs' claim under Item 503 similarly falls short. Given that Plaintiffs failed to adequately allege that Horizon dominated the PME pharmacies or engaged in improper conduct, they also fail to identify a material omission in Horizon's Offering Documents. Instead, the most significant risk factor for Horizon was that its PME-focused strategy would fail because Horizon was selling drugs at higher prices than its competition. And this was disclosed by Horizon in its fifty-eight-page Risk Factors section. Thus, Plaintiffs' claims under Item 503 are also dismissed. Plaintiffs' claims under Section 10(b) of the Exchange Act and SEC Rule 10b-5 must be and are dismissed. It follows that their claims for control person liability under Section 20(a), which depend upon the existence of a primary violation, also fail. Moreover, Plaintiffs' claims under Sections 11, 12(a)(2), and 15 of the Securities Act also fail. A full-text copy of the District Court's January 18, 2018 Opinion and Order is available at https://tinyurl.com/yay95sfj from Leagle.com. Locals 302 and 612 of the International Union of Operating Engineers-Employers Construction Industry Retirement Trust, Lead Plaintiff, represented by Alec Tibor Coquin, Labaton & Sucharow LLP, Christine Marie Fox -- cfox@labaton.com -- Labaton & Sucharow LLP, Jonathan Gardner -- jgardner@labaton.com -- Labaton Sucharow, LLP, Michael Walter Stocker -- mstocker@labaton.com -- Labaton & Sucharow LLP, Francis Paul McConville -- fmcconville@labaton.com -- Labaton & Sucharow LLP & Serena Pia Hallowell -- shallowell@labaton.com -- Labaton & Sucharow LLP. George S. Schaffer, Individually and on behalf of all others similarly situated, Plaintiff, represented by Joseph Alexander Hood, II -- ahood@pomlaw.com -- Pomerantz LLP & Jeremy Alan Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP. Saba Banie, Plaintiff, Pro Se. Jonathan Walden, Movant, represented by Shane Thomas Rowley - srowley@zlk.com -- Levi & Korsinsky, LLP. Employees' Retirement System of the Puerto Rico Electric Power Authority, Movant, represented by Robert Craig Finkel -- rfinkel@wolfpopper.com -- Wolf Popper LLP. Springer and Nichols, Movant, represented by Phillip C. Kim - pkim@rosenlegal.com -- The Rosen Law Firm P.A. City of Atlanta Firefighters' Pension Fund, Movant, represented by Curtis Victor Trinko, Law Offices of Curtis V. Trinko, LLP, 16 W 46th St Fl 7. New York, NY, 10036-4503. Automotive Industries Pension Trust Fund, Movant, represented by Abraham Alexander -- abe.alexander@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP, Gerald H. Silk -- jeery@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP, Hannah Elizabeth Ross -- hannah@blbglaw.com. -- Bernstein Litowitz Berger & Grossmann LLP & Serena Pia Hallowell -- shallowell@labaton.com -- Labaton & Sucharow LLP. Horizon Pharma PLC, Timothy P. Walbert, Paul W. Hoelscher & Robert J. De Vaere, Defendants, represented by Jonathan Paul Bach -- jbach@cooley.com -- Cooley LLP, David James Bright -- dbright@cooley.com -- Cooley LLP, Koji Francis Fukumura, Cooley LLP & Peter Morgan Adams -- padams@cooley.com -- Cooley L.L.P. William F. Daniel, Michael Grey, Jeff Himawan, Virinder Nohria, Ronald Pauli, Gino Santini, H. Thomas Watkins, John J. Kody & Robert F. Carey, Defendants, represented by Koji Francis Fukumura -- kfukumura@cooley.com -- Cooley LLP. Citigroup Global Markets, Inc., Jefferies LLC, Cowen & Company LLC Morgan Stanley & Co., LLC, Defendants, represented by Richard A. Rosen rrosen@paulweiss.com, Paul Weiss. HUAWEI DEVICE: Consumers Can Amend Nexus 6P Class Action -------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that a federal judge gave consumers until Feb. 27 to amend their putative class action alleging severe defects in Huawei's and Google's Nexus 6P smartphones. The case is IN RE NEXUS 6P PRODUCTS LIABILITY LITIGATION, Case No. 17-cv-02185-BLF (N.D. Calif.). The defendants are Huawei Device USA, Inc., and Google LLC. HYUNDAI MOTORS: Recent Class Action Ruling Alarms Plaintiffs Bar ---------------------------------------------------------------- Amanda Bronstad, writing for Law.com, reports that last month's decision by the U.S. Court of Appeals for the Ninth Circuit in a case against Hyundai struck a nerve with the class action bar because it brought to the surface a longstanding debate over how much is required to approve nationwide settlements when varying state laws are involved. The Ninth Circuit's Jan. 23 opinion in In re Hyundai and Kia Fuel Economy Litigation imposed a strict set of requirements that alarmed lawyers on both sides -- but mostly those in the plaintiffs bar. [GN] INTEREXCHANGE INC: Class Action to Impact U.S. Au Pair Program -------------------------------------------------------------- Josh Eidelson, writing for Bloomberg Businessweek, reports that a newly certified class, estimated to total more than 90,000 foreign workers, is alleging that a wage-fixing conspiracy artificially depressed earnings in the U.S. Au Pair program. The lawsuit, one of a number of efforts by plaintiffs' lawyers to use antitrust laws to target treatment of employees, represents a challenge to the Au Pair program overseen by the U.S. Department of State. Colorado-based federal district judge Christine Arguello certified the class on Feb. 2, allowing the lawsuit to proceed on behalf of current and former au pairs. The plaintiffs are suing 15 private agencies authorized by the State Department to administer the program, which allows foreign workers under the age of 27 to enter the U.S. on J-1 cultural exchange visas to provide live-in child care to host families. "They control the entire market for au pair labor," says attorney Nina DiSalvo, executive director of Towards Justice, a Denver-based legal nonprofit representing the au pairs. The law firm Boies Schiller Flexner has joined with Towards Justice to represent the plaintiffs. Along with fraud and wage-and-hour allegations, the suit contends that the agencies have violated the 1890 Sherman Antitrust Act by colluding to keep au pairs' wages low and discouraging families from paying more. According to the plaintiffs, agencies allegedly told au pairs they will receive the exact same rate regardless of who they work for and falsely claimed that the government set their maximum weekly wage at $195.75. The agencies and their trade association, the Alliance for International Educational and Cultural Exchange, declined to comment on the lawsuit or did not respond to requests for comment. The State Department declined to comment, citing the ongoing litigation, and provided a link to its au pair program compensation requirements. Defendants have until Feb. 16 to notify the court if they will appeal the class certification. In court filings, the sponsors deny any wrongdoing, saying the stipend amount is set by the State Department. One agency, InterExchange Inc., wrote that "the central element of the au pair program is not work, but rather the cultural knowledge and experience gained" by the au pair. "The program facilitates cultural exchange through a careful balance of give-and-take; host families must be willing to welcome a stranger into their homes and families, and in exchange, those strangers become de facto family members, providing limited childcare and continuing their education." Another defendant, Cultural Care Inc., said the allegations demonstrate, at best, "an inexcusable ignorance of basic governmental immunity principles," because the agencies were simply "acting at the direction of the federal government." That argument was rejected by a U.S. magistrate judge, who wrote in 2016 that it was "wholly without merit" to claim the sponsors were immune from antitrust law. "There is no evidence that the federal government 'directs,' or in any other way mandates, that an au pair's wages are set at $195.75," the judge wrote, saying a 2007 State Department memo cited by the defendants does not prevent families from paying a higher rate. The lawsuit is one of many controversies surrounding the State Department's half-century-old J visa, which has been dogged for decades by allegations that through initiatives such as the Au Pair and Summer Work Travel programs it fosters underpaid, underregulated guest-worker labor under a veneer of cultural exchange. The Au Pair program began as a pilot in 1986 in response to a proposal from the American Institute for Foreign Study. During congressional debate in 1989, AIFS argued against limiting au pairs' workweek to 45 hours, citing the tremendous need for affordable child care as more women entered the workforce. At the same time, it argued that regulating the au pair program as a labor program would "strangle the special relationship" between au pairs and their hosts. In 1990, when J-1 visas were still overseen by the now-defunct U.S. Information Agency, the General Accounting Office issued a report finding that the program lacked adequate oversight and that the handling of visas, including those for au pairs, contradicted congressional intent. In 2011 participants in the J-1 Summer Work Travel program went on strike at a Hershey's chocolate factory, alleging that they were being threatened with deportation if they spoke up about exploitative conditions. At the time, Hershey's said the plant was being operated by a logistics contractor, who in turn said participants were provided through a staffing company. "We don't have a lot of influence over some of those issues that they've raised," the contractor told the New York Times in 2011. In 2013, J-1 participants working for a McDonald's franchisee walked off the job, claiming that the owner was making them work 20-plus-hour shifts, withholding wages, and charging participants exorbitant rent to live in crammed basements. Amid the protests, McDonald's issued a statement saying that the franchisee had "agreed to leave the McDonald's system," and said that it was "also working on connecting with the guest workers on an individual basis to most effectively address this situation." The franchisee had said that authorities had looked into the situation and "there is no violation." As a candidate, Donald Trump pledged to replace J-1 visas with an inner-city youth jobs program. The stipend for au pairs is far lower than the prevailing wage for domestic workers in the U.S., says American University law professor Janie Chuang. "Host families and the State Department, and certainly the sponsoring au pair agencies, resist the idea that this is a labor program, because if it were treated as such, it would no longer be affordable for a lot of these families," she says. One former au pair who came to the U.S. from Germany and is a plaintiff in the suit says that before starting the program she was told by her sponsor that all participants in the U.S. received the same rate of $195.75 per week and that the rate was set by the government. The au pair claims she regularly was told to work more than the 45-hour limit. The experience did not match the way the program was initially promoted by the agency. Anticompetitive behavior by employers, including price-fixing conspiracies, noncompete clauses banning staff from departing for similar jobs, and no-poaching agreements, like those alleged in Silicon Valley that led to a $415 million settlement in 2015, have broader labor-market consequences, say economists. "It's quite plausible that this is part of the reason why we're seeing sluggish wage growth," says Princeton University's Alan Krueger, who chaired the Council of Economic Advisers under President Obama and recently conducted research that found the majority of big franchise chains banned franchisees from hiring away each other's workers. "If the agencies were truly competing against each other in recruiting au pairs, there would be more of a race to the top," says University of San Diego law professor Orly Lobel. "There is no reason that each au pair, regardless of her prior experience and education level, would all just work for minimum wage." [GN] J&B CLEANERS: Faces "Paredes" Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against J&B Cleaners, Inc. The case is styled as Yeimi "Jenny" Paredes, Individually And on behalf of all other employees similarly situated, Plaintiff v. J&B Cleaners, Inc. d/b/a Lincoln Terrace Cleaners and Bernard Park, Defendants, Case No. 1:18-cv-01638 (S.D. N.Y., February 22, 2018). J&B Cleaners, Inc. operates a dry cleaning business.[BN] The Plaintiff appears PRO SE. JOHNSON & JOHNSON: Stockholders File Securities Class Action ------------------------------------------------------------ HarrisMartin Publishing reports that Johnson & Johnson stock holders have filed a class action against the company, contending that the defendant has known for "decades" that its talc products include asbestos fibers and "misrepresented and failed to disclose" the alleged danger its products posed to consumers. The Feb. 8 federal securities class action complaint filed in the U.S. District Court for the District of New Jersey was filed by Frank Hall individually and on behalf of all other persons similarly situated. [GN] JUNO THERAPEUTICS: Faces Class Action Over Celgene Merger --------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that directors are selling Juno Therapeutics too cheaply through an unfair process to Celgene, for $87 a share or $9 billion, shareholders claim in a federal class action. Attorney for Plaintiff: Roger Townsend, Esq. BRESKIN JOHNSON & TOWNSEND PLLC 1000 Second Avenue, Suite 3670 Seattle, Washington 98104 Tel: 206-652-8660 Fax: 206-652-8290 Email: rtownsend@bjtlegal.com OF COUNSEL: Evan J. Smith, Esq. Marc L. Ackerman, Esq. BRODSKY & SMITH, LLC Two Bala Plaza, Suite 510 Bala Cynwyd, PA 19004 Phone: (610) 667-6200 Facsimile: (610) 667-9029 Email: esmith@brodskysmith.com mackerman@brodskysmith.com KABBAGE INC: Court Strikes Class Allegations in TCPA Suit --------------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, issued a Memorandum Opinion and Order granting Defendant's Motion to Strike Class Allegation in the case captioned A CUSTOM HEATING & AIR CONDITIONING, INC., Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. KABBAGE, INC.; GULFCO LEASING LLC; MICHAEL HENRY; And JOHN DOES 1-12, Defendants, Case No. 16 C 2513 (N.D. Ill.). Plaintiff A Custom Heating & Air Conditioning, Inc. (Plaintiff) sued Defendant Kabbage, Inc. (Kabbage), among others, claiming that Defendants sent or caused to be sent to Plaintiff fax advertisements in violation of the Telephone Consumer Protection Act, as amended by the Junk Fax Protection Act of 2005, (TCPA). Plaintiff pursued other causes of action as well, but this Court dismissed them for failure to state a claim under Rule 12(b)(6). The standard for evaluating motions to strike class allegations is the same as the standard for certifying a class under Rule 23. The heart of Kabbage's objection to the class allegations is Plaintiff's proposed class definition: All persons who were sent one or more telephone facsimile messages on or after four years prior to the filing of this action, that advertised the commercial availability of property, goods, or services offered by Defendants, that did not contain an opt-out notice that complied with federal law. According to the Court, the trouble here is imprecision. Plaintiff defines its proposed class as a group of persons who received advertisements lacking TCPA-compliant opt-out notices. Kabbage cries foul because, as the Court earlier observed, the definition fails to distinguish between those class members that gave prior permission to Defendants to receive such advertisements and those members that did not. Plaintiff alleges that it received an unsolicited fax advertisement from or one caused to be sent by Defendants. But if, as the proposed class definition currently allows, the class contains members who received only solicited faxes, there will not be enough congruence between their claims and Plaintiff's. Indeed, there will be no congruence at all the members that received only solicited faxes have no TCPA claim against Defendants. The class definition is thus overbroad, encompassing members who do not share a viable claim with the representative Plaintiff. If, as Plaintiff contends elsewhere in its FAC all of the proposed class members received only unsolicited faxes, the class definition should say so. A full-text copy of the District Court's January 18, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/y9uc97lv from Leagle.com. A Custom Heating & Air Conditioning, Inc., an Illinois corporation, individually and as the representative of a class of similarly situated persons, Plaintiff, represented by James Michael Smith -- jim@classlawyers.com -- Bock Law Firm, LLC dba Bock, Hatch, Lewis & Oppenheim, LLC, John P. Orellana, Bock, Hatch, Lewis & Oppenheim, LLC, Kimberly M. Watt -- kimberly@classlawyers.com -- Bock & Hatch Llc, Tod Allen Lewis -- tod@classlawyers.com -- Bock Law Firm, LLC dba Bock, Hatch, Lewis & Oppenheim, LLC & Phillip A. Bock -- phil@classlawyers.com -- Bock Law Firm, LLC dba Bock, Hatch, Lewis & Oppenheim, LLC. Kabbage, Inc., Defendant, represented by Kristine Marie Schanbacher -- kristine.schanbacher@dentons.com -- Dentons US LLP, Mark A. Silver -- Mark.silver@dentons.com -- Dentons US LLP & Nathan Lewis Garroway -- nathan.garroway@dentons.com -- Dentons US LLP. Celtic Bank Corporation, Defendant, represented by Bart Thomas Murphy -- bart.murphy@icemiller.com -- Ice Miller LLP, Heather Lynn Maly -- Heather.Maly@icemiller.com -- Ice Miller, Isaac J. Colunga l- isaac.colunga@icemiller.com -- ICE MILLER LLP & Martha Larson Kohlstrand -- Martha.Kohlstrand@icemiller.com -- Ice Miller LLP. Michael Henry, Defendant, Pro Se. Kabbage, Inc., Cross Claimant, represented by Mark A. Silver, Dentons US LLP & Nathan Lewis Garroway, Dentons US LLP. A Custom Heating & Air Conditioning, Inc., an Illinois corporation, individually and as the representative of a class of similarly situated persons, Cross Defendant, represented by Phillip A. Bock, Bock Law Firm, LLC dba Bock, Hatch, Lewis & Oppenheim, LLC, James Michael Smith, Bock Law Firm, LLC dba Bock, Hatch, Lewis & Oppenheim, LLC, John P. Orellana, Bock, Hatch, Lewis & Oppenheim, LLC, Kimberly M. Watt, Bock & Hatch Llc & Tod Allen Lewis, Bock Law Firm, LLC dba Bock, Hatch, Lewis & Oppenheim, LLC. The United States District Court for Eastern District Michigan, Southern Division. ALICE RADEN and BOBBIE MOORE, individually and on behalf of all others similarly situated, Plaintiffs, v. MARTHA STEWART LIVING OMNIMEDIA, INC., a Delaware Corporation, and MEREDITH CORPORATION, an Iowa Corporation, Defendants. L'OREAL USA: Motion to Dismiss Hair Product Class Action Nixed -------------------------------------------------------------- Angela Underwood, writing for Legal Newsline, reports that a big brand hair product's motion to dismiss is limp, according to U.S. District Court for the Southern District of New York Judge Lorna Schofield. In a late 2017 opinion, Judge Schofield denied L'Oreal USA Inc. and Matrix Essentials LLC's motion to dismiss a first amended complaint of a class action complaint brought against them by plaintiffs Brandi Price and Christine Chadwick over alleged false representations in the three of their popular hair products, but did dismiss the unjust enrichment claim under both New York and California law. Rather than restoring their hair, L'Oreal subsidiary Matrix's Biolage Keratindose Pro-Keratin + Silk Shampoo, Conditioner and Renewal Spray (products), which advertise Keratindose Pro Keratin +Silk, caused hair loss and damage, according to the plaintiffs. The opinion also states the plaintiff's expert testified the products do not even have the natural human protein keratin in them. Ms. Price alleged she suffered brittle and dry damage to her hair in 2014 after purchasing one of the products in New York, and Chadwick alleged she suffered the same in 2016 when buying two of the products in California. While both plaintiffs seek restitution and injunctive relief, L'Oreal was looking to have the whole matter dropped, specifically arguing that the plaintiffs have not sufficiently pleaded fraud under Federal Rule of Civil Procedure 9(b). Citing that Rule 9(b) claims must meet keen requirements, Schofield detailed that the plaintiffs had properly claimed fraud. "The fact that the advertisements did not use the word 'keratin' in isolation and instead used the word 'Pro-keratin' does not change the analysis," Judge Schofield wrote in the opinion. "It is unclear what 'Pro-keratin' is and, given the inclusion of the word 'keratin' and the characterization of the shampoo, for example, as 'our keratin shampoo,' Defendants plausibly misrepresented that the products contain keratin." Judge Schofield detailed the actual reliance of California Unfair Competition Law (UCL) and False Claims Act (FLA). While defendants charge that under Kwiset Corp. v. Superior Court from 2011 that actual reliance is in fact a factor in the UCL and FLA California Law, Schofield showed otherwise. "Here, the complaint alleges that products were sold nationwide and each plaintiff, having seen the products' name and marketing materials, believed that the products contained keratin," Schofield wrote in the opinion. "The complaint also alleges that each plaintiff would not have purchased the products or would have paid less for them had she known the products did not contain keratin. In sum, the complaint sufficiently alleges actual reliance to support the UCL and FAL claims." L'Oreal then attempted to claim breach of express warranty, also denied by the judge. "It is well established that '[a] seller's warranty whether express or implied extends to any natural person if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty,'" Judge Schofield wrote in the opinion. However, the judge did find favor with L'Oreal's motion to dismiss the unjust enrichment respectively under both the East Coast and West Coast laws. "While unjust enrichment may be pleaded as an independent claim under New York law, 'it is available only in unusual situations when, though the defendant has not breached a contract nor committed a recognized tort, circumstances create an equitable obligation running from the defendant to the plaintiff," Judge Schofield wrote in the opinion, adding "Generally, in California, where there is a valid express contract covering the same subject matter, there is no standalone cause of action for unjust enrichment." [GN] LJM FUNDS: April 10 Lead Plaintiff Motion Deadline Set ------------------------------------------------------ Bronstein, Gewirtz & Grossman, LLC on Feb. 12 notified investors that a class action lawsuit has been filed against LJM Funds Management Ltd. ("LJMIX" or the "Company") (LJMIX) and certain of its officers, on behalf of shareholders who purchased LJM Preservation and Growth Fund Class I ("LJMIX") (MUTF: LJMIX) between February 28, 2015 and February 7, 2018, inclusive (the "Class Period"). Such investors are encouraged to join this case by visiting the firm's site: http://www.bgandg.com/ljmix This class action seeks to recover damages against Defendants for alleged violations of the federal securities laws under the Securities Exchange Act of 1934. The complaint alleges that throughout the Class Period, defendants made materially false and misleading statements and/or failed to disclose that: (1) LJMIX was not focused on capital preservation and left investors exposed to an unacceptably high risk of catastrophic losses; and (2) LJMIX had not taken appropriate steps to preserve capital in down markets. On February 5, 2018, the S&P dropped about 4.6% and LJMIX dropped roughly 80% from a previous close price of $9.82 per share on February 2, 2018 to $1.94 per share on February 7, 2018. A class action lawsuit has already been filed. If you wish to review a copy of the Complaint you can visit the firm's site: http://www.bgandg.com/ljmixor you may contact Peretz Bronstein, Esq. or his Investor Relations Analyst, Yael Hurwitz of Bronstein, Gewirtz & Grossman, LLC at 212-697-6484. If you suffered a loss in LJMIX you have until April 10, 2018 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Bronstein, Gewirtz & Grossman, LLC -- https://www.bgandg.com -- is a corporate litigation boutique. Its primary expertise is the aggressive pursuit of litigation claims on behalf of our clients. In addition to representing institutions and other investor plaintiffs in class action security litigation, the firm's expertise includes general corporate and commercial litigation, as well as securities arbitration. [GN] LENDER PROCESSING: Third Party Defendants in "Lemieux" Dismissed ---------------------------------------------------------------- In the case, KEVIN LEMIEUX, Plaintiff, v. LENDER PROCESSING CENTER; HIGHTECHLENDING, INC., Defendants. HIGHTECHLENDING, INC., Third-Party, Plaintiff, v. 800 CAPITAL, INC., et al., Third- Party, Defendants, Case No. 16-cv-01850-BAS-DHB (S.D. Cal.), Judge Cynthia Bashant of the U.S. District Court for the Southern District of California granted the Third Party Defendants' Motion for Judgment on the Pleadings. Third Party Plaintiff Hightech is a California-based residential mortgage loan originator organized into separate branches. Each branch is responsible for its own marketing and lead generation. Third Party Defendants Elite and 800 Capital are California-based entities in the business of providing lead generation services via telemarketing, and Third Party Defendants Shebab Tareh, Amir Montazeran and Allen Buenafe are all individuals who are either employees, directors, officers, managers, or, in Buenafe's case, CEO, Secretary or CFO of Elite and 800 Capital. One of Hightech's branch offices entered into an agreement with Elite and 800 Capital to provide lead generation services. Lemieux filed a putative class action claiming he received a call on his cellular telephone from an automatic telephone dialing system ("ATDS") in violation of the Telephone Consumer Protection Act ("TCPA"). An individual informed the Plaintiff the call was from LPC, but then transferred the call to an application manager who informed him the call was from Hightech. Hightech alleges that the TCPA violation was the fault of Third Party Defendants who generated the lead. Thus, Hightech brings the Third Party Complaint for equitable indemnity, contribution and declaratory relief against all Third Party Defendants. Hightech also asserts a state law breach of contract claim against Elite and 800 Capital. Hightech invokes supplemental jurisdiction over the Third Party Complaint because the underlying Complaint is based on a violation of a federal statute, the TCPA. The Plaintiff has since settled his claims against Hightech. His claim has been dismissed with prejudice and the claim on behalf of the class has been dismissed without prejudice. Thus, the only remaining claims in the action are those asserted in the Third Party Complaint. All but one Third Party Defendants now move for judgment on the pleadings claiming there is no right of contribution or indemnity under the TCPA now moves for judgment on the pleadings claiming there is no right of contribution or indemnity under the TCPA. Judge Bashant rejects Hightech's argument that Ninth Circuit and FCC precedent shows that indemnity and contribution are available under federal law for violations of the TCPA. Like the Court, she says, several courts considering the issue have concluded that claims for contribution and indemnity are not available under the TCPA. The Judge recognizes that the result may be that the true violator of the TCPA is not held responsible for his conduct, but this is an insufficient reason for enlarging on the remedial provisions contained in this carefully considered statute. Although the Plaintiff could have filed suit against the Third Party Defendants, he chose not to do so. The TCPA is in essence a strict liability statute and it is not up to the Court to equitably temper its bite. The Judge concludes the Third Party Defendants' Motion for Judgment on the Pleadings as to these claims must be granted. Having dismissed the claims based on indemnity and contribution under the federal TCPA statute, and in consideration of the early stage of these proceedings, the Judge declines to exercise supplemental jurisdiction over Hightech's breach of contract claim. Finally, because the Judge has concluded that Hightech's claims for indemnity and contribution for violations of the TCPA fail as a matter of law, Hightech cannot possibly win the relief it seeks from Montazeran. Accordingly, the claims against Montazeran must be dismissed with prejudice. For the reasons he stated, Judge Bashant granted the Third Party Defendants' Motion for Judgment on the Pleadings. She dismissed with prejudice Hightech's claims for indemnity and contribution and, to the extent it is premised on such claims, Hightech's request for declaratory relief. The Judge declined to exercise supplemental jurisdiction over Hightech's state law breach of contract claim and, to the extent it is premised on such claim, Hightech's request for declaratory relief, pursuant to 28 U.S.C. Section 1367(c). She ordered that the entry of default against Third Party Defendant Montazeran be set aside. Pursuant to Rule 12(b)(6), she dismissed with prejudice Hightech's claims against Third Party Defendant Montazeran. All Third Party Defendants are dismissed from the case and the Clerk is directed to close the case. A full-text copy of the Court's Jan. 31, 2018 Order is available at https://is.gd/0c7F9T from Leagle.com. Hightechlending, Inc., ThirdParty Plaintiff, represented by Michael Allen Hellbusch -- mhellbusch@tldlaw.com -- Tredway Lumsdaine and Doyle & Shannon Marie Jenkins -- jenkins@tldlaw.com -- Tredway Lumsdaine and Doyle. Elite One Plus, Inc., 800 Capital, Inc. & Shabab Tareh, ThirdParty Defendants, represented by Brent Randall Phillips -- bphillips@phillipslawcorporation.com -- Phillips Law Corporation. LOMA NEGRA: Argentina Class Action Suit Still Ongoing ----------------------------------------------------- Loma Negra Compania Industrial Argentina Sociedad Anonima said in its Form F-1/A Report filed with the U.S. Securities and Exchange Commission that the company continues to defend itself from a class action filed by Damnificados Financieros Asociacion Civil, in Argentina. In February 27, 2007, Damnificados Financieros Asociacion Civil filed a class action as representative of the holders of the notes issued by Inversora Electrica de Buenos Aires S.A., or IEBA, in an aggregate principal amount of Ps.200,000,000, in 1997, or the IEBA Notes, against several defendants (including us, as a former minority shareholder of IEBA). Plaintiff seeks to extend liability to the defendants for the lack of payment of the IEBA Notes alleging, among other things, under-capitalization of IEBA, as issuer. The Company filed several defenses, including, without limitation, lack of standing to sue, statute of limitations, that the Company was no longer shareholders of IEBA at the time of the issuance of the IEBA Notes and that the IEBA Notes have been successfully restructured through a reorganization plan duly endorsed by the competent court with effect against all holders of the IEBA Notes and declared fulfilled by resolution of the same court dated April 18, 2008. On August 28, 2017, the court admitted the class action and the Company is in the process of appealing the court's decision. Loma Negra said "Based on the foregoing and on our Argentine litigation counsel' opinion, we believe that the chances of success of the claim against us are remote." Loma Negra Compania Industrial Argentina Sociedad Anonima is the leading cement producer in Argentina. The company produces and distributes cement, masonry cement, aggregates, concrete and lime to wholesale distributors, concrete producers and industrial customers, among others. MARTHA STEWART: Court Won't Review Ruling in "Raden" Suit --------------------------------------------------------- The United States District Court for the Eastern District of Michigan, Southern Division, issued an Opinion and Order denying Plaintiff's Motion for Partial Reconsideration in the case captioned ALICE RADEN and BOBBIE MOORE, individually and on behalf of all others similarly situated, Plaintiffs, v. MARTHA STEWART LIVING OMNIMEDIA, INC., a Delaware Corporation, and MEREDITH CORPORATION, an Iowa Corporation, Defendants, Case No. 16-12808 (E.D. Mich.). This lawsuit arises from Plaintiffs Alice Raden and Bobbie Moore (Plaintiffs) class action complaint alleging that Defendants Martha Stewart Living Omnimedia, Inc. (Martha Stewart Living Omnimedia) and Meredith Corporation (Meredith) violated Michigan's Personal Privacy Protection Act (PPPA) and were unjustly enriched by disclosing sensitive and statutorily protected information to third parties. In an Opinion and Order, the Court granted, in part, Defendants' motion to dismiss. In that decision, the Court found that Plaintiffs did not allege actual damages as required under the amended PPPA and dismissed Count I of the complaint. The Court denied Defendants' motion to dismiss on Plaintiffs' unjust enrichment claim. Plaintiffs argue that the Court committed a palpable defect when it based the applicability of the amended PPPA on the date Plaintiffs' Complaint was filed. Plaintiffs maintain that the Court erred in failing to recognize that the applicability of a statute depends on when the cause of action accrues not when the complaint was filed. Plaintiffs' Complaint was filed on the same date the amendment took immediate effect. The conclusion other courts have reached concerning the applicability of the amended PPPA is not contrary to this Court's decision because the complaints in those cases were pending prior to the amendment taking effect. Here, as supported by a clear reading of the statute, the intent was for the amendment to take immediate effect, which happened to be on the same date Plaintiffs filed their Complaint. Because Plaintiffs failed to allege actual damages as required under the amended PPPA, the Court dismissed Plaintiffs' PPPA claims. A full-text copy of the District Court's January 18, 2018 Opinion and Order is available at https://tinyurl.com/y9mv2m8p from Leagle.com. Alice Raden, Plaintiff, represented by Benjamin Scott Thomassen bthomassen@edelson.com -- Edelson PC, Eve-Lynn Rapp -- erapp@edelson.com -- Edelson PC, Henry M. Scharg & Ari J. Scharg -- ascharg@edelson.com -- Edelson P.C. Bobbie Moore, Plaintiff, represented by Benjamin Scott Thomassen, Edelson PC, Eve-Lynn Rapp, Edelson PC, Henry M. Scharg & Ari J. Scharg, Edelson P.C. Martha Stewart Living Omnimedia, Inc., Defendant, represented by Andrew M. Harris -- andrew.harris@kitch.com -- Kitch, Drutchas, Wagner, Valitutti & Sherbrook. Meredith Corporation, Defendant, represented by Jacob A. Sommer - - jake@zwillgen.com -- Zwillgen, PLLC, Lara F. Phillip -- lara.phillip@honigman.com -- Honigman, Miller & Nury R. Siekkinen -- nury@zwillgen.com. -- ZwillGen PLLC. MASTERCARD: Squire Patton Attorneys Discuss Interchange Fee Case ---------------------------------------------------------------- Garon Anthony, Esq., and Helen Cain, Esq., of Squire Patton Boggs (US) LLP, in an article for The National Law Review, report that the previous four episodes of the Mastercard saga focused on a number of legal battles between Mastercard and both consumers and retailers. These disputes have centred on Mastercard's alleged "uncompetitive" interchange fees and restrictive rules on cross- border acquiring. The latest claim by retailers follows a class action brought on behalf of consumers under the Consumer Rights Act 2015 in relation to the same charges. Retailers including Nando's, the Cooperative Group and Harvey Nichols have launched a new claim worth approximately ú300 million (plus interest and costs), on the basis that Mastercard allegedly breached EU and UK regulations through the setting of "unlawful and anti-competitive" fees. This follows Humphries Kerstetter's announcement in June 2017 that it would be bringing the claim on behalf of 27 high street retailers. In addition to arguing that Mastercard's service charges are anti-competitive, the claimants allege that Mastercard has abused its dominant position in the market. The claimants say that Mastercard credit cards are such a popular payment mechanism that retailers view them as "must-take". The claimants are also seeking a declaration that the interchange fees are (and always were) void and unenforceable. In 2007, the EU found that Visa and Mastercard's high interchange fees breached Article 101 of the Treaty on the Functioning of the European Union, thus inviting the consumer class action referred to above (led by Walter Merricks and discussed in a previous blog post) followed by several similar claims by retailers. Until recently, it would have been forgivable to think that the retailer's current claim (and the consumer class action claim) would be bound not to succeed. This is because in Sainsbury's' unsuccessful claim against Visa in respect of their high interchange fees, Mr Justice Phillips ruled that the credit card giant's fees were not inherently anti-competitive (however, Sainsburys is still expected to appeal this decision). In light of the legal developments since 2007, the outcome of the retailer's claim and the consumer class action are far from predictable. [GN] MCDONALD'S CORP: Blind Customers File Class Action in Chicago ------------------------------------------------------------- Courthouse News Service reported that a class action filed in Chicago federal court claims McDonald's restaurants are inaccessible to blind customers during the late-night hours when food can only be purchased via drive-thru. Attorneys for Plaintiff: Roberto Luis Costales, Esq. William H. Beaumont, Esq. BEAUMONT COSTALES LLC 3151 W. 26th Street, 2nd Floor Chicago, Illinois 60623 Telephone: (773) 831-8000 Facsimile: (504) 272-2956 Email: whb@beaumontcostales.com -- and -- Glenn M. Goffin, Esq. 920 Beach Park Blvd, Apt 39 Foster City, CA 94404 Tel: (415) 845-8556 Email: ggoffin@glenngoffinlaw.com MDL 2804: Niagara County's Civil Suit Over Opioid Crisis Ongoing ---------------------------------------------------------------- Danny Spewak, writing for WGRZ, reports that a measure to declare the opioid epidemic a "public nuisance" sailed through Niagara County legislative committees on Feb. 12, intended as a move to bolster the county's ongoing civil lawsuit against major drug manufacturers. The full Niagara County legislature is now widely expected to pass the local law with bipartisan support. Rebecca Wydysh, a county legislator and chairwoman of the committee on opioid addiction, said the county attorney recommended a public nuisance law as a legal strategy. The designation could give the county leverage in court as it seeks to recover damages associated with the opioid crisis. Niagara County is one of at least three local governments in Western New York to officially file a lawsuit against pharmaceutical companies, along with Erie and Chautauqua counties. The suits accuse the nation's largest drug companies of misleading doctors and patients about the addictive nature of painkillers and opioids. Instead of joining a class-action suit, however, Niagara County enlisted New York City-based Napoli Shkolnik PLLC to represent it in an individual suit. "Certainly, it has been a huge financial burden on the taxpayers of Niagara County, as it has all over the country," Ms. Wydysh said. "That's something that, hopefully, we will get a little bit back from the pharmaceutical companies to help cover the costs that the crisis has caused here." Overdoses killed 31 people in Niagara County last year, according to Ms. Wydysh. The county also tallied 308 non-fatal overdose calls, and it ranked fourth statewide in opioid prescriptions per capita. In all, at least seven Western New York counties have either filed a lawsuit or explored the possibility of legal action against major drug companies. Hundreds of local governments across the United States -- and even some individual states -- have filed nearly identical lawsuits against manufacturers like Purdue Pharma and Johnson & Johnson, among others. The wave of lawsuits even led Purdue Pharma to announce it will stop promoting OxyContin to doctors. The companies have long insisted that the lawsuits are an oversimplification of the problem and unfairly lay the blame solely on their shoulders. In a statement to 2 On Your Side last year, Purdue Pharma's spokesperson noted that OxyContin accounted for only two percent of its painkiller prescriptions, adding that the company was an "industry leader" in abuse deterrence. Another company, Janssen Pharmaceuticals, called the allegations "legally and factually unfounded." However, county and state governments still feel the companies should essentially reimburse them for the costs of the opioid crisis. In Niagara County, the skyrocketing number of overdoses places an increased financial burden on public health, law enforcement and mental health departments. "This is something that has hit every department in the county," Ms. Wydysh said. The question for public officials, however, is this: Will the money recovered through lawsuits actually go toward addiction treatment and recovery? The tobacco settlements of the '90s, for example, paid out billions of dollars to governments, but the money wasn't always used for anti-smoking or health initiatives. Ms. Wydysh promised any earnings would be used for the right purposes. "Certainly," she said. "That's something we have to focus on." First, of course, the county must prove in court that it is entitled to actually collect damages from the drug companies. It appears the "public nuisance" law, which is still subject to public hearings before a vote, will factor into those arguments. Randy Bradt, the Niagara County Legislature Majority Leader, called the public nuisance proposal an example of "bipartisanship at its finest." The issue is especially personal for Mr. Bradt, who lost a relative to the opioid epidemic. "I will keep doing everything in my power, everything in my legal means as legislator, to combat this, and help every family," Mr. Bradt said, "so that it doesn't happen to any other families." [GN] MIDWAY IMPORTING: Faces "Rivera" Suit in C.D. California -------------------------------------------------------- A class action lawsuit has been filed against Midway Importing, Inc. The case is styled as Nicky Rivera, Balmore Prudencio, Michelle Quintero and John Does (1-100), on behalf of themselves and all others similarly situated, Plaintiff v. Midway Importing, Inc., Defendant, Case No. 2:18-cv-01469 (C.D. Cal., February 22, 2018). Midway Importing, Inc. distributes and supplies health and beauty care products.[BN] The Plaintiffs appear PRO SE. MONRO INC: Settles FLSA Class Action for $1.95 Million ------------------------------------------------------ Tire Business reports that Monro Inc. agreed recently to settle an eight-year-old class-action suit related to unpaid wages and overtime for former technicians and assistant store managers, agreeing to pay $1.95 million to the plaintiffs. Monro said in its third quarter 10-Q filing with the Securities and Exchange Commission that it estimated the amount to be less than the legal fees and expenses it believed it likely would incur in connection with defending such matter during the next 12 months. Monro said the settlement resulted in a reduction in third- quarter net income of 4 cents per share. The class-action suit -- Ellersick, et al., v. Monro Muffler Brake Inc. and Monro Service Corp. -- was filed originally in September 2010 by John Ellersick, David Ellersick, Travis Myles, Lewis C. Youngs Jr. and Richard Curry Jr., who described themselves as "technicians" and/or "mechanics" employed by Monro for varying lengths of time. The plaintiffs claimed they were denied "regular, overtime and meal and rest period compensation" as required by the Fair Labor Standards Act lawsuit at any time within three years prior to the filing date of the action. The suit over time attracted more than 1,100 co-plaintiffs, according to court records. The case was heard in the U.S. District Court, Western District of New York. Among specific charges levied by the plaintiffs were that Monro management told employees not to clock-in, clocked out employees while the employees continued to work, altered time records and did not pay employees who worked during meal and/or rest periods. The settlement arose out of mediation the parties agreed to after a series of motions and appeals throughout 2017 regarding the federal court's granting on March 31 to decertify the class- action. In comments to financial analysts in a recent conference call, CFO Brian D'Ambrosia said the company opted to settle the case because its analysis "led us to the conclusion that the settlement was a better amount of favorable one. "Any litigation takes a certain amount of management's time, . . . and we believe that settling this matter will allow management to focus and running the company's operations and executing the initiatives previously laid out." Legal counsel representing the plaintiffs in the case declined to comment, saying there were still technicalities to sort out. Monro said technically, the matter is still pending until the court issues its final approval of the arbitrated settlement. [GN] MONTRES JOURNE NY: Faces "Thorne" Suit in S.D. of New York ---------------------------------------------------------- A class action lawsuit has been filed against Montres Journe NY, LLC. The case is styled as Braulio Thorne, on behalf of himself and all others similarly situated, Plaintiff v. Montres Journe NY, LLC, doing business as: F.P. Journe, Defendant, Case No. 1:18-cv-01658 (S.D. N.Y., February 22, 2018). Montres Journe America, LLC was founded in 2009. The company's line of business includes the wholesale distribution of jewelry, precious stones and metals, costume jewelry, watches, clocks, and silverware.[BN] The Plaintiff appears PRO SE. NBTY INC: Court Dismisses "DeBernardis" Consumer Fraud Suit ----------------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, issued a Memorandum Opinion and Order granting Defendant's Motion to Dismiss the case captioned JOSHUA DeBERNARDIS, individually and on behalf of all others similarly situated, Plaintiff, v. NBTY, INC., and UNITED STATES NUTRITION, INC., Defendants, Case No. 17 C 6125 (N.D. Ill.). Defendants make four challenges against Plaintiff's Complaint, the most important of which is that Defendants claim that the Court does not have jurisdiction to hear the case involving non- resident class of plaintiffs based on the recent Supreme Court case Bristol-Myers Squibb Co. v. Superior Court of California, 137 S.Ct. 1773 (June 19, 2017). The four-count Complaint alleges that Defendants made false and misleading claims concerning the beneficial effects of the product. Count I alleges violations of state consumer fraud acts on behalf of a multi-state class; Count II alleges violation of the Illinois Consumer Fraud Act on behalf of Illinois purchasers; Count III alleges violations of Express Warranty on behalf of the nation-wide class, and Count IV alleges unjust enrichment on behalf of the nation-wide class. The Court finds that the applicability of Bristol-Myers Squibb to this case is a close question. The Court understands the argument that there is a distinction between a mass tort action that was present in Bristol-Myers Squibb and a nation-wide class action that is present here. As noted in the Chinese Dry Wall case to qualify as a class action the plaintiff must meet the requirements of Rule 23, numerosity, typicality, adequacy of representation, predominance and superiority. Mass torts on the other hand will be hard pressed to establish typicality and predominance due to the almost certain differences in damages. The Court believes that it is more likely than not based on the Supreme Court's comments about federalism that the courts will apply Bristol-Myers Squibb to outlaw nationwide class actions in a form, such as in this case, where there is no general jurisdiction over the Defendants. There is also the issue of forum shopping, which was mentioned in the Chinese DryWall, Chinese-Manufactured DryWall Products, 2017 WL 5971622, case as a basis for distinguishing mass torts from class actions, but possible forum shopping is just as present in multi-state class actions. Consequently, to the extent that Counts I, III and IV seek to recover on behalf of out-of-state plaintiff classes, the Motion to Dismiss is granted. Defendants' next contention is that Count III seeking recovery for violation of an express warranty cannot stand because Plaintiff failed to provide Defendants with pre-suit notice of his contention that Defendants breached an express warranty as required by Illinois law, 810 ILCS 5/2-607(3)(a). Plaintiff responds by contending that he is exempt from the notice requirement because the Defendants had actual knowledge of the product's defect. The Illinois Supreme Court decision in Connick v. Suzuki Motor Co., Inc., 174 Ill. 2d. 482 (1996), explained that the notice of the breach required is not of the facts, which the seller knows quite as well as, if not better than, the buyer, but of buyer's claim that they constitute a breach. The Seventh Circuit applied this reasoning in Anthony v. Country Life Manufacturing, LLC., 70 F.Appx. 379 (2003), a case involving nutritional bars. The Court held that even though the defendant may have been aware of the trouble with the specific product, the notice requirement is satisfied only when the manufacturer is somehow apprised of the trouble with the particular product purchased by a particular buyer. A manufacturer's knowledge of its own ingredients is insufficient under Illinois law to constitute actual knowledge of the alleged defect. The Motion to Dismiss Count III is granted. The final objection on Defendants' part is their claim that Count IV, unjust enrichment, must be dismissed as it applies to the nationwide class allegations. Since the Court has dismissed the nationwide allegations, the Court need not deal with this count any further. Defendants' Motion to Dismiss is granted as to the allegations in Counts I, III, and IV as to the putative national class of Plaintiffs. The Motion to Dismiss is granted as to Count III, breach of warranty, without prejudice. A full-text copy of the District Court's January 18, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/y86x9py6 from Leagle.com. Joshua DeBernardis, Plaintiff, represented by Nick Suciu, III nicksuciu@bmslawyers.com. -- Barbat, Mansour & Suciu PLLC, Richard Lane Miller, II -- rlm@wexlerwallace.com -- Wexler Wallace LLP, Richard Steven Wilson -- rwilson@siprut.com -- Siprut Pc & Natasha Singh -- natasha_singh1230@yahoo.com -- Siprut Pc. NBTY, Inc. & United States Nutrition, Inc., Defendants, represented by Megan O'Neill -- moneill@willenken.com -- Willenken Wilson Loh & Delgado LLP, pro hac vice, William A. Delgado -- williamdelgado@willenken.com -- Willenken Wilson Loh & Delgado LLP, Rachael Cecelia Brennan Blackburn -- rblackburn@aandglaw.com -- A & G Law LLC & Robert M. Andalman, A & G Law LLC. NCAA: Fights $40MM Fee Bid in Antitrust Class Action ---------------------------------------------------- Nathan Solis, writing for Courthouse News Service, reported that the National Collegiate Athletic Association fought a $40 million attorney fee award at the Ninth Circuit on Feb. 15, in an antitrust class action by former student-athletes who said the organization forced students to sign their rights away while reaping the benefits of licensing and merchandise agreements. The federal case played out in court for six years as the student-athletes challenged the makers of sports video games, a college licensing company and the NCAA. Former UCLA basketball star Edward O'Bannon claimed in the 2009 federal class action that students were forced to sign away the rights to their own images if they wanted to play NCAA sports. Like many other former athletes, Mr. O'Bannon's collegiate career is archived in video footage, photographs and that content is sold through merchandising deals. In their class action, the former athletes said NCAA's backlog of archived footage is estimated to be valued in the billions of dollars. Additional defendants included video game publisher Electronic Arts and Collegiate Licensing Company. In 2015, a Ninth Circuit upheld U.S. District Judge Claudia Wilken's finding that the NCAA violated antitrust laws with rules that were more restrictive than necessary. But the Ninth Circuit did not agree with Judge Wilken's order awarding college athletes $5,000 for each year they played in college. The appeals court instead said NCAA schools could cover the cost of tuition, but the student-athletes were not entitled to additional cash. In 2016, Judge Wilken ordered the NCAA to pay about $42.3 million in attorneys' fees and other costs -- later lowered to just over $40 million -- and the NCAA made a failed bid to bring the case the Supreme Court. Fighting the fee award at the Ninth Circuit on Feb. 15, NCAA attorney Gregory Curtner from Riley Safer Holmes & Cancila said plaintiffs adopted a winner-take-all approach in their antitrust class action on Feb. 15 before the three-judge panel. "A Game of Thrones approach. There was no middle ground," said Mr. Curtner, who noted the student-athletes sought to revolutionize intercollegiate sports, failed, and aren't entitled to a fee award. "They're entitled to nothing," Mr. Curtner said bluntly. The student-athletes' attorney Jonathan Massey -- Jmassey@masseygail.com -- from Massey & Gail said the case was a hard-fought class action that didn't just end with "a narrow injunction." When analyzing the degree of success in the for a fee award, Massey said the Ninth Circuit panel should keep in mind that not all claims need to be successful. "We think this court has established that it's OK to lose sometimes," said Mr. Massey. "You don't have to win every single claim in order to be entitled fees for all of the claims." The panel was made of Chief Circuit Judge Sidney Thomas, Circuit Judge Jay Bybee and Senior U.S. District Judge Gordon Quist sitting by designation from the Western District of Michigan. The panel did not say when they would make their decision. NEIMAN MARCUS: Appeal in "Tanguilig" Suit Still Ongoing ------------------------------------------------------- Neiman Marcus Group LTD LLC said in its Form 10-Q Report for the quarterly period ended October 28, 2017, that an appeal from a court decision in the Bernadette Tanguilig class action lawsuit remains pending. Briefing is complete, and a judicial panel has been assigned. The parties have requested oral argument, but no date has been set. In 2007, Bernadette Tanguilig filed a lawsuit in the Superior Court of California for San Francisco County alleging wrongful termination and retaliation arising from her refusal to sign the Company's mandatory arbitration agreement. Ms. Tanguilig later filed several amendments to her complaint adding claims under the California Labor Code Private Attorneys General Act ("PAGA") and class action allegations of wage and hour violations. She also added Juan Carlos Pinela as an additional plaintiff. In December 2013, the Company filed a motion to dismiss Ms. Tanguilig's claims based on her failure to bring her claims to trial within five years as required by California law. In February 2014, the Company's motion was granted and Ms. Tanguilig's claims were dismissed. Ms. Tanguilig appealed. In October 2011, the court ordered Mr. Pinela (a co-plaintiff in the Tanguilig case) to arbitrate his claims in accordance with the mandatory arbitration agreement. Mr. Pinela filed a demand for arbitration seeking to arbitrate both his individual and class claims, which the Company argued was in violation of the class action waiver in the arbitration agreement. This led to further proceedings in the trial court, a stay of the arbitration, and a decision by the trial court to reconsider and vacate its order compelling arbitration, which the Company appealed. In June 2015, the appellate court upheld the trial court's denial of the Company's motion to compel arbitration of Mr. Pinela's claims. The Company's petition for rehearing by the appellate court and petition for review by the California Supreme Court were denied, and the case was returned to the trial court. On December 10, 2015, the trial court issued a stay of the case pending the conclusion of the Tanguilig appeal, which remains in effect. Neiman Marcus Group LTD LLC is one of the largest omni-channel luxury fashion retailers in the world, with approximately $4.7 billion in revenues for fiscal year 2017, of which approximately 31% were transacted online. Its Neiman Marcus, Bergdorf Goodman and MyTheresa brands represent fashion, luxury and style to its customers. The company offers a distinctive selection of women's and men's apparel, handbags, shoes, cosmetics and precious and designer jewelry from premier luxury and fashion designers to its loyal and affluent customers "anytime, anywhere, any device." NEIMAN MARCUS: "Rubenstein" Settlement Motion Due March 14 ---------------------------------------------------------- In the case, Linda Rubenstein v. The Neiman Marcus Group LLC et al., Case No. 2:14-cv-07155 (C.D. Cal.), the Hon. S. James Otero signed off on a Stipulation continuing the deadline for plaintiff to file a motion for preliminary approval of a class action settlement until March 14, 2018. Neiman Marcus Group LTD LLC said in its Form 10-Q Report for the Quarterly Period Ended October 28, 2017, that a putative class action complaint was filed on August 7, 2014, against The Neiman Marcus Group LLC in Los Angeles County Superior Court by a customer, Linda Rubenstein, in connection with the Company's Last Call stores in California. Ms. Rubenstein alleges that the Company has violated various California consumer protection statutes by implementing a marketing and pricing strategy that suggests that clothing sold at Last Call stores in California was originally offered for sale at full-line Neiman Marcus stores when allegedly, it was not, and that the Company lacks adequate information to support its comparative pricing labels. In September 2014, we removed the case to the U.S. District Court for the Central District of California. After dismissing Ms. Rubenstein's original and first amended complaint, the court dismissed her second amended complaint in its entirety in May 2015, without leave to amend, and Ms. Rubenstein appealed. In April 2017, the Court of Appeal reversed, holding that Ms. Rubenstein's allegations were sufficient to proceed past the pleadings stage of litigation. The case has been transferred back to the district court and has a trial date of July 24, 2018. On September 7, 2017, the district court issued an order permitting Ms. Rubenstein to file a proposed Third Amended Complaint, which modifies the putative class period. Additionally, Ms. Rubenstein filed a motion for class certification, which was set for hearing on December 18, 2017. Neiman Marcus Group LTD LLC is one of the largest omni-channel luxury fashion retailers in the world, with approximately $4.7 billion in revenues for fiscal year 2017, of which approximately 31% were transacted online. Its Neiman Marcus, Bergdorf Goodman and MyTheresa brands represent fashion, luxury and style to its customers. The company offers a distinctive selection of women's and men's apparel, handbags, shoes, cosmetics and precious and designer jewelry from premier luxury and fashion designers to its loyal and affluent customers "anytime, anywhere, any device." NEIMAN MARCUS: Proceeds in "Ohle" Class Settlement Distributed -------------------------------------------------------------- The proceeds of the settlement in the lawsuit, Catherine Ohle v. Neiman Marcus Group, have been distributed to the class members, Neiman Marcus said in a regulatory filing with the U.S. Securities and Exchange Commission. On September 27, 2016, a dormant Illinois putative class action lawsuit, Catherine Ohle v. Neiman Marcus Group, originally filed in the Circuit Court of Cook County, was revived by an Illinois appeals court when it reversed a June 2014 trial court's order granting summary judgment to the Company and dismissing the matter in its entirety. In Ohle, the plaintiff alleged that the Company's prior practice of conducting pre-employment credit checks of sales associates and considering credit history as a factor in its hiring decisions violated the Illinois Employee Credit Privacy Act. The appellate court reversed, holding that no exemption applied. The Company appealed the decision to the Illinois Supreme Court, and review was denied on January 25, 2017. The case was returned to the trial court for further proceedings. On September 19, 2017, the court granted final approval of a class settlement, Neiman Marcus said in its Form 10-K report for the fiscal year ended July 29, 2017. Neiman Marcus said in its Form 10-Q report for the Quarterly Period Ended October 28, 2017, that the class settlement has been funded and the proceeds have been distributed to the class members. Any class proceeds that are uncashed or unable to be distributed will be provided to two charities designated by Neiman Marcus. Neiman Marcus Group LTD LLC is one of the largest omni-channel luxury fashion retailers in the world, with approximately $4.7 billion in revenues for fiscal year 2017, of which approximately 31% were transacted online. Its Neiman Marcus, Bergdorf Goodman and MyTheresa brands represent fashion, luxury and style to its customers. The company offers a distinctive selection of women's and men's apparel, handbags, shoes, cosmetics and precious and designer jewelry from premier luxury and fashion designers to its loyal and affluent customers "anytime, anywhere, any device." NEIMAN MARCUS: "Attia" Class Action Remains Stayed -------------------------------------------------- Neiman Marcus Group LTD LLC said in its Form 10-Q report filed with the U.S. Securities and Exchange Commission for the Quarterly Period Ended October 28, 2017, that the case by Holly Attia remains stayed pending the Supreme Court's decision in Morris v. Ernst & Young, LLP. The Company has several wage and hour putative class action matters pending in California. The earliest, filed in December 2015 and amended in February 2016, was filed against The Neiman Marcus Group, Inc. by Holly Attia and seven other named plaintiffs, seeking to certify a class of nonexempt employees for alleged violations for failure to pay overtime wages, failure to provide meal and rest breaks, failure to reimburse business expenses, failure to timely pay wages due at termination and failure to provide accurate itemized wage statements. Plaintiffs also allege derivative claims for restitution under California unfair competition law and a representative claim for penalties under PAGA, and all related damages for alleged violations (restitution, statutory penalties under PAGA, and attorneys' fees, interest and costs of suit). The case was removed to the U.S. District Court for the Central District of California in March 2016, and the Company filed a motion to compel arbitration and requested to stay the PAGA claim. In June 2016, the court granted the motion and compelled arbitration of the individual claims. The court retained jurisdiction of the PAGA claim and stayed that claim pending the outcome of arbitration. In October 2016, the court granted the plaintiffs' motion for reconsideration of the arbitration decision based on a recent decision by the Ninth Circuit Court of Appeals in Morris v. Ernst & Young, LLP, and reversed its order compelling arbitration. The Company appealed. The U.S. Supreme Court granted certiorari of the Morris decision, and the Ninth Circuit appeal is currently stayed pending the Supreme Court's decision. In June 2017, the district court stayed the entire case pending the Supreme Court's decision in Morris. Neiman Marcus Group LTD LLC is one of the largest omni-channel luxury fashion retailers in the world, with approximately $4.7 billion in revenues for fiscal year 2017, of which approximately 31% were transacted online. Its Neiman Marcus, Bergdorf Goodman and MyTheresa brands represent fashion, luxury and style to its customers. The company offers a distinctive selection of women's and men's apparel, handbags, shoes, cosmetics and precious and designer jewelry from premier luxury and fashion designers to its loyal and affluent customers "anytime, anywhere, any device." NEIMAN MARCUS: "Nguyen" Suit in California Remains Stayed --------------------------------------------------------- The U.S. District Court for the Central District of California has maintained the stay of the case launched by Xuan Hien Nguyen against Neiman Marcus Group LTD LLC, the Company said in a regulatory filing with the U.S. Securities and Exchange Commission. On June 1, 2016, a PAGA representative action was filed against The Neiman Marcus Group, Inc. in the same court as Attia by Xuan Hien Nguyen pleading only PAGA claims and asserting the same factual allegations as the plaintiffs in Attia. The Company filed a motion to dismiss or to stay the case. In September 2016, the court granted the Company's motion and stayed the Nguyen case in light of Attia. At a status conference on September 5, 2017, the court maintained the stay and set a further status conference for November 8, 2017, Neiman Marcus said in its Form 10-K report for the fiscal year ended July 29, 2017. At a status conference on November 8, 2017, the court maintained the stay and set a further status conference for January 29, 2018, Neiman Marcus said in its Form 10-Q Report for the Quarterly Period Ended October 28, 2017. Neiman Marcus Group LTD LLC is one of the largest omni-channel luxury fashion retailers in the world, with approximately $4.7 billion in revenues for fiscal year 2017, of which approximately 31% were transacted online. Its Neiman Marcus, Bergdorf Goodman and MyTheresa brands represent fashion, luxury and style to its customers. The company offers a distinctive selection of women's and men's apparel, handbags, shoes, cosmetics and precious and designer jewelry from premier luxury and fashion designers to its loyal and affluent customers "anytime, anywhere, any device." NEIMAN MARCUS: "Connolly" Suit Remains Stayed --------------------------------------------- The U.S. District Court for the Central District of California has maintained the stay of the case launched by Milca Connolly against Neiman Marcus Group LTD LLC, the Company said in a regulatory filing with the U.S. Securities and Exchange Commission. On July 28, 2016, former employee Milca Connolly also filed a representative action alleging only PAGA claims against The Neiman Marcus Group raising substantially identical claims to those raised in both Attia and Nguyen. The Company filed a motion to dismiss or stay the case in light of Attia and Nguyen. In November 2016, the court granted the Company's motion to stay the case. At a status conference on September 5, 2017, the court maintained the stay and set a further status conference for November 8, 2017, Neiman Marcus said in its Form 10-K report for the fiscal year ended July 29, 2017. In its Form 10-Q Report for the Quarterly Period Ended October 28, 2017, Neiman Marcus said that at a status conference on November 8, 2017, the court maintained the stay and set a further status conference for January 29, 2018. Neiman Marcus Group LTD LLC is one of the largest omni-channel luxury fashion retailers in the world, with approximately $4.7 billion in revenues for fiscal year 2017, of which approximately 31% were transacted online. Its Neiman Marcus, Bergdorf Goodman and MyTheresa brands represent fashion, luxury and style to its customers. The company offers a distinctive selection of women's and men's apparel, handbags, shoes, cosmetics and precious and designer jewelry from premier luxury and fashion designers to its loyal and affluent customers "anytime, anywhere, any device." NEIMAN MARCUS: Facing Class Suit by Healthcare Plan Beneficiary --------------------------------------------------------------- Neiman Marcus Group LTD LLC said in its Form 10-Q Report for the Quarterly Period Ended October 28, 2017, that a putative class action complaint was filed against The Neiman Marcus Group LLC and the Company's Health and Welfare Benefit Plan in the U.S. District Court for the Western District of Washington on October 24, 2017, by a Plan beneficiary alleging violations of the Federal Mental Health Parity Act and the Affordable Care Act through the Employment Retirement Income Security Act of 1974 ("ERISA") in connection with the alleged failure to cover particular treatments for developmental health conditions. "We cannot assess any potential liability at this early stage of the proceedings," the Company said. NEIMAN MARCUS: Faces NY Class Suit by Visually Impaired ------------------------------------------------------- Neiman Marcus Group LTD LLC said in its Form 10-Q Report for the Quarterly Period Ended October 28, 2017, that a putative class action complaint was filed on October 27, 2017, against Neiman Marcus Group, Inc., The Neiman Marcus Group LLC, and Bergdorf Goodman, Inc. in the U.S. District Court for the Southern District of New York by Victor Lopez, an allegedly visually- impaired and legally blind individual, in connection with his visits to Bergdorf Goodman, Inc.'s website. Mr. Lopez alleges, on behalf of himself and those similarly situated, that Bergdorf Goodman, Inc.'s website is not fully and equally accessible to legally blind individuals, resulting in denial of access to the equal enjoyment of goods and services, in violation of the Americans with Disabilities Act and the New York State and City Human Rights Laws. NEIMAN MARCUS: Settlement of Cyber-Attack Suits Still Pending ------------------------------------------------------------- Neiman Marcus Group LTD LLC continues to await court approval of the settlement reached in the Cyber-Attack Class Action Litigation. In January 2014, three class actions relating to a cyber-attack on Neiman Marcus' computer systems in 2013 (the "Cyber-Attack") were filed and later voluntarily dismissed by the plaintiffs between February and April 2014. The plaintiffs had alleged negligence and other claims in connection with their purchases by payment cards and sought monetary and injunctive relief. Three additional putative class actions relating to the Cyber-Attack were filed in March and April 2014, also alleging negligence and other claims in connection with plaintiffs' purchases by payment cards. Two of the cases were voluntarily dismissed. The third case, Hilary Remijas v. The Neiman Marcus Group, LLC, was filed on March 12, 2014 in the U.S. District Court for the Northern District of Illinois. On June 2, 2014, an amended complaint in the Remijas case was filed, which added three plaintiffs (Debbie Farnoush and Joanne Kao, California residents; and Melissa Frank, a New York resident) and asserted claims for negligence, implied contract, unjust enrichment, violation of various consumer protection statutes, invasion of privacy and violation of state data breach laws. The Company moved to dismiss the Remijas amended complaint, and the court granted the Company's motion on the grounds that the plaintiffs lacked standing due to their failure to demonstrate an actionable injury. Plaintiffs appealed the district court's order dismissing the case to the Seventh Circuit Court of Appeals, and the Seventh Circuit Court of Appeals reversed the district court's ruling, remanding the case back to the district court. The Company filed a petition for rehearing en banc, which the Seventh Circuit Court of Appeals denied. The Company filed a motion for dismissal on other grounds, which the court denied. The parties jointly requested, and the court granted, an extension of time for filing a responsive pleading, which was due on December 28, 2016. On February 9, 2017, the court denied the parties' request for another extension of time, dismissed the case without prejudice, and stated that plaintiffs could file a motion to reinstate. On March 8, 2017, plaintiffs filed a motion to reinstate, which the court granted on March 16, 2017. On March 17, 2017, plaintiffs filed a motion seeking preliminary approval of a class action settlement resolving this action, which the court granted on June 21, 2017. As widely reported, Neiman Marcus agreed to pay $1.6 million to end the data breach lawsuit. The court set for October 26, 2017 as the date for a fairness hearing and consideration of final approval of the class action settlement. In September 2017, purported settlement class members filed two objections asking the court to deny final approval of the proposed settlement. The plaintiffs' and the Company's responses to the objections are due on October 19, 2017, Neiman Marcus said in its Form 10-K report for the fiscal year ended July 29, 2017. In its Form 10-Q Report for the Quarterly Period Ended October 28, 2017, Neiman Marcus disclosed that at the fairness hearing on October 26, 2017, the Court ordered supplemental briefing on the objections. Objectors filed a supplemental brief in support of their objections on November 9, 2017, and plaintiffs and the Company filed their supplemental responses to the objections on November 21, 2017. The Court has advised that it intends to rule in writing on plaintiffs' motion for final approval of the settlement. Neiman Marcus Group LTD LLC is one of the largest omni-channel luxury fashion retailers in the world, with approximately $4.7 billion in revenues for fiscal year 2017, of which approximately 31% were transacted online. Its Neiman Marcus, Bergdorf Goodman and MyTheresa brands represent fashion, luxury and style to its customers. The company offers a distinctive selection of women's and men's apparel, handbags, shoes, cosmetics and precious and designer jewelry from premier luxury and fashion designers to its loyal and affluent customers "anytime, anywhere, any device." NISSAN MOTORS: CSC Suit Struggles to Obtain Class Certification --------------------------------------------------------------- David A. Wood, writing for CarComplaints.com, reports that a Nissan 370Z CSC (concentric slave cylinder) failure lawsuit is still struggling for class-action certification as the plaintiff tries to convince the judge about Nissan vehicles with clutch pedals that fall to the floorboards. According to the lawsuit, the Nissan 370Z and other models have clutch pedals that stay on the floors because the thin aluminum concentric slave cylinders don't transfer heat effectively. In 2016, plaintiff Huu Nguyen filed the proposed class-action lawsuit concerning Nissan 370Z cars, but the lawsuit was later amended to the current version that adds the 2007-2009 Nissan 350Z, 2007-2008 Infiniti G35, the 2008-2014 Infiniti G37 and the Infiniti Q60, all equipped with FS6R31A manual transmissions. When the driver pushes the clutch pedal, "fluid pushes from the clutch master cylinder to the slave cylinder, developing hydraulic pressure and ultimately disconnecting the transmission from the engine via the clutch disc to allow for smooth gear shifts." The plaintiff says the FS6R31A transmission has an internal slave cylinder "placed inside the [bellhousing] unit along with the clutch disc, pressure plate, and flywheel." According to the lawsuit, the transmissions have defects in the slave cylinder assemblies because "the plastic internal cylinder requires excessive manipulation during the initial assembly in order to fit inside the bellhousing unit." The plaintiff claims this causes hydraulic fluid to leak from stress fractures, taking fluid away from the slave cylinder and allegedly damaging the clutch slave cylinder, clutch disc and pressure plate. On top of that, Mr. Nguyen says the slave cylinder is too thin and prone to corrosion by constant exposure to hydraulic fluid. This eventually causes the clutch pedal to fall to the floor and leave a driver unable to shift gears. According to the plaintiff, Nissan knew or should have known about the clutch problems since at least 2008, but complaints about the 2007 Nissan 350Z started in 2007. In January 2008, Nissan issued customer service program "CSP NTB08-002" for all 2007 Nissan 350Z cars because the clutch slave cylinder assemblies could have experienced problems during manufacturing after repairs were made. The problem could cause the clutch pedal to feel "light" and cause a driver problems using the clutch. However, the lawsuit alleges customers kept complaining about the clutch pedals. Then in April 2013, Nissan issued a technical service bulletin (TSB) for all 2009-2013 Nissan 370Z cars because of loose clutch pedals that stayed on the floorboards. Nissan dealers were told to change the clutch hydraulic fluid, but the lawsuit alleges owners continued to complain. Mr. Nguyen says he bought a new 2012 Nissan 370Z in January 2012 from a California Nissan dealer, but in March 2014 and with about 26,629 miles on the odometer, the plaintiff told a Nissan dealer the clutch pedal felt soft and would stick on the floor while the car was in motion. Based on the 2013 service bulletin, technicians replaced the car's hydraulic fluid, but the plaintiff says the "repair was inadequate" and the problem continued. Nissan then "replaced the vehicle's clutch master cylinder, clutch slave cylinder, and brake tube at the clutch slave cylinder," which required "removal of the entire transmission." Even with all the repairs, Mr. Nguyen claims the car continued to suffer from clutch pedal problems. In February 2016 and with about 50,000 miles on the odometer, the car was taken to a third- party repair shop and had the clutch slave cylinder replaced with an identical slave cylinder at a cost of $721.75 to Mr. Nguyen. The Nissan 370Z clutch lawsuit was filed in September 2016 for all owners and lessees of 2009-2016 Nissan 370Z cars, but in December Nissan filed a motion to dismiss by arguing the plaintiff had adequate legal remedies at hand. The plaintiff didn't fight Nissan's dismissal request, but in January 2017 both parties agreed to allow the plaintiff to file the first amended lawsuit to try to fix deficiencies in the complaint. In February 2017, the plaintiff filed the amended complaint that added additional models to the original 370Z clutch lawsuit: 2007-2009 Nissan 350Z, 2007-2008 Infiniti G35, the 2008-2014 Infiniti G37 and the Infiniti Q60. Nissan filed another motion to dismiss by telling the judge the lawsuit doesn't meet legal standards to be certified as a class- action lawsuit. The automaker argues the plaintiff has done nothing to prove current and former owners have suffered the same alleged harm. Nissan told the judge the lawsuit should not be certified because there are too many individual issues involved and the plaintiff never shows that owners have the same probability of experiencing the alleged clutch problems. Nissan further argues every affected vehicle would need to be checked because the implied warranty claims involve individual cases. Attorneys for Nissan also argue trying to determine damages by using the average cost of repairs has no basis in legal fact and the claim should be dismissed. The Nissan concentric slave cylinder lawsuit was filed in the U.S. District Court for the Northern District of California - Nguyen v. Nissan North America Inc. The plaintiff is represented by Capstone Law APC. CarComplaints.com has complaints filed by owners of the Nissan vehicles included in the concentric slave cylinder failure lawsuit: Nissan 350Z Nissan 370Z Infiniti G35 Infiniti G37 Infiniti Q60 [GN] OHIO HOSPICE: Court Denies Bid to Dismiss Count III in "Spano" -------------------------------------------------------------- In the case, VIRGINIA SPANO and SUSAN MIZAK, Plaintiffs. v. OHIO HOSPICE AND PALLIATIVE CARE d/b/a Paramount Hospice and Palliative Care, PARAMOUNT HOSPICE AND PALLIATIVE CARE, and JAMES J. COX, individually, Defendants, Civil Action No. 2:17-CV-717 (W.D. Pa.), Judge Christopher C. Conner of the U.S. District Court for the Western District of Pennsylvania denied the Defendants' motion dismiss Count III of the Plaintiffs' second amended complaint. Spano and Mizak commenced the action against their former employers asserting claims under Pennsylvania's Wage Payment and Collection Law ("WPCL"), the Age Discrimination in Employment Act, and a common law claim for wrongful discharge. Spano and Mizak worked for Ohio Hospice which does business in Pennsylvania as Paramount Hospice and Palliative Care. Cox owns Paramount Hospice. Spano and Mizak allege that they each had a written employment contract as well as "an implied oral contract" that provided for overtime pay. Hospice employees are required to sign in and out at the reception desk each day and submit timesheets logging their hours. Spano and Mizak aver that they were not permitted to include overtime hours worked on these timesheets. Spano and Mizak reported patients' "deplorable conditions" to the Defendants. They also informed supervisors of instances of Medicare and Medicaid fraud. They assert that the Defendants retaliated against them for reporting the alleged fraud and abuse of elderly patients by terminating their employment on Nov. 24, 2015. They claim that the termination was partially grounded in age discrimination as well. Spano and Mizak contend that, following their termination, the Defendants prevented them from filling out their final timesheets and subsequently accused Spano and Mizak of falsifying various timesheets during their employment. They allege that there is a class of the Defendants' current and former employees who are owed overtime pay earned during the last five years. Spano and Mizak filed an administrative complaint with the United States Equal Employment Opportunity Commission and received a right-to-sue letter. On March 22, 2017, Spano and Mizak filed a complaint in the Court of Common Pleas of Allegheny County, Pennsylvania. The Defendants removed the case to federal court on June 1, 2017. Spano and Mizak are presently proceeding on their second amended complaint. Pursuant to Federal Rule of Civil Procedure 12(b)(6), the Defendants move to dismiss Count III of the second amended complaint which asserts a putative class action claim for violation of the WPCL. Alternatively, they seek to strike certain allegations related to the putative class in Count III under Federal Rule of Civil Procedure 12(f). The Defendants identify language in paragraphs 3 and 25 of the second amended complaint in support of their argument that Spano and Mizak have pled a fail-safe class. The paragraphs read in pertinent part the Plaintiffs, all Those Similarly Situated refers to all employees and former employees of the Defendant whose wages remain unpaid beyond 30 days or more in violation of the WPCL. Ad that based on information and belief, employees and former employees of the Defendant had wages that have remained unpaid beyond 30 days or more in violation of the WPCL. The Defendants contend that the class alleged in these paragraphs is fail-safe because it requires the Plaintiffs to establish liability in order to ascertain the identities of class members. Judge Conner disagrees. He says the parameters of the class are ascertainable from the four corners of the Plaintiffs' second amended complaint. Spano and Mizak limit the putative class to individuals employed by the Defendants during the last five years who were denied overtime wages. The class is further narrowed to individuals who were required to omit overtime hours worked from their timesheets. To identify the former and current employees who meet these criteria, Spano and Mizak propose to utilize the Defendants' business records, specifically the sign in sheets maintained by the receptionist and the timesheets submitted by employees. Spano and Mizak argue that they can compare employees' true hours worked with the hours actually reported on timesheets to ascertain which employees may be entitled to withheld overtime pay. The Judge says these business records constitute objective criteria and a feasible, reliable mechanism for determining which putative class members actually fall within the class definition. Moreover, Spano and Mizak are not relying on the potential class members' word when determining whether they were required to omit overtime hours worked from their timesheets. Paragraphs 3 and 25 standing alone might constitute a fail-safe class, but Spano and Mizak satisfied their burden by providing objective criteria elsewhere in the second amended complaint to show that the putative class is ascertainable. Therefore, Judge Conner denied the Defendants' motion. An appropriate order will issue. A full-text copy of the Court's Jan. 31, 2018 Memorandum is available at https://is.gd/GvuwXw from Leagle.com. VIRGINIA SPANO & SUSAN MIZAK, All Those Similarly Situated, Plaintiffs, represented by Robert M. Davant -- info@pittsburghjustice.com -- Davant & Associates. OHIO HOSPICE AND PALLIATIVE CARE, doing business as PARAMOUNT HOSPICE AND PALLIATIVE CARE & PARAMOUNT HOSPICE AND PALLIATIVE CARE, Defendants, represented by April L. Cressler -- alcressler@mdwcg.com -- Marshall, Dennehey, Warner, Coleman & Goggin & Danielle M. Vugrinovich -- dmvugrinovich@mdwcg.com -- Marshall Dennehey Warner Coleman & Goggin. JAMES J. COX, Individually, Defendant, represented by Danielle M. Vugrinovich, Marshall Dennehey Warner Coleman & Goggin. PAGEDALE, MO: Class Action Plaintiffs Agree with Consent Decree --------------------------------------------------------------- St. Louis Post-Dispatch reports that a federal judge's recent preliminary approval of a sweeping consent decree forcing the city of Pagedale to repeal cash-generating ordinances prompts a legitimate question of whether the municipality could be the next in St. Louis County to disincorporate. Municipalities that cannot deliver services without preying on citizens should be dissolved. Pagedale, with an area of about one square mile, denies that ordinances -- such as a ban on sagging pants, walking on the left side of a crosswalk, walking in a roadway if a sidewalk is nearby, or barbecuing in your front yard (unless it's a national holiday) -- are intended to raise revenue. Community ordinances banning dish antennas, basketball hoops, volleyball nets, swimming or wading pools or other recreational equipment in the front of a house also will be repealed. City leaders say the ordinances are aimed at safety and quality of life. Maintaining standards in a community is a worthwhile goal, but harassing and agitating residents with phony excuses for raising revenue should not be part of the effort. In 2014, Pagedale handed out 2,555 citations for such offenses, nearly two per household for the city, the Post-Dispatch reported. An analysis of state court data showed that to be a nearly 500 percent increase from 2010 -- which would be a shocking wave of lawlessness by residents if the basis for the citations weren't so contrived. What happened over those years was that Pagedale, along with some other municipalities, began raising money from non-traffic cases because of a Missouri law that caps the amount of revenue municipalities can collect from traffic fines. The consent decree does not require Pagedale to refund money to citizens who were ticketed or to pay attorney's fees. Those who were ticketed will not face jail unless they have an attorney or have waived their right to an attorney. The decree bans the city from using municipal arrest warrants to collect civil court debt, which Pagedale denied doing. City authorities also agree to hold at least one day session and one night court session monthly, and to hold no more than seven trials per court session. Pagedale residents Valarie Whitner, Vincent Blount and retiree Mildred Bryant, plaintiffs in the class-action lawsuit against the city, agreed with the consent decree. Ms. Whitner said it was "in the best interests of the class." Among abuses cited in the lawsuit, Ms. Bryant was ordered to repaint her house and ensure that it had matching curtains or other window treatments. Authorities threatened to demolish Ms. Whitner and Mr. Blount's house after they were ticketed for such offenses as high grass, peeling paint, an overgrown tree and failing to recycle. This is another solid reason to consolidate St. Louis County's disparate municipalities and make more efficient use of taxpayer money. [GN] PARK STERLING: Merger Class Suits Dismissed ------------------------------------------- Park Sterling Corporation said in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2017, that the plaintiffs agreed to the dismissal of their individual claims asserted in a class action lawsuit related to a merger agreement. On August 14, 2017, a putative stockholder class action lawsuit captioned Roskopf v. Park Sterling Corp., C.A. No. 3:17-cv-00483, was filed in the U.S. District Court for the Western District of North Carolina in connection with the South State Merger and on August 15, 2017, a similar putative stockholder class action lawsuit captioned Parshall v. Park Sterling Corp., C.A. No. 3:17- cv-00490 was filed in the same court. Both Actions named as defendants the Company and the Company's board of directors, and the Parshall Action also named South State as a defendant. The complaints in the Actions assert that the Company, the Company's board of directors and, in the Parshall Action, South State, omitted and/or provided misleading information in the registration statement on Form S-4 filed with the SEC in connection with the Merger in violation of the Securities Exchange Act of 1934, as amended, and related SEC regulations. The Company believes the Actions are without merit and specifically denies that any further supplemental disclosure is required under applicable law; however, to avoid the burden and expense of further litigation and to avoid the risk that the Actions may delay or otherwise adversely affect the consummation of the merger, on October12, 2017, the Company entered into a memorandum of understanding with the plaintiffs in the Actions and the other named defendants regarding the settlement of the Actions. Pursuant to the terms of the MOU, the Company made available additional information regarding the Merger in the Company's Current Report on Form 8-K filed with the SEC on October 13, 2017. In return, the plaintiffs agreed to the dismissal of their individual claims asserted in the Actions with prejudice and to the dismissal without prejudice of the claims asserted in the Actions on behalf of a purported class of the Company's shareholders pursuant to stipulations of dismissal to be filed within three business days after the consummation of the Merger. On November 30, 2017, pursuant to the terms of the Merger Agreement, Park Sterling merged with and into South State, with South State continuing as the surviving entity in the Merger. Immediately after the Merger, Park Sterling's wholly owned bank subsidiary, Park Sterling Bank, merged with and into South State's wholly owned bank subsidiary, South State Bank, with South State Bank as the surviving entity in the Bank Merger. Park Sterling Corporation operates as the holding company for the Park Sterling Bank, which provides various banking products and services. The company offers a range of banking products, including personal, business, and non-profit checking accounts; IOLTA accounts; individual retirement accounts; business and personal money market accounts; and time deposits, overdraft protection, and safe deposit boxes, as well as online and mobile banking services. PCL CONSTRUCTION: Stay in Power Outage Suit Stay Extended --------------------------------------------------------- Judge James C. Dever, III, of the U.S. District Court for the Eastern District of North Carolina, Eastern Division, extended the stay of the case, IN RE: OUTER BANKS POWER OUTAGE LITIGATION This Document Relates To: ALL ACTIONS, Master File No. 4:17-CV- 141-D (E.D. N.C.) and stayed all proceedings in the matter up to and including Feb. 12, 2018. The parties filed their joint request to Amend the Interim Case Management Plan (DE 5) and Joint Motion to Stay. Finding that good cause is shown and all parties consent, Judge Dever adopted the parties' proposal. Accordingly, he ordered that the stay be extended and all proceedings in the matter will be stayed up to and including Feb. 12, 2018. He directed the Defendants to file their Answer or responsive pleading to the Master Class Action Complaint, 21 days after the end of the stay. A full-text copy of the Court's Jan. 31, 2018 Order is available at https://is.gd/MFJgEp from Leagle.com. Island Vibe Cafe, Morning Star Stables, TBM Construction & Michael Janssen, Plaintiffs, represented by Jean S. Martin, Law Office of Jean Sutton Martin, PLLC, John A. Yanchunis, Morgan & Morgan Complex Litigation Group, Joseph G. Sauder -- jgs@mccunewright.com -- McCune Wright Arevalo LLP & Daniel K. Bryson -- dan@wbmllp.com -- Whitfield, Bryson & Mason, LLP. Rhonda Derring, Robert Case & Marissa Gross, d/b/a Down Creek Galleries, Plaintiffs, represented by Daniel K. Bryson, Whitfield, Bryson & Mason, LLP, Matthew E. Lee -- matt@wbmllp.com -- Whitfield, Bryson & Mason, LLP, Scott C. Harris -- scott@wbmllp.com -- Whitfield, Bryson & Mason, LLP & Joseph G. Sauder, McCune Wright Arevalo LLP. Miss Ocracoke, Inc., Stephen J Wilson, Hatteras Blue, Inc., Steven J. Harris, Steven Wright, Charles Edward Hofmann & Alex Daniel Garrish, Plaintiffs, represented by John R. Taylor, Zaytoun Law Firm, PLLC, Matthew David Ballew, Zaytoun Law Firm, PLLC, Robert E. Zaytoun, Zaytoun Law Firm, PLLC, Joseph G. Sauder, McCune Wright Arevalo LLP & Daniel K. Bryson, Whitfield, Bryson & Mason, LLP. Matthew Breveleri, Plaintiff, represented by Jean S. Martin, Law Office of Jean Sutton Martin, PLLC, Patrick Donovan -- donovan@whafh.com -- Wolf Haldenstein Alder Freeman & Herz LLP, Thomas H. Burt -- burt@whafh.com -- Wolf Haldenstein Alder Freeman & Herz LLP, Joseph G. Sauder, McCune Wright Arevalo LLP & Daniel K. Bryson, Whitfield, Bryson & Mason, LLP. Thomas Edgar, Nina Edgar, Edward Waas & Jack Lewis, Plaintiffs, represented by J. Michael Malone, Hendren, Redwine & Malone, PLLC, Joseph G. Sauder, McCune Wright Arevalo LLP & Daniel K. Bryson, Whitfield, Bryson & Mason, LLP. Briggs McEwan, Las Olas, Inc., Tri-V Conery, Inc., Tami Lynette Gray, d/b/a Family Water Adventures, Daniel Spaventa, Karen Fitzpatrick & Edwin Fitzpatrick, Plaintiffs, represented by Dennis C. Rose, Rose Harrison & Gilreath, P.C., John S. Hughes, Wallace and Graham, P.A., M. Peebles Harrison, Rose Harrison & Gilreath, P.C., Mona Lisa Wallace, Wallace and Graham, P.A., Joseph G. Sauder, McCune Wright Arevalo LLP & Daniel K. Bryson, Whitfield, Bryson & Mason, LLP. Mike Warren, William Bailey & Kerry Fitzgerald, Plaintiffs, represented by Daniel K. Bryson , Whitfield, Bryson & Mason, LLP. PCL Construction Enterprises, Inc., PCL Civil Constructors, Inc., PCL Construction Services, Inc. & PCL Construction Resources (U.S.A.), Inc., Defendants, represented by Alexandra L. Couch -- acouch@ymwlaw.com -- Yates, McLamb & Weyher, LLP, David Michael Fothergill -- dfothergill@ymwlaw.com -- Yates, McLamb & Weyher, LLP & Rodney E. Pettey -- rpettey@ymwlaw.com -- Yates, McLamb & Weyher, LLP. PELLA: Settles Class Action Over ProLine Windows for $25.75MM ------------------------------------------------------------- Trey Barrineau, writing for Door & Window Market Magazine, reports that a 12-year-old class-action lawsuit against Pella is over after the company agreed to pay $25.75 million to homeowners who purchased aluminum-clad wood casement windows between January 1, 1991 and December 31, 2009. A filing in the United States District Court for the Northern District of Illinois shows that Pella has agreed to set up a $25.75 million fund for those who filed claims about its ProLine windows, which the plaintiffs say "contain a latent defect that allows water to penetrate and leak behind the aluminum cladding, resulting in premature wood rot and other physical damage to both the window and the main structure." The company will also set aside another $9 million in attorney's fees, costs and expenses. If all 700,000-plus members of the plaintiff class submit eligible claims, each would get about $35, according to The Cook County Record. However, the legal publication cites a study by Duke University School of Law that shows less than 10 percent of eligible claimants in class-action suits actually submit claims. If that turns out to be the situation in the Pella case, each claimant could get about $350. Pella agreed to place ads in Good Housekeeping, People and Reader's Digest announcing the settlement. Additionally, a website for claims will be established, and potential class claimants will also receive letters. "We are pleased to have created a settlement framework to resolve this 12-year-old case," Pella said in a statement. "The settlement provides Pella's customers with a claims process for older ProLine casement, awning and transom windows. In the overwhelming majority of cases, these Pella windows performed extremely well, as designed. The settlement is structured to address the relatively small number of windows that may have experienced a problem. The lawsuit does not involve any products currently sold by Pella and Pella continues to innovate in the design and features of our windows and doors to improve their performance and customer benefits." The class-action lawsuit has been in the federal court system since 2006. In 2013, a $90 million settlement was announced that gave the lawyers working on the case $11 million in legal fees. However, that decision was appealed, and in 2014 it was overturned by the U.S. Seventh Circuit Court of Appeals, according to The Cook County Record. The appeals court cited a "grave conflict of interest" because the lead counsel in the class action litigation, Paul Weiss, was the son-in-law of Leonard Saltzman, the man who had initially filed the lawsuit. Additionally, Mr. Saltzman's daughter and Mr. Weiss' wife also worked at the law firm handling the case. "Only a tiny number of class members would have known about the family relationship between the lead class representative and the lead class counsel -- a relationship that created a grave conflict of interest; for the larger the fee award to class counsel, the better off Mr. Saltzman's daughter and son-in-law would be financially -- and (which sharped the conflict of interest) by a lot," wrote former judge Richard Posner in the decision. Mr. Weiss was eventually disbarred in 2015 by the Illinois Supreme Court. [GN] QUEST DIAGNOSTICS: Dismissal of Amended Antitrust Suit Affirmed --------------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that the Ninth Circuit affirmed dismissal on Feb. 12 of a second amended antitrust monopoly complaint against Quest Diagnostics, in an unpublished opinion. RADIOSHACK CORP: Obtains Favorable Ruling in ERISA Class Action --------------------------------------------------------------- Nevin E. Adams, JD, writing for NAPA Net, reports that plan fiduciaries have prevailed on appeal -- as they did at the district court level -- against charges that they violated their fiduciary duties under ERISA by continuing to allow employer stock as an investment option, even as the firm slipped into bankruptcy. The plaintiffs here -- Manoj P. Singh, Jeffrey Snyder and William A. Gerhart -- brought a class action lawsuit on behalf of those who participated in RadioShack Corporation's 401(k) plan and held RadioShack stock in their 401(k) accounts after Nov. 30, 2011. The RadioShack 401(k) Plan provided an investment menu with more than 20 investment options, and also had an employee stock ownership plan (ESOP) that allowed participants to invest their retirement savings in RadioShack stock, which was held in the RadioShack Stock Fund. Shack 'Shock' During the class period, RadioShack's stock price dropped from $11.48 per share to "pennies" as the company slumped toward Chapter 11 bankruptcy, according to the ruling of the U.S. Court of Appeals for the 5th Circuit. In an opinion authored by Chief Judge Carl E. Stewart, with Judges E. Grady Jolly and Priscilla Richman Owen joining, the court noted that the complaint "describes RadioShack's demise at length, citing numerous articles that document the company's descent from an electronics powerhouse to an obsolete brick-and-mortar retailer" -- a decline that it notes was ". . . accompanied by a series of poor annual and quarterly financial results, including eleven consecutive quarters of substantial net losses and significant drops in income from year to year." Despite a series of turnaround initiatives, the stock continued to decline, and in early 2014, RadioShack's financial advisors counseled the board of directors to consider selling the company or restructuring through bankruptcy. The court noted that the board of directors was also informed that the company's creditors were restricting access to credit and vendors were demanding letters of credit as a condition of business, as the stock continued to lose value. In its regular meeting on June 20, 2014, the plan committee decided to send participants a targeted diversification letter. The court noted that in the committee's eight previous meetings, it had reviewed RadioShack's stock performance but had not expressly considered limiting or removing it from the plan. Committee Consideration In what was described as an "ad hoc" meeting on July 11, 2014 to consider the propriety of RadioShack stock as a plan investment option in view of a recent rating downgrade, including consideration of freezing or capping future contributions, removing the stock from the plan, and aggressively educating participants about the importance of diversification and risks of investing in a single stock. Ultimately, they decided to freeze future plan participant investment in RadioShack stock "as soon as administratively feasible," which was Sept. 15, 2014. However, the committee declined to divest the stock, reasoning that it would force participants to sell their shares at an all- time low and would send a negative message about the company's prospects. Ultimately, RadioShack was delisted from the New York Stock Exchange and filed for Chapter 11 bankruptcy on Feb. 5, 2015. In October 2015, RadioShack stock was cancelled in bankruptcy proceedings. Case, Closed? As noted above, the three named plaintiffs in this class action had filed suit against the members of the plan committee, the board of directors, and the plan trustees, as well as the plan administrative committee and trustees of the RadioShack Puerto Rico 1165(e) Plan. The district court consolidated the cases. Shortly after the plaintiffs filed their class action complaint, they settled with the trustees. The district court granted the defendants' motion to dismiss the first complaint but granted the plaintiffs leave to file a second, amended complaint. However, the district court concluded that the second, amended claim failed to state a cause of action and dismissed all of plaintiffs' claims and entered final judgment -- to which the plaintiffs appealed. The plaintiffs alleged that defendants breached their fiduciary duties under ERISA by allowing the plan to invest in RadioShack stock -- first, by failing to respond to public information spelling RadioShack's financial ruin or insider information suggesting RadioShack's stock was overvalued. Secondly, they argued that argued that the defendants violated the duty of loyalty -- some by owning RadioShack stock, and others by not owning it. And thirdly, they argued that the director-defendants failed to monitor the Committee adequately. In the decision, Chief Judge Stewart noted that ERISA requires fiduciaries to manage plan assets "with the care, skill prudence, and diligence . . . that a prudent man acting in a like capacity and familiar with such matters" would use under the circumstances -- a duty that "trumps the instructions of a plan document, such as an instruction to invest exclusively in employer stock even if financial goals demand the contrary." He went on to cite the Supreme Court's ruling in Fifth Third Bank v. Dudenhoeffer, in which the U.S. Supreme Court clarified that the duty of prudence applies fully to ESOPs, except that ESOPs need not be diversified. Judge Stewart noted that Dudenhoeffer establishes that for publicly traded stocks, "allegations that a fiduciary should have recognized from publicly available information alone that the market was over- or undervaluing the stock are implausible as a general rule, at least in the absence of special circumstances." Thus, unless some "special circumstance[]" makes the market price unreliable, "ERISA fiduciaries . . . may, as a general matter . . . prudently rely on the market price" as a fair assessment of a stock's value. Under that standard, Judge Stewart concluded that the plan fiduciaries did not breach the duty of prudence by relying on market price as a fair indicator of the value of RadioShack stock. While the complaint referenced scores of news articles and analyst reports detailing RadioShack's demise, ". . . the complaint provides no plausible reason that the negative commentary from these sources was not incorporated into the RadioShack stock price. On the contrary, the overall decline in the price of RadioShack stock during the class period shows that the market accounted for this negative information." Moreover, the court concluded that "special circumstances" needed to exist, and that while the Supreme Court had not yet defined those, it has "said that such circumstances "affect[] the reliability of the market price as 'an unbiased assessment of the security's value in light of all public information.'" However, based on this standard, the court concluded that "none of Plaintiffs' allegations are special circumstances as defined in Dudenhoeffer." Citing Tibble v. Edison International, the plaintiffs also alleged that the defendants failed to investigate the continued prudence of the plan's investment in RadioShack stock and that that failure amounted to a "special circumstance." However, Judge Stewart wrote that the plaintiffs did not plausibly allege that the purported lack of investigation had any effect on the reliability of the market price, "so it cannot be a special circumstance under Dudenhoeffer." And since the complaint does not plausibly identify any special circumstances undermining the market price as a measure of RadioShack's value, it did not state a duty of prudence claim based on public information, according to the court. Indeed, the court found little evidence that RadioShack's troubles were not completely taken into account in the stock price. "Plaintiffs did not plausibly plead that any Defendant had information not available to the public," Judge Stewart wrote. Moreover, the court noted that in order to state a duty of prudence claim based on nonpublic information, "a plaintiff must plausibly allege an alternative action that the defendant could have taken that would have been consistent with the securities laws and that a prudent fiduciary in the same circumstances would not have viewed as more likely to harm the fund than to help it." As other plaintiffs in similar cases have argued, the plaintiffs here argued that the defendants should have: -- frozen plan contributions earlier; -- disclosed inside information to the market to deflate the stock price; -- liquidated the plan's holdings of RadioShack stock after disclosing the alleged inside information; -- sought guidance from the SEC or the Department of Labor; -- resigned as plan fiduciaries; or -- engaged outside experts as advisors or independent fiduciaries. However, the court determined -- as other courts have previously done -- that a prudent fiduciary could conclude that each of these actions would have done more to harm the plan than to help it, and that therefore, the district court properly dismissed the plaintiffs' duty-of-prudence claims based on insider information. The court also dismissed the plaintiffs' assertion that declining to invest in RadioShack stock constituted a violation of the defendants' duty of loyalty. "Fiduciaries need not personally invest in any particular asset in order to fulfill their duties," the court wrote. As for the allegation that the director- defendants artificially inflated the stock price to preserve their personal wealth, the court explained that the plaintiffs " . . . fail to point to any fact suggesting a conflict of interest other than Defendants' stock ownership," and held that the district court's dismissal of those "bare allegations" was proper. Fiduciary defendants have been successful at staving off litigation in similar cases, most recently including HP and Wells Fargo. The case is Singh v. RadioShack Corp., 2018 BL 40265, 5th Cir., No. 16-11587, affirming district court decision 2/6/18. [GN] RAINERI JEWELERS: Faces "Thorne" Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Raineri Jewelers, Inc. The case is styled as Braulio Thorne, on behalf of himself and all others similarly situated, Plaintiff v. Raineri Jewelers, Inc., Defendant, Case No. 1:18-cv-01660 (S.D. N.Y., February 22, 2018). Raineri Jewelers, Inc. is a long-running retailer for engagement rings, wedding bands & other fine jewels, plus watches.[BN] The Plaintiff is represented by: Daniel Chaim Cohen, Esq. Daniel Cohen PLLC 407 Rockaway Avenue, 3rd Floor Brooklyn, NY 11212 Tel: (646) 645-8482 Email: dan@cml.legal REMINGTON: Bankruptcy Linked to Defective Rifles, Critic Says ------------------------------------------------------------- Mike Dennison, writing for MTN News, reports that Remington, the nation's oldest gun maker, reportedly is filing for bankruptcy protection, in the face of falling sales and lawsuits related to the 2012 Sandy Hook school shootings. But a Montana man who's spoken out for years about problems with the trigger mechanism of Remington bolt-action rifles told MTN News on Feb. 12 he believes the company's financial woes also are linked to public knowledge that its products are dangerous. "I really think it's the liability of their product," Richard Barber of Willow Creek said in an interview. "Remington can't give its guns away. I am certain that the inherent dangers of their product have caused people not to buy them." Remington officials couldn't immediately be reached for comment. Mr. Barber's 9-year-old son, Gus, was killed by a Remington Model 700 rifle in 2000, after the weapon fired without the trigger being pulled, he says. Since then, Mr. Barber has spent years pushing the company to repair what he says are defects with the trigger mechanism that cause the popular Model 700 and other Remington rifles to fire without a trigger pull. In a 2017 settlement of a federal class-action lawsuit, Remington agreed to fix the trigger mechanism on millions of rifles. But Mr. Barber has harshly criticized the settlement, saying it allows Remington to continue denying the rifles are defective and thereby discourage people from bringing in the weapons for a retrofitted trigger mechanism. The settlement has been appealed to the 8th U.S. Circuit Court of Appeals, further stalling action by Remington to fix the trigger mechanisms. The Associated Press reported on Feb. 12 that Remington has reached a financing deal that will allow the company to keep operating, while filing for Chapter 11 bankruptcy protection. The company has been hurt by declining sales of firearms since Donald Trump won the presidency and by the aftermath of the 2012 Sandy Hook school shootings in Newtown, Connecticut, the Associated Press said. One of the weapons used by the Sandy Hook shooter was a Remington Bushmaster AR-15. Mr. Barber, however, said on Feb. 12 he thinks Remington's financial problems also are linked to liability for its defective rifles and more lawsuits filed by people who are still getting injured by rifles firing without a trigger pull. "They've deprived me of my son and they deprived a lot of other people of their children, and now they're being deprived of what they value above all else, and that's their money," he said. Mr. Barber said he's still getting calls from people who've had their Remington rifles fire without a trigger pull and harm someone. Mr. Barber has posted tens of thousands of internal company documents he says show that Remington knew about the trigger-mechanism defects, but did nothing to warn consumers. Mr. Barber also has been pushing to ban secrecy in civil-lawsuit settlements in federal court, saying that information on defective products should be made public, forcing companies to repair the defects or face economic consequences from consumers. "People would know that products were defective, and the company would be forced to fix (the product) or go out of business," he said. "If nobody will by their product, then they're out of business." [GN] RENT-A-CENTER: Court Won't Stay Briefing on Arbitration Bid ----------------------------------------------------------- In the case, MYRA WILLIAMS and SADE BEATON, individually, and on behalf of all others similarly situated, Plaintiffs, v. RENT-A- CENTER, INC., Defendant, Case No. 4:18-CV-00026 JAR (E.D. Mo.), Judge John A. Ross of the U.S. District Court for the Eastern District of Missouri, Eastern Division, denied the Plaintiffs' Motion to Stay Briefing on Defendant's Motion to Compel Arbitration, and granted in part the Plaintiffs' Motion for Extension of Time to Respond to Defendant's Motion to Compel Arbitration. Defendant Rent-A-Center ("RAC") is in the furniture and appliance leasing business. The Plaintiffs are current or former customers of RAC. The Plaintiffs brought the putative class action in state court, alleging RAC violated the Missouri Merchandising Practices Act by improperly taking default judgments against customers without having first obtained personal jurisdiction. RAC removed the action to the Court under the Class Action Fairness Act, and on the basis of complete diversity. The Plaintiffs have moved to remand the case under the Rooker- Feldman doctrine, which prohibits federal review of state court judgments. RAC has moved to: (i) compel arbitration of each Plaintiff's claims, on an individual (not class) basis; and (ii) stay the litigation, pending such individual arbitrations. In the alternative, it asks the Court to dismiss this case without prejudice, pending the individual arbitrations. The Plaintiffs seek to stay briefing on RAC's motion to compel pending the Court's ruling on their motion to remand. The Plaintiffs also seek an extension of time to respond to RAC's motion to compel, if necessary. While the Court must confirm its own jurisdiction before ruling on RAC's motion to compel, Judge Ross finds that a stay is not warranted. Regardless of whether the case is in state or federal court, the Plaintiffs will be required to prepare and file an opposition to RAC's motion to compel. Therefore, the Plaintiffs have not shown prejudice if a stay is not granted. The Plaintiffs have also not shown that a stay would promote judicial economy or efficiency. For these reasons, the Judge will deny the Plaintiffs' motion to stay briefing on RAC's motion to compel arbitration. He will, however, grant the Plaintiffs an extension of time to respond to RAC's motion. Accordingly, Judge Ross denied the Plaintiffs' Motion to Stay Briefing on Defendant's Motion to Compel Arbitration and granted in part the Plaintiffs' Motion for Extension of Time to Respond to Defendant's Motion to Compel Arbitration. The Plaintiffs will file their response to the Defendant's Motion to Compel Arbitration within 20 days from the date of the Order. A full-text copy of the Court's Jan. 31, 2018 Memorandum and Order is available at https://is.gd/8BorFh from Leagle.com. Myra Williams & Sade Beaton, individually and on behalf of all others similarly situated, Plaintiffs, represented by Christopher E. Roberts -- croberts@butschroberts.com -- BUTSCH ROBERTS & ASSOCIATES, LLC & David T. Butsch -- dbutsch@butschroberts.com -- BUTSCH ROBERTS & ASSOCIATES, LLC. Rent-A-Center, Inc., Defendant, represented by Jocelyn A. Villanueva -- JVILLANUEVA@BERKOWITZOLIVER.COM -- BERKOWITZ OLIVER, LLP, pro hac vice, Nicholas L. DiVita -- NDIVITA@BERKOWITZOLIVER.COM -- BERKOWITZ OLIVER, LLP & Timothy R. West -- twest@berkowitzoliver.com -- BERKOWITZ OLIVER, LLP. ROGER DUBUIS: Faces "Thorne" Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Roger Dubuis North America, Inc. The case is styled as Braulio Thorne, on behalf of himself and all others similarly situated, Plaintiff v. Roger Dubuis North America, Inc., Defendant, Case No. 1:18-cv-01657 (S.D. N.Y., February 22, 2018). Roger Dubuis North America, Inc., f/k/a Helvetia Time Corporation, is the distributor for the United States, Canada, the Carribean and Mexico of Roger Dubuis Watches by virtue of a distribution agreement with the manufacturer, Manufacturer Roger Dubuis, SA, a Swiss Company.[BN] The Plaintiff is represented by: Daniel Chaim Cohen, Esq. Daniel Cohen PLLC 407 Rockaway Avenue, 3rd Floor Brooklyn, NY 11212 Tel: (646) 645-8482 Email: dan@cml.legal REUTERS AMERICA: Faces "Sullivan" Suit in S.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Reuters America LLC. The case is styled as Phillip Sullivan Jr., on behalf of himself and all others similarly situated, Plaintiff v. Reuters America LLC, Defendant, Case No. 1:18-cv-01631 (S.D. N.Y., February 22, 2018). Reuters America LLC is the principal United States operating subsidiary of Reuters Group Plc. The Company provides economic and financial information along with technology solutions to its customers in the United States.[BN] The Plaintiff appears PRO SE. SAMSUNG ELECTRONICS: Must Face Class Action Over Battery Life ------------------------------------------------------------- Bruce Kaufman, writing for Bloomberg Law, reports that Samsung must defend a would-be class action alleging it misrepresented information about the battery life on a smart watch. Samsung Electronics America Inc. won dismissal of two claims by lead plaintiff David W. Noble stemming from his 2014 purchase of a Samsung Galaxy Gear S Smartwatch for $199. The suit alleges Samsung represented that the smartwatch battery would last 24 to 48 hours without being recharged. But Noble's device only last about four hours between charges, his suit said. Claims under the New Jersey Consumer Fraud Act and for unjust enrichment were dismissed Feb. 8 by the U.S. District Court for the District of New Jersey. But Samsung must defend claims for fraud, negligent misrepresentation, and for breach of express and implied warranties, the court said. The court said the rejected claim under the New Jersey Consumer Fraud Act may be refiled under the laws of Georgia, where the watch was purchased and the plaintiff resides. Similar would-be class actions are proceeding against Apple over iPhone battery life. Samsung is already defending would-be consumer class actions alleging eight phone models lost value because of their propensity to overheat, catch fire or explode. The U.S. Judicial Panel on Multidistrict Litigation has been considering when the suits benefit from consolidation for pretrial purposes. Plaintiffs' attorneys include Lite, DePalma, Greenberg. Samsung's attorneys include Riker, Danzig, Scherer, Hyland, Perretti. The case is Noble v. Samsung Elecs. Am., Inc., 2018 BL 45414, D.N.J., No. 15-3713, 2/8/18. [GN] SAN FRANCISCO, CA: $20K Atty Fees in Misappropriation Suit Upheld ----------------------------------------------------------------- The Court of Appeals of California, First District, Division Four, issued an Opinion affirming the judgment of the trial court awarding fees in the case captioned JOHNA PECOT et al., Plaintiffs and Cross-Respondents, v. DAVID WONG et al., Defendants and Cross-Appellants, No. A139566 (Cal. App.). On appeal, defendants contend the trial court abused its discretion in not making a larger attorney fee award. The individual plaintiffs are employees of the San Francisco Sheriff's Department and members of the SFDSA. The complaint alleged that SFDSA and its former president, defendant David Wong, hatched a scheme to misappropriate the membership dues of the rank and file Sheriff's Deputy members of the SFDSA. Defendants contended the market rate for services provided by an attorney with their counsel's experience was $600 an hour and that he had worked 158.95 hours to prepare the anti-SLAPP motion. When the time spent by his officer manager and secretary were included, the total claimed cost, before a multiplier, was $99,195.75. In opposition to the request for attorney fees, plaintiffs submitted expert testimony that the reasonable hourly rate for a skilled attorney specializing in anti-SLAPP law in the San Francisco Bay Area was approximately $300 to $500 per hour, depending on the attorney's experience; that defendant's counsel had only some anti-SLAPP experience and only moderate success; that the anti-SLAPP motion was of only moderate complexity and could have been handled in 40 to 50 hours; and that $395 was a reasonable hourly rate. Plaintiffs argued a reasonable attorney fee recovery was $20,000. A defendant who prevails on an anti-SLAPP motion is entitled to recover his or her attorney's fees and costs. The Cal. App. discerned no abuse of discretion in this ruling. The trial judge had read the papers in support of the anti-SLAPP motion, was familiar with the evidence, and concluded, based on the record of the motion and on his own extensive experience with such motions, that 160 hours was excessive. The court's conclusion that 50 hours or more than a full work week was sufficient time to prepare a motion was not clearly wrong. Nor is the Cal. App. persuaded the trial court failed to consider the other relevant factors. There was evidence to support the trial court's conclusion that a rate of $400 per hour was reasonable. Although the court did not expressly make findings on the novelty and difficulty of the questions involved, the skill displayed in presenting them, and the contingent nature of any attorney fee, the court indicated that it was aware of and had considered the step-by-step analysis. The Cal. App. presumed the trial court took into account the relevant factors. In fact, the record indicates the court took these factors into account. The judge noted that counsel had "great stuff" in the anti-SLAPP motion, but concluded, based on his experience, that the motion could have been prepared more efficiently. Indeed, as the high court has explained, a trial court should award a multiplier for exceptional representation only when the quality of representation far exceeds the quality of representation that would have been provided by an attorney of comparable skill and experience billing at the hourly rate used in the lodestar calculation. Otherwise, the fee award will result in unfair double counting and be unreasonable. The record does not compel a conclusion that counsel met that standard. And although the court noted that at least one of the defendants was unwilling to pay counsel's fees, we are aware of nothing in the record showing defense counsel had a contingent fee arrangement with his clients. The order awarding attorney fees is affirmed. A full-text copy of the Cal. App.'s January 18, 2018 Opinion is available at https://tinyurl.com/y7x6nfme from Leagle.com. SENTRY CREDIT: Court Grants Judgment on Pleadings in "Riccio" ------------------------------------------------------------- In the case, MAUREEN RICCIO, on behalf of herself and all others similarly situated, Plaintiffs, v. SENTRY CREDIT, INC., et al., Defendants, Civil Action No. 17-1773 (BRM)(TJB)(D. N.J.), Judge Brian R. Martinotti of the U.S. District Court for the District of New Jersey granted Sentry's Motion for Judgment on the Pleadings. The dispute arises out of Riccio's putative class action claim, alleging Sentry's debt collection practice violated the Fair Debt Collection Practice Act ("FDCPA") by failing to properly inform the least sophisticated consumer that to effectively dispute the alleged debt, such dispute must be in writing. On Aug. 15, 2016, Riccio incurred a financial obligation, which had been assigned to Sentry for debt collection purposes. Sentry mailed the Collection Letter to Riccio in connection with debt. The Collection Letter provided Riccio with a toll-free telephone number, mailing address, and website to contact Sentry concerning the debt. The letter also stated, in relevant part that Riccio alleges the Collection Letter violates the FDCPA by providing a debtor with multiple options for contacting Sentry rather than requiring, explicitly, any dispute be in writing, as required by the FDCPA. On March 15, 2017, Riccio filed her single-count FDCPA Complaint. On June 23, 2017, Sentry filed, with permission from the Court after filing an Answer, the Motion for a Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c). Riccio attempts to both rely on and distinguish the Collection Letter from the letters at issue in Panto v. Prof'l Bureau of Collections and Cruz v. Fin. Recoveries. In both Panto and Cruz v. Fin. Recoveries, the defendant's debt collection letters requested additional information from consumers in connection with the debt. In those cases, the court found the additional language did not overshadow the language required by the FDCPA. Riccio argues the Collection Letter includes additional language but that, unlike Panto and Cruz, it overshadows the FDCPA language. Judge Martinotti is not persuaded by Riccio's argument and finds the Collection Letter, when read as a whole, does not contain overshadowing language. Moreover, Riccio claims the Display Boxes are deceptive. In reviewing the Collection Letter, the Judge finds that Riccio's contention is not supported by the facts. The Collection Letter is void of any reference stating if Riccio wants to dispute the debt, she can call Sentry. The Important Notice Box contains the language notifying consumers a dispute of the debt must be made in writing within 30 days. There is no reference to a phone number or a request for consumers to call in the entirety of the Important Notice Box. The Judge further finds that the Display Boxes do not instruct nor suggest an alternative method of disputing the alleged debt, but merely provide the consumer with Sentry's contact information. Accordingly, Sentry's debt collection letter does not violate Section 1692g -- and therefore does not violate Section 1692e(10) -- of the FDCPA. For these reasons, Judge Martinotti granted Sentry's Motion for Judgment on the Pleadings. An appropriate Order will follow. A full-text copy of the Court's Jan. 31, 2018 Opinion is available at https://is.gd/hiVnP9 from Leagle.com. MAUREEN RICCIO, on behalf of herself and all others similarly situated, Plaintiff, represented by JOSEPH K. JONES, Jones, Wolf & Kapasi, LLC & BENJAMIN JARRET WOLF, Jones, Wolf & Kapasi, LLC. SENTRY CREDIT, INC., Defendant, represented by PETER GEORGE SIACHOS -- psiachos@grsm.com -- Gordon & Rees, LLP & YEVGENY ROYMISHER, GORDON & REES, LLP. SHINOLA/DETROIT: Faces "Thorne" Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Shinola/Detroit, LLC. The case is styled as Braulio Thorne, on behalf of himself and all others similarly situated, Plaintiff v. Shinola/Detroit, LLC doing business as: Shinola, Defendant, Case No. 1:18-cv-01659 (S.D. N.Y., February 22, 2018). Shinola/Detroit, LLC was founded in 2011. The company's line of business includes the wholesale distribution of durable goods.[BN] The Plaintiff is represented by: Daniel Chaim Cohen, Esq. Daniel Cohen PLLC 407 Rockaway Avenue, 3rd Floor Brooklyn, NY 11212 Tel: (646) 645-8482 Email: dan@cml.legal STRAIGHT PATH: Delaware Stockholders Class Suit Remains Stayed -------------------------------------------------------------- Straight Path Communications Inc. said in a regulatory filing with the U.S. Securities and Exchange Commission that the case captioned as, In re Straight Path Communications Inc. Consolidated Stockholder Litigation, C.A. No. 2017-0486-SG, remains stayed. On July 5, 2017, JDS1 LLC, a putative Straight Path stockholder, filed a class action and derivative complaint in the Delaware Court of Chancery captioned JDS1, LLC v. IDT Corp., C.A. No. 2017-0486-SG. The complaint named Straight Path's board of directors, Howard Jonas, IDT, and The Patrick Henry Trust (the "Trust") as defendants. The company was named as a nominal defendant. Plaintiff alleged, among other things, that Straight Path's directors, Howard Jonas, and the Trust breached their fiduciary duties in connection with the sale of certain of the company's IP assets and by resolving a possible claim for indemnification that the company held against IDT (the "Settlement") for inadequate consideration and that IDT aided and abetted that breach. Plaintiff moved for expedited proceedings. On July 11, 2017, another putative Straight Path stockholder, the Arbitrage Fund, filed a class action complaint in the same court naming Howard Jonas, IDT, and the Trust as defendants, captioned The Arbitrage Fund v. Jonas, C.A. No. 2017-0502-SG. On July 24, 2017, the Court denied Plaintiff JDS1's motion for expedited proceedings and consolidated the two cases under the caption In re Straight Path Communications Inc. Consolidated Stockholder Litigation, C.A. No. 2017-0486-SG, with the JDS1 complaint designated as the operative pleading. Plaintiffs subsequently agreed to voluntarily dismiss defendants K. Chris Todd, William F. Weld and Fred S. Zeidman without prejudice. On August 14, 2017, defendants Howard Jonas, IDT, and the Trust, as well as Davidi Jonas, moved to dismiss the consolidated complaint. The company, named as a nominal defendant, filed a statement in response to the complaint. On August 29, 2017, Plaintiffs filed a consolidated amended class action and derivative complaint alleging, among other things, that Howard Jonas, the Trust, and Davidi Jonas breached their fiduciary duties in connection with the settlement and that IDT aided and abetted that breach. On September 13, 2017, defendants Howard Jonas, IDT, and the Trust, as well as Davidi Jonas, moved to dismiss the consolidated amended complaint. On September 22, 2017, the Company filed a statement concerning the consolidated amended complaint, Straight Path said in its Form 10-K report for the fiscal year ended July 31, 2017. In its Form 10-Q report for the quarterly period ended October 31, 2017, Straight Path disclosed that on November 2, 2017, the Delaware Court of Chancery heard oral argument on defendants' motions to dismiss. On November 20, 2017, the court issued an opinion holding that the action was not yet ripe for adjudication and staying the action until the Merger closes or is terminated and upon motion of a party to the action. Straight Path Communications Inc. is a communications asset company. The company owns, via intermediate wholly-owned entities, 100% of Straight Path Spectrum, Inc. ("Straight Path Spectrum") and 100% of Straight Path Ventures, LLC ("Straight Path Ventures"), and the company own 84.5% of Straight Path IP Group, Inc. ("Straight Path IP Group"). The company is based in Glen Allen, Virginia. STRAIGHT PATH: "Zacharia" Deal Awaits Court Approval ---------------------------------------------------- A settlement of the case Zacharia v. Straight Path Communications, Inc. et al., No. 2:15-cv-08051-JMV-MF, remains subject to court approval. On November 13, 2015, a putative shareholder class action was filed in the federal district court for the District of New Jersey against Straight Path Communications Inc., and Jonas and Rand (the "individual defendants"). The case is captioned Zacharia v. Straight Path Communications, Inc. et al., No. 2:15- cv-08051-JMV-MF, and is purportedly brought on behalf of all those who purchased or otherwise acquired the Company's common stock between October 29, 2013, and November 5, 2015. The complaint alleges violations of (i) Section 10(b) of the Exchange Act of 1934, as amended (the "Exchange Act") and Rule 10b-5 of the Exchange Act against the Company for materially false and misleading statements that were designed to influence the market relating to the Company's finances and business prospects; and (ii) Section 20(a) of the Exchange Act against the individual defendants for wrongful acts by controlling persons. The allegations center on the claim that the Company made materially false and misleading statements in its public filings and conference calls during the relevant class period concerning the Company's spectrum licenses and the prospects for its spectrum business. The complaint seeks certification of a class, unspecified damages, fees, and costs. The case was reassigned to Judge John Michael Vasquez on March 3, 2016. On April 11, 2016, the court entered an order appointing Charles Frischer as lead plaintiff and approving lead plaintiff's selection of Glancy Prongay & Murray LLP as lead counsel and Schnader Harrison Segal & Lewis LLP as liaison counsel. On June 17, 2016, lead plaintiff filed his amended class action complaint, which alleges the same claims described above. The defendants filed a joint motion to dismiss the complaint on August 17, 2016; the plaintiff opposed that motion on September 30, 2016, and the defendants filed their reply brief in further support of their motion to dismiss on October 31, 2016. On March 7, 2017, the Company and lead plaintiff in Zacharia action entered into a binding memorandum of understanding to settle the putative shareholder class action and dismiss the claims that were filed against the defendants in that action. Under the agreed terms, the Company will provide for a $2.25 million initial payment (the "Initial Payment") and a $7.2 million additional payment (the "Additional Payment"). The Initial Payment will be paid into an escrow account within 15 days following preliminary court approval of the settlement, and will be fully covered by insurance policies maintained by the Company. The Additional Payment of $7.2 million will be paid within 60 days after the closing of a transaction to sell the Company's spectrum licenses as specified in the Consent Decree with the FCC, or, in the event that the Company pays the non- transfer penalty specified in the Consent Decree, within 60 days after that payment is paid. In any event, the Additional Payment will be payable no later than December 31, 2018, Straight Path said in its Form 10-K report for the fiscal year ended July 31, 2017. The settlement remains subject to entering in a definitive agreement and court approval. In its Form 10-Q report for the quarterly period ended October 31, 2017, Straight Path said the parties executed a formal settlement agreement on October 10, 2017, and a motion for preliminary approval of the settlement agreement is pending before the court. Straight Path Communications Inc. is a communications asset company. The company owns, via intermediate wholly-owned entities, 100% of Straight Path Spectrum, Inc. ("Straight Path Spectrum") and 100% of Straight Path Ventures, LLC ("Straight Path Ventures"), and the company own 84.5% of Straight Path IP Group, Inc. ("Straight Path IP Group"). The company is based in Glen Allen, Virginia. STUSSY INC: Faces "Fischler" Suit in E.D. New York -------------------------------------------------- A class action lawsuit has been filed against Stussy, Inc. The case is styled as Brian Fischler, Individually and on behalf of all other persons similarly situated, Plaintiff v. Stussy, Inc., Defendant, Case No. 1:18-cv-01156 (E.D. N.Y., February 22, 2018). Stussy is a clothing brand and private company started in the early 1980s by Shawn Stussy. The company is one of many that benefited from the surfwear trend originating in Orange County, California.[BN] The Plaintiff is represented by: Douglas Brian Lipsky, Esq. Lipsky Lowe LLP 630 Third Avenue Fifth Floor New York, NY 10017 Tel: (212) 392-4772 Fax: (212) 444-1030 Email: doug@lipskylowe.com SUPER MICRO: Hagens Berman Files Securities Class Action Lawsuit ---------------------------------------------------------------- Hagens Berman Sobol Shapiro LLP alerts investors in Super Micro Computer, Inc. (NASDAQ:SMCI) to the securities class action pending in the United States District Court for the Northern District of California and to the April 9, 2018 Lead Plaintiff deadline. If you purchased or otherwise acquired securities of SMCI between August 5, 2016 and January 30, 2018 and suffered losses contact Hagens Berman Sobol Shapiro LLP. For more information, visit: https://www.hbsslaw.com/cases/SMCI or contact Reed Kathrein, who is leading the firm's investigation, by calling 510-725-3000 or emailing SMCI@hbsslaw.com Beginning on August 29, 2017, Super Micro Computer alerted investors to problems with timely filing its financial statements at the SEC. This time, the Company said it would not file its annual report for the year ended June 30, 2017. Shortly thereafter, NASDAQ notified the Company that it was out of compliance with listing rules. During late October 2017 the Company announced it reversed certain revenues recorded during the quarter ended December 31, 2016 and instead recognized them during the quarter ended March 31, 2017. By January 30, 2018 the Company announced it had still not filed its annual report, its Audit Committee completed its investigation into the matter, and its CFO left the Company. During the course of these events, the price of Super Micro's shares fell from the August 29, 2017 closing price of $27.20 to close at $22.83 on January 31, 2018 -- a loss of $4.37 or about 16%. "We're focused on the extent of SMCI's apparent violations of generally accepted accounting principles, whether it will restate, and investors' damages," said Hagens Berman partner Reed Kathrein -- reed@hbsslaw.com. Whistleblowers: Persons with non-public information regarding SMCI should consider their options to help in the investigation or take advantage of the SEC whistleblower program. Under the new program, whistleblowers who provide original information may receive rewards totaling up to 30 percent of any successful recovery made by the SEC. For more information, call Reed Kathrein at 510-725-3000 or email SMCI@hbsslaw.com About Hagens Berman Hagens Berman -- http://www.hbsslaw.com-- is a national investor-rights law firm headquartered in Seattle, Washington with 70+ attorneys in 11 offices across the country. The firm represents investors, whistleblowers, workers and consumers in complex litigation. [GN] SWEET HOME: "Williams" Class of HHAs/DCWs Conditionally Certified ----------------------------------------------------------------- In the case, TINA WILLIAMS, et al., Plaintiffs, v. SWEET HOME HEALTHCARE, LLC, et al., Defendants, Civil Action No. 16-2353 (E.D. Pa.), Judge Berle M. Schiller of the U.S. District Court for the Eastern District of Pennsylvania certified the Rule 23 class action and granted conditional certification of a FLSA collective action; and denied Sweet Home's motion to strike the declaration of Amy Brandt. Lawrence Harris and Williams brought the putative class action lawsuit against Sweet Home, alleging violations of the Fair Labor Standards Act ("FLSA") and the Pennsylvania Minimum Wage Act ("PMWA"). Sweet Home Healthcare and Sweet Home Primary Care are home healthcare agencies. They employ home healthcare workers who provide in-home support to elderly and disabled individuals ("consumers"). Sweet Home has two groups of home healthcare workers: "home health aides" ("HHAs") and "direct care workers" ("DCWs"). The proposed class consists of both of these groups. The distinction between the two appears to be largely based on the degree of government regulation and Sweet Home's different hiring, training, and oversight procedures for each group. According to Sweet Home, only HHAs are required by Pennsylvania regulations to receive at least 75 hours of training and be certified. It also notes that it imposes different competency and supervision requirements for HHAs and DCWs. However, there are few apparent differences in the actual work done by HHAs and DCWs. Both personnel groups work with consumers in their homes, providing similar services, including medical assistance, companionship, and homemaking. The services provided by both groups are based on the state-issued service authorization forms. Moreover, all of the workers are paid hourly wages. In addition to distinguishing between HHAs and DCWs, Sweet Home classified some of its home healthcare workers as employees and others as independent contractors. This distinction has potentially significant consequences for the Plaintiffs' case, because only employees -- not independent contractors -- are entitled to overtime pay under the FLSA and the PMWA. The Plaintiffs -- and the evidence cited -- suggest that Sweet Home's classification of workers during the relevant time period was largely arbitrary and at times inconsistent. In addition, they claim that Sweet Home did not adhere to its own classifications. They argue that Sweet Home's classification of certain workers as independent contractors was improper. They claim that they and all other HHAs and DCWs in the proposed class -- at least 1,261 workers -- were "employees" as a matter of law under the FLSA and the PMWA. Therefore, they claim that all of the putative class members should have been paid at the overtime rate for the overtime hours they recorded. In total, the Plaintiffs claim the workers were underpaid for hundreds of thousands of hours of overtime. The Plaintiffs allege two distinct Sweet Home policies that both effectively denied the putative class members overtime pay. First, the Plaintiffs claim that Sweet Home regularly failed to apply the 1.5 multiplier to its home healthcare workers' overtime hours. Second, around July of 2016, Sweet Home established a new overtime policy. Sweet Home's new policy was to pay its employees at the overtime rate in form, but pay them a straight hourly rate in substance. Harris alleges that he was affected by this wage manipulation policy; Williams was no longer working for Sweet Home when it took effect. The Plaintiffs sued Sweet Home under the overtime provisions of both the FLSA and the PMWA. They subsequently filed a motion to conditionally certify a FLSA collective action. They also moved for certification of a class action under Rule 23(b)(3). The Plaintiffs propose the following class definition for the Rule 23 class action: All persons who worked for the Defendants as HHAs or DCWs in Pennsylvania from Jan. 1, 2014 to the present and were paid straight time with no overtime premium or were paid a reduced straight time with a reduced overtime premium when they worked more than 40 hours in one or more workweeks. In addition to the Plaintiffs' motions, before the Court is Sweet Home's motion to strike a declaration submitted by the Plaintiffs' counsel, Amy Brandt, in support of their certification motions. Judge Schiller finds that the Plaintiffs have met the requirements for certification of a Rule 23 class action. The Plaintiffs have also satisfied the requirements for conditional certification of a FLSA Section 216(b) collective action. Thus, he granted both of the Plaintiffs' respective motions. The Judge conditionally certified, pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(3), the class of all individuals employed by the Defendants in the position of HHA or DCW in Pennsylvania at any time in the three years prior to the commencement of this lawsuit until the present who were not paid at 1.5 times their regular rate of pay or who were paid at 1.5 times a reduced hourly rate for all hours worked over forty in one or more workweeks. The Judge appointed as the class representatives, Lawrence Harris and Tina Williams, and the law firm of Weir & Partners, as the class counsel pursuant to Rule 23(c)(1)(B). He directed the parties to confer regarding an appropriate notice of the Rule 23 class action and the FLSA collective action. Within 30 days of the date of the Order, the parties will submit a proposed notice to the Court. In addition, Judge Schiller denied Sweet Home's motion to strike. He says he has already held that it does not take an expert to do the "basic arithmetic" that Brandt performed in her analysis of Sweet Home's payroll records. And Sweet Home, of course, has access to these records. To the extent that Brandt offers opinions regarding Sweet Home's "widespread" or "regular" practices or the similarity of the class members, rather than her summarized analysis of the payroll records, she is essentially presenting legal conclusions that should be left to the briefing. The Judge will not consider such statements. He denied the Defendants' reply thereon. A full-text copy of the Court's Jan. 31, 2018 Memorandum and Order is available at https://is.gd/dE11MH and https://is.gd/ggWn6G , respectively, from Leagle.com. TINA WILLIAMS & LAWRENCE G. HARRIS, Plaintiffs, represented by STEVEN E. ANGSTREICH -- sangstreich@weirpartners.com -- WEIR & PARTNERS, AMY R. BRANDT -- abrandt@weirpartners.com -- WEIR & PARTNERS LLP & CAROLYN C. LINDHEIM -- clindheim@weirpartners.com -- WEIR & PARTNERS. SWEET HOME HEALTHCARE LLC, SWEET HOME PRIMARY CARE LLC, TEKIA EMERSON & DARRYL EZELL, Defendants, represented by ALIZA R. KARETNICK -- akaretnick@duanemorris.com -- DUANE MORRIS LLP, SEAN ZABANEH -- SSZabaneh@duanemorris.com -- DUANE MORRIS LLP, ALYSSA KOVACH -- AWKovach@duanemorris.com -- Duane Morris LLP & CHRISTOPHER DRAKE DURHAM -- cddurham@duanemorris.com -- DUANE MORRIS LLP. SYNERGY PHARMA: Brower Piven Files Securities Class Action ---------------------------------------------------------- The securities litigation law firm of Brower Piven, A Professional Corporation, on Feb. 12 disclosed that a class action lawsuit has been commenced in the United States District Court for the Eastern District of New York on behalf of purchasers of Synergy Pharmaceuticals Inc. (Nasdaq:SGYP) ("Synergy" or the "Company") securities during the period between September 5, 2017 and November 14, 2017, inclusive (the "Class Period"). Investors who wish to become proactively involved in the litigation have until April 10, 2018 to seek appointment as lead plaintiff. If you wish to choose counsel to represent you and the class, you must apply to be appointed lead plaintiff and be selected by the Court. The lead plaintiff will direct the litigation and participate in important decisions including whether to accept a settlement for the class in the action. The lead plaintiff will be selected from among applicants claiming the largest loss from investment in Synergy securities during the Class Period. Members of the class will be represented by the lead plaintiff and counsel chosen by the lead plaintiff. No class has yet been certified in the above action. The complaint accuses the defendants of violations of the Securities Exchange Act of 1934 by virtue of the defendants' failure to disclose during the Class Period that the loan from CRG Partners III L.P. ("CRG Loan") did not fund Synergy's operations through 2019, that the Company could not access the second tranche of $100 million financing on or before February 28, 2018 without issuing dilutive equity, and that the Company could not access the third tranche of the CRG Loan if and when needed because terms were required to be met in order to access those tranches. According to the complaint, following a November 9, 2017 disclosure of the true terms of the CRG Loan and their effect upon Synergy's financial condition, the value of Synergy shares declined significantly. If you have suffered a loss in excess of $100,000 from investment in Synergy securities purchased on or after September 5, 2017 and held through the revelation of negative information during and/or at the end of the Class Period and would like to learn more about this lawsuit and your ability to participate as a lead plaintiff, without cost or obligation to you, please contact Brower Piven either by email at hoffman@browerpiven.com or by telephone at (410) 415-6616. Attorneys at Brower Piven have extensive experience in litigating securities and other class action cases and have been advocating for the rights of shareholders since the 1980s. If you choose to retain counsel, you may retain Brower Piven without financial obligation or cost to you, or you may retain other counsel of your choice. You need take no action at this time to be a member of the class. [GN] TEVA PHARMA: Hearing to Impose Provigil Accord Set for Apr. 23 -------------------------------------------------------------- Teva Pharmaceutical Industries Limited's lawsuit to enforce settlement of one of the class members related to a PROVIGIL(R) class action has been scheduled for trial starting April 23, 2018, according to the Company's Form 10-K filed on February 12, 2018, with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017. In April 2006, certain subsidiaries of Teva were named in a class action lawsuit filed in the U.S. District Court for the Eastern District of Pennsylvania. The case alleges that the settlement agreements entered into between Cephalon, Inc., now a Teva subsidiary ("Cephalon"), and various generic pharmaceutical companies in late 2005 and early 2006 to resolve patent litigation involving certain finished modafinil products (marketed as PROVIGIL(R)) were unlawful because they had the effect of excluding generic competition. The case also alleges that Cephalon improperly asserted its PROVIGIL patent against the generic pharmaceutical companies. The first lawsuit was brought by King Drug Company of Florence, Inc. on behalf of itself and as a proposed class action on behalf of any other person or entity that purchased PROVIGIL directly from Cephalon (the "Direct Purchaser Class"). Similar allegations were made in other complaints, including those filed on behalf of a proposed class of end payers of PROVIGIL (the "End Payer Class"), by certain individual end payers, by certain retail chain pharmacies and by Apotex, Inc. (collectively, these cases are referred to as the "Philadelphia Modafinil Action"). Separately, Apotex challenged Cephalon's PROVIGIL patent, and in October 2011, the Court found the patent to be invalid and unenforceable based on inequitable conduct. This decision was affirmed on appeal in April 2013. Teva has either settled or reached agreements in principle to settle with all of the plaintiffs in the Philadelphia Modafinil Action. However, one of the end payers, United Healthcare Services, took the position that it is not bound by the settlement that was agreed to on its behalf and brought a separate action in Minnesota federal court, which has been transferred to the U.S. District Court for the Eastern District of Pennsylvania, where Teva has also filed suit to enforce the settlement. The suit to enforce the settlement has been scheduled for trial beginning on April 23, 2018. Teva Pharmaceutical Industries Limited, a pharmaceutical company, develops, manufactures, markets, and distributes generic medicines and a portfolio of specialty medicines worldwide. It operates through two segments, Generic Medicines and Specialty Medicines. The Company was founded in 1901 and is headquartered in Petach Tikva, Israel. TEVA PHARMA: Consolidated Multidistrict Suit on AndroGel Ongoing ---------------------------------------------------------------- Teva Pharmaceutical Industries Limited continues to defend itself in a consolidated multidistrict litigation in Georgia federal court related to AndroGel(R) 1% (testosterone gel), according to the Company's Form 10-K filed on February 12, 2018, with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017. In January 2009, the Federal Trade Commission and the State of California filed a complaint for injunctive relief in California federal court alleging that a September 2006 patent lawsuit settlement between Watson and Solvay Pharmaceuticals, Inc. ("Solvay") relating to AndroGel(R) 1% (testosterone gel) violated the antitrust laws. Additional lawsuits alleging similar claims were later filed by private plaintiffs (including plaintiffs purporting to represent classes of similarly situated claimants as well as direct purchaser plaintiffs filing separately), and the various actions were consolidated in a multidistrict litigation in Georgia federal court. Discovery in these actions is now closed; the defendants filed various summary judgment motions on September 29, 2017, which plaintiffs opposed on December 12, 2017. Annual sales of AndroGel(R) 1% at the time of the settlement were approximately US$350 million, and annual sales of the AndroGel franchise (AndroGel(R) 1% and AndroGel(R) 1.62%) were approximately US$140 million and US$1.05 billion, respectively, at the time Actavis launched its generic version of AndroGel(R) 1% in November 2015. Teva Pharmaceutical Industries Limited, a pharmaceutical company, develops, manufactures, markets, and distributes generic medicines and a portfolio of specialty medicines worldwide. It operates through two segments, Generic Medicines and Specialty Medicines. The Company was founded in 1901 and is headquartered in Petach Tikva, Israel. TEVA PHARMA: 2 Class Members Seek Appeal from Ciprofloxacin Pact ---------------------------------------------------------------- Two class members have filed an appeal of a court ruling that granted final approval of a settlement agreement which dismissed a lawsuit against Teva Pharmaceutical Industries Limited's subsidiaries for alleged violations of antitrust laws, according to the Company's Form 10-K filed on February 12, 2018, with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017. Teva subsidiaries Barr Laboratories, Inc. ("Barr") and The Rugby Group ("Rugby") were sued in actions in California, Kansas and Florida state courts by plaintiffs alleging that a January 1997 patent litigation settlement agreement between Barr, Rugby (then a subsidiary of Sanofi Aventis) and Bayer Corporation concerning the antibiotic ciprofloxacin was anticompetitive and violated state antitrust and consumer protection laws. In addition, Rugby is also named as a defendant in a Tennessee action. All of the litigation relating to such patent litigation settlement agreement have either settled or are inactive. In the California case, the trial court granted defendants' summary judgment motions, and in May 2015, the California Supreme Court reversed and remanded the case to the trial court for a rule of reason inquiry. On January 18, 2017, Barr agreed to settle with plaintiffs for US$225 million and a provision has been included in the financial statements. On April 21, 2017, the court granted final approval of the settlement. Two class members who have objected to the settlement have filed an appeal of the court's ruling granting final approval. Teva Pharmaceutical Industries Limited, a pharmaceutical company, develops, manufactures, markets, and distributes generic medicines and a portfolio of specialty medicines worldwide. It operates through two segments, Generic Medicines and Specialty Medicines. The Company was founded in 1901 and is headquartered in Petach Tikva, Israel. TEVA PHARMA: Still Faces Class Action Suit on Venlafaxine Accord ---------------------------------------------------------------- Teva Pharmaceutical Industries Limited continues to defend itself against class action suit related to venlafaxine (generic Effexor(R) XR), according to the Company's Form 10-K filed on February 12, 2018, with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017. In December 2011, three groups of plaintiffs sued Wyeth and Teva for alleged violations of the antitrust laws in connection with their settlement of patent litigation involving extended release venlafaxine (generic Effexor(R) XR) entered into in November 2005. The cases were filed by a purported class of direct purchasers, by a purported class of indirect purchasers and by certain chain pharmacies in the United States District Court for the District of New Jersey. The plaintiffs claim that the settlement agreement between Wyeth and Teva unlawfully delayed generic entry. In October 2014, the court granted Teva's motion to dismiss in the direct purchaser cases, after which the parties agreed that the court's reasoning applied equally to the indirect purchaser cases. Plaintiffs appealed, and on August 21, 2017, the Third Circuit reversed the district court's decision and remanded for further proceedings. On November 20, 2017, Teva and Wyeth filed a petition for a writ of certiorari in the United States Supreme Court, which remains pending, and litigation has resumed before the district court. Annual sales of Effexor(R) XR were approximately US$2.6 billion at the time of settlement and at the time generic versions were launched in July 2010. Teva Pharmaceutical Industries Limited, a pharmaceutical company, develops, manufactures, markets, and distributes generic medicines and a portfolio of specialty medicines worldwide. It operates through two segments, Generic Medicines and Specialty Medicines. The Company was founded in 1901 and is headquartered in Petach Tikva, Israel. TEVA PHARMA: Still Defends Class Action on Lamotrigine Agreement ---------------------------------------------------------------- Teva Pharmaceutical Industries Limited still defends itself in purported class action suit related to its lamotrigine (generic Lamictal(R)) settlement agreement with GlaxoSmithKline (GSK), according to Teva's Form 10-K filed on February 12, 2018, with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017. In February 2012, two purported classes of direct-purchaser plaintiffs sued GlaxoSmithKline (GSK) and Teva in New Jersey federal court for alleged violations of the antitrust laws in connection with their settlement of patent litigation involving lamotrigine (generic Lamictal(R)) entered into in February 2005. The plaintiffs claim that the settlement agreement unlawfully delayed generic entry and seek unspecified damages. In December 2012, the court dismissed the case. In January 2014, the court denied the direct purchaser plaintiffs' motion for reconsideration and affirmed its original dismissal. In June 2015, the Third Circuit reversed and remanded for further proceedings. On February 19, 2016, Teva and GSK filed a petition for a writ of certiorari in the United States Supreme Court, which was denied on November 7, 2016. In the meantime, litigation resumed before the district court. Annual sales of Lamictal(R) were approximately US$950 million at the time of the settlement, and approximately US$2.3 billion at the time generic competition commenced in July 2008. Teva Pharmaceutical Industries Limited, a pharmaceutical company, develops, manufactures, markets, and distributes generic medicines and a portfolio of specialty medicines worldwide. It operates through two segments, Generic Medicines and Specialty Medicines. The Company was founded in 1901 and is headquartered in Petach Tikva, Israel. TEVA PHARMA: Antitrust Breaches Suit over Niaspan Accord Ongoing ---------------------------------------------------------------- Teva Pharmaceutical Industries Limited is currently awaiting judgment of the Court of Appeal, Fourth Appellate District, on its petition for writ of mandate or prohibition in a class action suit over alleged violations of antitrust laws related to Niaspan(R), according to the Company's Form 10-K filed on February 12, 2018, with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017. In April 2013, purported classes of direct purchasers of, and end payers for, Niaspan(R) (extended release niacin) sued Teva and Abbott for violating the antitrust laws by entering into a settlement agreement in April 2005 to resolve patent litigation over the product. A multidistrict litigation has been established in the U.S. District Court for the Eastern District of Pennsylvania. Throughout 2015 and in January 2016, several individual direct purchaser opt-out plaintiffs filed complaints with allegations nearly identical to those of the direct purchaser class. In October 2016, the District Attorney for Orange County, California, filed a similar complaint, which has since been amended, in California state court alleging violations of state law. Further proceedings in the California action have been stayed pending resolution of Defendants' petition for writ of mandate or prohibition filed with the Court of Appeal, Fourth Appellate District, which seeks an order vacating the Superior Court's denial of Defendants' motion to strike all claims for restitution and civil penalties to the extent they are not limited to alleged activity in Orange County. Annual sales of Niaspan(R) were approximately US$416 million at the time of the settlement and approximately US$1.1 billion at the time generic competition commenced in September 2013. Teva Pharmaceutical Industries Limited, a pharmaceutical company, develops, manufactures, markets, and distributes generic medicines and a portfolio of specialty medicines worldwide. It operates through two segments, Generic Medicines and Specialty Medicines. The Company was founded in 1901 and is headquartered in Petach Tikva, Israel. TEVA PHARMA: Has Tentative Pact to Settle Lidoderm Litigation ------------------------------------------------------------- Teva Pharmaceutical Industries Limited disclosed in its Form 10-K filed on February 12, 2018, with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017, that it has reached agreements in principle in January 2018 with the various plaintiff groups to settle the multidistrict litigation related to Lidoderm(R) (lidocaine transdermal patches). In November 2013, a putative class action was filed in Pennsylvania federal court against Actavis, Inc. and certain of its affiliates, alleging that Watson's 2012 patent lawsuit settlement with Endo Pharmaceuticals Inc. relating to Lidoderm(R) (lidocaine transdermal patches) violated the antitrust laws. Additional lawsuits containing similar allegations followed on behalf of other classes of putative direct purchaser and end- payer plaintiffs, and the cases have been consolidated as a multidistrict litigation in federal court in California. Defendants moved to dismiss, and in November 2014, the court granted the motions in part but denied them with respect to the claims under Section 1 of the Sherman Act. Plaintiffs then filed amended consolidated complaints in December 2014, and additional complaints have followed from retailers acting in their individual capacities. On February 21, 2017, the court granted both the indirect purchaser plaintiffs' and the direct purchaser plaintiffs' motions for class certification. Discovery in these cases is now closed. In January 2018, the Company reached agreements in principle with the various plaintiff groups to settle the multidistrict litigation. The Federal Trade Commission has also filed suit to challenge the Lidoderm(R) settlement, initially bringing antitrust claims against Watson, Endo, and Allergan in Pennsylvania federal court in March 2016. The FTC voluntarily dismissed those claims in October 2016, but in January 2017, it re-filed the claims, along with a stipulated order for permanent injunction, to settle its claims against Endo, in the same California federal court in which the private multidistrict litigation is pending. On February 3, 2017, the State of California filed a complaint against Allergan and Watson, and that complaint has also been assigned to the California court presiding over the multidistrict litigation. After the FTC dismissed its claims in Pennsylvania, but before it re-filed them in California, Watson and Allergan filed suit against the FTC in the same Pennsylvania federal court where the agency had initially brought its lawsuit, seeking a declaratory judgment that the FTC's claims are not authorized by statute, or, in the alternative, that the FTC does not have statutory authority to pursue a disgorgement remedy. That declaratory judgment action remains pending, and on March 28, 2017, the court in California stayed the FTC's claims against Allergan and Watson pending there, and on October 27, 2017, entered a stipulation staying the State of California's claims against Allergan and Watson, pending the outcome of the declaratory judgment action in Pennsylvania. Annual sales of Lidoderm(R) at the time of the settlement were approximately US$1.2 billion, and were approximately US$1.4 billion at the time Actavis launched its generic version in September 2013. Teva Pharmaceutical Industries Limited, a pharmaceutical company, develops, manufactures, markets, and distributes generic medicines and a portfolio of specialty medicines worldwide. It operates through two segments, Generic Medicines and Specialty Medicines. The Company was founded in 1901 and is headquartered in Petach Tikva, Israel. TEVA PHARMA: Enters into Settlement with Aggrenox End Payers ------------------------------------------------------------ Teva Pharmaceutical Industries Limited is awaiting preliminary approval of its settlement agreement with the end payer class plaintiffs in a litigation related to Aggrenox(R), according to the Company's Form 10-K filed on February 12, 2018, with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017. Since November 2013, numerous lawsuits have been filed in various federal courts by purported classes of end payers for, and direct purchasers of, Aggrenox(R) (dipyridamole/aspirin tablets) against Boehringer Ingelheim ("BI"), the innovator, and several Teva subsidiaries. The lawsuits allege, among other things, that the settlement agreement between BI and Barr entered into in August 2008 violated the antitrust laws. A multidistrict litigation has been established in the U.S. District Court for the District of Connecticut. Teva and BI's motion to dismiss was denied in March 2015. On April 11, 2017, the Orange County District Attorney filed a complaint for violations of California's Unfair Competition Law based on the Aggrenox(R) patent litigation settlement. Annual sales of Aggrenox(R) were approximately US$340 million at the time of the settlement and approximately US$455 million at the time generic competition began in July 2015. Teva has settled with the putative class of direct purchasers. The settlement was approved by the Court on December 18, 2017. Teva has also settled with the opt out direct purchaser plaintiffs. On January 8, 2018, Teva reached an agreement to settle with the end payer class plaintiffs. That settlement has been filed for preliminary approval. The Company said that a provision has been included in the financial statements for this matter. Teva Pharmaceutical Industries Limited, a pharmaceutical company, develops, manufactures, markets, and distributes generic medicines and a portfolio of specialty medicines worldwide. It operates through two segments, Generic Medicines and Specialty Medicines. The Company was founded in 1901 and is headquartered in Petach Tikva, Israel. TEVA PHARMA: Class Suits over Takeda Pharma Pact Still Ongoing -------------------------------------------------------------- Teva Pharmaceutical Industries Limited disclosed in its Form 10-K filed on February 12, 2018, with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017, that lawsuits arising from the settlement agreements of Takeda Pharmaceutical Companies Limited and generic manufacturers over Actos(R) and Acto plus Met(R) products are still ongoing. Since January 2014, numerous lawsuits have been filed in the U.S. District Court for the Southern District of New York by purported classes of end payers for and direct purchasers of Actos(R) and Acto plus Met(R) (pioglitazone and pioglitazone plus metformin) against Takeda, the innovator, and several generic manufacturers, including Teva, Actavis and Watson. The lawsuits allege, among other things, that the settlement agreements between Takeda and the generic manufacturers (including Takeda's December 2010 settlement agreement with Teva) violated the antitrust laws. The Court dismissed the end payer lawsuits against all defendants in September 2015. In October 2015, the end payers appealed that ruling, and on March 22, 2016, a stipulation was filed dismissing Teva and the other generic defendants from the appeal. On February 8, 2017, the Court of Appeals for the Second Circuit affirmed the dismissal in part and vacated and remanded the dismissal in part with respect to the claims against Takeda. The direct purchasers' case had been stayed pending resolution of the appeal in the end payer matter, and the direct purchasers amended their complaint for a second time after the Second Circuit's decision. Defendants had moved to dismiss the direct purchasers' original complaint and supplemental briefing on that motion based on the new allegations in the amended complaint was completed on June 29, 2017. At the time of the settlement, annual sales of Actos(R) were approximately US$3.7 billion and annual sales of ACTO plus Met(R) were approximately US$500 million. At the time generic competition commenced in August 2012, annual sales of Actos(R) were approximately US$2.8 billion and annual sales of ACTO plus Met(R) were approximately US$430 million. Teva Pharmaceutical Industries Limited, a pharmaceutical company, develops, manufactures, markets, and distributes generic medicines and a portfolio of specialty medicines worldwide. It operates through two segments, Generic Medicines and Specialty Medicines. The Company was founded in 1901 and is headquartered in Petach Tikva, Israel. TEVA PHARMA: Suits on Namenda IR Settlement Pact Still Pending -------------------------------------------------------------- Teva Pharmaceutical Industries Limited disclosed in its Form 10-K filed on February 12, 2018, with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017, that lawsuits related to the settlement agreement between Forest Laboratories, LLC ("Forest"), Actavis PLC and several generic manufacturers continues. Since May 2015, two lawsuits have been filed in the U.S. District Court for the Southern District of New York by a purported class of direct purchasers of, and a purported class of end payers for, Namenda IR(R) (memantine hydrochloride) against Forest Laboratories, LLC ("Forest") and Actavis PLC, the innovator, and several generic manufacturers, including Teva. Teva is only a defendant in the end payer case and defendants moved to dismiss the claims made by the end payers. The lawsuits allege, among other things, that the settlement agreements between Forest and the generic manufacturers (including Forest's November 2009 settlement agreement with Teva) violated the antitrust laws. On September 13, 2016, the court denied defendants' motions to dismiss, but stayed the cases with respect to the claims brought under state law, which are the only claims asserted against Teva. Annual sales of Namenda IR(R) at the time of the settlement were approximately US$1.1 billion, and are currently approximately US$1.4 billion. Teva Pharmaceutical Industries Limited, a pharmaceutical company, develops, manufactures, markets, and distributes generic medicines and a portfolio of specialty medicines worldwide. It operates through two segments, Generic Medicines and Specialty Medicines. The Company was founded in 1901 and is headquartered in Petach Tikva, Israel. TEVA PHARMA: Unit Still Faces Antitrust Suit over Intuniv Accord ---------------------------------------------------------------- Teva Pharmaceutical Industries Limited's unit, Actavis, still defends itself against a consolidated lawsuit over alleged violations of various state consumer protection and antitrust laws when it entered into a settlement agreement with Shire companies related to the ADHD drug Intuniv, according to the Company's Form 10-K filed on February 12, 2018, with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017. In November 2016, three putative indirect purchaser class actions were filed in federal courts in Wisconsin, Massachusetts and Florida against Shire U.S., Inc. and Shire LLC (collectively, "Shire") and Actavis, alleging that Shire's 2013 patent litigation settlement with Actavis related to the ADHD drug Intuniv(R) (guanfacine) violated various state consumer protection and antitrust laws. On December 30, 2016 and January 11, 2017, two additional similar actions were filed, also in Massachusetts federal court, against Shire and Actavis or Teva (as successor to Actavis) by putative classes of direct purchaser plaintiffs. All five cases are now in Massachusetts federal court, and on March 10, 2017, both the indirect purchaser plaintiffs and the direct purchaser plaintiffs filed consolidated amended complaints. Annual sales of Intuniv(R) were approximately US$335 million at the time of the settlement, and approximately US$327 million at the time generic competition began in 2014. Teva Pharmaceutical Industries Limited, a pharmaceutical company, develops, manufactures, markets, and distributes generic medicines and a portfolio of specialty medicines worldwide. It operates through two segments, Generic Medicines and Specialty Medicines. The Company was founded in 1901 and is headquartered in Petach Tikva, Israel. TEVA PHARMA: Still Faces Antitrust Suit on Price-Fixing Matters --------------------------------------------------------------- Teva Pharmaceutical Industries Limited continues to face legal proceedings over alleged antitrust law breaches related to price- fixing matters on certain generic drug products, according to the Company's Form 10-K filed on February 12, 2018, with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017. Beginning on March 2, 2016, numerous complaints have been filed in the United States on behalf of putative classes of direct and indirect purchasers of generic drug products, as well as several individual direct purchaser opt-out plaintiffs, including: doxycycline, pravastatin, clobetasol, desonide, fluocinonide, propranolol, glyburide, ursodial and baclofen. These complaints, which allege that the defendants engaged in conspiracies to fix, increase, maintain and/or stabilize the prices of the generic drug products named, have been brought against various defendants including, among others, Teva USA, Actavis Holdco U.S., Inc., Actavis Elizabeth and Pliva, Inc. The plaintiffs generally seek injunctive relief and damages under federal antitrust law, and damages under various state laws. On April 6, 2017, the Judicial Panel on Multidistrict Litigation (JPML) entered an order transferring cases brought by classes of direct or indirect purchasers and alleging claims of generic price-fixing for coordination or consolidation with the multidistrict litigation currently pending in the Eastern District of Pennsylvania; the panel subsequently transferred further cases to that court, and the plaintiffs filed consolidated amended complaints on August 15, 2017. Defendants moved to dismiss certain of those consolidated amended complaints on October 6, 2017. Teva denies having engaged in any conduct that would give rise to liability with respect to the subpoenas and civil suits. Teva Pharmaceutical Industries Limited, a pharmaceutical company, develops, manufactures, markets, and distributes generic medicines and a portfolio of specialty medicines worldwide. It operates through two segments, Generic Medicines and Specialty Medicines. The Company was founded in 1901 and is headquartered in Petach Tikva, Israel. TEVA PHARMA: Awaits Court Order Dismissing Conn. Securities Suit ---------------------------------------------------------------- Teva Pharmaceutical Industries Limited remains a defendant in a consolidated securities class action pending in the U.S. District Court for the District of Connecticut and was originally filed in the U.S. District Court for the Central District of California, according to the Company's Form 10-K filed on February 12, 2018, with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017. On November 6, 2016 and December 27, 2016, two putative securities class actions were filed in the U.S. District Court for the Central District of California against Teva and certain of its current and former officers. After those two lawsuits were consolidated and transferred to the U.S. District Court for the District of Connecticut, the court appointed the Ontario Teachers' Pension Plan Board as lead plaintiff. The lead plaintiff then filed a consolidated amended complaint purportedly on behalf of purchasers of Teva's securities between February 6, 2014 and August 3, 2017. The consolidated complaint seeks unspecified damages, legal fees, interest, and costs, and it asserts that Teva and certain of its current and former officers and directors violated the federal securities laws and Israeli securities laws in connection with Teva's alleged failure to disclose Teva's participation in an alleged anticompetitive scheme to fix prices and allocate markets for generic drugs in the United States. On December 1, 2017, Teva and the current and former officer and director defendants filed motions to dismiss the consolidated amended complaint, with prejudice. Those motions are currently pending before the Court. Teva Pharmaceutical Industries Limited, a pharmaceutical company, develops, manufactures, markets, and distributes generic medicines and a portfolio of specialty medicines worldwide. It operates through two segments, Generic Medicines and Specialty Medicines. The Company was founded in 1901 and is headquartered in Petach Tikva, Israel. TEVA PHARMA: Conn. Suit over Stock Purchase Plan Still Pending -------------------------------------------------------------- Teva Pharmaceutical Industries Limited continues to face a potential class action lawsuit, originally filed with the U.S. District Court for the Southern District of Ohio, related to its the Teva Employee Stock Purchase Plan, according to the Company's Form 10-K filed on February 12, 2018, with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017. On July 17, 2017, a lawsuit was filed in the U.S. District Court for the Southern District of Ohio derivatively on behalf of the Teva Employee Stock Purchase Plan, and alternatively as a putative class action lawsuit on behalf of individuals who purchased Teva stock through that plan. That lawsuit seeks unspecified damages, legal fees, interest and costs. The complaint alleges that Teva failed to maintain adequate financial controls based on the facts underpinning Teva's U.S. Foreign Corrupt Practices Act (FCPA) deferred prosecution agreement, and also based on allegations substantially similar to those in the putative class action securities lawsuit pending in U.S. District Court for the District of Connecticut. On November 29, 2017, the Court granted Teva's motion to transfer the litigation to the U.S. District Court for the District of Connecticut where the putative class action securities lawsuit is pending. On December 29, 2017, the parties jointly moved to stay the case pending resolution of the motions to dismiss filed in the consolidated putative securities class action. Teva Pharmaceutical Industries Limited, a pharmaceutical company, develops, manufactures, markets, and distributes generic medicines and a portfolio of specialty medicines worldwide. It operates through two segments, Generic Medicines and Specialty Medicines. The Company was founded in 1901 and is headquartered in Petach Tikva, Israel. TEVA PHARMA: Seeks to Transfer Securities Suit to Connecticut ------------------------------------------------------------- Teva Pharmaceutical Industries Limited's motion to transfer a putative class action securities lawsuit in the U.S. District Court for the Eastern District of Pennsylvania to the District of Connecticut is currently pending before the Court, according to the Company's Form 10-K filed on February 12, 2018, with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017. On August 21, 2017, a putative class action securities lawsuit was filed by Elliot Grodko in the U.S. District Court for the Eastern District of Pennsylvania on behalf of purchasers of Teva's securities between November 15, 2016 and August 2, 2017 seeking unspecified damages, legal fees, interest, and costs. The complaint alleged that Teva and certain of its current and former officers violated the federal securities laws and Israeli securities laws by making false and misleading statements in connection with Teva's acquisition and integration of Actavis Generics. On August 30, 2017, a putative securities class action was filed by Barry Baker in the U.S. District Court for the Eastern District of Pennsylvania on behalf of purchasers of Teva's securities between November 15, 2016 and August 2, 2017 seeking unspecified damages, legal fees, interest, and costs. The complaint alleges that Teva and certain officers violated the federal securities laws by making false and misleading statements in connection with Teva's acquisition and integration of Actavis Generics. On November 1, 2017, the Court consolidated the Baker case with the Grodko case. Teva's motion to transfer the consolidated action to the District of Connecticut is currently pending before the Court. Teva Pharmaceutical Industries Limited, a pharmaceutical company, develops, manufactures, markets, and distributes generic medicines and a portfolio of specialty medicines worldwide. It operates through two segments, Generic Medicines and Specialty Medicines. The Company was founded in 1901 and is headquartered in Petach Tikva, Israel. THREE AND SEVENTY-THREE: Faecs "Olsen" Suit in S.D. of New York --------------------------------------------------------------- A class action lawsuit has been filed against Three and Seventy- Three Gourmet, LLC. The case is styled Thomas J. Olsen, individually and on behalf of all other persons similarly situated, Plaintiff v. Three and Seventy-Three Gourmet, LLC agent of Dallas BBQ, Defendant, Case No. 1:18-cv-01653 (S.D. N.Y., February 22, 2018). Three and Seventy-Three Gourmet, LLC is in the Barbecue Restaurant business. The Plaintiff is represented by: Douglas Brian Lipsky, Esq. Lipsky Lowe LLP 630 Third Avenue Fifth Floor New York, NY 10017 Tel: (212) 392-4772 Fax: (212) 444-1030 Email: doug@lipskylowe.com TOYOTA MOTOR: ADR Deadline in "Robey" Suit Moved to March 7 ----------------------------------------------------------- In the case, MICHAEL ROBEY, MOE ASGHARNIA and JAMES COMB, Individually and On Behalf of a Class of Similarly Situated Individuals, Plaintiffs, v. TOYOTA MOTOR SALES, U.S.A., INC., and TOYOTA MOTOR CORPORATION, Defendants, Case No. 3:16-cv-07212-EMC (N.D. Cal.), Judge Edward M. Chen of the U.S. District Court for the Northern District of California, San Francisco Division, continued the ADR deadline from Feb. 25, 2018 to March 7, 2018, and the case management conference currently set for March 1, 2018 to April 5, 2018, as stipulated by the parties. A full-text copy of the Court's Jan. 31, 2018 Order is available at https://is.gd/IZoig1 from Leagle.com. Michael Robey, Moe Asgharnia & James Comb, Plaintiffs, represented by Mark Samuel Greenstone -- mgreenstone@glancylaw.com -- Glancy Prongay & Murray LLP. Toyota Motor Sales, U.S.A., Inc., Defendant, represented by Tamara Alicia Bush -- tbush@dykema.com -- Dykema Gossett LLP, Abirami Gnanadesigan -- agnanadesigan@dykema.com -- DYKEMA GOSSETT LLP, Janet L. Conigliaro -- jconigliaro@dykema.com -- DYKEMA, pro hac vice & John Mark Thomas -- jthomas@dykema.com -- Dykema Gossett PLLC. ULTA BEAUTY: Zimmerman Law Files Nationwide Class Action -------------------------------------------------------- Attorney Thomas Zimmerman, Jr. of the Chicago-based Zimmerman Law Offices filed a nationwide class action suit against Ulta Beauty, Inc. ("Ulta"). The suit alleges Ulta has a routine practice of repackaging and resealing beauty products that have previously been purchased, used and returned by Ulta's customers, before returning those used products to its shelves to be purchased by other consumers. The case, Meghan DeVries v. Ulta Beauty, Inc., was filed on February 8, 2018, in the Circuit Court of Cook County, Illinois. The suit alleges that, for the past several years, managers at Ulta's retail stores throughout the nation are given a quota as to the number of returned items that can be deemed to be "damaged" and thrown away, and store managers would get lectured by Ulta's upper management if their stores were over the quota. The suit notes that Ulta received and responded to complaints from customers and employees regarding those practices, but it nevertheless continued its corporate policy and practice of surreptitiously reselling used beauty products. Used beauty products -- such as mascara, foundation, and shampoo -- were almost always placed back on the shelf since it is difficult to tell if they were used, according to the complaint. The suit further alleges that for beauty products that obviously and visibly appeared to be used, Ulta's employees were instructed to clean those beauty products with cotton swabs to make them look like new, and place them back on Ulta's store shelves for resale. Consumers expect that beauty products are new and unused when purchased from retailers, because, by nature, used beauty products are unsanitary and unhygienic, and place people at a risk of contracting disease. Attorney Tom Zimmerman noted, "The lawsuit cites to an undercover investigation that found used beauty products at Ulta were contaminated with harmful bacteria, including E. coli and Klebsiella pneumoniae, two types of bacteria normally found in the intestinal tract that are expelled with feces, such that people could literally be applying and smearing someone else's fecal matter directly onto their lips." Attorney Zimmerman continued, "The investigators also noted that used beauty products can contain the herpes simplex virus -- which can survive on the surface of a lipstick tube for up to a week -- as well as Staphylococcus aureus, which can cause very serious infections, boils and lesions, especially if you have an open cut on your skin or lips, or it gets in your eyes." The lead plaintiff represents all consumers throughout the United States impacted by Ulta's actions. The lawsuit seeks damages for the money consumers spent to purchase used beauty products from Ulta, and injunctive relief to force Ulta to stop repackaging used beauty products and reselling them as if they were new. A copy of the complaint is available upon request. Attorney Tom Zimmerman will be available for interviews and the lead plaintiff may also be available to speak with the media on a limited basis. Contacts: Zimmerman Law Offices, PC Atty. Thomas A. Zimmerman, Jr. (312) 440-0020 tom@attorneyzim.com 77 W. Washington Street, Suite 1220 Chicago, IL 60602 www.attorneyzim.com [GN] UNITED STATES: Faces "Trinh" Suit in C. Dist. Calif. ---------------------------------------------------- A class action lawsuit has been filed against Thomas D Homan. The case is styled as Hoang Trinh, Vu Ha, Long Nguyen and Ngoc Hoang, on behalf of themselves and all of those similarly situated, Plaintiffs v. Thomas D Homan, Kirstjen M. Nielsen, Jefferson B Sessions III, David Marin, Sandra Hutchens and Doe 1 Warden, Adelanto ICE Processing Center, Defendants, Case No. 8:18-cv-00316 (C.D. Cal., February 22, 2018). Thomas D Homan is the acting director of U.S. Immigration and Customs Enforcement.[BN] The Plaintiffs appear PRO SE. VICE MEDIA: Faces Class Action in California -------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that Vice Media on Feb. 13 became the latest company to face a class action accusing it of paying women far less than similarly situated men, in Los Angeles Superior Court. WASHINGTON: Bid to Certify of Questions of Law to High Ct. Denied ----------------------------------------------------------------- The United States District Court for the Eastern District of Washington issued an Order denying Defendant's Motion to Certify Two Questions of State Law to the Washington Supreme Court in the case captioned JADE WILCOX, Plaintiff, v. JOHN BATISTE and JOHN DOES 1-300, Defendant, No. 2:17-CV-122-RMP (E.D. Wash.). Plaintiff Jade Wilcox brought this putative class action lawsuit against John Batiste, Chief of the Washington State Patrol and his agents (WSP), alleging that the WSP violated the Driver's Privacy Protection Act (DPPA), by disclosing personal information in vehicle collision reports to third parties who used the information in the reports to solicit legal business. Defendant has moved the Court to certify two questions to the Washington State Supreme Court: (1) Whether the Washington State Patrol's duty under RCW 46.52.060 includes disclosure of police traffic collision reports to the public; and (2) If so, whether the disclosure of a police traffic collision report under RCW 46.52.060 is related to the operation of a motor vehicle or public safety. Washington law provides that when in the opinion of any federal court before whom a proceeding is pending, it is necessary to ascertain the local law of this state in order to dispose of such proceeding and the local law has not been clearly determined, such federal court may certify to the supreme court for answer the question of local law involved. Plaintiff alleges that the WSP violates the DPPA when it discloses Department of Licensing and Motor Vehicles personal information to third parties for impermissible purposes. Question One WSP argues that whether RCW 46.52.060 establishes a duty to disclose police traffic collision reports to the public has not been clearly determined and is dispositive in this matter involving an alleged violation of the DPPA. However, the Court disagrees. The Court finds that RCW 46.52.060 is sufficiently clear for this Court to apply in this case. In addition, the Court finds that even if there was some ambiguity or conflict between Washington state statutes and Washington state court opinions regarding the duties of the WSP, that conflict would not be dispositive of the issues before this Court regarding alleged violations of the DPPA. The issue before the Court in this case is whether the WSP policies violate the DPPA. Washington state law and the WSP practices are sufficiently clear that the Court can decide that issue without further clarification from the Washington State Supreme Court. Therefore, the Court denies Defendant's motion to certify Question One to the Washington State Supreme Court. Question Two Plaintiff argues that this issue calls for the interpretation of federal, not state, law because it seeks an interpretation of the language of the DPPA as to what is related to the operation of a motor vehicle or public safety. The Court agrees. Although the provision in the DPPA allows for the incorporation of state law authority regarding whether such use is related to the operation of a motor vehicle or public safety, the finding of whether Washington State's use is related to the operation of a motor vehicle or public safety within the meaning of the DPPA exception is an issue of federal statutory interpretation, not state statutory interpretation. Therefore, a decision by the Washington State Supreme Court would not be dispositive of the issue in this Court, which is whether the WSP is violating the DPPA, and certification would not be appropriate. Accordingly, the Court declines to certify Question Two. A full-text copy of the District Court's January 18, 2018 Order is available at https://tinyurl.com/yaafyfgk from Leagle.com. Jade Wilcox, on behalf of herself and all others similarly situated, Plaintiff, represented by James Richard Sweetser, Sweetser Law Office, 1020 N Washington Spokane, W A 99201 & Thomas G. Jarrard, Law Office of Thomas G. Jarrard, 1020 N Washington St, Spokane, WA 99201, USA John Bastiste, Chief of Washington State Patrol, Defendant, represented by Shelley Anne Williams, Washington State Attorney General's Office. WYNDHAM RESORT: Abbott's Opt Out Bid in "McGrath" Deal Denied ------------------------------------------------------------- Judge Jeffrey T. Miller of the U.S. District Court for the Southern District of California denied James Shannon Abbott's motion to opt out of the class action settlement in the case, MICHELLE RENEE McGRATH and VERONICA O'BOY, on behalf of themselves and all others similarly situated, Plaintiffs, v. WYNDHAM RESORT DEVELOPMENT CORPORATION, an Oregon corporation; WYNDHAM VACATION OWNERSHIP, INC., a Delaware corporation; WYNDHAM VACATION RESORTS, INC., a Delaware corporation; WYNDHAM WORLDWIDE OPERATIONS, INC., a Delaware corporation; and DOES 1 through 10, inclusive, Defendants, Case No. 15cv1631 JM (KSC) (S.D. Cal.). Abbott works at Wyndham Oceanside Pier in Oceanside, California. During the class period, Abbott worked 204 weeks. Under the Settlement Agreement, he would receive an estimated $11,515.89. The terms of the Settlement Agreement required the eligible class members to request exclusion from the class by Nov. 13, 2017. Abbott submitted notice of his request to opt out on Dec. 6, 2017, 23 days after the deadline had passed. On Jan. 16, 2018, six days before the final settlement approval hearing, Abbott filed the instant pro se motion. Abbott argues that Wyndham is in no way prejudiced by the 23 day delay in submitting his request for exclusion. However, after Nov. 13, 2017, it would have been reasonable for Wyndham to understand that all excluded class members had been identified. Furthermore, the Court granted final approval of the Settlement Agreement, giving Wyndham a finality interest. As for the length of his delay, Abbott argues that it has no effect whatsoever on this proceeding and has zero impact on the class settlement. The reason Abbott gives for his delay is a severe motor vehicle accident he was involved in on Nov. 30, 2016, nearly a year before the opt-out deadline. It was not until an attorney representing him in a Tennessee case informed him about the action that Abbott went through his mail, located, and read the notice letter in early December. Abbott then submitted notice of his request to opt out. However, the Defendants note that there is no evidence that Mr. Abbott was impaired or prevented from responding during the notice period from Sept. 13, 2017, to Nov. 13, 2017. Moreover, during the notice period, Abbott gave a deposition and testified at trial in a collective action against Wyndham pending in the United States District Court for the Eastern District of Tennessee, Case No. 3:13-cv-00641-HSM-CCS. Abbott's ability to work at Wyndham and participate in the Pierce Litigation throughout the notice period belies his claim for excusable neglect. Judge Miller finds that despite Abbott's condition after his November 2016 accident, it appears that the reason for the delay was entirely within the reasonable control of the movant. There is no allegation that the notice letter arrived after the deadline passed. Once he looked through his mail, Abbott found the notice letter. His or his wife's failure to do so earlier does not rise to the level of excusable neglect. Thus, while there is no evidence that Abbott's request was not brought in good faith, he has failed to demonstrate excusable neglect. Accordingly, the Judge denied his motion. A full-text copy of the Court's Jan. 31, 2018 Order is available at https://is.gd/OXWZLf from Leagle.com. Michelle Renee McGrath, on behalf of herself and all others similarly situated, Plaintiff, represented by Christina Marie Lucio -- clucio@farnaeslaw.com -- Law Office of Malte L.L. Farnaes APC, Jeff Geraci -- jgeraci@ckslaw.com -- Cohelan Khoury & Singer, Malte L.L. Farnaes -- malte@farnaeslaw.com -- Farnaes & Lucio, APC, Mitchell J. Murray -- mitch@farnaeslaw.com -- Farnaes & Lucio, APC, Diana M. Khoury -- dkhoury@ckslaw.com -- Cohelan Khoury & Singer, Isam C. Khoury -- khoury@ckslaw.com -- Cohelan Khoury & Singer & Michael D. Singer -- msinger@ckslaw.com -- Cohelan, Khoury & Singer. Wyndham Resort Development Corporation, an Oregon Corporation, Wyndham Vacation Ownership, Inc., a Delaware Corporation & Wyndham Worldwide Operations, Inc., Defendants, represented by Sabrina Layne Shadi -- sshadi@bakerlaw.com -- Baker & Hostetler LLP & Shareef Farag -- sfarag@bakerlaw.com -- Baker & Hosteler, LLP. * ERISA Class Action Settlements Cost Employer $927.8MM in 2017 --------------------------------------------------------------- Jane Meacham, writing for Compensation.BLR.com, reports that class action settlements and court decisions related to 401(k) retirement plans in 2017 significantly affected the direction of ERISA litigation, according to the newest edition of an annual law firm report on workplace class action lawsuits. The aggregate value of settlements dealing with ERISA litigation, employment discrimination, wages and hours, and government enforcement soared in the latest year, underscoring a trend that has the potential to rock an employer's balance sheet, if not bankrupt a company. In many of the ERISA class actions, courts deliberated class certification issues in cases involving challenges to allegedly excessive investment management fees, continued employer stock investments in 401(k) plans, and employee stock ownership plans (ESOPs) -- according to the 14th annual "Workplace Class Action Litigation Report" released by Seyfarth Shaw. The yearly report studied 1,408 of the largest employment court cases from 2017 to help guide its clients through class action and collective action law, and to enable corporate counsel to make informed litigation decisions while minimizing risk, the firm said. The cases decided in 2017 foreshadow the direction of class action litigation this year, according to Seyfarth's report. "One certain conclusion is that employment law class action and collective action litigation is becoming ever more sophisticated and will continue to be a source of significant financial exposure to employers well into the future. Employers also can expect that class action and collective action lawsuits increasingly will combine claims under multiple statutes," the report said. Retirement Case Issues A dominant force in 2017 ERISA class action litigation was the filing by the plaintiffs' class action bar of a wave of new 401(k) and 403(b) fee and investment lawsuits against various employers, with a heavy focus on institutions of higher education. In retirement plan litigation, courts also continued to split on whether plaintiffs who have received lump-sum distributions have standing to sue under the Employee Retirement Income Security Act (ERISA), whether cash balance plans are inherently age- discriminatory, and whether employers may modify retiree health benefits. Among workplace class actions, ERISA cases settled in 2017 were the most costly for employers in total. At $927.8 million they strongly outpaced the second-largest category -- wage-and-hour settlements -- valued at $525 million. Combining all types of workplace class actions, settlement numbers in 2017 totaled $2.72 billion, a significant increase from 2016 when such settlements totaled $1.75 billion, the report said. Variety of Rulings Federal circuit and state courts in 2017 issued a wide variety of rulings on procedural and substantive matters in ERISA class actions, the Seyfarth report said. Among other topics, the rulings affected: -- Administrative fees, attorneys' fees and costs, damages, and breach-of-fiduciary duty issues in these class actions; -- U.S. Department of Labor (DOL) and Pension Benefit Guaranty Corporation (PBGC) enforcement litigation; -- 401(k) class actions; -- Class action litigation over retiree/employee benefits; and -- Stock-drop class actions. "More often than not, class actions pose unique 'bet-the-company' risks for employers. An adverse judgment in a class action has the potential to bankrupt a business and adverse publicity can eviscerate its market share," said Seyfarth Shaw Chairman Peter C. Miller in the letter opening the report. "Likewise, the ongoing defense of a class action can drain corporate resources long before the case even reaches a decision point." 4 Key Trends Seyfarth's overview of workplace class action litigation developments in 2017 showed four key trends. 1. The monetary value of the top workplace class action settlements rose dramatically in 2017. These numbers increased over past years, even after they had reached all-time highs in 2014 to 2016. The plaintiffs' employment class action bar and governmental enforcement litigators were successful in monetizing their case filings into large class-wide settlements, and they did so at decidedly higher values than in previous years. 2. While federal and state courts issued many favorable class certification rulings for the plaintiffs' bar in 2017, evolving case law precedents and new defense approaches resulted in better outcomes for employers in opposing class certification requests. 3. Filings and settlements of government enforcement litigation in 2017 did not reflect a sharp pivot from the ideological proworker (or antibig business) outlook of the Obama administration to a probusiness, less regulation/litigation viewpoint of the Trump White House. 4. Class action litigation increasingly has been shaped and influenced by recent rulings of the U.S. Supreme Court that have affected the prosecution and defense of class actions and government enforcement litigation. The past year continued that trend, with several key decisions on complex employment litigation and class action issues that were arguably more probusiness than decisions in past years. "The stakes in these types of employment lawsuits can be extremely significant, as the financial risks of such cases are enormous," said Mr. Miller in the report. "More often than not, class actions adversely affect the market share of a corporation and impact its reputation in the marketplace. It is a legal exposure which keeps corporate counsel and business executives awake at night." [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. 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