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C L A S S A C T I O N R E P O R T E R
Monday, March 19, 2018, Vol. 20, No. 56
Headlines
7022 LIMITED: "Love" Suit Seeks Interest From Security Deposit
ACE HOMECARE: Molina Seeks OK of FLSA and WARN Suit Settlements
ADAM BUILDER: "Singh" Class Suit Seeks to Recover Unpaid Wages
ADVENTIST MIDWEST: Court Denies Revised "Smith" Class Cert Bid
ADVOCATE HEALTH: Ct. Certifies "Magpayo" State-Law Claims Class
AIRSTREAM INC: Funk Seeks to Certify Employees Class Under FLSA
ALABAMA: Court Adopts Plan to Remedy ADOC Understaffing
ALLIED INTERSTATE: Certification Bid Filed in "Dombrowski" Suit
APPLE INC: Court Won't Certify Class in "Ward" Antitrust Suit
AXIA FINANCIAL: "Willner" Hits Missed Breaks, Seeks Overtime
BEST BUY: Summary Ruling Bid on Strickland's Claims OK'd
BIOVERATIV INC: Faces "Abrahamsen" Suit Over Sale to Sanofi
BONDED COLLECTION: Further Proceedings in "Maniaci" Suit Stayed
CASCADIAN THERAPEUTICS: Faces Suit Over Sale to Seattle Genetics
CENTRAL CREDIT: Court Denies Bid to Certify Class in "Perez" Suit
CLEAR MANAGEMENT: Morrison Seeks Certification of FDCPA Class
CLUB CLIMAXXX: Wallace Seeks to Certify Class of Exotic Dancers
CRST VAN: Reed Moves to Certify 2 FCRA Classes and 2 Subclasses
DIAMOND RESORTS: Del. Supreme Court Flips Dismissal of "Appel"
DRINK INC: Fails to Pay Employees OT, "Melendez" Action Claims
ELECTROLUX HOME: Court Narrows Claims in "Rice"
ENRICH FINANCIAL: Tentative Order Entered in "Aleksanian" Suit
EQUITY EXPERTS.ORG: Bid to Certify "Usry" Class Denied
FAMILY DOLLAR: "Maravilla" Hits Missed Breaks, Seeks Overtime
FEIN SUCH: Court Strikes First Affirmative Defense in "White"
FIRST ACCEPTANCE: Insurance Agents Class Certified in "Twohill"
FOWLER PACKING: "Aldapa" Class Notice & Distribution Plan OK'd
GARDA CL: Does Not Properly Pay Employees, "Blanche" Suit Claims
GENERAL MOTORS: Court Denies Bids to Dismiss Duramax Diesel Suit
GOOGLE LLC: Bid to Dismiss 3rd Amended "Singh" Partly Granted
GUIDUBALDI & ASSOCIATES: Motiwala's Bid to Certify Class Denied
HAMILTON GROUP: "Eaton" Class Suit Seeks to Recover Unpaid Wages
HANOVER INSURANCE: Ct. Won't Enforce "Durand" Scheduling Order
HEALTH CARE: Joint Bid to Modify "Craft" Class Definition Filed
HERSHEY CO: Court Grants Bid for Summary Judgment in "Bratton"
ISLE OF CAPRI: Settlement in "Brna" Suit Has Final Approval
JACKSON HEWITT: Court Narrows Claims in "Lomeli" RICO Suit
KEYES COMPANY: Grigorian Seeks to Certify Two Classes Under TCPA
MARSHALL UNIVERSITY: Bid for Leave to Amend "Kerr" Suit Denied
MICHIGAN: Dearduff Moves to Certify Classes of MDOC Inmates
MIDLAND CREDIT: Illegally Collects Debt, "Taggatz" Suit Claims
MIDLAND CREDIT: Stimpson Moves to Certify Idaho Residents Class
MONTANA: Court Denies Bid to Dismiss "DiFrancesco" Suit
MRI INT'L: April 17 Date to File Bid to Approve "Takiguchi" Deal
NAVY FEDERAL: Faces "Chavez" Class Suit Over Automated Calls
NESTLE USA: Court Denies Bid to Dismiss "Hawkins" Suit
NEVADA: Court Dismisses "Porter" Suit vs. SNAMHS
NEW FOOD CORP: Wins Final OK of $1.5-Mil. Deal in "de los Santos"
NORTH PORT: Court Refuses to Certify FLSA Class in "Morgan" Suit
NUCO2 MANAGEMENT: "Hernandez" Remanded to California State Court
ODWALLA INC: Wilson Moves to Certify 3 Classes of Juice Consumers
ORTSAC MANAGEMENT: Faces "Perez" Suit Over Failure to Pay OT
PROGRESSIVE DIRECT: Jones Moves to Certify Class and 4 Subclasses
PROMOLOGICS INC: America's Health's Bid to Certify Class Denied
REGENCY GP: Delaware Chancery Court Narrows Claims in "Dieckman"
S&A UNIFIED HOME: "Stalling" Suit Seeks Late OT Pay, Other Wages
SENATOR CONSTRUCTION: Faces "Cepeda" Suit Over Failure to Pay OT
SNYDER'S-LANCE: Sciabacucchi Seeks to Halt Sale to Campbell
TOP'S PERSONNEL: Moves to Certify Policyholders Class in AUI Suit
UBER TECHNOLOGIES: Court Certifies Class of Drivers in "Dulberg"
UNITED STATES: Garza Files Renewed Motion for Class Certification
US TOBACCO: $24MM Settlement in "Speaks" Suit Has Final Approval
US TOBACCO: Court Awards $1.9MM Attorneys' Fee in "Speaks" Suit
US TOBACCO: Court Enters Final Judgment in "Speaks" Suit
VIRIDIAN ENERGY: $18.5MM "Sanborn" Settlement Has Prelim Approval
W AVIATION LLC: Class of Technicians Certified in "Dean" Suit
WDE GROUP: Smith Seeks to Certify Class of Delivery Drivers
WISCONSIN: Seeks Decertification of Class in "Austin" Suit
WOORI AMERICA BANK: "Duncan" Claims Website Not Blind Friendly
WORTHINGTON PJ: Bid to Amend "O'Connor" Deal Prelim Approval OK'd
*********
7022 LIMITED: "Love" Suit Seeks Interest From Security Deposit
--------------------------------------------------------------
Stephen Love, Individually and on behalf all others similarly
situated, Plaintiff, v. 7022 Limited Partnership, Defendants,
Case No. 2018-CH-01214 (Ill. Cir., January 29, 2018), seeks
redress for Defendant's failure to pay security deposits under
the City of Chicago Residential Landlord and Tenant Ordinance.
Love leased Number 113 at The Townhouse Apartments located at
7022 South Shore Drive owned and operated by the Defendant where
Love paid a security deposit to Defendant in the amount of $500
in 2014. Love seeks back interest on the security deposit from
2014 to present.
The Plaintiff is represented by:
Jeffrey Sobeck
JS LAW
29 E. Madison Street, Suite 1000
Chicago, IL 60602
Telephone (312) 756-1330
Email: jeffs@jsslawoffices.com
ACE HOMECARE: Molina Seeks OK of FLSA and WARN Suit Settlements
---------------------------------------------------------------
The Plaintiffs in the lawsuit styled TONI MOLINA, et al. v. ACE
HOMECARE, LLC, BRL INVESTMENTS, LLC, ARTHUR BARLAAN, and JOCELYN
BARLAAN, Case No. 8:16-cv-02214-JDW-TGW (M.D. Fla.), file with
the Court their Unopposed Motion for Preliminary Approval of
their FLSA Collective Action Settlement, and for Preliminary
Approval of their Rule 23 WARN Act Class Action Settlement.
The proposed settlement agreements resolve all claims in the
lawsuit alleging that the Defendants' failed to pay the minimum
wages allegedly owed by the Defendants pursuant to the Fair Labor
Standards Act and for Ace Homecare, LLC and BRL Investments,
LLC's violations of the Worker Adjustment and Retraining
Notification Act, when they did not provide 60 days' notice of
closing their business.
If approved, the two settlements would resolve all of the claims
in the lawsuit against all Defendants via entry of a stipulated
judgments for agreed-upon amounts, the Plaintiffs assert.
Specifically, the Parties ask that the Court:
(1) approve the FLSA Settlement Agreement, which includes an
agreement by the Defendants to entry of a judgment against
them in favor of the opt-in Plaintiffs to the FLSA
collective action relief for their unpaid minimum wage
claims and liquidated damages totaling $94,133, plus
attorneys' fees and costs;
(2) grant preliminary approval of the WARN Act Class Action
Settlement Agreement, which also includes an agreement to
the entry of a judgment against Ace and BRL Investments,
LLC in the amount of $290,000 in favor of Plaintiffs;
(3) approve the Notice of Settlement and Preliminary Approval
of the WARN Class Action Lawsuit; and, finally
(4) set a final fairness hearing for the WARN Act settlement.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=niLVOmZL
The Plaintiffs are represented by:
Luis A. Cabassa, Esq.
Brandon J. Hill, Esq.
WENZEL FENTON CABASSA, P.A.
1110 N. Florida Avenue, Suite 300
Tampa, FL 33602
Telephone: (813) 224-0431
Facsimile: (813) 229-8712
E-mail: lcabassa@wfclaw.com
twells@wfclaw.com
bhill@wfclaw.com
jcornell@wfclaw.com
- and -
Chad A. Justice, Esq.
BLACK ROCK TRIAL LAWYERS
201 S Westland Avenue
Tampa, FL 33606
Telephone: (813) 254-1777
Facsimile: (813) 254-3999
E-mail: chadjustice@blackrocklaw.com
The Defendants are represented by:
Stanford R. Solomon, Esq.
Blake J. Fredrickson, Esq.
THE SOLOMON LAW GROUP, P.A.
1881 West Kennedy Boulevard
Tampa, FL 33606
Telephone: (813) 586-0111
Facsimile: (813) 225-1050
E-mail: spiper@solomonlaw.com
bfredrickson@solomonlaw.com
ADAM BUILDER: "Singh" Class Suit Seeks to Recover Unpaid Wages
--------------------------------------------------------------
Avtar Singh, on behalf of himself and others similarly situated
v. Adam Builder Corp. d/b/a Adam Construction Co., Sammy Khan,
and Jamshaid Akhter, Case No. 1:18-cv-01059 (E.D.N.Y., February
19, 2018), seeks to recover unpaid minimum wages, overtime wages,
spread-of-hours pay, late payments of wages, unreimbursed
business expenses and failure to provide wage notices and wage
statements pursuant to New York Labor Law.
The Defendants own and operate a construction company located at
27 Brighton 4th Terrace, Brooklyn, NY 11235. [BN]
The Plaintiff is represented by:
Ariadne Panagopoulou, Esq.
PARDALIS & NOHAVICKA, LLP
3510 Broadway, Suite 201
Astoria, NY 11106
Telephone: (718) 777-0400
Facsimile: (718) 777-0599
E-mail: ari@pnlawyers.com
ADVENTIST MIDWEST: Court Denies Revised "Smith" Class Cert Bid
--------------------------------------------------------------
In the case, RYAN SMITH, on behalf of himself, individually, and
on behalf of all others similarly situated, Plaintiff, v.
ADVENTIST MIDWEST HEALTH, an Illinois nonprofit corporation,
d/b/a ADVENTIST HEALTH CARE AT HOME, Defendant, Case No. 16 C
7606 (N.D. Ill.), Judge Ronald A. Guzman of the U.S. District
Court for the Northern District of Illinois, Eastern Division,
sustained in part, set aside in part and adopted in part the
Defendant's objections to Magistrate Judge Gilbert's Report and
Recommendation of Nov. 17, 2017; and denied without prejudice the
Plaintiff's revised motion for Rule 23 class certification of his
state-law claim and for certification of his FLSA claim under
Section 216(b).
Smith brought the action against Adventist under the Fair Labor
Standards Act ("FLSA"), and the Illinois Minimum Wage Law
("IMWL"), to recover allegedly unpaid overtime wages on behalf of
himself and all similarly-situated individuals. Smith worked for
Adventist as a home health care nurse and seeks to represent
other nurses as well as occupational therapists, physical
therapists, and speech pathologists who are or were employed by
Adventist and classified as exempt employees and who worked more
than forty hours per week.
Smith moved for certification of his IMWL claim as a class action
under Federal Rule of Civil Procedure 23 and for certification of
an FLSA collective action under 29 U.S.C. Section 216(b). The
Court referred the Plaintiff's revised motion to Magistrate Judge
Gilbert for a Report and Recommendation. Judge Gilbert issued a
Report and Recommendation recommending that the Court grants the
Plaintiff's motion.
Adventist filed objections to the Report and Recommendation as
provided by Federal Rule of Civil Procedure 72 and 28 U.S.C.
Section 636(b)(1). It raises six objections to the Report and
Recommendation, the first of which is that Judge Gilbert erred by
concluding that Smith can serve as an adequate representative,
considering his credibility problems.
Judge Gilbert noted (accurately) that a putative class
representative can be adequate without being perfect or the best
representative, and found that Smith is adequate because the
unique aspects of his claims arise primarily at the damages phase
of the case and will not materially affect a decision on whether
Adventist properly classified Clinicians as exempt and did not
pay overtime.
On de novo review, Judge Guzman is persuaded otherwise due to
Smith's peculiar work situation, the severity of his credibility
issues, and the fact that those issues are directly related to
the critical issue of the time Smith actually spent performing
his job for Adventist.
He finds that when Smith worked full-time as a nurse for
Adventist, he also worked full-time as a nurse for Girling. And,
for a few months that overlapped with the time Smith worked for
those employers, he also worked part-time as a nurse/case manager
for ATI. In the context of an overtime case, those circumstances
raise eyebrows from the start. Furthermore, Smith's time records
create serious doubts about his truthfulness. Many instances of
overlap are of significant length, not just a few minutes. Smith
characterizes his recordkeeping as merely "allegedly inaccurate
or inattentive," and argues that it does not demonstrate
dishonesty. But he admitted its pervasive inaccuracy.
In light of his conclusion that Smith is not an adequate class
representative or similarly situated to other Clinicians, the
Judge needs not address Adventist's remaining objections. He
will set aside the portion of the Report and Recommendation
pertaining to adequacy. He says the Plaintiff's counsel may be
able to find a substitute representative who does not suffer from
credibility problems, so his decision that Smith is not an
adequate class representative does not finally resolve the
question of whether this suit should be allowed to proceed as a
class and collective action.
Although Adventist contends that the Court should reverse and
vacate Judge Gilbert's Report and Recommendation in its entirety,
it does not argue that Judge Gilbert's findings with respect to
numerosity and commonality were in error. The Judge agrees with
Judge Gilbert that the proposed class is ascertainable and
satisfies the numerosity requirement (66 putative class members)
and that questions of law or fact common to the proposed class
exist. Accordingly, he will adopt those portions of Judge
Gilbert's analysis, along with those portions of the Report and
Recommendation that discuss Adventist and its pay structure and
the applicable legal standards. Assuming that the Plaintiff's
counsel was able to find a substitute plaintiff and again seek
certification of the same class and collective, the Court's
starting point thus would be the typicality requirement.
For the reasons he explained, Judge Guzman sustained in part the
Defendant's objections to the Report and Recommendation; set
aside in part and adopted in part the Report and Recommendation;
and denied without prejudice the Plaintiff's revised motion for
Rule 23 class certification of his state-law claim and for
certification of his FLSA claim under Section 216(b). A status
hearing is set for March 6, 2018, at 9:30 a.m. to discuss the
next steps in the case.
A full-text copy of the Court's Feb. 20, 2018 Memorandum Opinion
and Order is available at https://is.gd/ryCz4D from Leagle.com.
Ryan Smith, Plaintiff, represented by James B. Zouras --
jzouras@stephanzouras.com -- Stephan Zouras, LLP, Haley Renee
Jenkins -- hjenkins@stephanzouras.com -- Stephan Zouras, Llp,
Ryan F. Stephan -- rstephan@stephanzouras.com -- Stephan, Zouras,
LLP & Teresa M. Becvar -- tbecvar@stephanzouras.com -- Stephan
Zouras, Llp.
ADVENTIST MIDWEST HEALTH, an Illinois Non-profit Corporation,
doing business as ADVENTIST HEALTH CARE AT HOME, Defendant,
represented by Jeffrey A. Risch -- jrisch@salawus.com --
SmithAmundsen LLC, Jon D. Hoag -- jhoag@salawus.com --
SmithAmundsen LLC, Molly Anne Arranz -- marranz@salawus.com --
Smith Amundsen, LLC & Sara Stertz Zorich -- szorich@salawus.com -
- SmithAmundsen LLC.
ADVOCATE HEALTH: Ct. Certifies "Magpayo" State-Law Claims Class
---------------------------------------------------------------
In the case, CRIXENIA MAGPAYO, individually and on behalf of all
others similarly situated, Plaintiff, v. ADVOCATE HEALTH AND
HOSPITALS CORPORATION, Defendant, Case No. 16-cv-01176 (N.D.
Ill.), Judge John Robert Blakey of the U.S. District Court for
the Northern District of Illinois, Eastern Division, granted the
Plaintiff's motion to certify a class for her state-law claims
and conditionally certify an FLSA collective action, and granted
in part and denied in part the Defendant's motion for summary
judgment.
The Plaintiff worked as a nurse in the hospital's emergency room
department ("ED")from about April 2012 to January 2016. She
alleges that she and other current and former registered nurses
from Trinity's ED are similarly situated because the Defendant
failed to pay them for some or all of their work, affecting all
proposed class members equally.
Magpayo sued the Defendant under the Fair Labor Standards Act
("FLSA"); the Illinois Minimum Wage Law ("IMWL"); and the
Illinois Wage Payment and Collection Act ("IWPCA"). The
Plaintiff alleges that the Defendant failed to pay her -- and
others similarly situated -- certain overtime wages and wages
earned for working through lunch breaks.
ThePlaintiff seeks conditional certification of her proposed FLSA
class and certification of her proposed Rule 23(b)(3) classes for
IMWL and IWPCA claims.
She seeks to certify an IWPCA class defined as a ll persons
employed by Advocate Health and Hospitals Corporation as hourly
paid nurses in Trinity Hospital's Emergency Department since Jan.
26, 2006 and who had a 30-minute meal period automatically
deducted from their scheduled shift.
She seeks to certify an IMWL class defined as all persons
employed by Advocate Health and Hospitals Corporation as hourly
paid nurses in Trinity Hospital's Emergency Department and who
were paid for working at least 38.5 hours in an individual work
week since Jan. 26, 2013.
The Defendant seeks summary judgment on all claims.
Based upon the record, Judge Blakey finds no genuine issue of
material fact precludes granting Defendant's summary judgment
motion as to the Plaintiff's FLSA and IMWL claims for any other
unidentified workweek. Consequently, the Judge will partially
grants the Defendant's summary judgment motion as to FLSA and
IMWL claims based upon any workweeks other than the 24 weeks that
the Plaintiff identified.
The Judge also finds that interpreting the evidence in the case
in the light most favorable to the Plaintiff, a reasonable fact-
finder could conclude that she and the Defendant mutually
assented to an agreement that the Defendant would pay Plaintiff
$36.75 per hour for all hours spent on nursing work, regardless
of whether those hours were properly recorded. He also notes
that the Plaintiff's missed meal periods technically were
recorded hours -- the Defendant subtracted 30-minutes' pay per
shift from the total time that the Plaintiff remained logged in
to AW.
By deducting 30-minutes' pay from each of the Plaintiff's shifts
even though she never got a lunch break, the Judge finds that the
Defendant ostensibly deprived the Plaintiff of wages it owed her
under that employment agreement. Therefore he will deny the
Defendant's summary judgment motion as to the Plaintiff's IWPCA
claim.
Judge Blakey finds further finds that the Plaintiff has satisfied
all Rule 23(a) and Rule 23(b)(3) requirements for certifying her
IMWL class and IWPCA class.
For the reasons he explained, Judge Blakey partially granted and
partially denied the Defendant's motion for summary judgment. He
granted the Plaintiff's motion to certify her state-law claims as
class actions and conditionally certify her FLSA class. The case
is set for a case management conference at 10:15 a.m. on March 6,
2018.
A full-text copy of the Court's Feb. 20, 2018 Memorandum Opinion
and Order is available at https://is.gd/pVGoZw from Leagle.com.
Crixenia Magpayo, individually, and on behalf of all others
similarly situated, Plaintiff, represented by Maureen Ann Salas -
- msalas@flsalaw.com -- Werman Salas P.C., Douglas M. Werman --
dwerman@flsalaw.com -- Werman Salas P.C., Sarah Jean Arendt --
sarendt@flsalaw.com -- Werman Salas P.C. & Zachary Cole Flowerree
-- zflowerree@flsalaw.com -- Werman Salas P.C.
Advocate Health and Hospitals Corporation, Defendant, represented
by Efrat R. Schulman -- eschulman@jonesday.com -- Jones Day.
AIRSTREAM INC: Funk Seeks to Certify Employees Class Under FLSA
---------------------------------------------------------------
The Plaintiff in the lawsuit styled Funk, On behalf of herself
and other members of the general public similarly situated v.
Airstream, Inc., et al, Case No. 3:17-cv-00260-WHR-MJN (S.D.
Ohio), asks the Court pursuant to Section 16(b) of the Fair Labor
Standards Act to enter an order conditionally certifying this
proposed collective class:
All current and former hourly, non-exempt employees of
Defendants, who received any additional form of remuneration
during any workweek that they worked over 40 hours in any
workweek beginning March 1, 2015 and continuing through the
date of final disposition of this case.
Ms. Funk also seeks an order:
(1) implementing a procedure whereby Court-approved Notice of
Plaintiff's FLSA claims is sent (via U.S. Mail and e-mail)
to the class members;
(2) approving a Reminder Email to be sent to Putative Class
Members halfway through the 90-day notice period; and
(3) requiring the Defendants to, within 14 days of this
Court's order, identify all potential opt-in plaintiffs by
providing a list in electronic and importable format, of
the names, addresses, and e-mail addresses of all
potential opt-in plaintiffs who worked for the Defendants
at any time from three years preceding the filing of this
Motion through the present.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=YIqhYmDT
The Plaintiff is represented by:
Matthew J.P. Coffman, Esq.
COFFMAN LEGAL, LLC
1457 S. High St.
Columbus, OH 43207
Telephone: (614) 949-1181
Facsimile: (614) 386-9964
E-mail: mcoffman@mcoffmanlegal.com
- and -
Daniel I. Bryant, Esq.
BRYANT LEGAL, LLC
1457 S. High St.
Columbus, OH 43207
Telephone: (614) 704-0546
Facsimile: (614) 573-9826
E-mail: dbryant@bryantlegalllc.com
ALABAMA: Court Adopts Plan to Remedy ADOC Understaffing
-------------------------------------------------------
In the case, EDWARD BRAGGS, et al., Plaintiffs, v. JEFFERSON S.
DUNN, in his official capacity as Commissioner of the Alabama
Department of Corrections, et al., Defendants, Civil Action No.
2:14cv601-MHT (M.D. Ala.), Judge Myron H. Thompson of the U.S.
District Court for the Middle District of Alabama, Northern
Division, entered an Order adopting the Defendants' proposed
plan, with some modifications, as a remedy for understaffing,
albeit with minor modifications.
The Plaintiffs in the class-action lawsuit include a group of
mentally ill prisoners in the custody of the Alabama Department
of Corrections ("ADOC"). The Defendants are ADOC Commissioner
Jefferson Dunn and the ADOC Associate Commissioner of Health
Services Ruth Naglich, who are both sued in only their official
capacities.
In a liability opinion entered on June 27, 2017, the Court found
that ADOC's mental-health care for prisoners in its custody was
horrendously inadequate. In addition, it found that persistent
and severe shortages of mental-health staff and correctional
staff constitute an overarching issue that permeates each of the
contributing factors of inadequate mental-health care. Given the
severity and urgency of the need for mental-health care explained
in the opinion, the Court emphasized, the proposed relief must be
both immediate and long term.
After two months of mediation to develop a comprehensive remedial
plan, it became apparent that the remedy was too large and
complex to be addressed all at once. The Court therefore severed
the remedy into several discrete issues, to be addressed
seriatim. It explained that in a sense all of the contributing
factors identified in the Court's June 27 opinion warrant urgent
resolution. It convinced that breaking down the issues will, in
the long run, result in a more efficient, timely, and full
resolution of this aspect of the litigation.
Because of the centrality of understaffing to other problems in
ADOC's provision of mental-health care, it was determined that
this issue must be addressed at the outset, and that the earlier
the problem is attacked the better. Accordingly, on Oct. 9,
2017, the Defendants submitted a proposed remedial plan on
understaffing, to which the Plaintiffs were allowed to respond.
The Court then held a 90-day evidentiary hearing, and heard oral
argument, in late 2017 on whether the plan should be adopted as
proposed, and whether a remedial order should be entered at the
time. After oral argument, the parties were instructed to submit
proposed orders. Because the plan changed in certain respects
over the course of this process, the Defendants submitted a
revised timeline.
In order to determine how many officers are needed to address
ADOC's correctional understaffing problem, the Defendants have
retained experts Margaret and Merle Savage to conduct
comprehensive staffing analyses at each of ADOC's major
facilities, with the exception of the Julia Tutwiler Prison for
Women. By the time of the evidentiary hearing, the Savages had
already completed preliminary analyses at three facilities: Bibb
Correctional Facility, Donaldson Correctional Facility, and
Hamilton Aged and Infirmed Center. According to the Defendants'
plan, the Savages are to complete final staffing analyses for all
15 major facilities except Tutwiler, as well as short- and long-
term recommendations for all major facilities including Tutwiler,
by May 1, 2018. The Defendants have retained two consulting
firms to aid in the implementation of the Savages'
recommendations, as modified by any agreements between the
parties or orders of the Court.
The Defendants' plan to the extent it addresses mental-health
understaffing contains two "centerpieces." Their Phase 2A
Proposed Remedial Plan on Correctional and Mental Health Staffing
at 16. In the short run, a Request for Proposal ("RFP") issued
in July 2017 will nearly double the number of ADOC mental-health
staff when implemented. In the long run, ADOC has retained three
consultants to develop mental-health staffing ratios, which will
be used along with the Department's caseload numbers to generate
an appropriate number of mental-health staff. In addition,
between January 2017 and October 2017, ADOC increased its
spending on mental-health staff by approximately five million
dollars and added approximately 60 full-time-equivalent
positions.
With regard to mental-health services, the new OHS staffing plan
provides for three regional clinical registered nurses who will
oversee both medical and mental-health nursing. The plan
provides for a Clinical Director of Psychiatry, a position that
is not yet filled. It calls for having two psychologists, one in
each region, and a Director of Mental Health.
The Director of Mental Health will be a health services
administrator who provides administrative but not clinical
oversight. ADOC requested in the late spring or early summer of
2017 that the State Personnel Department create this position.
The position remains unfilled. Commissioner Dunn estimated in
November 2017, consistent with the proposed timeline, that it
would take between four and six months to fill this position once
the State Personnel Department has approved it.
In response to the Defendants' plan, the Plaintiffs raise several
serious concerns, including that the number of ADOC correctional
officers has precipitously declined since the liability trial in
late 2016 and early 2017, and, indeed, even since the liability
opinion was entered in late June 2017. Moreover, the Defendants
have repeatedly delayed negotiating, executing, and implementing
the July 2017 RFP.
Judge Thompson agrees with the Plaintiffs that, in light of the
serious and longstanding violations shown, and the lack of
progress on understaffing -- indeed, in many ways, regression --
since trial, a remedial order is necessary. He states that the
State of Alabama cannot be allowed to kick the can down the road.
However, as the evidence and argument have demonstrated, he finds
that the Defendants' proposed plan represents a serious, albeit
concededly minimal, effort to remedy a complex and difficult
problem. Despite the immediate need to remedy understaffing, and
distressing indications that the problem may have worsened since
the liability opinion, it may simply not be possible to turn this
ship around on a dime.
The Defendants will, therefore, be given an opportunity to
implement its proposed remedy and to demonstrate that it is
producing meaningful and immediate results. The Judge,
therefore, entered a remedial order adopting the Defendants'
plan, albeit with some modifications. With regard to the
deadlines adopted, he emphasized that the Defendants are not to
delay implementation until the last minute, but are to begin
immediately and swiftly upon receiving the relevant
recommendations.
While the Judge, in deference to the State and in his discretion,
declined to order the recommendations proposed by the Plaintiffs,
he will not abdicate his constitutional duty to enforce the
constitutional rights of all 'persons,' including prisoners." In
overseeing the Defendants' implementation of their plan, he will
not allow constitutional violations to continue simply because a
remedy would involve intrusion into the realm of prison
administration. Rather, he will remain poised to step in should
the Defendants fail to uphold their commitment, or should the
plan prove inadequate to remedy, in a timely fashion, the
violations shown.
With regard to correctional understaffing, Judge Thompson finds
that the Defendants' plan to use the Savages' staffing analyses
and resulting recommendations will provide the Defendants with a
comprehensive understanding of the ADOC's correctional staffing
needs and with an opportunity for all parties to respond and
resolve any disputes that may arise. With regard to mental-
health understaffing, all parties recognize that the
implementation of the July 2017 RFP constitutes a necessary first
step to address ADOC's mental-health understaffing.
The Defendants have proposed quarterly reporting requirements,
and the Judge will enact those requirements in its remedial
order. He finds that the quarterly reporting requirements comply
with the PLRA because ongoing reporting, as proposed by the
Defendants, is necessary to apprise the Court of whether the
their plan is addressing ADOC's correctional and mental-health
understaffing effectively and as quickly as possible, and to
alert the Court if additional measures are needed. Thus, the
Judge finds that such relief is narrowly drawn, extends no
further than necessary to remedy the constitutional violation
found, and is the least intrusive means of doing so.
In addition, the Defendants ask that no quarterly report be
admissible against the State, ADOC, its employees, contractors,
or contractor's employees in any civil action or other
proceeding. Judge Thompson cannot agree to this condition,
primarily because the purpose of the reports is to inform the
Plaintiffs and the Court about what is occurring, so that they
may act on this knowledge as necessary.
Finally, the Judge finds that the proposed relief will have no
adverse effect on public safety or the operation of the criminal-
justice system. As numerous ADOC officials testified at the
liability trial and remedy hearing, and as the Court has
previously found, correctional understaffing at ADOC facilities
has resulted in a dangerous environment for both ADOC staff and
inmates.
Moreover, the Judge finds that ADOC's persistent and severe lack
of mental-health staff has resulted in inmates with serious
mental-health needs being under-identified and inadequately
treated. Requiring the Defendants simply to execute their plan
to remedy what ADOC officials have acknowledged is a serious and
urgent problem can, if anything, be expected to have a positive
impact on public safety and the operation of the criminal-justice
system.
A full-text copy of the Court's Feb. 20, 2018 Opinion is
available at https://is.gd/nZfYP7 from Leagle.com.
Edward Braggs, on behalf of himself and all others similarly
situated, Tedrick Brooks, on behalf of himself and all others
similarly situated, Gary Lee Broyles, on behalf of himself and
all others similarly situated, Chandler Clements, on behalf of
himself and all others similarly situated, Christopher Gilbert,
on behalf of himself and all others similarly situated, Dwight
Hagood, on behalf of himself and all others similarly situated,
Sylvester Hartley, on behalf of himself and all others similarly
situated, Christopher Jackson, on behalf of himself and all
others similarly situated, Brandon Johnson, on behalf of himself
and all others similarly situated, John Maner, on behalf of
himself and all others similarly situated, Rick Martin, on behalf
of himself and all others similarly situated, Willie McClendon,
on behalf of himself and all others similarly situated, Roger
McCoy, on behalf of himself and all others similarly situated,
Jermaine Mitchell, on behalf of himself and all others similarly
situated, Tommie Moore, on behalf of himself and all others
similarly situated, Matthew Mork, on behalf of himself and all
others similarly situated, Bradley Pearson, on behalf of himself
and all others similarly situated, Leviticus Pruitt, on behalf of
himself and all others similarly situated, Turner Rogers, on
behalf of himself and all others similarly situated, Timothy
Sears, on behalf of himself and all others similarly situated,
Brian Sellers, on behalf of himself and all others similarly
situated, Augustus Smith, on behalf of himself and all others
similarly situated, Hubert Tollar, on behalf of himself and all
others similarly situated, Daniel Tooley, on behalf of himself
and all others similarly situated, Joseph Torres, on behalf of
himself and all others similarly situated, Donald Ray Turner, on
behalf of himself and all others similarly situated, Jamie
Wallace, on behalf of himself and all others similarly situated,
Robert Myniasha Williams, on behalf of himself and all others
similarly situated, Roger Moseley, Quang Bui, Charlie Henderson,
Sheila Allen, on behalf of herself and all others similarly
situated & William Sullivan, on behalf of himself and all others
similarly situated, Plaintiffs, represented by Andrew Philip
Walsh -- awalsh@bakerdonelson.com -- Baker Donelson Bearman
Caldwell & Berkowitz PC, Jack Richard Cohen, Southern Poverty Law
Center, Latasha Lanette McCrary -- latasha.mccrary@splcenter.org
-- Southern Poverty Law Center, Maria V. Morris --
maria.morris@splcenter.org -- Southern Poverty Law Center,
Patricia Clotfelter -- pclotfelter@bakerdonelson.com -- Baker
Donelson Bearman Caldwell & Berkowitz PC, Rhonda C. Brownstein --
rhonda.brownstein@splcenter.org -- Southern Poverty Law Center,
William Glassell Somerville, III, Baker Donelson Bearman Caldwell
& Berkowitz & William Van Der Pol, Jr., Alabama Disabilities
Advocacy Program.
Alabama Disabilities Advocacy Program, Plaintiff, represented by
Anil Ashok Mujumdar -- anil@zarzaur.com -- Zarzaur Mujumdar &
Debrosse, Diandra S. Debrosse Zimmermann -- fuli@zarzaur.com --
Zarzaur Mujumdar & Debrosse, Glenn Nelson Baxter, Alabama
Disabilities Advocacy Program, Gregory Martin Zarzaur --
gregory@zarzaur.com -- Zarzaur Mujumdar & Debrosse, Andrea Jane
Mixson, Alabama Disabilities Advocacy Program & Denise Wiginton,
Zarzaur Mujumdar & Debrosse.
All Plaintiffs, on behalf of themselves and all others similarly
situated, Plaintiff, represented by Andrew Philip Walsh, Baker
Donelson Bearman Caldwell & Berkowitz PC, Caitlin J. Sandley,
Southern Poverty Law Center, Grace Graham, Southern Poverty Law
Center, Jack Richard Cohen, Southern Poverty Law Center, Latasha
Lanette McCrary, Southern Poverty Law Center, Maria V. Morris ,
Southern Poverty Law Center, Patricia Clotfelter, Baker Donelson
Bearman Caldwell & Berkowitz PC, Rhonda C. Brownstein, Southern
Poverty Law Center, William Van Der Pol, Jr., Alabama
Disabilities Advocacy Program, Anil Ashok Mujumdar, Zarzaur
Mujumdar & Debrosse, Barbara Ann Lawrence, Alabama Disabilities
Advocacy Program, Jonathan Michael Barry-Blocker, Southern
Poverty Law Center, Lisa Wright Borden, Baker Donelson Bearman
Caldwell & Berkowitz PC, Lonnie Jason Williams, Alabama
Disabilities Advocacy Program & William Glassell Somerville, III
, Baker Donelson Bearman Caldwell & Berkowitz.
Ruth Naglich, in her official capacity as Associate commissioner
of health Services for the Alabama Department of Corrections &
Jefferson S. Dunn, in his official capacity as Commissioner of
the Alabama Department of Corrections, Defendants, represented by
Anne Adams Hill, Alabama Department of Corrections, David Randall
Boyd, Balch & Bingham LLP, Elizabeth Anne Sees, Alabama
Department of Corrections, Evan Patrick Moltz --
rbennett@maynardcooper.com -- Maynard, Cooper & Gale, P.C., John
Garland Smith, Balch & Bingham LLP, Joseph Gordon Stewart, Jr.,
Alabama Dept of Corrections, Luther Maxwell Dorr, Jr. --
rdorr@maynardcooper.com -- Maynard, Cooper & Gale, P.C., Matthew
Reeves -- mreeves@maynardcooper.com -- Maynard Cooper & Gale PC,
Mitesh Bansilal Shah -- mshah@maynardcooper.com -- Maynard,
Cooper & Gale, PC, Steven C. Corhern, Balch & Bingham, William
Richard Lunsford, Maynard Cooper & Gale PC, Melissa K. Marler --
mmarler@maynardcooper.com -- Maynard, Cooper & Gale PC, Michael
Paul Huff -- mhuff@maynardcooper.com -- Maynard Cooper &
Gale PC & Stephen Clarence Rogers -- srogers@maynardcooper.com --
Maynard Cooper and Gale PC.
Alabama Department of Corrections, Defendant, represented by
David Randall Boyd -- dboyd@balch.com -- Balch & Bingham LLP,
John W. Naramore -- jnaramore@balch.com -- Balch & Bingham LLP,
John Garland Smith -- jgsmith@balch.com -- Balch & Bingham LLP,
Anne Adams Hill, Alabama Department of Corrections, Elizabeth
Anne Sees, Alabama Department of Corrections, Joseph Gordon
Stewart, Jr., Alabama Dept of Corrections, Steven C. Corhern --
scorhern@balch.com -- Balch & Bingham & William Richard Lunsford
-- lpotter@maynardcooper.com.
MHM Correctional Services, Inc., Movant, represented by Brett T.
Lane -- djohnson@mhm-services.com -- MHM Services, Inc. & Deana
Johnson, MHM Services, Inc., pro hac vice.
Corizon Health, Inc., Movant, represented by Melissa K. Marler,
Maynard, Cooper & Gale PC, Stephen Clarence Rogers, Maynard
Cooper and Gale PC & William Richard Lunsford, Maynard Cooper &
Gale PC.
Kim Thomas, Movant, represented by Melissa K. Marler, Maynard,
Cooper & Gale PC, Mitesh Bansilal Shah, Maynard, Cooper & Gale,
PC, Stephen Clarence Rogers, Maynard Cooper and Gale PC & William
Richard Lunsford, Maynard Cooper & Gale PC.
ALLIED INTERSTATE: Certification Bid Filed in "Dombrowski" Suit
---------------------------------------------------------------
Steve Dombroski moves the Court to certify the class described in
the complaint of the lawsuit styled STEVE DOMBROWSKI,
Individually and on Behalf of All Others Similarly Situated v.
ALLIED INTERSTATE LLC, Case No. 2:18-cv-00348-JPS (E.D. Wisc.),
and further asks that the Court both stay the motion for class
certification and to grant the Plaintiff (and the Defendant)
relief from the Local Rules setting automatic briefing schedules
and requiring briefs and supporting material to be filed with the
Motion.
Dicta in the Supreme Court's decision in Campbell-Ewald Co. v.
Gomez, left open the possibility that a defendant facing a class
action complaint could moot a class representative's case by
depositing funds equal to or in excess of the maximum value of
the plaintiff's individual claim with the court and having the
court enter judgment in the plaintiff's favor prior to the filing
of a class certification motion, the Plaintiff asserts, citing
Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016).
To avoid the risk of a defendant mooting a putative class
representative's individual stake in the litigation, the Seventh
Circuit instructed plaintiffs to file a certification motion with
the complaint, along with a motion to stay briefing on the
certification motion. Damasco v. Clearwire Corp., 662 F.3d 891,
896 (7th Cir. 2011), overruled on other grounds, Chapman v. First
Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of
that motion [for class certification] protects a putative class
from attempts to buy off the named plaintiffs.").
The Plaintiff is obligated to move for class certification to
protect the interests of the putative class, the Plaintiff
contends. More than one defendant has already attempted the
scheme contemplated in Campbell-Ewald. See Severns v. Eastern
Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016
U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016). Judge Randa
denied the defendant's request to deposit funds on grounds that a
class certification motion was pending.
As the Motion to certify a class is a placeholder motion as
described in Damasco, the parties and the Court should not be
burdened with unnecessary paperwork and the resulting expense
when short motion to certify and stay should suffice until an
amended motion is filed, the Plaintiff contends.
The Plaintiff also asks to be appointed as class representative,
and for the appointment of Ademi & O'Reilly, LLP, as class
counsel.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=EjzbLef0
The Plaintiff is represented by:
John D. Blythin, Esq.
Mark A. Eldridge, Esq.
ADEMI & O'REILLY, LLP
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482-8000
Facsimile: (414) 482-8001
E-mail: jblythin@ademilaw.com
meldridge@ademilaw.com
APPLE INC: Court Won't Certify Class in "Ward" Antitrust Suit
-------------------------------------------------------------
Judge Yvonne Gonzalez Rogers of the U.S. District Court for the
Northern District of California denied the Plaintiffs' motion for
certification in the case, ZACK WARD, ET AL., Plaintiffs, v.
APPLE INC., Defendant, Case No. 12-cv-05404-YGR (N.D. Cal.).
On March 22, 2017, the Court granted in part and denied in part
Apple's motion for summary judgment. Based on certain evidence
submitted by the Plaintiffs, the Court found that even though
Apple was no longer bound to create iPhones that could only
function on the GSM network after 2010, those who purchased
iPhones prior to the end of exclusivity still had to remain on
the GSM network. These consumers could have expected to switch
to another GSM provider, like T-Mobile, at the end of the two-
year contract with AT&T. However, as the Plaintiffs' evidence
suggests, AT&T did not begin providing unlock codes for such
phones until April 2012. Consequently, these consumers would
have been locked into renewing AT&T service, or else lose the
cellular capabilities of their iPhones.
In light of the Court's summary judgment order, the Plaintiffs
now allege that b locking the iPhones and refusing to give
consumers the software codes needed to unlock them, Apple and
AT&T unlawfully prevented iPhone customers from exercising their
legal right to switch carriers. Among other injuries, the
Plaintiffs allege that iPhone consumers were unable to switch to
a less expensive carrier and unable to use local carriers while
traveling abroad, thus incurring "exorbitant roaming charges."
Despite the passage of time and a trial date set for Aug. 20,
2018, the Plaintiffs now offer an 11-page expert declaration of
Dr. Frederick R. Warren-Boulton in support of class
certification, which purportedly shows that there are established
and reliable econometric methodologies available to prove
antitrust impact and damages caused by Apple's alleged
anticompetitive conduct on a class-wide basis. Dr. Warren-
Boulton's theories of impact and damages are based on the
existence of two "but-for" worlds. According to him, the timing
and nature of the harm to members of the class, as well as the
methodology for estimating that harm, depends on the assumed but-
for world.
The "Truthfully Exclusive" ("TE") World is a world in which Apple
would have adequately informed prospective customers that neither
it nor AT&T would unlock their iPhones when their initial service
contracts with AT&T ended. In the TE World, Dr. Warren-Boulton
posits that providing this information would have reduced
consumers' willingness to pay, or "reservation prices" of iPhone
purchasers, by an amount equal to the present value of the lower
prices or higher quality on the service they could have expected
to receive on their iPhones after the expiration of their initial
service contracts.
On the other hand, the "Truthfully Non-Exclusive" ("TNE") World
is a world in which Apple, upon request, would have agreed to
unlock customers' iPhones at the end of their initial service
contracts. D r. Warren-Boulton postulates that the refusal of
Apple and AT&T to unlock phones increased the total cost of
ownership in the as-is world through higher prices or lower
quality (or both) on the service received by iPhone purchasers.
Beyond the two articulated theories, the expert's declaration is
devoid of analysis. Instead, Dr. Warren-Boulton asserts that
based on his preliminary review of certain data collected and
techniques employed by Dr. Simon J. Wilkie in a separate
litigation involving Apple, Dr. Warren-Boulton does not expect to
encounter any insurmountable difficulty in applying Dr. Wilkie's
techniques to form an estimate of harm to consumers in the TE and
TNE worlds. Thus, according to Dr. Warren-Boulton, in both
worlds there exists a common methodology and data to reliably
assess the existence and amount of damages to the Class members
without the need for individual inquiry.
Now, before the Court is the Plaintiffs' motion for class
certification pursuant to Federal Rule of Civil Procedure
23(b)(3). They seek class certification in connection with their
claims against Apple, which they describe as arising out of the
undisclosed and unprecedented exclusivity agreements between
Apple and AT&T which locked the Plaintiffs and all other iPhone
consumers into using AT&T's voice and data service, even after
their wireless services agreements ('WSAs') with AT&T expired and
even if they paid an early termination fee ('ETF') under the
WSAs. The Defendant opposes.
Having carefully considered the papers submitted on the motion
and oral arguments held on Feb. 6, 2018, Judge Rogers denied the
Plaintiffs' motion for certification. The Judge concludes that
she is unable to fulfill her obligation. Dr. Warren-Boulton's
declaration is essentially lacking any data-driven analysis.
Instead, he refers generically to an extant common methodology
and data, which he will supposedly use to reliably assess the
existence and amount of damages to the Class members. His
failure to provide properly analyzed, reliable evidence that a
common method of proof exists to prove impact on a class-wide
basis is fatal.
Indeed, Dr. Warren-Boulton has failed to submit any semblance of
a functioning model that is tailored to market facts in the case
at hand. Dr. Warren-Boulton's "but-for" world hypotheses offer
only theories of impact and damages, and theory alone is not
sufficient to satisfy Rule 23(b)(3)'s requirements. Absent a
data-driven model, the Plaintiffs have failed to meet their
burden under Rule 23 to provide a viable method for demonstrating
class-wide antitrust injury based on common proof. The Order
terminates Docket Number 158.
A full-text copy of the Court's Feb. 16, 2018 Order is available
at https://is.gd/jR8BIx from Leagle.com.
Zack Ward, on behalf of himself and all others similarly situated
& Thomas Buchar, on behalf of himself and all others similarly
situated, Plaintiffs, represented by Mark Carl Rifkin --
rifkin@whafh.com -- Wolf Haldenstein Adler Freeman & Herz LLP,
pro hac vice, Michael Milton Liskow -- liskow@whafh.com -- Wolf
Haldenstein Adler Freeman & Herz LLP, Rachele R. Rickert --
rickert@whafh.com -- Wolf Haldenstein Adler Freeman & Herz LLP &
Randall Scott Newman -- newman@whafh.com -- Wolf Haldenstein
Adler Freeman & Herz LLP.
Apple Inc., Defendant, represented by Christopher S. Yates --
chris.yates@lw.com -- Latham & Watkins LLP, Daniel Murray Wall --
dan.wall@lw.com -- Latham & Watkins LLP & Sadik Harry Huseny --
sadik.huseny@lw.com -- Latham & Watkins LLP.
AT&T Mobility, Interested Party, represented by Raymond Paul
Bolanos -- rb2659@att.com -- AT&T Services, Inc. Legal Dept.
AXIA FINANCIAL: "Willner" Hits Missed Breaks, Seeks Overtime
------------------------------------------------------------
Barry Willner, on behalf of himself and all others similarly
situated, Plaintiffs, v. AXIA Financial, LLC, Defendants, Case
No. BC692009 (Cal. Super., January 29, 2018), seeks redress for
failure to provide meal periods, rest periods, minimum wages,
overtime, complete and accurate wage statements and resulting
from unfair business practices, waiting time penalties for unpaid
wages due upon termination and in violation of the California
Labor Laws of the Business and Professions Code, including
declaratory relief, damages, penalties, equitable relief, costs
and attorneys' fees under the Unfair Competition Law of the
California Business and Professions Code and applicable
Industrial Welfare Commission Wage Orders.
AXIA Financial is a mortgage lending company where Willner worked
as mortgage advisor at their Westlake Village branch. [BN]
Plaintiff is represented by:
Brian D. Chase, Esq.
Jerusalem F. Beligan, Esq.
Daniel J. Hyun, Esq.
BISNAR CHASE LLP
1301 Dove Street, Suite 120
Newport Beach, California 92660
Telephone: (949) 752-2999
Facsimile: (949) 752-2777
Email: bchase@bisnarchase.com
jbeligan@bisnarchase.com
dhyun@bisnarchase.com
BEST BUY: Summary Ruling Bid on Strickland's Claims OK'd
--------------------------------------------------------
In the case, STARVONNA HARRIS, et al., Plaintiffs, v. BEST BUY
STORES, L.P., Defendant, Case No. 17-cv-00446-HSG (N.D. Cal.),
Judge Haywood S. Gilliam, Jr. of the U.S. District Court for the
Northern District of California partly granted the Defendant's
motion for summary judgment.
It is Plaintiff Harris' second action against the Defendant in
the Court. Harris filed a putative class action against the
Defendant on Feb. 11, 2015, asserting various wage and hour
claims under California and federal law. On Aug. 1, 2016, the
Court granted in part and denied in part Defendant's motion for
summary judgment. Specifically, the Court denied the Defendant's
summary judgment motion as to Harris' claim for failure to pay
all overtime wages owed, insofar as that claim was based on the
Defendant's failure to properly calculate overtime on two of its
employee bonus programs.
The Defendant subsequently moved for reconsideration of the Prior
Summary Judgment Order, arguing that Harris' overtime wage claim
failed as a matter of law. On reconsideration, the Court granted
the Defendant's motion for summary judgment as to Harris' claim
for failure to pay overtime wages, dismissing that claim with
prejudice. Several of Harris' other claims, however, survived
summary judgment.
Harris, now joined by Plaintiff Strickland, filed the action
against the Defendant on Jan. 27, 2017. On April 13, 2017, the
Defendant moved to dismiss the first amended complaint ("FAC"),
or alternatively, for judgment on the pleadings. The Court
granted the Plaintiffs' motion for leave to amend the complaint,
and the Plaintiffs filed the SAC on July 13, 2017.
The SAC asserts seven claims for: (1) failure to pay overtime
wages; (2) failure to make payments within the required time; (3)
failure to provide proper itemized wage statements; (4) failure
to provide reimbursements; (5) unfair competition; (6) failure to
provide personnel file and employment records; and (7) violations
of PAGA. Only Strickland asserts claim one for failure to pay
overtime wages. Only Harris asserts claims four, six, and seven.
The Plaintiffs both assert claims two, three, and five.
Following the filing of the SAC, the Defendant filed a motion to
dismiss or strike Harris' seventh claim under PAGA, and moved for
summary judgment on Strickland's claims. First, it argues that
the doctrine of res judicata bars Strickland from reasserting
claims that he unsuccessfully raised in the State Action.
Second, it argues that Strickland's first claim for failure to
pay overtime fails because it properly calculated Strickland's
regular rate of pay, and thus paid Strickland all the overtime he
was owed. The Defendant contends that Strickland's other claims
are derivative of his overtime wage claim, and thus fall with
that claim.
Judge Gilliam agrees with the Defendant as to each ground. He
finds res judicata precludes Strickland from reasserting the same
claims that he raised in the state action. The Plaintiffs fail
to distinguish Strickland's federal and state court claims.
To begin, a plain reading of Strickland's state court pleading
belies the Plaintiffs' portrayal of the State Action as
pertaining to the sole issue of the Defendant's wrongful award of
PTE points instead of cash. Strickland pled his prior
allegations far more broadly than the Plaintiffs suggest.
In addition to claiming that the State Action raised a different
harm, the Plaintiffs also characterize the State Action as
pertaining to a different time period (i.e., violations occurring
on a weekly basis as opposed to a monthly one), and to a
different actor (the specific individual who decided to pay
points instead of cash). Again, Strickland's state court
complaint on its face contravenes these claims. But even if the
Plaintiffs were correct, the Judge says these fine factual
distinctions do not create a meaningful legal difference.
The Judge also finds that there is no dispute of material fact
underlying Strickland's overtime wage claim. The Defendant
correctly excluded that component of Strickland's monthly STI
bonus directly attributable to overtime earnings. Because there
is no material factual dispute underlying Strickland's claim for
overtime wages, summary judgment is appropriate as to that claim.
In sum, summary judgment as to Strickland's claims is appropriate
based either on res judicata, or alternatively, because no
dispute of material fact exists as to whether Defendant properly
paid Strickland overtime wages owed. The Judge will therefore
grant the Defendant's motion for summary judgment as to Plaintiff
Strickland's claims.
Finally, the Judge concludes that Harris can assert her PAGA
claim based only on those harms that she may have personally
experienced: that is, only those based on underlying labor code
violations that survived summary judgment in the Prior Federal
Action. Both the plain text of PAGA and judicial constructions
of that statute support that conclusion. PAGA's operative
provision, California Labor Code Section 2699, allows an
"aggrieved employee" to bring a PAGA claim "on behalf of himself
or herself and other current employees" pursuant to certain
statutorily specified procedures. Subsection (c) of that
provision defines an "aggrieved employee" as "any person who was
employed by the alleged violator and against whom one or more of
the alleged violations was committed." Taken together, the Judge
reads these provisions as requiring an employee bringing a
representative PAGA action to have experienced the labor code
violation of which she complains.
For these reasons, Judge Gilliam granted the Defendant's motion
for summary judgment as to Strickland's claims, and granted the
Defendant's motion to dismiss Harris' seventh cause of action
under PAGA insofar as Harris' PAGA cause of action is based on
her claim to overtime wages.
As to Harris's PAGA cause of action, the Judge's resolution of
Harris' overtime wage claim in the Prior Federal Action shows
that any corresponding amendment to her PAGA claim would be
futile. To the extent that Harris's PAGA claim is based on the
Defendant's failure to pay overtime wages, the Judge dismissed
without leave to amend that claim.
Because the Order alters the bases for the Plaintiffs' motion for
class certification, the Judge set that motion for a hearing on
April 5, 2018 at 2:00 p.m.
A full-text copy of the Court's Feb. 20, 2018 Order is available
at https://is.gd/gReskd from Leagle.com.
Starvonna Harris, individually and on behalf of those similarly
situated & Jonathan Strickland, individually and on behalf of
those similarly situated, Plaintiffs, represented by Kevin
Francis Woodall -- kevin@kwoodalllaw.com -- Woodall Law Offices &
Page R. Barnes -- page@pbarneslaw.com -- Barnes Law Offices.
Best Buy Stores, L.P., a limited partnership, Defendant,
represented by Barbara Jean Miller --
barbara.miller@morganlewis.com -- Morgan Lewis & Bockius, LLP,
Alejandro David Szwarcsztejn , Morgan Lewis & Bockius LLP, Bryan
Jarrett -- jarrett.bryan@dol.gov -- Morgan Lewis & Bockius LLP,
Sarah Jane Allen -- sarah.allen@morganlewis.com -- Morgan, Lewis
and Bockius LLP & Shannon B. Nakabayashi --
shannon.nakabayashi@morganlewis.com -- Morgan Lewis & Bockius
LLP.
BIOVERATIV INC: Faces "Abrahamsen" Suit Over Sale to Sanofi
-----------------------------------------------------------
Kai Abrahamsen, individually and on behalf of all others
similarly situated v. Bioverativ Inc., John G. Cox, Alexander J.
Denner, Louis J. Paglia, Brian S. Posner, Anna Protopapas, Geno
Germano, Blink Acquisition Corp., and Sanofi, Case No. 1:18-cv-
10293 (D. Mass., February 16, 2018), is brought on behalf of all
public stockholders of Bioverativ Inc., to enjoin Bioverativ's
Board of Directors' attempt to sell the Company to Sanofi through
its wholly-owned subsidiary Blink Acquisition Corp for
approximately $11.6 billion.
According to the complaint, Bioverativ filed a Schedule 14D-9
Recommendation Statement with the U.S. Securities and Exchange
Commission, which recommends that Neustar stockholders vote in
favor of the Proposed Transaction. However, the Recommendation
Statement is materially incomplete and contains misleading
representations and information. Specifically, the Recommendation
Statement contains materially incomplete and misleading
information concerning the sales process, financial projections
prepared by Bioverativ management, as well as the financial
analyses conducted by J.P. Morgan Securities LLC, and Guggenheim
Securities, LLC, Bioverativ's financial advisors.
Located at 225 Second Avenue, Waltham, Massachusetts 02451,
Bioverativ Inc. develops treatments for hemophilia and other rare
blood disorders. [BN]
The Plaintiff is represented by:
Theodore M. Hess-Mahan, Esq.
HUTCHINGS BARSAMIAN MANDELCORN, LLP
110 Cedar Street, Suite 250
Wellesley Hills, MA 02481
Telephone: (781) 431-2231
E-mail: thess-mahan@hutchingsbarsamian.com
- and -
Shane T. Rowley, Esq.
Danielle Rowland Lindahl, Esq.
ROWLEY LAW PLLC
50 Main Street, Suite 1000
White Plains, NY 10606
Telephone: (914) 400-1920
Facsimile: (914) 301-3514
E-mail: info@rowleylawpllc.com
BONDED COLLECTION: Further Proceedings in "Maniaci" Suit Stayed
---------------------------------------------------------------
The Hon. William E. Duffin grants the Plaintiff's motion to stay
further proceedings in the lawsuit entitled PATRICK MANIACI v.
BONDED COLLECTION CORPORATION and COLONY BRANDS, INC., Case No.
2:18-cv-00267-WED (E.D. Wisc.),
On February 21, 2018, the Plaintiff filed a class action
complaint. At the same time, the Plaintiff filed what the Court
commonly refers to as a "protective" motion for class
certification. In this motion, the Plaintiff moved to certify
the class described in the complaint but also moved the Court to
stay further proceedings on that motion.
In Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011),
the court suggested that class-action plaintiffs "move to certify
the class at the same time that they file their complaint." "The
pendency of that motion protects a putative class from attempts
to buy off the named plaintiffs." However, because parties are
generally unprepared to proceed with a motion for class
certification at the beginning of a case, the Damasco court
suggested that the parties "ask the district court to delay its
ruling to provide time for additional discovery or
investigation."
Judge Duffin also rules that the parties are relieved from the
automatic briefing schedule set forth in Civil Local Rule 7(b)
and (c). Moreover, for administrative purposes, Judge Duffin
notes that it is necessary that the Clerk terminate the
Plaintiff's motion for class certification. However, this motion
will be regarded as pending to serve its protective purpose under
Damasco.
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=qYcfmjhC
CASCADIAN THERAPEUTICS: Faces Suit Over Sale to Seattle Genetics
----------------------------------------------------------------
Marc Bensimon, individually and on behalf of all others similarly
situated v. Cascadian Therapeutics, Inc., Christopher S. Henney,
Robert W. Azelby, Gwen A. Fyfe, Steven P. James, Ted W. Love,
Scott D. Myers, Daniel K. Spiegelman, Seattle Genetics, Inc., and
Valley Acquisition Sub, Inc., Case No. 2:18-cv-00248 (W.D. Wash.,
February 16, 2018), is brought on behalf of all public
stockholders of Cascadian Therapeutics, Inc. to enjoin a tender
offer in which Seattle Genetics will acquire each outstanding
share of Cascadian common stock for $10.00 per share in cash,
with a total valuation of approximately $614 million.
According to the complaint, Cascadian filed a
Solicitation/Recommendation Statement on Schedule 14D-9 with the
U.S. Securities and Exchange Commission, in support of the
Proposed Transaction. However, the 14D-9 omits and misrepresents
material information concerning, among other things: (a) the
sales process leading up to the Proposed Transaction; (b)
Company's financial projections; and (c) the data and inputs
underlying the financial valuation analyses that purport to
support the fairness opinions provided by the Company's financial
advisor, Perella Weinberg Partners, L.P. The failure to
adequately disclose such material information constitutes a
violation of the Exchange Act as stockholders need such
information in order to cast a fully-informed vote in connection
with the Proposed Transaction. The Complaint says the Proposed
Transaction will unlawfully divest Cascadian's public
stockholders of the Company's valuable assets without fully
disclosing all material information concerning the Proposed
Transaction to Company stockholders. To remedy defendants'
Exchange Act violations, Plaintiff seeks to enjoin the
stockholder vote on the Proposed Transaction unless and until
such problems are remedied.
Cascadian Therapeutics, Inc. is a clinical-stage
biopharmaceutical company that researches, develops, and sells
therapeutic products for the treatment of cancer. [BN]
The Plaintiff is represented by:
Roger Townsend, Esq.
BRESKIN JOHNSON & TOWNSEND PLLC
1000 Second Avenue, Suite 3670
Seattle, WA 98104
Telephone: (206) 652-8660
Facsimile: (206) 652-8290
E-mail: rtownsend@bjtlegal.com
- and -
Marc L. Ackerman, Esq.
BRODSKY & SMITH, LLC
Two Bala Plaza
Suite 510 Bala
Cynwyd, PA 19004
Telephone: (610) 667-6200
Facsimile: (610) 667-9029
E-mail: mackerman@brodskysmith.com
CENTRAL CREDIT: Court Denies Bid to Certify Class in "Perez" Suit
-----------------------------------------------------------------
The Hon. Arthur D. Spatt entered a Memorandum of Decision & Order
in the lawsuit styled SONIA PEREZ, Individually and on behalf of
all others similarly situated v. CENTRAL CREDIT SERVICES LLC,
doing business as CENTRAL CREDIT SERVICES OF FL LLC, Case No.
2:17-cv-6018 (ADS)(ARL) (E.D.N.Y.), ruling that the Plaintiff's
motion for class certification is denied without prejudice to
renewal following the conclusion of discovery.
Sonia Perez commenced this putative class action against the
Defendant alleging violations of the Telephone Consumer
Protection Act of 1991.
Even if the Court were to accept the Plaintiff's argument that a
putative class action complaint can potentially be rendered moot
if the Defendant were to make an individual settlement offer, it
still does not require the Plaintiff to have an early, pre-
discovery class certification motion remain pending on the
Court's docket until the Plaintiff has adequate discovery to file
a more fully developed motion, Judge Spatt opines.
As a result, Judge Spatt explains, the class allegations are
equally preserved at this point in the litigation, regardless
whether the Court denies the motion without prejudice or allows
this motion to remain on the docket until discovery is concluded.
Therefore, the Plaintiff's motion for class certification is
denied without prejudice to renewal following the conclusion of
discovery. Further, the Clerk of the Court is instructed to
terminate Motion to Continue as moot.
A copy of the Memorandum of Decision & Order is available at no
charge at http://d.classactionreporternewsletter.com/u?f=EG9F9rTM
The Plaintiff is represented by:
Abraham Kleinman, Esq.
KLEINMAN, LLC
626 RXR Plaza
Uniondale, NY 11556
Telephone: (516) 522-2621
Facsimile: (888) 522-1692
E-mail: akleinman@kleinmanllc.com
- and -
Tiffany N. Hardy, Esq.
EDELMAN COMBS LATTURNER & GOODWIN LLC
20 South Clark Street, Suite 1500
Chicago, IL 60603
Telephone: (312) 739-4200
Facsimile: (312) 419-0379
E-mail: thardy@edcombs.com
The Defendant is represented by:
Kristen H. Smith, Esq.
SESSIONS, FISHMAN, NATHAN & ISRAEL, LLC
3850 N Causeway Blvd., Suite 200
Metairie, LA 70130
Telephone: (504) 828-3700
Facsimile: (504) 828-3737
E-mail: ksmith@sessions.legal
CLEAR MANAGEMENT: Morrison Seeks Certification of FDCPA Class
-------------------------------------------------------------
The Plaintiff in the lawsuit titled AIMEE MORRISON, ON BEHALF OF
HERSELF AND OTHERS SIMILARLY SITUATED v. CLEAR MANAGEMENT
SOLUTIONS, Case No. 1:17-cv-00051-CW-EJF (D. Utah), asks the
Court to certify a class defined as:
All persons with addresses within Utah; who were sent any
communication which was similar or identical to Plaintiff's
Exhibit A on behalf of Utah Imaging Associates; to recover a
consumer debt; in which this initial communication failed to
provide the notice required by 15 U.S.C. Section 1692g
and/or 15 U.S.C. Section 1692e(11); which were not returned
undelivered by the United States Postal Service; from
April 11, 2016 until April 11, 2017.
Ms. Morrison brings this case as a class action against the
Defendant for alleged violations of the Fair Debt Collection
Practices Act. She asserts that the proposed class consists of
40,887 individuals receiving the same allegedly defective
letters.
Ms. Morrison also asks the Court to appoint her as the class
representative, and to appoint her attorneys, David J.
McGlothlin, Esq., and Ryan L. McBride, Esq., as class counsel.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=hxIJbnJC
The Plaintiff is represented by:
David J. McGlothlin, Esq.
HYDE & SWIGART
2633 E. Indian School Road, Suite 460
Phoenix, AZ 85016
Telephone: (602) 265-3332
Facsimile: (602) 230-4482
E-mail: david@westcoastlitigation.com
- and -
Ryan L. McBride, Esq.
KAZEROUNI LAW GROUP
2633 E. Indian School Road, Suite 460
Phoenix, AZ 85016
Telephone: (602) 900-1288
Facsimile: (800) 520-5523
E-mail: ryan@kazlg.com
CLUB CLIMAXXX: Wallace Seeks to Certify Class of Exotic Dancers
---------------------------------------------------------------
The Plaintiffs in the lawsuit styled CORTNEY WALLACE, ALICIA
FORBESMOREHEAD, MYCIA BURDEN, VICTORIA GARCIA, and JESSICA PIERRE
v. CLUB CLIMAXXX INC., a Florida corporation, NIGHTLIFE SOLUTIONS
INC., a Florida corporation, J.A.W. ENTERTAINMENT, INC., a
Florida corporation, JOE LONG, C.H.I.R. CORPORATION, a Florida
corporation, PIRTS, INC., a Florida corporation, INGRID BECKLES,
SONEET KAPILA, JAMES FULFORD, and STUART BOYD, Case No. 1:17-cv-
22585-UU (S.D. Fla.), seek conditional certification of the
action as a Fair Labor Standards Act collective action on behalf
of:
"all current or former Exotic Dancers who worked for Club
Rol-Lexx and/or Club Climaxxx, during the three years
preceding the filing of this action, and who were not paid
at least the minimum wage for all hours worked, and overtime
pay for all hours worked over forty (40 hours, in each
workweek, through and including the date of entry of
judgment in this case".
The Plaintiffs also ask the Court for an order requiring
Defendants J.A.W. ENTERTAINMENT, INC. and JOE LONG to produce the
names, addresses, and telephone numbers of each putative class
member, and compelling notice of this action be sent to each
similarly situated person, who workeed at the Defendants' adult
nightclub f/k/a Club Rol-Lexx and currently d/b/a Club Climaxxx,
within the preceding three years of the date of the filing of the
complaint, or presently employed in this capacity.
Plaintiff Cortney Wallace filed a collection action Fourth
Amended Complaint on December 18, 2017, on behalf of herself and
those similarly situated to her, alleging that the Defendants,
based upon the economic realties test, as well as recent case law
from this Circuit and beyond, misclassified the position of
"Exotic Dancer" as independent contractors, instead of as
employees, as was the proper classification for this class of
workers.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=6IG6mBoR
The Plaintiffs are represented by:
Brian J. Militzok, Esq.
MILITZOK LAW, P.A.
Wells Fargo Building
4600 Sheridan Street, Suite 402
Hollywood, FL 33021
Telephone: (954) 780-8228
Facsimile: (954) 719-4016
E-mail: bjm@militzoklaw.com
Defendants J.A.W. Entertainment, Inc., and JOE LONG are
represented by:
Anthony J. Perez, Esq.
GARCIA-MENOCAL & PEREZ P.L.
4937 SW 74th Court, Suite 3
Miami, FL 33155
Telephone: (305) 553-3464
E-mail: AJP@GMCPlaw.com
CRST VAN: Reed Moves to Certify 2 FCRA Classes and 2 Subclasses
---------------------------------------------------------------
Walter Reed moves the Court to certify the case titled WALTER
REED, on behalf of himself and on behalf of all others similarly
situated v. CRST VAN EXPEDITED, INC., a foreign for profit
company, Case No. 8:17-cv-00199-JDW-CPT (M.D. Fla.), as a class
action under the Fair Credit Reporting Act for a national class
of consumers upon whom CRST procured a consumer report without
lawful authorization, and against whom CRST took adverse
employment action without providing federally mandated
notifications.
Mr. Reed seeks class certification of these classes and
subclasses of consumers, of which he is a member:
-- Notification Class:
All employment applicants sourced through outside
recruiters upon whom CRST procured consumer reports for
employment purposes between February 24, 2015 and the
present but did not first provide oral, electronic or
written notification that a consumer report may be obtained
for employment purposes and notifying those persons
verbally, electronically, or in writing that they have a
right to obtain a free copy of the consumer report from the
consumer reporting agency within 60 days, and also have a
right dispute the accuracy or completeness of any
information directly with the consumer reporting agency;
* Outside Recruiter Direct Submission Subclass:
All employment applicants upon whom CRST procured
consumer reports for employment purposes between
February 24, 2015 and the present whose employment
applications were submitted directly to CRST by outside
recruiters; and
* McCormack Subclass:
All employment applicants upon whom CRST procured
consumer reports for employment purposes between
February 24, 2015 and the present that were submitted to
CRST by Mr. James McCormack; and
-- Adverse Action Class:
All externally sourced employment applicants upon whom CRST
took adverse employment action between February 24, 2015
and the present based in whole or in part upon their
consumer report without providing verbal, electronic or
written notice within 3 days of taking adverse action (i)
that adverse action has been taken based in whole or in
part on the consumer report, (ii) the name, address and
telephone number of the consumer reporting agency, (iii)
that the consumer reporting agency did not make the
decision to take adverse action and is unable to provide
the consumer with specific reasons why the adverse action
was taken, (iv) that the consumer may request a free copy
of the report and may dispute with the consumer reporting
agency the accuracy or completeness of the report, as
required by 15 U.S.C. Section 1681b(b)(3)(B).
Mr. Reed also seeks his appointment as representative of both
Classes and for the appointment of Marc R. Edelman, Esq., and
Andrew Frisch, Esq., Morgan & Morgan, P.A., as Class Counsel.
A copy of the Amended Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=eOcqueZv
The Plaintiff is represented by:
Marc R. Edelman, Esq.
MORGAN & MORGAN, P.A.
201 N. Franklin Street, Suite 700
Tampa, FL 33602
Telephone: (813) 223-5505
E-mail: MEdelman@forthepeople.com
- and -
Andrew Frisch, Esq.
MORGAN & MORGAN, P.A.
600 North Pine Island Road, Suite 400
Plantation, FL 33324
Telephone: (954)-WORKERS
Facsimile: (954)-327-3013
E-mail: AFrisch@forthepeople.com
The Defendant is represented by:
E. Holland Howanitz, Esq.
WICKER, SMITH, O'HARA, MCCOY & FORD, P.A.
50 North Laura Street, Suite 2700
Jacksonville, FL 32202
Telephone: (904) 355-0225
Facsimile: (904) 355-0226
E-mail: Ehowanitz@wickersmith.com
- and -
Molly A. Arranz, Esq.
SMITHAMUNDSEN, LLC
150 North Michigan Avenue, Suite 3300
Chicago, IL 60601
Telephone: (312) 894-3200
Facsimile: (312) 894-3210
E-mail: Marranz@salawus.com
DIAMOND RESORTS: Del. Supreme Court Flips Dismissal of "Appel"
--------------------------------------------------------------
In the case, STEPHEN APPEL, individually and on behalf of all
others similarly situated, Plaintiff Below, Appellant, v. DAVID
J. BERKMAN, STEPHEN J. CLOOBECK, RICHARD M. DALEY, FRANKIE SUE
DEL PAPA, JEFFREY W. JONES, DAVID PALMER, HOPE S. TAITZ, ZACHARY
D. WARREN, and ROBERT WOLF, Defendants Below, Appellees, Case No.
316, 2017 (Del.), Judge Leo E. Strine, Jr. of the Supreme Court
of Delaware reversed the Court of Chancery's order dismissing the
Plaintiffs' claims.
Diamond Resorts International's board of directors recommended to
its stockholders that they sell their shares to a private equity
buyer, Apollo Global Management, for cash in a two-step merger
transaction involving a front-end tender offer followed by a
back-end merger under Section 251(h). On June 26, 2016, the
Diamond Resorts board voted in favor of the company's sale to
Apollo. The proxy statement had a detailed recitation of the
background leading to the merger, and the reasons for and against
it.
But notably absent from that recitation was that the company's
founder, largest stockholder, and still Chairman, Stephen J.
Cloobeck, had abstained from supporting the procession of the
merger discussions, and from ultimately approving the deal,
because he was disappointed with the price and the Company's
management for not having run the business in a manner that would
command a higher price, and that in his view, it was not the
right time to sell the Company.
On Aug. 8, 2016, the Plaintiffs served a Section 220 demand on
the company, asking to inspect its books and records. About a
week later, Cloobeck tendered his 15% of the Diamond Resorts
shares. Then, on September 2nd, having exceeded the 50% level of
ownership necessary to consummate the transaction's back-end
merger under Section 251(h) without a stockholder vote, Apollo
consummated the merger.
Approximately two months after the deal closed, the Plaintiffs
brought the suit, challenging the merger's fairness and the
failure of the board to disclose all material information to the
Diamond stockholders regarding the tender offer.
On a motion to dismiss, the Court of Chancery held that the
complaint challenging the merger should be dismissed because the
stockholders' acceptance of the first-step tender offer was fully
informed, rejecting the Plaintiffs' argument that the omission of
the Chairman's reasons for abstaining rendered the proxy
statement materially misleading. It held that Cloobeck's views
that the company had been managed suboptimally, the sale price
was disappointing as a result, and therefore it was not a good
time to sell the company were immaterial as a matter of law and
their inclusion in Diamond Resorts' disclosures would not have
materially altered the mix of information.
In the appeal, the sole issue is whether that ruling was correct.
Judge Strine agrees with the Plaintiffs that it was not, and that
the Defendants' argument that the reasons for a dissenting or
abstaining board member's vote can never be material is
incorrect. Precisely because Delaware law gives important effect
to an informed stockholder decision, Delaware law also requires
that the disclosures the board makes to stockholders contain the
material facts and not describe events in a materially misleading
way. The founder and Chairman's views regarding the wisdom of
selling the company were ones that reasonable stockholders would
have found material in deciding whether to vote for the merger or
seek appraisal, and the failure to disclose them rendered the
facts that were disclosed misleadingly incomplete.
The Judge states for a Chairman to abstain from voting on the
sale of the business he founded and led is no common thing, and
when his reasons for doing so contradict the board's
recommendations to the stockholders, it is difficult for the
Judge to understand how the omission was inadvertent. But
regardless of the board's reason for omitting Cloobeck's concerns
from the disclosures, the omitted facts are material and their
omission precludes the invocation of the business judgment rule
standard at the pleading stage.
After discovery, it may well be that the Plaintiffs' claims
should be disposed of upon a motion for summary judgment, but the
sole basis for the Court of Chancery's dismissal was without
merit, and Judge Strine declines, given the nature of the
omission, to accept the Defendants' invitation for the Court to
find another ground for affirmance, such as reliance on the
exculpatory charter provision, which was not addressed by the
Court of Chancery.
For these reasons, Judge Strine reverses and remanded the
Plaintiffs' claims against all of the directors for proceedings
consistent with his decision.
A full-text copy of the Court's Feb. 20, 2018 Order is available
at https://is.gd/ul5DDx from Leagle.com.
Jeremy Friedman, Esquire -- jfriedman@fotpllc.com -- Spencer
Oster, Esquire , David Tejtel, Esquire -- dtejtel@fotpllc.com --
FRIEDMAN OSTER & TEJTEL PLLC, New York, New York; Peter B.
Andrews, Esquire -- pandrews@andrewsspringer.com -- Craig J.
Springer, Esquire -- cspringer@andrewsspringer.com -- (argued),
David M. Sborz -- dsborz@andrewsspringer.com -- ANDREWS &
SPRINGER LLC, Wilmington, Delaware, Attorneys for Appellant,
Stephen Appel and on behalf of all others similarly situated.
Mark A. Kirsch, Esquire -- mkirsch@gibsondunn.com -- Jefferson E.
Bell, Esquire -- jbell@gibsondunn.com -- GIBSON, DUNN & CRUTCHER
LLP, New York, New York; Brian M. Lutz, Esquire --
blutz@gibsondunn.com -- GIBSON, DUNN & CRUTCHER LLP, San
Francisco, California; Raymond J. DiCamillo, Esquire --
dicamillo@rlf.com -- (argued), Elizabeth DeFelice, Esquire --
defelice@rlf.com -- RICHARDS, LAYTON & FINGER, P.A., Wilmington,
Delaware, Attorneys for Appellees, David J. Berkman, Richard M.
Daley, Frankie Sue Del Papa, Jeffrey W. Jones, David Palmer, Hope
S. Taitz, Zachary D. Warren, and Robert Wolf.
Stephen B. Brauerman, Esquire (argued) --
sbrauerman@bayardlaw.com -- Sara E. Bussiere, Esquire --
sbussiere@bayardlaw.com -- BAYARD, P.A., Wilmington, Delaware,
Attorneys for Appellee, Stephen J. Cloobeck.
DRINK INC: Fails to Pay Employees OT, "Melendez" Action Claims
--------------------------------------------------------------
Moris Melendez, on behalf of himself and all others similarly
situated v. Drink, Inc. d/b/a Stoneleigh P and Richard T.
Garrison, Case No. 3:18-cv-00421-L (N.D. Tex., February 19,
2018), is brought against the Defendants for failure to pay
overtime wages for work performed in excess of 40 hours weekly.
The Defendants own and operate a bar located at 2926 Maple Ave.,
Dallas, TX 75201. [BN]
The Plaintiff is represented by:
Thomas J. Urquidez, Esq.
URQUIDEZ LAW FIRM, LLC
5440 Harvest Hill, Suite 145E
Dallas, TX 75230
Telephone: (214) 420-3366
Facsimile: (214) 206-9802
E-mail: tom@tru-legal.com
ELECTROLUX HOME: Court Narrows Claims in "Rice"
-----------------------------------------------
In the case, ELAINE RICE and ALEX KUKICH, Individually, and on
behalf of all others similarly situated, Plaintiffs, v.
ELECTROLUX HOME PRODUCTS, INC., Defendant, Case No. 4:15-CV-00371
(), Judge Matthew W. Brann of the U.S. District Court for the
Middle District of Pennsylvania granted in part and denied in
part the Defendant's Partial Motion to Dismiss Plaintiffs'
Consolidated Amended Class Action Complaint.
It is a class action brought by the Plaintiffs to redress a
defective condition in the stainless steel handles of the
Defendant's over-the-range microwave ovens.
Among the home appliances sold by the Defendant are stainless
steel, over-the-range microwave ovens. These Microwaves are, as
the name suggests, designed, manufactured, and intended to be
used and installed on a vertical wall directly above the cooking
surface. Plaintiff Rice purchased one version of the Microwave,
model number FGMV174KFC, containing a handle defect. Plaintiff
Kukich is the owner of a Frigidaire Gallery Over-The-Range
Microwave Oven, model number FGMV174KFC, containing a handle
defect. This Microwave was purchased from retailer HHGREGG in
Catonsville, Maryland in October.
The Plaintiffs allege that the Microwaves they purchased contain
a serious defect due to the stainless steel handle; when
installed at the recommended height, the Microwave handle absorbs
heat and can reach temperatures exceeding 168 degrees Fahrenheit.
Indeed, when tests were conducted on Plaintiff Rice's Microwave,
the handle temperature exceeded 168 degrees Fahrenheit in the
time it took to bring water to a boil.
On Feb. 18, 2015, Ms. Rice filed a complaint with the Court,
alleging eight counts: (1) declaratory relief pursuant to 28
U.S.C. Section 2201, et seq.; (2) strict liability for a design
defect and failure to warn; (3) negligent failure to warn; (4)
violation of the Magnuson-Moss Consumer Products Warranties Act;
(5) breach of implied warranty of merchantability; (6) breach of
express warranty; (7) unjust enrichment; and (8) strict liability
for a design defect and failure to warn, resulting in personal
injuries.
In addition to bringing personal claims, Ms. Rice asserts a class
action for three putative classes. By Memorandum Opinion and
Order dated July 28, 2015, Judge Brann (1) dismissed any claims
for economic loss related to the cost to repair or replace the
Microwaves in tort counts two and three, (2) struck count 8 for
strict liability for a design defect and failure to warn
resulting in personal injuries, and putative "other state"
subclass, and (3) dismissed count seven for unjust enrichment and
any claim for equitable tolling. The parties thereafter engaged
in discovery noted by the Court's resolution of a discovery
dispute and its satisfaction of existing subject matter
jurisdiction.
On Jan. 24, 2017, the U.S. District Court for the District of
Maryland granted the Defendant's motion to transfer to the forum
an action initiated by Plaintiff Kukich. The parties thereafter
stipulated to the consolidation of that the action with the
present case initiated by Plaintiff Rice, and the filing of a
Consolidated Amended Class Action Complaint. The Plaintiffs
filed the operative Consolidated Amended Class Action Complaint
on March 24, 2017. The Defendant filed a Partial Motion to
Dismiss on April 14, 2017.
Judge Brann granted in part and denied in part the Defendant's
Partial Motion to Dismiss Plaintiffs' Consolidated Amended Class
Action Complaint. The Plaintiffs, however, are granted limited
leave to amend their complaint.
First, the Judge is in agreement with the Plaintiffs that the
plain language of Stipulation entered into between the parties,
and adopted by the Court, provided for the filing of an amended
complaint consolidating the Rice and Kukich Actions. He
therefore declined to strike the class definitions advanced in
the Consolidated Amended Class Action Complaint.
Second, he finds that Plaintiff Kukich sufficiently alleges a
high probability of serious injury. Indeed, the Plaintiff
indicates, within the Consolidated Amended Complaint that the
intended use of the Microwave's handle is to access the appliance
for use, and is the only way to open the Microwave door. Given
that use of the handle is therefore unavoidable during the
ordinary operation of the microwave and oven range located below,
the Judge says the alleged defect presents a high probability of
injury, satisfying the second requirement of the public safety
exception. Hence, he denied the Defendant's motion to dismiss
Plaintiff Kukich's tort claims under the economic loss doctrine
will therefore be denied.
Third, the Judge finds that Plaintiff Rice's claims in tort for
both economic and non-economic losses remain severed, with all
economic losses resulting solely from damage to the product
itself being dismissed. Therefore, to the extent that Plaintiff
Rice attempts to assert claims in tort for such economic loss on
behalf of a putative class, those claims for purely economic
losses cannot proceed.
Fourth, Judge Brann states that even assuming the veracity of
facts supporting Plaintiff Kukich's implied warranty claim, he
nevertheless finds that Plaintiff Kukich has failed to state an
implied warranty of merchantability claim. Tender of delivery
was made in October. Plaintiff Kukich's original complaint,
filed on Oct. 11, 2016, was therefore untimely, as it was nearly
two years beyond the one year statute of limitations. This claim
is therefore dismissed, and amendment would be futile given this
deficiency; said dismissal is therefore with prejudice.
Fifth, the Judge finds that because privity of contact is an
essential ingredient in an express warranty action not involving
personal injury, the clear lack of privity between Plaintiff
Kukich and the Defendant is fatal to the instant express warranty
claim. Dismissal of the claim, however, will be without
prejudice to Plaintiff Kukich re-asserting it to the extent it
can establish one of Maryland's recognized exceptions to this
privity requirement.
Sixth, having previously found that Plaintiff Kukich's implied
warranty and express warranty claims fail, Plaintiff Kukich's
claim under the Magnuson Moss Warranty Act claim must be
similarly dismissed. Because the Judge granted Plaintiff Kukich
leave to amend his implied warranty of merchantability claim,
dismissal here will also be without prejudice.
Finally, the Judge agrees with Plaintiff Kukich that the Court
has already addressed and rejected arguments on claim for
declaratory relief in the Rice action. He sees no need to
deviate in this now consolidated action, as his reasoning there
remains compelling.
A full-text copy of the Court's Feb. 20, 2018 Memorandum Opinion
is available at https://is.gd/MMutIn from Leagle.com.
Elaine Rice, Individually, and on behalf of all others similarly
situated, Plaintiff, represented by Charles J. Kocher, Esq. --
ckocher@smbb.com -- Patrick Howard, Esq. -- phoward@smbb.com --
and -- Simon B. Paris, Esq. -- sparis@smbb.com -- SALTZ,
MONGELUZZI, BARRETT & BENDESKY, P.C. -- Raina C. Borrelli, Esq. -
- rborrelli@gustafsongluek.com -- Daniel E. Gustafson, Esq. --
dgustafson@gustafsongluek.com -- Jason S. Kilene, Esq. --
jkilene@gustafsongluek.com -- GUSTAFSON GLUEK PLLC -- Joseph G.
Price, Esq. -- jprice@dlplaw.com -- Paul T. Oven, Esq. --
ptoven@dlplaw.com -- and -- Sean P. McDonough, Esq. --
smcdonough@dlplaw.com -- DOUGHERTY, LEVENTHAL & PRICE, L.L.P.
Alex Kukich, Plaintiff, represented by Andrew N. Friedman --
friedman@cohenmilstein.com -- Cohen Milstein Sellers & Toll PLLC,
Charles J. Kocher, Saltz, Mongeluzzi, Barrett & Bendesky, P.C.,
Daniel E. Gustafson, Gustafson Gluek PLLC, Raina C. Borrelli,
Gustafson Gluek PLLC, Robert J. Barton -- joe@blockesq.com --
Block & Leviton LLP, Sally M. Handmaker --
handmaker@cohenmilstein.com -- Cohen Milstein Sellers and Toll
PLLC, pro hac vice, Simon B. Paris, Saltz, Mongeluzzi, Barrett &
Bendesky, P.C. & Patrick Howard, Saltz, Mongeluzzi, Barrett &
Bendesky, P.C.
Electrolux Home Products, Inc. is represented by David R. Fine,
Esq. -- david.fine@klgates.com -- David R. Osipovich, Esq. --
david.osipovich@klgates.com -- Loly G. Tor, Esq. --
loly.tor@klgates.com -- Michael S. Nelson, Esq. --
michael.nelson@klgates.com -- and -- Patrick J. Perrone, Esq. -
patrick.perrone@klgates.com -- K&L GATES LLP.
ENRICH FINANCIAL: Tentative Order Entered in "Aleksanian" Suit
--------------------------------------------------------------
The Hon. Dolly M. Gee entered a tentative order on the
Plaintiffs' motion for class certification pursuant to Rule
23(B)(3) of the Federal Rules of Civil Procedure and to appoint
class counsel in the lawsuit entitled Lolita Aleksanian, et al.
v. Enrich Financial, Inc., Case No. 2:17-cv-02359-DMG-KS (C.D.
Cal.).
According to the Court's civil minutes: "The cause is called and
counsel state their appearance. The Court invites counsel to
respond to the tentative order. Parties submit on the tentative
order. The tentative order stands and a written order will
issue."
A copy of the Civil Minutes is available at no charge at
http://d.classactionreporternewsletter.com/u?f=OEYkwv4H
The Plaintiffs are represented by:
Thomas E. Wheeler, Esq.
Adrian R. Bacon, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
324 S Beverly Blvd, Suite 725
Beverly Hills, CA 90212
Telephone: (424) 285-6006
Facsimile: (866) 633-0228
E-mail: abacon@toddflaw.com
twheeler@toddflaw.com
The Defendant is represented by:
Khosro Reghabi, Esq.
SOUTHERN CALIFORNIA LAW GROUP
5023 North Parkway Calabasas
Calabasas, CA 91302-1421
Telephone: (818) 876-9626
Facsimile: (424) 772-4344
E-mail: reghabi@scalg.com
EQUITY EXPERTS.ORG: Bid to Certify "Usry" Class Denied
------------------------------------------------------
In the case, SARAH USRY and DANIEL DARNELL, on behalf of
themselves and all others similarly situated, Plaintiffs, v.
EQUITY EXPERTS.ORG, LLC d/b/a EQUITY EXPERTS, Defendant, Case No.
1:16-cv-010 (S.D. Ga.), Judge J. Randall Hall of the U.S.
District Court for the Southern District of Georgia, Augusta
Division, denied without prejudice the Plaintiffs' Motion for
Class Certification and Supporting Memorandum of Law.
The named Plaintiffs are Georgia homeowners belonging to the
Ashbrooke Property Owners Association. From the years 2012-2015,
Ashbrooke charged its members an annual assessment of $115.
During this time period, Usry and Darnell failed to pay one or
more of their annual assessments. Due to these failures, the
Defendant began collection efforts against them on Ashbrooke's
behalf. These collection efforts sparked the present lawsuit.
The covenant which governs the Ashbrooke subdivision authorizes
Ashbrooke to impose a number of penalties against homeowners who
fail to pay an annual or special assessment. Ashbrooke may: (1)
charge interest on the assessment at the rate of 18% per annum or
the highest rate permitted by law; (2) impose a reasonable late
charge; (3) add interest and late charges to the annual
assessment to which each one of is subject; (4) foreclose the
lien of the delinquent assessment against the Eliot; (5) bring an
action at law against the owner personally obligated to pay the
delinquent assessments; (6) and assess the homeowner for all
costs and attorney's fees which Ashbrooke] will incur pursuing
any foreclosure or action at law.
Consistent with its enforcement abilities, Ashbrook contracted
with the Defendant in June 2013 to collect delinquent
assessments. The contract states that the Defendant was
authorized on behalf of Ashbrooke, and pursuant to Limited Powers
of Attorney, to collect the delinquent assessments from the
responsible party, plus any and all costs of collection charged
by the Defendant, as outlined in the Defendant's standard fee
structure addendum which is updated and distributed semi-
annually. The contract cited in the record does not include the
fee structure used at the time of signing.
Usry failed to timely pay her 2013 annual assessment. On June
28, 2013, she received her first letter from the Defendant
informing her that the Defendant was seeking to collect her
delinquent assessment on behalf of Ashbrooke. The letter then
informed her that her current balance was $443.65, but that if
she did not pay within 30 days her balance would be at least
$838.65. Over the next six months, the Defendant assessed the
fees against Ms. Usry. By December 2013, Usry "owed" Defendant a
sum of $3,083.65. In December 2014, the Defendant sent Usry a
letter stating her current balance was $3,199.60, but that if she
did not pay within 10 days, her balance may be at least
$6,644.60.
Darnell suffered a similar experience. He also failed to timely
pay the 2013 annual assessment of $115. He settled his account
with the Defendant in November 2013 for $1,351.
The Plaintiffs filed the class action alleging that the Defendant
engaged in a standardized debt collection scheme that violated
the FDCPA and Georgia usury laws. Their claim rests upon the
allegation that the Defendant charged the fees directly to
delinquent homeowners. They argue that these fees are
exorbitant, unsubstantiated, and bogus. They complain that
because the fees are not listed in any of the covenants of any
Georgia neighborhood for which Defendant provides collection
services, the Defendant violates the FDCPA when it charges these
fees directly to the homeowner, rather than the relevant
homeowners' association.
According to the Plaintiffs, this practice violates the FDCPA
because it uses false, deceptive, and misleading representation
to collect the delinquent debt and is an unfair or unconscionable
means to collect or attempt to collect debt. They also claim
that the Defendant's fees violate Georgia usury law because the
fees are actually interest, far in excess of what can be charged
under Georgia law.
The Plaintiffs ask the Court to certify a general class and three
subclasses. They define their general class as all natural
persons in Georgia to whom Equity Experts sent collection letters
asserting claims for delinquent assessments, interest, and fees
in violation of the FDCPA and the Georgia usury statute while
residing in the State of Georgia ("General Class Members").
They define their three subclasses as:
a. All natural persons in Georgia to whom Equity Experts
sent collection communication seeking to collect illegal interest
or other sums not owed "Illegal Interest Class Members").
b. All natural persons in Georgia against whom Equity
Experts has filed a lien and/or lawsuit asserting claims for
delinquent assessments, interest, and fees while residing in the
State of Georgia and against whom the lawsuit or lien remains
pending and unpaid "Injunction Class Members").
c. All natural persons in Georgia from whom Equity Experts
received any payment arising from collection efforts of
assessments by Equity Experts which included usurious interest
charged in violation of the Georgia usury statutes and illegal
fees charged in violation of the FDCPA while residing in the
State of Georgia ("Unjust Enrichment Class Members").
The Defendant challenges the Plaintiffs' proposed class
definitions on the basis that they are impermissible "fail-safe"
classes.
Judge Hall agrees with the Defendant. He finds that all but one
of the Plaintiffs' proposed class definitions are "fail-safe"
because "eligibility as a class member" is "dependent upon a
legal conclusion."
He says the membership in the Plaintiffs' General Class depends
upon whether the Defendant asserted claims for delinquent
assessments, interest, or fees in violation of the FDCPA and the
Georgia usury statute. The membership in the Plaintiffs' Illegal
Interest Class depends upon whether the Defendant sought to
collect illegal interest or other sums not owed. And the
membership in the Plaintiffs' Unjust Enrichment Class depends
upon whether the Defendant received any payment from the class
member arising from collection efforts of assessments by Equity
Experts which included usurious interest charged in violation of
the Georgia usury statutes and illegal fees charged in violation
of the FDCPA while residing in the State of Georgia. The Judge,
therefore, cannot certify the Plaintiffs' class using the
proposed class definitions.
The Judge recognizes that it may use its discretion to revise a
proposed class definition to avoid the problem of a fail-safe
class. He, however, declines to exercise this discretion and
instead will grant the Plaintiffs the opportunity to propose
class definition(s) that avoid the fail-safe problem.
Accordingly, Judge Hall denied without prejudice the Plaintiffs'
motion to certify the proposed class, and granted them leave to
file a new motion for class certification within 30 days from the
date of the Order.
A full-text copy of the Court's Feb. 16, 2018 Order is available
at https://is.gd/lf3Gi2 from Leagle.com.
Sarah Usry, on behalf of herself and all others similarly
situated & Daniel Darnell, Plaintiffs, represented by David E.
Hudson -- dhudson@hullbarrett.com -- Hull Barrett, PC, Mitchell
Byrd Snyder -- msnyder@hullbarrett.com -- Hull Barrett, PC & N.
Shannon Gentry Lanier -- slanier@hullbarrett.com -- Hull Barrett,
PC.
Equityexperts.org, LLC, doing business as, Defendant, represented
by Charity A. Olson -- Charity.Olson@brockandscott.com -- Olson
Law Group, pro hac vice & Kyle Shigeyuki Kotake --
Kyle.Kotake@brockandscott.com -- Brock & Scott, PLLC.
FAMILY DOLLAR: "Maravilla" Hits Missed Breaks, Seeks Overtime
-------------------------------------------------------------
Armando Maravilla and Hugo Chavarria, on behalf of themselves and
all others similarly situated, Plaintiffs, v. Family Dollar,
Inc., Defendants, Case No. BC692081 (Cal. Super., January 29,
2018), seeks redress for failure to provide meal periods, rest
periods, minimum wages, overtime, complete and accurate wage
statements and resulting from unfair business practices, waiting
time penalties for unpaid wages due upon termination and in
violation of the California Labor Laws of the Business and
Professions Code, including declaratory relief, damages,
penalties, equitable relief, costs and attorneys' fees under the
Unfair Competition Law of the California Business and Professions
Code and applicable Industrial Welfare Commission Wage Orders.
Family Dollar is a chain of branded discount retail stores in
California where Plaintiffs were employed as Assistant Manager
and Store Manager. [BN]
Plaintiff is represented by:
Mike Arias, Esq.
Alfredo Torrijos, Esq.
Craig S. Momita, Esq.
ARIAS SANGUINETTI WANG & TORRIJOS LLP
6701 Center Drive West, Suite 1400
Los Angeles, CA 90045
Telephone: (310) 844-9696
Facsimile: (310)861-0168
Email: mike@aswtlawyers.com
alfredo@aswtlawyers.com
craig@aswtlawyers.com
FEIN SUCH: Court Strikes First Affirmative Defense in "White"
-------------------------------------------------------------
In the case, CHRISTOPHER WHITE, DARLENE SCHMIDT and WILLIAM
SUITOR, Individually and on behalf of all others similarly
situated, Plaintiffs, v. FEIN, SUCH and CRANE, LLP, Defendant,
Case No. 15-CV-438V(Sr)(W.D. N.Y.), Magistrate Judge H. Kenneth
Schroeder, Jr., of the U.S. District Court for the Western
District of New York granted in part and denied in part the
Plaintiffs' motion to strike defendant's first, third, fourth,
fifth, sixth, seventh, eighth, ninth, tenth, twelfth, thirteenth,
fourteenth, fifteenth, sixteenth, seventeenth and eighteenth
affirmative defenses.
The case was referred to the Magistrate Judge by the Hon.
Lawrence J. Vilardo for all pretrial matters.
The Plaintiffs filed the class action complaint alleging
violations of the Fair Debt Collection Practice Act ("FDCPA"),
and New York General Business Law Section 349 arising from
attorneys' fees charged by defendant for legal services
pertaining to foreclosure actions against the Plaintiffs.
Currently before the Court is the Plaintiffs' motion to strike
the Defendant's first, third, fourth, fifth, sixth, seventh,
eighth, ninth, tenth, twelfth, thirteenth, fourteenth, fifteenth,
sixteenth, seventeenth and eighteenth affirmative defenses for
failure to meet the specificity requirements of Rule 8 of the
Federal Rules of Civil Procedure, as well as Ashcroft v. Iqbal,
and Bell Atlantic v. Twombly.
As for the first affirmative defense, the Plaintiffs seek to
dismiss the affirmative defense of failure to state a claim upon
which relief may be granted based upon the Court's denial of the
Defendant's motion to dismiss pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure and the Court's grant of the
Plaintiffs' motion to amend the complaint. Given that the
Defendant's motion to dismiss the complaint was denied,
Magistrate Judge Schroeder struck the first affirmative defense.
As for the third and fifth affirmative, the Plaintiffs seek to
dismiss the affirmative defenses of failure to mitigate damages
and contributory negligence because the FDCPA is a strict
liability statute. The Magistrate finds that the Defendant has
provided the Plaintiffs with sufficient notice of the basis for
these affirmative defenses within its answer, albeit outside of
the confines of the paragraphs contained within the third and
fifth affirmative defenses, and the affirmative defenses are
sufficiently entwined with the merits of the claims asserted so
that there is no basis to believe that retention of these
defenses will needlessly increase the time and expense of trial
or duration and expense of litigation. Accordingly, he denied
the motion to strike the third and fifth affirmative defenses.
As for the fourth affirmative defense, the Plaintiffs seek to
dismiss the affirmative defense of bona fide error because it
merely tracks the language with respect to intent set forth in
Section 1692k(c) of the FDCPA and fails to set forth any factual
basis for such a defense. As he finds that the Defendant's
response to the Plaintiffs' interrogatory regarding the basis for
the bona fide error precludes any finding of prejudice from the
affirmative defense as asserted in the Defendant's answer, the
Magistarte denied this aspect of the Plaintiffs' motion to
strike.
As for the sixth, seventh and eighth affirmative defenses, the
Plaintiffs seek to dismiss the affirmative defenses of unclean
hands, laches, estoppel, waiver and accord and satisfaction on
the ground that they may not be proper affirmative defenses to
FDCPA claims and that these affirmative defenses are asserted
without any factual support. Magistrate Judge Schroeder finds
that the Defendant has provided the Plaintiffs with sufficient
notice of the basis for these affirmative defenses within its
answer, albeit outside of the confines of the paragraphs
contained within the affirmative defenses, and the affirmative
defenses are sufficiently entwined with the merits of the claims
asserted so that there is no basis to believe that retention of
these defenses will needlessly increase the time and expense of
trial or duration and expense of litigation. Accordingly, he
denied the motion to strike the sixth, seventh and eighth
affirmative defenses.
As for the ninth and tenth affirmative defenses, the Magistrate
Judge denied the motion to strike them. He says whether the
communications pertaining to settlement negotiations regarding
foreclosure proceedings fall within the scope of the FDCPA and
whether such communications are admissible in the action are not
appropriate issues for resolution on a motion to strike
affirmative defenses.
Finally for the twelfth to eighteenth affirmative defenses, the
Magistrate Judge finds that the denial of the motion to dismiss
does not necessarily render the factual allegations set forth in
the twelfth through eighteenth affirmative defenses irrelevant.
Although questionable whether they constitute affirmative
defenses, the inclusion of these factual allegations in defense
of the Plaintiffs' claims, do not prejudice the Plaintiffs.
Accordingly, he denied the motion to strike the twelfth through
eighteenth affirmative defenses.
A full-text copy of the Court's Feb. 20, 2018 Decision and Order
is available at https://is.gd/0MnvE9 from Leagle.com.
Christopher White, William Suitor, individually and on behalf of
all others similarly situated & Darlene Schmidt, Plaintiffs,
represented by Brian L. Bromberg, Bromberg Law Office, P.C.,
Charles M. Delbaum, National Consumer Law Center, Stuart T.
Rossman, National Consumer Law Center & Keisha Alecia Williams,
Western New York Law Center, Inc.
Fein, Such and Crane, LLP, Defendant, represented by Dennis R.
McCoy -- ccoy@barclaydamon.com -- Barclay Damon, LLP.
FIRST ACCEPTANCE: Insurance Agents Class Certified in "Twohill"
---------------------------------------------------------------
The Hon. William L. Campbell, Jr., enters a memorandum and order
in the lawsuit styled ESTER TWOHILL, Individually and on Behalf
of All Others Similarly Situated v. FIRST ACCEPTANCE CORPORATION
and FIRST ACCEPTANCE INSURANCE COMPANY, INC., Case No. 3:17-cv-
00284 (M.D. Tenn.):
-- granting the Plaintiff's Motion for Conditional
Certification; and
-- taking under advisement the Plaintiff's Motion for Approval
of the Notice and Consent Form, pending a meeting of the
parties to attempt to agree upon such Notice and Consent
Form.
The Plaintiff filed this action as a purported collective action
pursuant to the Fair Labor Standards Act. The Defendants provide
personal automobile insurance with approximately 369 retail
locations in 17 states. The Plaintiff contends that she worked
for the Defendants as an insurance agent in Decatur, Illinois.
The Plaintiff further alleges that the Defendants classified her
and other insurance agents as "Exempt" under the FLSA until late
May 2016 and failed to pay her overtime wages.
Ms. Twohill asks the Court to conditionally certify this action
as a collective action under the FLSA, comprised of all current
or former insurance agents, who worked for Defendants within the
United States and were classified as "exempt" from overtime pay
for at least one workweek during the last three years.
In light of its ruling, the Court orders the parties to meet and
confer regarding a notice to the potential class members. The
parties shall attempt to reach an agreement as to content and
method of sending the proposed notice and shall file an agreed
upon notice for approval with the Court by March 16, 2018. If
the parties cannot agree to a notice and method of sending the
notice to prospective party plaintiffs, they shall file competing
notice proposals by March 16, 2018.
A copy of the Memorandum and Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=3PJnNNns
FOWLER PACKING: "Aldapa" Class Notice & Distribution Plan OK'd
--------------------------------------------------------------
In the case, BEATRIZ ALDAPA and ELMER AVALOS, individually and on
behalf of all those similarly situated, Plaintiffs, v. FOWLER
PACKING COMPANY INC., AG FORCE LLC, and FOWLER MARKETING
INTERNATIONAL LLC, Defendants, Case No. 1:15-cv-00420-DAD-SAB
(E.D. Cal.), Judge Dale A. Drozd of the U.S. District Court for
the Eastern District of California has entered an order
clarifying the class certification order, approving the class
notice and distribution plan, and directing that the notice be
sent to the class members.
On Jan. 24, 2018, the Court issued an order granting the
Plaintiffs' motion for class certification in part and denying it
in part. It directed the parties to file a stipulated class
notice and distribution plan within 21 days of the order.
On Feb. 14, 2018, the parties filed a stipulated class notice and
distribution plan. As part of this filing, the parties requested
clarification concerning the class period for one of the seven
subclasses certified by the court. Particularly, they observe
correctly that the Court certified the Inaccurate Wage Statement
Subclass as including all individuals who were employed at any of
the Defendants between March 17, 2012 and present as non-exempt
field or agricultural workers for the Defendants. All of the
other subclasses which the Court certified have a class period
that spans from March 17, 2011 to present.
The Plaintiffs believe that the subclass period should start on
March 17, 2011, similar to the other subclasses, because a four-
year statute of limitations applies to any claims brought under
Business and Professions Code Section 17200, California's unfair
competition law, with which this inaccurate wage statement claim
is purportedly brought in conjunction. The Defendants believe
the subclass period should start on March 17, 2014, because
recovery under Section 226(e) constitutes a penalty and is
governed by the one-year statute of limitations set out in
California Civil Procedure Code Section 340(a).
Judge Drozd explains that neither party has persuaded him that
its certification order should be changed in this regard.
As the Plaintiffs indicated at the hearing on and asserted in
their motion for class certification, their freestanding claim
under Labor Code Section 226(a) is that the Defendants had an
obligation to maintain those payroll records for at least three
years. However, the Plaintiffs' freestanding Section 226 claim
is not related to the non-payment of wages. Instead, it solely
concerns the Defendants' failure to adequately maintain records.
The Defendants are allegedly required to maintain these records
for three years. The Plaintiffs have not explained how this
failure to maintain records would be actionable under
California's unfair competition law or why a four year class
period is appropriate. Given this, the Plaintiffs have not
persuaded the Judge that it should amend its certification order.
Meanwhile, concerning the Defendants' assertion, the Judge
observes that the issue of whether payments under Section 226(e)
are wages or penalties, and thus which limitations period covers
them, may be an open question of law. Other cases suggest
Section 226(e) provides for both wages and penalties to be
recovered in different circumstances. Whichever is the case,
this issue and its application to the case has not been fully
briefed for the Court and is therefore not ripe for decision.
Moreover, no decision on the applicable statute of limitations is
required at present. The Defendants do not argue that, given the
nature of this claim, different limitations periods will apply to
the various class members. Indeed, it is apparent that all
members of this subclass will be subject to the same limitations
period, whatever that period ultimately proves to be. The
Defendant will, accordingly, have a full opportunity to argue
that a different, shorter statute of limitations applies to this
claim during the merits phase of the case.
Finally, and on a separate note, Judge Drozd has reviewed the
parties' stipulated notice which includes all the necessary
elements required by Rule 23. Additionally, he has reviewed the
stipulated proposed distribution plan and concludes that it is
the best notice that is practicable under the circumstances.
Given the stipulation of the parties, and for the reasons he
stated, Judge Drozd directed the Defendants to provide the class
counsel and the class action administrator with the entire class
list within 21 days of service of the Order. The class action
administrator is directed to distribute the notice to the class
within 10 days of receipt of the class list. He approved the
stipulated class notice, and directed the class counsel to ensure
that the notice sent to the class members and to advise the class
members they have 45 days from the date of distribution to
exclude themselves from the class action.
A full-text copy of the Court's Feb. 16, 2018 Order is available
at https://is.gd/O9zQHF from Leagle.com.
Beatriz Aldapa, Plaintiff, represented by Dexter Flood Rappleye -
- drappleye@bushgottlieb.com -- Bush Gottlieb, ALC, Erica Deutsch
-- edeutsch@bushgottlieb.com -- Bush Gottlieb, Mario Martinez --
mmartinez@farmworkerlaw.com -- Martinez Aguilasocho & Lynch Aplc
& Ira L. Gottlieb -- igottlieb@bushgottlieb.com -- Bush Gottlieb,
A Law Corporation.
Elmer Avalos, Plaintiff, represented by Erica Deutsch, Bush
Gottlieb, Mario Martinez, Martinez Aguilasocho & Lynch Aplc & Ira
L. Gottlieb, Bush Gottlieb, A Law Corporation.
Fowler Packing Company Inc., a California Corporation, AG Force
LLC, a California Limited Liability Company & Fowler Marketing
International LLC, a California Limited Liability Company,
Defendants, represented by Howard A. Sagaser -- has@sw2law.com --
Sagaser, Watkins & Wieland, PC & Ian Blade Wieland --
ian@sw2law.com -- Sagaser, Watkins & Wieland, PC.
GARDA CL: Does Not Properly Pay Employees, "Blanche" Suit Claims
----------------------------------------------------------------
Brent Blache and Caitlin Hirsch, On behalf of themselves and
others similarly situated v. Garda CL Southeast, Inc. d/b/a Garda
Cash Logistics, Case No. 2:18-cv-01682 (E.D. La., February 17,
2018), is brought against the Defendants for failure to pay
proper minimum wage and overtime compensation in violation of the
Fair Labor Standards Act.
Garda CL Southeast, Inc. is in the armored car services industry
and operates out of numerous locations throughout Louisiana and
the United States. [BN]
The Plaintiff is represented by:
Dale E. Williams, Esq.
LAW OFFICE OF DALE EDWARD WILLIAMS
212 Park Place
Covington, LA 70433
Telephone: (985) 898-6368
Facsimile: (98 5) 892-2640
E-mail: dale@daleslaw.com
- and -
Chad A. Danenhower, Esq.
DANENHOWER LAW FIRM, LLC
212 Park Place
Covington, LA 70433
Telephone: (985) 590-5026
Facsimile: (985) 605-0525
E-mail: chaddanenhower@danenhowerlaw.com
GENERAL MOTORS: Court Denies Bids to Dismiss Duramax Diesel Suit
----------------------------------------------------------------
In the case, IN RE DURAMAX DIESEL LITIGATION. ANDREI FENNER, et
al, Plaintiffs, v. GENERAL MOTORS, LLC, ROBERT BOSCH GMBH, and
ROBERT BOSCH LLC, Defendants, Case No. 17-cv-11661 (E.D. Mich.),
Judge Thomas L. Ludington of the U.S. District Court for the
Eastern District of Michigan, Northern Division, denied the
Defendants' two motions to dismiss the consolidated amended
complaint.
On May 25, 2017, the original Plaintiffs (including the first-
named Plaintiff Fenner) filed a complaint against the Defendants.
The suit was assigned to U.S. District Judge George Caram Steeh.
On July 25, 2017, Judge Steeh issued a stipulated proposed order
which consolidated the Fenner class action with another class
action (Carrie Mizell et al. v. General Motors LLC, et al., Case
No. 17-11984) also pending before him at the time. Pursuant to
that stipulated proposed order, the "caption for the Consolidated
Action" was designated as "IN RE DURAMAX DIESEL LITIGATION."
Also pursuant to that stipulated order, the Plaintiffs filed a
consolidated amended complaint on Aug. 4, 2017. On Aug. 30,
2017, the consolidated case was reassigned because it is a
companion case to Counts et al. v. General Motors, Case No. 1-16-
cv-12541, which is currently in discovery.
The consolidated amended complaint names 13 Plaintiffs residing
in 10 states. Each Plaintiff bought a Silverado or Sierra 2500
or 3500 diesel vehicle with a model year between 2011 and 2016.
Some of the Plaintiffs bought new vehicles and others bought used
vehicles, but each purchased their vehicle from an authorized GM
dealer. The vehicles which they identify all contain a "Duramax"
diesel engine. Their allegations center on the emissions
reduction technology associated with that engine. The Duramax
engine does not actually combine high power and low emissions as
GM suggested.
The consolidated amended complaint includes 54 counts. The first
count alleges that the Defendants violated the Racketeering
Influenced and Corrupt Organizations Act ("RICO") statute. The
remaining 53 counts are state law claims predicated on the
fraudulent concealment and consumer protection laws of 43
different states. Thirty-three of the state law claims originate
from states where no named Plaintiff resides.
The Plaintiffs allege that, in developing the solution, GM did
not act alone. Rather, Robert Bosch GmbH and Robert Bosch LLC
were active and knowing participants in the scheme to evade U.S.
emissions requirements and to develop, manufacture, and test the
electronic diesel control ("EDC") that allowed GM to implement
the defeat device. According to the Plaintiffs, Bosch
participated not just in the development of the defeat device,
but also in the scheme to prevent U.S. regulators from uncovering
the device's true functionality.
At the deadline for responsive pleadings, both GM and Bosch have
filed separate motions to dismiss the consolidated amended
complaint. They advance many arguments, including (i) that the
Plaintiffs lack standing to sue, (ii) that the Plaintiffs have
failed to state a claim for affirmative misrepresentation, (iii)
that any fraudulent concealment or omission claims should be
dismissed or stayed, and (iv) that the Plaintiffs have failed to
state a RICO claim.
Judge Ludington finds that the Plaintiffs' overpayment theory
suffices to provide standing to sue GM, which manufactured the
vehicles and authorized their sale. Accepting the Plaintiffs'
allegations as true, they paid a premium for a "clean diesel"
vehicle which actually polluted at levels dramatically higher
than a reasonable consumer would expect. Claims of overpayment,
wherein a plaintiff paid a premium but did not receive the
anticipated consideration, are cognizable injuries in fact.
There is, accordingly, a traceable connection between the the
Plaintiff's injury and the complained-of conduct of the
Defendant. And financial damages are, of course, fully
redressable by a favorable decision.
There can be no dispute that, compared to GM, Bosch has a more
indirect relationship with United States consumers. But, the
Judge notes that proximate causation is not a requirement of
Article III standing. Bosch may ultimately prevail in its
argument that it should not be held liable for the Plaintiffs'
overpayment, but their allegation that Bosch was intimately
involved in the creation of the component which caused the
overpayment suffices to establish Article III standing.
The Judge also finds that the Plaintiffs contend that GM's
argument that they have failed to plead reliance on affirmative
misrepresentations is irrelevant. The Plaintiffs acknowledge
that the consolidated amended complaint includes an extended
discussion of various advertisements and press releases which GM
issued regarding vehicles equipped with the Duramax engine.
Those allegations, the Plaintiffs explain, are not meant to
buttress affirmative misrepresentation claims. They are meant to
show that the Defendants' omissions were material for purposes of
claims under consumer protection statutes and RICO.
Judge Ludington holds that the Plaintiffs' allegations of
overpayment are sufficient to enable them to advance their state
law consumer protection and fraudulent concealment claims. Their
other alleged damages (essentially that, if the existence of a
defeat device is proven, the value of their vehicles will
decrease) need not be considered for standing purposes. The
Defendants rely upon cases where the claims depended upon direct
proof of noncompliance with federal emission regulations. The
Plaintiffs, on the other hand, are bringing consumer protection
and fraudulent concealment claims which do not require direct
proof of noncompliance.
Finally, the Judge finds that although GM's profits from sales of
Duramax-equipped vehicles might be distinct from Bosch's profits
for development and implementation of EDC17 in those vehicles,
all Defendants clearly profited from the alleged scheme. EDC17
enabled GM to produce diesel vehicles with an apparent blend of
high power, high fuel efficiency, and low emission levels.
Because that combination was attractive to consumers, the scheme
resulted in higher demand for GM's diesel vehicles, which in turn
increased GM's demand for EDC17 devices. The scheme thus
plausibly resulted both in higher sales of diesel vehicles for GM
and higher sales of EDC17 for Bosch.
In addition, the Judge finds that the Plaintiffs have adequately
alleged the elements of a Section 1962(c) substantive RICO claim
against both GM and Bosch. Both the Defendants argue that, to
the extent the Plaintiffs have not alleged a cognizable
substantive RICO claim, they cannot maintain a Section 1962(d)
RICO conspiracy claim against the Defendants. The premise of
that argument has been rejected, and so the RICO conspiracy claim
will not be dismissed.
For these reasons, Judge Ludington denied the Defendants' motions
to dismiss, denied as moot the Plaintiffs' motion for leave to
file a surreply, and denied as moot GM's motion to file a
surresponse.
A full-text copy of the Court's Feb. 20, 2018 Order is available
at https://is.gd/pXXSt8 from Leagle.com.
Andrei Fenner & Joshua Herman, Plaintiffs, represented by
Christopher A. Seeger -- cseeger@seegerweiss.com -- Seeger Weiss
LLP, Dennis A. Lienhardt -- dal@miller.law -- The Miller Law
Firm, P.C., E. Powell Miller -- epm@millerlawpc.com -- The Miller
Law Firm, James E. Cecchi -- JCecchi@carellabyrne.com -- Carella
Byrne, Jessica M. Thompson -- jessicat@hbsslaw.com -- Hagen
Berman Sobol Shapiro LLP, Joseph H. Bates, Carney, Bates &
Pulliam PLLC, Scott A. George -- sgeorge@seegerweiss.com --
Seeger Weiss LLP, Sharon S. Almonrode -- ssa@millerlawpc.com --
The Miller Law Firm, P.C., Thomas Eric Loeser -- toml@hbsslaw.com
-- Hagens Berman Sobol Shapiro LLP & Steve W. Berman --
steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP.
Anthony Gadecki, Cody McAvoy & James Crunkleton III, Plaintiffs,
represented by Christopher A. Seeger, Seeger Weiss LLP, James E.
Cecchi, Carella Byrne, Joseph H. Bates, Carney, Bates & Pulliam
PLLC, Scott A. George, Seeger Weiss LLP & Steve W. Berman, Hagens
Berman Sobol Shapiro LLP.
Carrie Mizell, Consol Plaintiff, represented by David Stellings -
- dstellings@lchb.com -- Lieff Cabraser Heimann & Bernstein,
Dennis A. Lienhardt, The Miller Law Firm, P.C., E. Powell Miller,
The Miller Law Firm, Elizabeth J. Cabraser, Lieff, Cabraser,
Jessica M. Thompson, Hagen Berman Sobol Shapiro LLP, Randall K.
Pulliam, Carney Bates & Pulliam, PLLC, Sharon S. Almonrode, The
Miller Law Firm, P.C., Steve W. Berman, Hagens Berman Sobol
Shapiro LLP, David Fernandes, Baron & Budd, P.C., Mark Pifko,
Baron & Budd, P.C. & Roland Tellis, Baron & Budd, P.C.
Matt Henderson, George Stanley, Michael Reichert, Gregory
Williams, Phillip Burns & Kurt Roberts, Consol Plaintiffs,
represented by David Stellings, Lieff Cabraser Heimann &
Bernstein, Dennis A. Lienhardt, The Miller Law Firm, P.C., E.
Powell Miller, The Miller Law Firm, Elizabeth J. Cabraser, Lieff,
Cabraser, Jessica M. Thompson, Hagen Berman Sobol Shapiro LLP,
Randall K. Pulliam, Carney Bates & Pulliam, PLLC, Sharon S.
Almonrode, The Miller Law Firm, P.C., Steve W. Berman, Hagens
Berman Sobol Shapiro LLP, David Fernandes, Baron & Budd, P.C.,
Mark Pifko, Baron & Budd, P.C. & Roland Tellis, Baron & Budd,
P.C.
Keith Ash, Consol Plaintiff, represented by David Stellings,
Lieff Cabraser Heimann & Bernstein, Dennis A. Lienhardt, The
Miller Law Firm, P.C., E. Powell Miller, The Miller Law Firm,
Elizabeth J. Cabraser, Lieff, Cabraser, Jessica M. Thompson,
Hagen Berman Sobol Shapiro LLP, Randall K. Pulliam, Carney Bates
& Pulliam, PLLC, Sharon S. Almonrode, The Miller Law Firm, P.C.,
Steve W. Berman, Hagens Berman Sobol Shapiro LLP, David
Fernandes, Baron & Budd, P.C., Mark Pifko, Baron & Budd, P.C. &
Roland Tellis, Baron & Budd, P.C.
General Motors LLC, Defendant, represented by Brittany J.
Mouzourakis -- BMouzourakis@dykema.com -- Dykema, Katherine W.
Warner -- kate.warner@kirkland.com -- Kirkland & Ellis, LLP,
Leslie M. Smith -- leslie.smith@kirkland.com -- Kirkland & Ellis,
Michael P. Cooney -- mcooney@dykema.com -- Dykema Gossett &
Renee D. Smith -- renee.smith@kirkland.com -- Kirkland & Ellis,
LLP.
Robert Bosch LLC, Defendant, represented by Carmine D. Boccuzzi,
Jr. -- cboccuzzi@cgsh.com -- Cleary, Gottlieb, One Liberty Plaza,
Michael G. Brady -- mbrady@wnj.com -- Warner, Norcross & William
R. Jansen -- wjansen@wnj.com -- Warner, Norcross.
GOOGLE LLC: Bid to Dismiss 3rd Amended "Singh" Partly Granted
-------------------------------------------------------------
Judge Beth Labson Freeman of the U.S. District Court for the
Northern District of California, San Jose Division, granted in
part with leave to amend and denied in part Google's motion to
dismiss the case, GURMINDER SINGH, Plaintiff, v. GOOGLE LLC,
Defendant, Case No. 16-cv-03734-BLF (N.D. Cal.).
Google has raised another challenge to Singh's pleadings in the
putative class action -- this time through a motion to dismiss
the Third Amended Complaint ("TAC"). The suit arises from
Google's conduct with respect to "pay-per-click" advertisements
on its online advertising platform, AdWords.
Singh, a small business owner, signed up for AdWords in January
2008 and now manages three AdWords accounts. On behalf of
himself and others similarly situated, Singh alleges that Google
makes false and misleading statements to potential advertisers
concerning the extent of invalid or fraudulent clicks on the
AdWords platform, and then ultimately charges its advertisers for
such clicks that are not generated by real users at a much higher
rate than advertisers were led to believe.
On June 2, 2017, the Court granted Google's motion to dismiss
Singh's Second Amended Complaint ("SAC") with leave to amend on a
number of grounds, including Singh's failure to plausibly allege
that Google's challenged statements were false or misleading.
Singh has now dropped two of his claims against Google, and the
TAC alleges two causes of action for: (1) violations of
California's unfair competition law ("UCL"); and (2) violations
of California's false advertising law ("FAL").
Google moved to dismiss the TAC, and the Court heard argument on
Nov. 30, 2017. At the hearing, the Court expressed its concerns
regarding Singh's failure to allege standing under either the UCL
or FAL, as the TAC does not allege that Singh lost money or
property as a result of Google's conduct. Aside from standing,
Google moves to dismiss the TAC for failure to state a claim
under the UCL or FAL, arguing that (1) Singh has not adequately
alleged that Google's statements were false or misleading; (2)
Singh has not plausibly alleged that he reasonably relied on
Google's statements; and (3) Singh's claims under the unfairness
prong of the UCL remain deficient. After the Court expressed
willingness to permit another amendment to the pleadings, Google
urged the Court to revisit the reliance issue which Google argued
could resolve the case as a matter of law.
Judge Freeman finds that the TAC does not contain any factual
allegations regarding Singh's own experience paying for invalid
clicks, and thus the TAC does not allege that Singh suffered an
economic injury as a result of Google's conduct sufficient to
confer standing under the UCL and FAL. The glaring omission from
the TAC is any allegation that Singh actually paid for invalid or
fraudulent clicks at a rate above what was advertised. Singh's
conclusory allegation, without facts to support it, that he and
class members have been charged for, and subsequently have paid
for, invalid and/or fraudulent clicks on the Google AdWords
platform is insufficient.
The Judge also finds that Singh is also unable to meaningfully
distinguish the still-binding authority cited by Google holding
that standing is not adequately alleged when the injury is
conjectural or hypothetical. The research articles that Singh
has cited to in lieu of factual allegations in the TAC do not
make it plausible that Singh or other class members actually paid
for any invalid clicks. Until Singh alleges that he lost money
or property as a result of Google's alleged misrepresentations,
the Judge says Singh lacks standing to assert claims under the
UCL or FAL.
Because this is the first time that the Court has explicitly
analyzed the standing issue, the interests of justice support
permitting Singh to amend in order to allege that he lost money
or property -- i.e. that he was charged for invalid clicks -- as
a result of Google's alleged misconduct. Accordingly, Judge
Freeman will grant with leave to amend Google's motion to dismiss
the TAC for lack of standing.
Because the Judge will granted Google's motion to dismiss for
lack of standing, it need not reach the rest of Google's se
arguments. However, Google urged the Court at the hearing to
analyze its dispositive reliance argument before permitting
further amendment of the pleadings. As with standing, the Judge
did not reach reliance in its Prior Order dismissing the SAC.
She now finds that Singh has plausibly alleged reasonable
reliance on Google's alleged misrepresentations. Hence, he will
deny motion to dismiss the TAC on these grounds.
For the foregoing reasons, and those discussed on the record,
Judge Freeman granted in part with leave to amend and denied in
part Google's motion to dismiss the TAC. She directed Singh to
file any amended pleading on or before April 23, 2018. Failure
to meet the deadline to file an amended complaint or failure to
cure the deficiencies identified in the Oder will result in a
dismissal of Singh's claims with prejudice.
A full-text copy of the Court's Feb. 20, 2018 Order is available
at https://is.gd/JVnU20 from Leagle.com.
Gurminder Singh, individually and on behalf of others similarly
situated, Plaintiff, represented by Chiharu Gina Sekino, Shepherd
Finkelman Miller & Shah, LLP, Dylan M. Long, Edgar Law Firm LLC,
pro hac vice, James Edward Miller, Shepherd Finkelman Miller &
Shah, LLP, James C. Shah, Shepherd Finkelman Miller & Shah, LLP &
Kolin C. Tang, Shepherd Finkelman Miller & Shah, LLP.
Google LLC, Defendant, represented by Brian M. Willen --
bwillen@wsgr.com -- Wilson Sonsini, pro hac vice, Dale Richard
Bish -- DBish@wsgr.com -- Wilson Sonsini Goodrich & Rosati A
Professional Corporation & Sonal Mittal -- smittal@wsgr.com --
Wilson Sonsini.
GUIDUBALDI & ASSOCIATES: Motiwala's Bid to Certify Class Denied
---------------------------------------------------------------
The Clerk of the U.S. District Court for the Northern District of
Illinois made a docket entry on March 2, 2018, in the case styled
Ahmed Motiwala v. Mark D. Guidubaldi & Associates, LLC, Case No.
1:17-cv-02445 (N.D. Ill.), relating to a hearing held before the
Honorable Harry D. Leinenweber.
The minute entry states that given the Seventh Circuit's decision
in Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir.
2015)overruling Damasco v. Clearwire Corp., 662 F.3d 891, 895
(7th Cir. 2011), the Plaintiff's motion for class certification
is denied without prejudice as premature.
A copy of the Notification of Docket Entry is available at no
charge at http://d.classactionreporternewsletter.com/u?f=prtDKoyI
HAMILTON GROUP: "Eaton" Class Suit Seeks to Recover Unpaid Wages
----------------------------------------------------------------
Anthony Eaton, individually, and on behalf of all others
similarly situated v. Hamilton Group Funding, James McCaughan,
and Ira Goldberg, Case No. 0:18-cv-60374-PCH (S.D. Fla., February
19, 2018), seeks to recover unpaid earned overtime compensation
and for other relief pursuant to the Fair Labor Standards Act.
The Defendants own and operate a bank located at 1551 Sawgrass
Corporate Parkway, Suite 300, Sunrise, Florida 33323. [BN]
The Plaintiff is represented by:
Gregg I. Shavitz, Esq.
Camar R. Jones, Esq.
SHAVITZ LAW GROUP, P.A.
1515 S. Federal Highway, Suite 404
Boca Raton, FL 33432
Telephone: (561) 447-8888
Facsimile: (561) 447-8831
E-mail: gshavitz@shavitzlaw.com
cjones@shavitzlaw.com
- and -
Erik H. Langeland, Esq.
THE LAW OFFICES OF ERIK H. LANGELAND, PC
733 Third Avenue, 15th Floor
New York, NY 10017
Telephone: (212) 354-6270
Facsimile: (212) 898-9086
E-mail: elangeland@langelandlaw.com
- and -
James B. Zouras, Esq.
Ryan F. Stephan, Esq.
Catherine T. Mitchell, Esq.
STEPHAN ZOURAS, LLP
205 N. Michigan Avenue, Suite 2560
Chicago, IL 60601
Telephone: (312) 233-1550
Facsimile: (312) 233-1560
E-mail: jzouras@stephanzouras.com
- and -
Jon Tostrud, Esq.
TOSTRUD LAW GROUP, PC
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 278-2600
Facsimile: (310) 278-2640
E-mail: jtostrud@tostrudlaw.com
HANOVER INSURANCE: Ct. Won't Enforce "Durand" Scheduling Order
--------------------------------------------------------------
In the case, JENNIFER A. DURAND, On behalf of herself and on
Behalf of all others similarly situated, Plaintiffs, v. THE
HANOVER INSURANCE GROUP, INC., And THE ALLMERICA FINANCIAL CASH
BALANCE PENSION PLAN, Defendants, Civil Action No. 3:07-CV-00130-
HBB (W.D. Ky.), Magistrate Judge H. Brent Brennenstuhl of the
U.S. District Court for the Western District of Kentucky,
Louisville Division, (i) denied the Defendants' motion to enforce
the scheduling order and for a protective order regarding
untimely additional privilege challenges; (ii) denied the
Defendants' motion for expedited hearing; (iii) granted in part
and denied in part the Plaintiffs' motion to update and amend the
Court's Dec. 17, 2013 class certification order; and (iv) granted
in part and denied in part the Plaintiffs' motion for in camera
review of 218 additional documents that the Defendants are
withholding on privilege grounds.
Durand filed the original class action complaint that named as
the Defendants: Hanover and the Plan, alleging that Hanover was
the sponsor, administrator, and a named fiduciary of this
employee pension benefit plan.
The original complaint alleges that Hanover or one of its
affiliates employed Durand from Oct. 17, 1995 until April 30,
2003, and she accrued pension benefits under the Plan throughout
the approximately seven and a half years of her employment. It
asserts that after ending her employment with Hanover, Durand
elected to receive her fullyvested Plan benefits in the form of a
lump-sum payment. She claims that the projection rate in the
Plan's whipsaw calculation methodology violated ERISA because it
understated the present value of her accrued benefit and, as a
result, she suffered a partial forfeiture of her vested, accrued
benefits.
The Sixth Circuit concluded that the original complaint focused
on the lump-sum calculation and asserted only a whipsaw claim
under 29 U.S.C. Sections 1053(a), (e) and 1055(g), 26 U.S.C.
Sections 411(a) and 417(e). Further, it explained a whipsaw
claim alleges that a departing employee's lump-sum distribution
understates the present value of her accrued benefit because of
the use of a calculation methodology -- in this case, a
projection rate -- that violates ERISA requirements.
In the amended complaint, filed Dec. 15, 2009, Walter Wharton and
Michael Tedesco joined Durand as individual Plaintiffs and the
representatives of a putative class, seeking relief under ERISA
Section 502(a), 29 U.S.C. Section 1132(a). The amended complaint
named Durand as a member of the Class and the Pre-2004
Distribution Subclass; Wharton as a member of the Class and the
2004-2006 Distribution Subclass; and Tedesco as a member of the
Class and the Post-2006 Distribution Subclass). The amended
complaint again named the Hanover and the Plan as the Defendants.
The amended complaint joined Wharton in Durand's original whipsaw
claim. All the three Plaintiffs asserted a new claim that
challenged the method of crediting interest, sometimes referred
to as an interest crediting floor claim. Additionally, they
asserted that the Plan did not provide proper notice of the 2004
Plan amendment. The Plaintiffs also asserted claims that Hanover
and the Plan had breached their fiduciary duties, under ERISA, to
plan members in their administration of the Plan.
Hanover and the Plan moved to dismiss the additional claims in
the amended complaint on several grounds, including the statute
of limitations. The Court ruled that the following claims in the
amended complaint were time-barred: (1) the interest crediting
floor claim (challenged the method of crediting interest); (2)
the cutback claim; (3) the improper notice claim, arising under
Section 204 (h), in connection with the 2004 Plan amendment; and
(4) all of the breach of fiduciary duty claims. The Court
observed the claims remaining in the action, therefore, are the
original whipsaw claims of Plaintiff Durand with the joinder of
Plaintiff Wharton.
Durand, Wharton, and Tedesco moved the Court for reconsideration
and/or clarification of its order dismissing certain claims as
time-barred. The Court concluded its timeliness analysis
remained valid as to all of the previously addressed claims in
the amended complaint, except the whipsaw-related fiduciary
claim. It indicated the remaining claims are those of Durand and
Wharton for benefits and breach of fiduciary duty arising from
the alleged illegal methodology for calculating lump-sum
distribution.
The parties litigated the merits of Wharton's whipsaw benefits
claim and whipsaw-related breach of fiduciary duty claim through
a motion for partial summary judgment filed by the Defendants.
The Court agreed with the Defendants and granted their motion for
partial summary judgment as to Wharton's whipsaw and whipsaw-
related breach of fiduciary duty claims. Further, it expressly
ordered the claims of Plaintiff Wharton, and the prospective
class members he represents, are dismissed with prejudice, there
being no genuine issue of material fact and the defendants being
entitled to judgment as a matter of law.
Notably, in this same memorandum opinion and order, the Court
addressed the Plaintiffs' motion for class certification. It
granted, in part, the Plaintiffs' motion for class certification.
More specifically, it denied the motion as to the Wharton
subclass because their claims were dismissed with prejudice. It
also directed the parties to jointly file a revised order
certifying classes, claims and defenses, and appointing the class
counsel.
On Dec. 17, 2013, the Court issued an order certifying the
classes, claims, and defenses and appointing the class counsel.
The order established an overall class ("Lump Sum Class") of
vested Plan participants who received a lump sum distribution
between March 1, 1997 and Dec. 31, 2003. It certified Durand as
the overall class representative. Additionally, the order
established a subclass ("Subclass A") made up of class members
who received their lump sum distribution between March 1, 1997
and March 12, 2002. The order certified James A. Fisher, who
received a lump sum distribution in 2000, the subclass
representative. Having concluded the Wharton and Tedesco claims
lacked merit, the Court declined to certify these Plaintiffs as
the class representatives.
On Dec. 17, 2013, the Court granted the Plaintiffs' motion for
entry of a final order on the post-2003 claims brought by Wharton
and Tedesco and issued a final judgment on its three orders
dismissing their claims. Additionally, the Court made clear all
that remained for adjudication were the whipsaw and whipsaw-
related breach of fiduciary claims. The Plaintiffs filed a
timely notice of appeal, and their appeal proceeded before the
Sixth Circuit.
Meanwhile, on Dec. 9, 2014, the Defendants filed a motion for
summary judgment as to the claims of Subclass A. In a memorandum
opinion and order issued on April 1, 2015, the Court stayed the
Defendants' motion for summary judgment pending completion of
limited discovery on the Subclass A statute of limitations
defense.
Thereafter, on May 11, 2015, the Court signed an agreed
scheduling order regarding the completion of limited discovery on
the Subclass A statute of limitations defense claims. The agreed
order included an acknowledgement by the parties that an amended
scheduling order would be appropriate after the Sixth Circuit
ruled on the pending appeal of the Wharton/Tedesco claims.
Thereafter, amendments were made to the scheduling order as the
discovery process proceeded.
Meanwhile, the Sixth Circuit issued its opinion on Nov. 6, 2015.
It affirmed the Court's ruling that the cutback claims and
related breach of fiduciary duty claims were untimely.
In February, March, and April of 2016, the Plaintiffs filed
motions to compel related to documents they sought through
written discovery that the Defendants' refused to produce on
claims of relevance, attorney-client privilege, and/or work-
product protection. In October 2016, the Court ruled on those
motions. The Defendants moved for reconsideration as to seven
documents that the Court concluded were subject to production
under the fiduciary exception to the attorney-client privilege
and work product doctrine. In January 2017, the Court denied
that motion.
In February 2017, the Defendants filed a petition for writ of
mandamus with the Sixth Circuit and moved the Court to stay
enforcement of portions of the underlying order pending
resolution of their petition. The Court granted the motion to
stay. In May 2017, the Sixth Circuit issued an order denying the
Defendants' petition for writ of mandamus.
In June 2017, the Court issued an order lifting the stay and
directed the Defendants to produce full versions of the documents
identified in their motion for reconsideration. In July 2017, it
executed an agreed scheduling order for discovery and summary
judgment briefing.
On Oct. 12, 2017, the Defendants filed a motion for a limited
extension of time in which to negotiate a non-waiver stipulation
with the Plaintiffs or to file a motion for a protective order
before producing 26 privileged documents, containing
communications seeking or providing legal advice about draft
204(h) notices, that the Defendants maintained did not fall
within the fiduciary exception to the attorney-client privilege.
On Oct. 20, 2017, the Court granted the Defendants' motion for
extension of time.
On Oct. 18, 2017, five days after the deadline for completing
written fact discovery, the Defendants filed a motion for entry
of an agreed order and stipulation regarding production of the
204(h) documents. On Oct. 20, 2017, the Court granted the
Defendants' motion.
The Plaintiffs report that the Defendants actually produced only
19 of the 204(h) documents on Oct. 18, 2017. According to the
Plaintiffs, the Defendants produced the 7 other 204(h) documents
on Dec. 5, 2017.
Before the Court are the Defendants' motion to enforce the
scheduling order and for a protective order forbidding the
Plaintiffs additional privilege challenges as untimely; the
Plaintiffs' motion to update and amend the Court's Dec. 17, 2013
class certification order; and the Plaintiffs' motion for in
camera review of 218 additional documents that the Defendants are
withholding on privilege grounds. These related motions arise
out of the 204(h) documents that the Defendants produced, subject
to a nonwaiver stipulation, on Oct. 18 and Dec. 5, 2017.
Judge Brennenstuhl denied the Defendants' motions (i) to enforce
scheduling order and for protective order regarding untimely
additional privilege challenges, and for expedited hearing. He
notes that he cannot ignore the fact that the Plaintiffs did not
have the opportunity to begin reviewing the 204(h) documents
until five days after the Oct. 13, 2017 deadline expired.
Therefore, he finds that good cause exists to modify the
scheduling order deadlines with regard to both of the Plaintiffs'
motions. Moving to the issue of prejudice under Rule 16(b)(4),
the Judge concludes that the Defendants have failed to
demonstrate they will suffer substantial prejudice as a result of
modifying deadlines in the scheduling order.
The Judge granted in part and denied in part the Plaintiffs'
motion to update and amend the class certification order. As to
the proposed amendments to the Lump Sum Class, he finds that the
Defendants have not articulated any objection to the proposal.
In light of additional facts revealed through discovery since
entry of the original class certification order, the he concludes
the proposed amendments are appropriate under Rule 23(c)(1)(C).
Therefore, he granted the Plaintiffs' motion to the extent that
it seeks the mentioned amendments to the class certification
order.
As to the proposed amendments to Subclass A, the Plaintiffs
contend the Sixth Circuit expected Subclass A would have the
opportunity to pursue claims 3 and 4 before the Court. The Judge
concludes that the class certification order should be amended to
accurately reflect the existing claims and defenses pertaining to
the current members of Subclass A. However, not all of the
Plaintiffs' proposals for adjustments to the Subclass A
definition are adequate or accurate.
The Judge ordered that the new class certification order will
reflect that Subclass A is redesignated as the "Whipsaw-Related8
Fiduciary Breach Class"; the class is represented by Fisher; the
class members are Plan participants who received a lump sum
distribution between March 1, 1997 and March 12, 2002; and the
class members are pursuing equitable relief under Section
502(a)(3) on the following whipsaw-related breach of fiduciary
duty claims: (i) the Defendants breached their fiduciary duty
under ERISA Section 404 by failing to independently investigate
the legality of the Plan's calculation method and override the
Plan terms pursuant to ERISA Section 404(a)(1)(D); and (ii) the
Defendants breached their fiduciary duty under ERISA Section 404
by concealing from participants the plan's whipsaw calculation
methodology.
He also ordered that the class certification order should not be
amended to include Plan participants who received lump sum
distributions between Jan. 1, 2004 and Aug. 17, 2006. By no
later than March 2, 2018, the parties will submit a proposed
amended class certification order based on the rulings.
Judge Brennenstuhl granted in part and denied in part the
Plaintiffs' motion for in camera review of 218 additional
documents that the Defendants are withholding on privilege
grounds. He granted it as to the documents in Categories 1, 2,
and 5; and denied it as to the documents in Categories 3, 4, 6,
7, 8, and 9. By no later than March 2, 2018, the Defendants will
submit directly to the undersigned's Bowling Green chambers for
in camera review the documents in Categories 1, 2, and 5.
He concludes that (ii) an in camera review of the remaining 39
documents in Category 2 would be appropriate as they seem to
pertain to matters of plan administration and may be relevant to
the whipsaw and whipsaw-related breach of fiduciary duty claims
actually asserted in the amended complaint; (ii)an in camera
review of the remaining 7 documents in Category 5 would be
appropriate as they seem to pertain to matters of plan
administration and may be relevant to the whipsaw and whipsaw-
related breach of fiduciary duty claims actually asserted in the
amended complaint; and (ii) an in camera review of the remaining
95 documents in Category 1 would be appropriate as they seem to
pertain to matters of plan administration and may be relevant to
the whipsaw and whipsaw-related breach of fiduciary duty claims
actually asserted in the amended complaint.
A full-text copy of the Court's Feb. 16, 2018 Memorandum Opinion
and Order is available at https://is.gd/XdhxIg from Leagle.com.
Jennifer A. Durand, On behalf of herself and on behalf of all
others similarly situated, Walter J. Wharton & Michael A.
Tedesco, Plaintiffs, represented by Albert Huang --
albert@gottesdienerlaw.com -- Gottesdiener Law Firm, PLLC, E.
Douglas Richards, E. Douglas Richards, PSC, Eli Gottesdiener --
eli@gottesdienerlaw.com -- Gottesdiener Law Firm, PLLC & Steven
D. Cohen, Gottesdiener Law Firm, PLLC.
The Hanover Insurance Group, Inc., Defendant, represented by Alan
S. Gilbert -- alan.gilbert@dentons.com -- Dentons US LLP,
Christopher Q. King -- cking@redgravellp.com -- Redgrave, LLP,
Kristen C. Rodriguez -- kristen.rodriguez@dentons.com -- Dentons
US LLP, Lira A. Johnson -- lira.johnson@dinsmore.com -- Dinsmore
& Shohl LLP, Stephen J. O'Brien -- stephen.obrien@dentons.com --
Dentons US LLP, Jeffery S. Davis -- jdavis@riker.com -- Dentons
US LLP, Lisa D. Hughes , Dinsmore & Shohl LLP & Richard H.C. Clay
-- richard.clay@dinsmore.com -- Dinsmore & Shohl LLP.
The Allmerica Financial Cash Balance Pension Plan, Defendant,
represented by Alan S. Gilbert, Dentons US LLP, Christopher Q.
King, Redgrave, LLP, Lira A. Johnson, Dinsmore & Shohl LLP,
Stephen J. O'Brien, Dentons US LLP, Jeffery S. Davis, Dentons US
LLP, Lisa D. Hughes, Dinsmore & Shohl LLP & Richard H.C. Clay,
Dinsmore & Shohl LLP.
HEALTH CARE: Joint Bid to Modify "Craft" Class Definition Filed
---------------------------------------------------------------
In the case, ELIZABETH A. CRAFT; JANE DOE, a minor, by her next
friend and parent, ELIZABETH A. CRAFT; BRYAN L. PAUTSCH; MARY
DOE, a minor, by her next friend and parent, BRYAN L. PAUTSCH; on
their own behalf and on behalf of all others similarly situated,
Plaintiffs, v. HEALTH CARE SERVICE CORPORATION, Defendant, Case
No. 14-CV-5853 (N.D. Ill.), the Parties submitted their joint
motion to modify the Settlement Class definition contained in the
attached Final Order and Judgment Approving Settlement and
Dismissing Action with Prejudice with Judge Virginia M. Kendall
of the U.S. District Court for the Northern District of Illinois,
Eastern Division.
On Sept. 20, 2017, the Court entered an Order preliminarily
certifying the Settlement Class and approving the Settlement
Agreement. The Settlement Agreement contains a procedure for one
or more individuals to be added to the Settlement Class if, at
any time before entry of the Final Approval Order, the Parties
confirm that such individuals otherwise met the Settlement Class
definition but were not included in the Request Data produced by
HCSC.
Shortly before the Fairness Hearing on Jan. 22, 2018, the Class
Counsel was contacted by an individual who did not appear in the
Request Data, who believed that he and his daughter met the
Settlement Class definition. After reviewing documentation
submitted by that individual and researching the issue, the
Parties' respective counsel verified that the individual and his
daughter meet the Settlement Class definition, and added them to
the Settlement Class pursuant to the approved procedure in the
Settlement Agreement.
At the Fairness Hearing on Jan. 22, 2018, the counsel advised the
Court of this development based on then-available information,
and undertook to research the issue further in order to determine
whether to recommend additional actions to the Court. Based upon
these representations, the Court continued the Plaintiffs' Motion
for Final Order and Judgment Approving Settlement and Dismissing
Action with Prejudice until Feb. 26, 2018.
The Parties, having now completed their review, jointly propose a
modification to the Settlement Class definition. In particular,
the Parties recommend modifying the Settlement Class definition
to encompass only those individuals identified in the updated
Request Data. Due to the sensitive nature of that data, they
propose submitting a final list of Settlement Class members,
excluding opt outs, to the Court under seal promptly following
entry of the modified Final Approval Order.
The proposed modification to the Settlement Class definition
ensures that persons who were not identified as potential
Settlement Class Members in the updated Request Data will not be
deemed to have released any claims through this Settlement. It
does not affect the rights of any existing Settlement Class
Members, who stand in the same position as when they received the
Notice. Therefore, the Court may modify the class definition
under its authority in Fed. R. Civ. P. 23(c) without affecting
class members' rights, implicating due process considerations,
and/or requiring a supplemental notice.
On Jan. 5, 2018, the Plaintiffs filed a Proposed Final Order
together with their final approval papers. A revision to the
Proposed Final Order is attached in redline and clean versions
that incorporate the recommended modification to the Settlement
Class definition.
The Parties jointly request that the Court enters the Final Order
and Judgment. They will be prepared to file under seal a list of
all Settlement Class Members promptly after entry of the Final
Order and Judgment. If the Court is inclined to enter the Final
Order and Judgment without further submissions from the counsel,
then the Plaintiffs' pending Motion for Final Order and Judgment
Approving Settlement and Dismissing Action with Prejudice may be
removed from the calendar for February 26 Class.
A full-text copy of the Joint Motion filed on Feb. 20, 2018 Order
is available at https://is.gd/11QqWw from Leagle.com.
Elizabeth A. Craft & Jane Doe, on their own behalves and on
behalf of all others similarly situated,, Plaintiffs, represented
by Adam Abelson -- aabelson@zuckerman.com -- Zuckerman Spaeder
LLP, pro hac vice, Caroline Elizabeth Reynolds --
creynolds@zuckerman.com -- Zuckerman Spaeder Llp, pro hac vice,
D. Brian Hufford -- dbhufford@zuckerman.com -- Zuckerman Spaeder
LLP, pro hac vice, Daniel P. Moylan , Zuckerman Spaeder LLP, pro
hac vice, George Freeman Galland, Jr. -- ggalland@lawmbg.com --
Miner Barnhill & Galland, P.C., Jason S. Cowart --
jcowart@zuckerman.com -- Zuckerman Spaeder LLP, Martin S.
Himeles, Jr. -- mhimeles@zuckerman.com -- Zuckerman Spaeder LLP,
pro hac vice & Meiram Bendat, Psych-Appeal, Inc., pro hac vice.
Bryan L. Pautsch & Mary Doe, a minor, by her next friend and
parent, Bryan L. Pautsch; on their own behalf and on behalf of
all others similarly situated, Plaintiffs, represented by Adam
Abelson, Zuckerman Spaeder LLP, pro hac vice, Caroline Elizabeth
Reynolds, Zuckerman Spaeder Llp, pro hac vice, D. Brian Hufford,
Zuckerman Spaeder LLP, pro hac vice, Daniel P. Moylan, Zuckerman
Spaeder LLP, pro hac vice, Jason S. Cowart, Zuckerman Spaeder
LLP, Martin S. Himeles, Jr., Zuckerman Spaeder LLP, pro hac vice
& Meiram Bendat, Psych-Appeal, Inc., pro hac vice.
Health Care Service Corporation, Defendant, represented by Helen
E. Witt -- helen.witt@kirkland.com -- Kirkland & Ellis LLP, Brian
Patrick Kavanaugh -- brian.kavanaugh@kirkland.com -- Kirkland &
Ellis LLP,Catherine Morgan Cottle, Kirkland & Ellis Llp & Devon
McKechan Largio -- devon.largio@kirkland.com -- Kirkland & Ellis
LLP.
HERSHEY CO: Court Grants Bid for Summary Judgment in "Bratton"
--------------------------------------------------------------
Judge Nanette K. Laughrey of the U.S. District Court for the
Western District of Missouri, Central Division, granted the
Defendant's motion for summary judgment the case, ROBERT BRATTON,
individually and on behalf of all others similarly situated,
Plaintiff, v. THE HERSHEY COMPANY, Defendant, Case No. 2:16-cv-
4322-C-NKL (W.D. Mo.).
Hershey has manufactured and sold Whoppers in 5-ounce cardboard
boxes since 2001, and Reese's Pieces in 4-ounce cardboard boxes
since 2002, and throughout these periods, the size of each box
has remained consistent. Since at least 2006, Bratton has
purchased both products regularly. He guessed that, on average,
he purchased each of these products at least five times a month.
This totals approximately 600 boxes of each of the boxes of candy
at issue in the litigation.
Bratton testified that he initially expected the boxes to be
full, but at some point he realized that they're not. Although
he claimed to have always clung to his hope that the boxes would
be full, he acknowledged that he did not expect the box to be
miraculously filled the next time he bought it. He Bratton
guessed that the 600 or so boxes of Whoppers and Reese's Pieces
that he purchased in the last 10 years contained between 30% and
40% empty space. Despite his knowledge concerning approximately
how much candy and how much empty space would be in each box, he
continued to buy an average of five boxes a month.
On Sept. 22, 2016, the Plaintiff purchased a 4-ounce box of
Reese's Pieces and a 5-ounce box of Whoppers from a Gerbes store
in Columbia, Missouri. These are the only purchases of the
Reese's Pieces and Whoppers boxes that the Plaintiff can
specifically recall. Bratton paid $1 for each box of candy.
When asked at his deposition if there was a price that he would
not have been willing to pay for the Reese's Pieces box, he
replied that if they'd been $1.50 or $2 or something, he probably
would have waited until he could get them somewhere else. But he
also acknowledged having paid $4 for a box of the candies at the
movie theater. Bratton estimates that he paid $4 a box for
approximately 30% of the boxes he purchased in the last decade.
Mr. Bratton claims that, since learning of the facts giving rise
to the litigation, he has not bought any more theater boxes of
Reese's Pieces or Whoppers.
Bratton filed the lawsuit in state court as a putative class
action. Count I alleges violation of the Missouri Merchandising
Practices Act ("MMPA") and seeks injunctive relief and damages.
Count II alleges unjust enrichment and seeks restitution or
disgorgement of Hershey's purported economic enrichment.
Hershey removed the case to federal court and then moved to
dismiss the case. The Court denied Hershey's motion to dismiss.
Hershey now moves for summary judgment on both of Bratton's
claims.
Judge Laughrey holds that Mr. Bratton's continued purchases of
the candy boxes despite his knowledge of how much purported
slack-fill they contained is fatal to his MMPA claim. The
"continuous accrual doctrine" is irrelevant to the question of
whether Mr. Bratton suffered any injury when he voluntarily
purchased candy boxes that he had long believed to be 30-40%
slack-filled. The Judge rejects the Plaintiff's arguments that
the summary judgment motion is premature or that Hershey's
arguments ought to have been addressed at the class certification
stage. No amount of discovery will change the fact that the only
Plaintiff in the putative class action cannot succeed on his MMPA
claim.
The Judge also holds that Bratton's unjust enrichment claim fails
for the same reason that his MMPA claim fails. He finds that the
only fraudulent or misleading representations the complaint
alleges concern the candy packaging. However, Bratton was not
misled by the packaging. He knew roughly what he was getting
every time he purchased one of the candy boxes at issue, but
chose to purchase them anyway. Bratton therefore cannot
establish that Hershey's retention of the purported benefit was
unjust -- a critical element of his unjust enrichment claim.
For the reasons he stated, Judge Laughrey granted Hershey's
motion for summary judgment. Bratton's MMPA and unjust
enrichment claims are dismissed with prejudice.
A full-text copy of the Court's Feb. 16, 2018 Order is available
at https://is.gd/gcnzHo from Leagle.com.
Robert Bratton, Plaintiff, represented by C.K. Lee pro hac vice,
Christopher D. Moon pro hac vice, David L. Steelman, Steelman,
Gaunt & Horsefield, Naomi Spector, pro hac vice, Scott A. Kamber,
pro hac vice & Stephen F. Gaunt, Steelman, Gaunt & Horsefield.
The Hershey Company, Defendant, represented by Gabriela Bersuder
-- gbersuder@pbwt.com -- pro hac vice, Jane Marie Metcalf --
jmetcalf@pbwt.com -- pro hac vice, Michelle W. Cohen --
mcohen@pbwt.com -- Patterson Belknap Webb & Tyler LLP, pro hac
vice, Steven Alan Zalesin -- sazalesin@pbwt.com -- Patterson
Belknap Webb & Tyler LLP, pro hac vice & Sonette T. Magnus --
smagnus@lewisrice.com -- Lewis Rice LLC.
ISLE OF CAPRI: Settlement in "Brna" Suit Has Final Approval
-----------------------------------------------------------
In the case, DANIEL A. BRNA, RAMON FERNANDEZ and JAMES E. SCOTT,
on behalf of themselves and all others similarly situated,
Plaintiffs, v. ISLE OF CAPRI CASINOS INC. and INTERBLOCK USA,
LLC, Defendants, Case No. 17-60144-CIV-MORENO (S.D. Fla.), Judge
Federico A. Moreno of the U.S. District Court for the Southern
District of Florida, Miami Division, granted both the Plaintiffs'
Unopposed Motion for Final Approval of Class Action Settlement
and Certification of the Settlement Class, and their Unopposed
Motion and Application for Attorney's Fees and Costs and
Incentive Awards.
On Nov. 17, 2017, the Court preliminarily approved the Settlement
Agreement dated Sept. 22, 2017 that provides for direct monetary
relief to a class of casino patrons who placed a winning buy bet
on electronic gaming machines that were manufactured by Defendant
Interblock and were available for play at Defendant IOC in
Pompano Park from July 8, 2015 to Jan. 22, 2017. In accordance
with the Settlement Agreement and the Court's preliminary
approval order, the Settlement Administrator provided Notice to
eligible class members.
The Class Counsel has filed with the Court a Declaration from JND
Legal Administration, the independent third-party Settlement
Administrator for the Settlement, establishing the Settlement
Notice and Claim Form were delivered by email and mail to the
class members on Nov. 27, 2017 and Dec. 4, 2017, the Settlement
website was established on Nov. 27, 2017, and Claim Forms were
also available electronically on the website. Adequate notice
was given to the Settlement Class Members in compliance with the
Settlement Agreement and the preliminary approval order.
In connection with the final approval process, a final approval
hearing was duly noticed and the Court has considered: (a)
whether the terms and conditions of the Settlement Agreement are
fair, reasonable, and adequate to the Settlement Class; (b)
whether final judgment should be entered dismissing the
Plaintiffs' claims on the merits and with prejudice, including
the claims of Settlement Class Members who have not requested
exclusion; and (c) whether and in what amount to award attorney's
fees and costs to Class Counsel and service awards to the
Plaintiffs.
Judge Moreno granted the Plaintiffs' Motion for Final Approval.
Pursuant to Fed. R. Civ. P. 23, he finally certified the
Settlement Class for settlement purposes only, as identified in
the Settlement Agreement, which will consist of all Fan Club
members who played the game of craps on Interblock's Organic Dice
machines at IOC's Pompano Park casino during the Class Period and
who placed and won a Buy Bet while playing craps. The Class
Period is July 8, 2015 to Jan. 22, 2017, inclusive.
The Judge finally designated Cristina M. Pierson of the law firm
of Kelley Uustal PLC and Daren Stabinski of the law firm Daren
Stabinski, P.A. as the Class Counsel; and Plaintiffs Brna and
Scott, as the Class Representatives in the Lawsuit.
Pursuant to Fed. R. Civ. P. 23(e), Judge Moreno finds that the
Settlement is fair, reasonable and adequate. He entered judgment
finally approving and adopting the Settlement and Settlement
Agreement, and dismissing with prejudice the claims of the
Plaintiffs and Settlement Class Members in the Lawsuit, with the
parties to bear their own costs and attorneys' fees, except as
provided in the Order or in the Settlement Agreement.
The Judge granted the Plaintiffs' Motion for Fees and Costs. He
awarded the Class Counsel attorneys' fees and expenses in the
amount of $155,000 payable by the Defendants pursuant to the
terms of the Settlement Agreement. He finds the awards of
$124,178.60 in fees and $30,821.40 in costs are fair and
reasonable in light of all circumstances as detailed in the
Motion for Fees and Incentive Awards.
The Judge also awarded and finally approved incentive awards in
the amount of $2,500 to Plaintiff Brna and $2,500 to Plaintiff
Scott, payable by Defendants pursuant to the terms of the
Settlement Agreement.
A full-text copy of the Court's Feb. 20, 2018 Order is available
at https://is.gd/RWZWKQ from Leagle.com.
Daniel A Brna & James E. Scott, Plaintiffs, represented by John
Joseph Uustal -- jju@kulaw.com -- Kelley Uustal, PLC, Daren Alan
Stabinski -- daren@tenderbox.tv -- Daren Stabinski PA, John R.
Hargrove -- jrh@kulaw.com -- Kelley Uustal,PLC & Cristina M.
Pierson -- cmp@kulaw.com -- Kelley Uustal.
Isle of Capri Casinos, Inc., Defendant, represented by Daniel
Lawrence Wallach -- dwallach@bplegal.com -- Becker & Poliakoff,
P.A., Gary Charles Rosen -- grosen@bplegal.com -- Becker &
Poliakoff, P.A., Stephen Patrick Warren --
stephen.warren@hklaw.com -- Holland & Knight, Allison Beth
Kernisky -- allison.kernisky@hklaw.com -- Holland & Knight LLP,
Kevin Christopher Paule -- Kevin.Paule@hklaw.com -- Holland,
Knight & Matthew Thomas Davidson, Becker & Poliakoff.
Interblock USA, L.L.C., Defendant, represented by Allison Beth
Kernisky -- allison.kernisky@hklaw.com -- Holland & Knight LLP,
Stephen Patrick Warren, Holland & Knight, Kevin Christopher
Paule, Holland, Knight & Tracy Ann Nichols --
Tracy.Nichols@hklaw.com -- Holland & Knight.
JACKSON HEWITT: Court Narrows Claims in "Lomeli" RICO Suit
----------------------------------------------------------
In the case, LUIS LOMELI, individually and on behalf of a class
of similarly situated individuals, Plaintiff, v. JACKSON HEWITT,
INC.; TAX SERVICES OF AMERICA, INC. d/b/a JACKSON HEWITT TAX
SERVICE; JJF & AC, INC. d/b/a Guanajuato Insurance Agency and
Jackson Hewitt Tax Service; JUAN FLORES, an individual; and DOES
1-50, inclusive, Defendants, Case No. 2:17-CV-02899-ODW
(KSx)(C.D. Cal.), Judge Otis D. Wright, II of the U.S. District
Court for the Central District of California granted in part and
denied in part Jackson Hewitt's Motion to Dismiss the Second
Amended Complaint, and denied its Motion to Strike.
Lomeli claims that he and the absent class members he seeks to
represent were defrauded by the Defendants, who guaranteed 100%
accurate tax returns, but didn't deliver on their promise.
Defendants Juan Flores and JJF & AC, Inc. operated a franchise
location, under a franchise agreement with Jackson Hewitt, Inc.
("JH, Inc."), and Tax Services of America, Inc. ("TSA"). On Oct.
19, 2017, the Court granted Jackson Hewitt's Motion to Dismiss
Lomeli's First Amended Complaint with leave to amend because he
failed to parse out allegations against each the Defendant
specifically, and did not satisfy Rule 9(b)'s heightened pleading
standard.
Lomeli alleges claims against the Defendants for: (1) violation
of the Racketeer Influenced and Corrupt Organizations Act
("RICO"); (2) negligence; (3) fraud; (4) violation of
California's Unfair Competition Law ("UCL"); (5) violation of
California Business and Professions Code Section 17530.5; (6)
violation of the California Consumer Legal Remedies Act ("CLRA");
and (7) violation of the California Customer Records Act.
Lomeli proposes two putative nationwide classes, with each also
having a California subclass. Lomeli's first proposed class,
entitled the "Manipulated Return" class, includes all persons in
the United States and its territories who had their tax returns
prepared by Jackson Hewitt, including any of its franchisees,
whose tax returns were submitted to the relevant government
entities in a different form than approved by the taxpayer. The
"Undisclosed Fees" class includes all persons in the United
States and its territories who had their tax returns prepared by
Jackson Hewitt and/or any of its franchisees and who did not
enroll in but were charged fees as part of the 'Assisted Refund'
program.
Jackson Hewitt moves to dismiss the SAC because: (1) each cause
of action is grounded in fraud, but Lomeli does not meet the
requirements of Federal Rule of Civil Procedure 9(b); and (2) for
each cause of action Lomeli fails to allege facts sufficient to
state a claim for relief under Rule 8. Jackson Hewitt asserts
other arguments for dismissal in its motion. Jackson Hewitt also
moves to strike the class allegations in the SAC.
Judge Wright granted in part and denied in part Jackson Hewitt's
Motion to Dismiss the Second Amended Complaint. He finds, among
other things, (i) that Lomeli's allegations read together, and
taken as true, are sufficient to allege a theory of direct fraud
against Jackson Hewitt -- whether he will be able to prove them
is a question for a different day; (ii) that Lomeli may plead
equitable claims in the alternative and has standing for an
injunction; (iii) that Lomeli adequately pleaded his negligence
claim as an alternate theory of liability; and (iv) that Lomeli
sufficiently alleged to make a claim for wrongful disclosure.
The Judge denied Jackson Hewitt's Motion to Strike. He finds
that while some courts strike class allegations where it is
abundantly clear that the class mechanism will not work, it is
the exception, not the rule. As he noted, he foresees problems
at the class certification stage in light of the individual modes
of proof that will likely be required, but declines to address
those issues now, and without the benefit of discovery and
briefing on the issue.
A full-text copy of the Court's Feb. 20, 2018 Order is available
at https://is.gd/ZMYpVj from Leagle.com.
Luis Lomeli, individually and on behalf of a class of similarly
situated individuals, Plaintiff, represented by Paul A. Traina --
paul@stalwartlaw.com -- Stalwart Law Group, Dylan Ruga --
dylan@stalwartlaw.com -- Stalwart Law Group, Ian P. Samson --
ian@stalwartlaw.com -- Engstrom Lipscomb and Lack & Ji-In Lee
Houck -- jiin@stalwartlaw.com -- Stalwart Law Group.
Jackson Hewitt, Inc, Defendant, represented by Robert J.
Herrington -- herringtonr@gtlaw.com -- Greenberg Traurig LLP &
Ryan Christopher Bykerk -- bykerkr@gtlaw.com -- Greenberg Traurig
LLP.
JJF and AC, Inc, doing business as & Juan Flores, an individual,
Defendants, represented by Janet A. Contero -
janetcontero@gmail.com -- & Mark R. Smith --
Mark@MarkRSmithLaw.com Law -- Office of Mark R Smith PC.
KEYES COMPANY: Grigorian Seeks to Certify Two Classes Under TCPA
----------------------------------------------------------------
The Plaintiff in the lawsuit captioned MARIAM GRIGORIAN,
individually and on behalf of all others similarly situated v.
THE KEYES COMPANY, a Florida corporation, Case No. 1:17-cv-23943-
UU (S.D. Fla.), moves to certify these classes with respect to
the two claims for violation of the Telephone Consumer Protection
Act:
All persons within the United States who were sent Applicant
Texts from Defendant or anyone on Defendant's behalf, to
said person's cellular telephone number, without emergency
purpose and without the recipient's prior consent. (referred
to as the "Applicant Texts Class").
All persons within the United States who were sent Passing
List Texts from Defendant or anyone on Defendant's behalf,
to said person's cellular telephone number, without
emergency purpose and without the recipient's prior consent.
(referred to as the "Passing List Texts Class" and
collectively referred to as the Classes).
Excluded from the Classes is Keyes, Keyes' directors and
officers, immediate families of Keyes' directors and officers, or
the legal representatives, agents, affiliates, heirs, successors-
in-interests or assignees of any such excluded person.
Ms. Grigorian also asks the Court to designate her as class
representative and to designate the law firms of Kopelowitz
Ostrow Ferguson Weiselberg Gilbert and Hiraldo P.A. as class
counsel.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=8GgdPSlR
The Plaintiff is represented by:
Jeff Ostrow, Esq.
Scott Edelsberg, Esq.
KOPELOWITZ OSTROW
FERGUSON WEISELBERG GILBERT
One West Las Olas Boulevard, Suite 500
Fort Lauderdale, FL 33301
Telephone: (954) 525-4100
E-mail: ostrow@kolawyers.com
edelsberg@kolawyers.com
- and -
Manuel S. Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Boulevard, Suite 1400
Ft. Lauderdale, FL 33301
Telephone: (954) 400-4713
E-mail: mhiraldo@hiraldolaw.com
MARSHALL UNIVERSITY: Bid for Leave to Amend "Kerr" Suit Denied
--------------------------------------------------------------
In the case, LISA MARIE KERR, Plaintiff, v. MARSHALL UNIVERSITY
BOARD OF GOVERNORS, et al., Defendants, Civil Action No. 2:14-cv-
12333 (S.D. W.V.), Judge Thomas E. Johnston of the U.S. District
Court for the Southern District of West Virginia, Charleston
Division, denied the Plaintiff's Motion to Re-Open the Judgment,
and for Leave to Amend Her Complaint.
The Complaint in the case, stemming from the Plaintiff's
attempted completion of Marshall University's Master of Arts in
Teaching ("MAT") program before receiving a "no credit" grade for
the program's required MAT Level III Clinical Experience student
teaching course, was originally filed on March 14, 2014. That
Complaint alleged the following seven causes of action:
defamation, tortious interference with a business expectancy, the
tort of outrage, due process violations, equal protection
violations under two theories, and a violation of the Fair Labor
Standards Act.
The Defendants filed a Motion to Dismiss on May 14, 2014, which
the Court granted in a memorandum opinion entered March 26, 2015.
That memorandum opinion and order dismissed each of the
Plaintiff's claims for failure to state a claim on which relief
could be granted and closed the case.
The Plaintiff appealed the judgment of the Court, and after
hearing oral arguments, the Fourth Circuit entered its 42-page
published decision on May 24, 2016, affirming the Court's opinion
without remanding any aspect of the case for reconsideration.
The court further denied the Plaintiff's petition for rehearing,
and the Plaintiff did not file a petition for certiorari with the
Supreme Court. The Plaintiff then filed the pending Motion to
Re-Open the Judgment, and for Leave to Amend her Complaint on
June 30, 2017 -- over 13 months after the Fourth Circuit affirmed
the Court's opinion dismissing the action. Before turning to
this motion, the Court finds that a discussion of a subsequent
and nearly identical case the Plaintiff filed in the Court in
2016 is insightful.
Less than two months after the Fourth Circuit's decision
affirming the Court's opinion closing the case, the Plaintiff
filed a new complaint on July 22, 2016, re-alleging her
defamation claim, due process claim, and equal protection claim
based on sexual orientation discrimination. However, in the new
case, the Complaint raised the Plaintiff's equal protection claim
under Title IX of the Education Amendments of 1972, and attempted
to plead her due process claim as a class action suit. The
Defendants again filed a motion to dismiss in the subsequent
case, arguing that each of the claims in the new complaint was
barred by res judicata and the applicable statutes of
limitations. The Court entered its memorandum opinion and order
on Sept. 21, 2017, granting the motion to dismiss and closing the
2016 Action.
In the memorandum opinion and order disposing of the 2016 Action,
the Court specifically addressed the Plaintiff's misapprehension
about the result of her previous case and the effect of the
Fourth Circuit's opinion. Among other reasons, the Court found
that res judicata and application of the Fourth Circuit's mandate
affirming the Court's prior opinion served as barriers to the
Plaintiff's attempt to file a second and nearly identical lawsuit
against the same seven the Defendants.
Predictably, the Plaintiff appealed that judgment to the Fourth
Circuit in October 2017, and that appeal is currently being held
in abeyance pending resolution of the pending motion currently
before the Court in the matter.
Judge Johnston finds that the Plaintiff has used the proper
vehicles in her attempt to persuade the Court to vacate its
previous judgment and grant her leave to amend the Complaint
filed well over three years before the current motion. The
Plaintiff's proposed amended complaint, which she explains both
in her motion and in her reply in support of the motion, adds
countless factual allegations, raises her equal protection claim
under Title IX, and attempts to plead her due process claim as a
class action suit. This would alter the course of the litigation
and is easily distinguishable from cases where an amendment would
simply state an "alternative theory" for recovery. The Judge
agrees with the Defendants and finds that the unfair prejudice to
be suffered by them warrants denial of the Plaintiff's motion.
The Plaintiff's suggestion that the Fourth Circuit's opinion
affirming the Court's dismissal of her case somehow equates to
authorization for her to re-litigate the closed action is wholly
unavailing. Even under the liberal standard of Rule 15(a), the
Judge finds that the Plaintiff has not succeeded in persuading
the Court that her actions have been anything short of dilatory,
and she similarly fails to rebut the Defendants' assertion that
they will suffer undue prejudice if the pending motion is
granted.
The Plaintiff has strategically drug the Defendants through
litigious waters for the better part of four years in two
separately filed actions. Regardless of whether the proposed
amendments would be futile, Judge Johnston is convinced that
indications of bad faith coupled with the additional prejudice it
would cause the Defendants are reason enough to forbid the
Plaintiff from amending her Complaint at this exceptionally
belated point in time.
For these reasons, Judge Johnston denied the Plaintiff's Motion
to Re-Open the Judgment, and for Leave to Amend her Complaint.
He directed the Clerk to send a copy of the Order to the counsel
of record and any unrepresented party.
A full-text copy of the Court's Feb. 16, 2018 Memorandum Opinion
and Order is available at https://is.gd/wDoKs8 from Leagle.com.
Lisa Marie Kerr, Plaintiff, pro se.
Marshall University Board of Governors, Gene Brett Kuhn, Judith
Southard, Sandra Bailey, Teresa Eagle, Lisa Heaton & David
Pittenger, Defendants, represented by Andrew P. Ballard, ANSPACH
MEEKS ELLENBERGER, Andrew P. Smith -- andrew.smith@steptoe-
johnson.com -- STEPTOE & JOHNSON & John Andrew Hess, ANSPACH
MEEKS ELLENBERGER.
MICHIGAN: Dearduff Moves to Certify Classes of MDOC Inmates
-----------------------------------------------------------
The Plaintiffs in the lawsuit titled JOEY DEARDUFF, NICHOLAS
BAILEY, MELVIN BROWNES, TIMOTHY BROWNELL, TIMOTHY FLESSNER, JAMES
GUNNELS, LEON MEANS, JOHN PORTER, ANTHONY RICHARDSON, CAROL
ROMAN, BRYAN SLONE, and TINA STOLL, on behalf of themselves and
all other similarly situated prisoners v. HEIDI WASHINGTON,
Director, Michigan Department of Corrections, and JONG CHOI,
Dental Regional Director, sued in their official capacities, Case
No. 2:14-cv-11691-LJM-MKM (E.D. Mich.), ask the Court to certify
them as class representatives and to grant certification to their
classes and subclasses pursuant to Rule 23 of the Federal Rules
of Civil Procedure.
The proposed classes are comprised of Michigan Department of
Corrections (MDOC) inmates, who have suffered injury:
* Class I: Despite the MDOC's awareness that its policy of
denying routine dental care to prisoners during their first
two-years of incarceration exposes them to a substantial
risk of serious harm (e.g. loss of teeth and tooth structure
and impairment of the ability chew food), MDOC continues to
promulgate the policy. This policy violates the Eighth
Amendment of the Constitution because by delaying
eligibility for routine dental care, MDOC dentists enable
dental diseases to progress, subjecting prisoners to an
unnecessary risk of tooth loss, prolonged difficulties with
chewing, and gratuitous pain;
* Class II: The MDOC's practice of inadequate diagnosis of
periodontal disease as the result of failing to use
appropriate x-rays and document periodontal probing
routinely; and not prescribing and preforming appropriate
periodontal treatment (such as root planning and scaling),
even when periodontal disease is diagnosed, subjects
prisoners to a preventable risk of progression of
periodontal disease, with associated loss of teeth and
unnecessary pain;
* Class III: The MDOC's practice of routinely not providing
partial and complete dentures to prisoners no longer subject
to the two-year quarantine period. These prisoners, who
request dentures to address chewing difficulty, replace worn
or otherwise unserviceable dentures, or to replace dentures
lost due to extenuating circumstances, are subjected to
gratuitous pain as well as major issues concerning chewing
and nutrition; and
* Class IV: The MDOC's practice of placing prisoners not
subject to the two-year quarantine who complain of dental
pain on long wait lists subjects inmates to excessive and
unnecessary pain and the avoidable risk of loss of teeth and
tooth structure. Additionally, inmates who request routine
dental services often face substantial treatment delays.
The Plaintiffs also ask the Court to appoint their counsel as
counsel for the Classes.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=raznkPhH
The Plaintiffs are represented by:
Daniel E. Manville, Esq.
DIRECTOR, CIVIL RIGHTS CLINIC
MICHIGAN STATE UNIVERSITY COLLEGE OF LAW
648 N. Shaw Lane,
East Lansing, MI 48824
Telephone: (517) 432-6866
Facsimile: (517) 432-6990
E-mail: Daniel.manville@law.msu.edu
MIDLAND CREDIT: Illegally Collects Debt, "Taggatz" Suit Claims
--------------------------------------------------------------
Jeffrey L. Taggatz and Liza M. Kranz, individually and on behalf
of all others similarly situated v. Midland Credit Management,
Inc., Asset Acceptance, LLC, Kristy Gabrielova, Esq., Brian
Edward Staley, Esq., Katharine Banks Allen, Esq., Michael
James Young, Esq., Chase Pierick Hague, Esq., Timothy Lee Elder,
Esq., and John and Jane Does 1 Through 100, Case No. 5:18-cv-
00169-XR (W.D. Tex., February 19, 2018), seeks to put an end to
the illegal practices of the Defendants who used unfair,
unconscionable, false, deceptive, and misleading practices, and
other illegal practices, while attempting to collect alleged
debts from the Plaintiffs in violation of the Fair Debt
Collection Practices Act.
Each Defendant is regularly engaged in the collection of debts.
The Plaintiff is represented by:
Andrew T. Thomasson, Esq.
STERN THOMASSON LLP
150 Morris Avenue, 2nd Floor
Springfield, NJ 07081-1315
Telephone: (973) 379-7500
Facsimile: (973) 532-5868
E-mail: andrew@sternthomasson.com
- and -
William M. Clanton, Esq.
LAW OFFICE OF BILL CLANTON, P.C.
926 Chulie Drive
San Antonio, TX 78216
Telephone: (210) 226-0800
Facsimile: (210) 338-8660
E-mail: bill@clantonlawoffice.com
MIDLAND CREDIT: Stimpson Moves to Certify Idaho Residents Class
---------------------------------------------------------------
The Plaintiff in the lawsuit captioned BARRY STIMPSON, on behalf
of himself and others similarly situated v. MIDLAND CREDIT
MANAGEMENT, INC, a Kansas corporation, and MIDLAND FUNDING, LLC,
a Delaware limited liability company, Case No. 4:17-cv-00431-BLW
(D. Idaho), asks the Court to certify a class defined as:
(a) all individuals in Idaho (b) to whom Midland Funding or
Midland Credit (c) sent a letter seeking to collect a debt
(d) which is time barred (e) which does not disclose that
partial payment or other action revives the debt (f) which
letter was sent within the one (1) year period immediately
preceding the filing of this complaint.
Mr. Stimpson asserts that in this case, there is no dispute that
Midland Credit Management Inc. sent letters concerning a debt
claimed to be owed to Midland Funding LLC. The letters were sent
to several thousand Idaho residents and sought payment on time
barred debts. He contends that the inclusion of certain false,
misleading or confusing statements in the letters raise identical
issues under the Fair Debt Collection Practices Act.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=auayISkz
The Plaintiff is represented by:
Ryan Ballard, Esq.
BALLARD LAW, PLLC
P.O. Box 38
Rexburg, ID 83440
Telephone: (208) 359-5532
E-mail: ryanballardlaw@gmail.com
MONTANA: Court Denies Bid to Dismiss "DiFrancesco" Suit
-------------------------------------------------------
In the case, MICHAEL DiFRANCESCO, on behalf of himself and others
similarly situated, Plaintiff, v. STEVE BULLOCK, in his official
capacity as Governor of Montana; TIM FOX, in his official
capacity as Attorney General of Montana; SARAH GARCIA, in her
official capacity as Administrator of the Motor Vehicle Division;
and MICHELE SNOWBERGER, in her official capacity as Bureau Chief
of the Driver Services Bureau, Defendants, Case No. CV 17-66-BU-
SEH (D. Mont.), Judge Sam E. Haddon of the U.S. District Court
for the District of Montana, Butte Division, denied without
prejudice the Defendants' Motion to Dismiss Complaint (With
Prejudice).
Difrancesco filed the case on Aug. 31, 2017, as a class action
under Fed. R. Civ. P.23(a)(1)-(4) and 23(b)(2). The Defendants
appeared and filed a Motion to Dismiss Complaint (With Prejudice)
and supporting memorandum on Oct. 17, 2017. A response
memorandum and a reply were later filed. No motion for class
certification by the Plaintiff or to bar certification by the
Defendants has been filed.
Judge Haddon ordered the Plaintiff to file an appropriate motion
for class certification on or before March 2, 2018, at 4:45 p.m.
The motion is expected to: (1) define the class; (2) request
certification of the class under Fed. R. Civ. P. 23(a) and (b);
(3) identify the class representative; (4) identify class
counsel; and (5) will be accompanied by a brief in support which
fully sets forth by description the facts, circumstances and
evidence claimed by Plaintiff to justify and warrant class
certification, and will include, but will not be limited to,
address of the requirements of all applicable provisions of Fed.
R. Civ. P. 23(a), (b), (c) and (g)(1).
He ordered the Defendants to have to and including March 16,
2018, at 4:45 p.m. in which to file a motion in opposition to
certification, accompanied by a brief opposing certification, or,
in the alternative, to file a response brief in opposition to the
motion for certification. The reply brief from the Plaintiff
will be due on or before March 30, 2018, at 4:45 p.m.
In addition to the briefs to be filed in support and opposition
to certification, Judge Haddon directed the parties to meet and
confer and to file with the Court a joint report on or before
March 30, 2018, at 4:45 p.m. outlining by general description:
(1) discovery necessary to determination of class certification
issues to be undertaken and completed; and (2) an estimate of the
time reasonably required to undertake and complete such
discovery.
The Court will set by separate order, or orders, such other and
further hearings relevant to determination of class certification
as may be warranted.
Judge Haddon denied without prejudice the Defendants' Motion to
Dismiss Complaint (With Prejudice) to renewal if appropriate
following determination of class certification.
A full-text copy of the Court's Feb. 16, 2018 Order is available
at https://is.gd/HjeFRE from Leagle.com.
Michael DiFrancesco, on behalf of himself and others similarly
situated, Plaintiff, represented by Phil Telfeyan --
ptelfeyan@equaljusticeunderlaw.org. -- EQUAL JUSTICE UNDER LAW,
pro hac vice, Rebecca Ramaswamy, EQUAL JUSTICE UNDER LAW, pro hac
vice, Robert Farris-Olsen -- rfolsen@mswdlaw.com -- MORRISON,
SHERWOOD, WILSON & DEOLA, PLLP & Scott L. Peterson, MORRISON,
SHERWOOD, WILSON & DEOLA, PLLP.
Steve Bullock, in his official capacity as Governor of Montana,
Tim Fox, in his official capacity as Attorney General of Montana,
Sarah Garcia, in her official capacity as Administrator of the
Motor Vehicle Division & Michele Snowberger, in her official
capacity as Bureau Chief of the Driver Services Bureau,
Defendants, represented by Robert Thomas Cameron, CHRISTENSEN &
PREZEAU, PLLP.
MRI INT'L: April 17 Date to File Bid to Approve "Takiguchi" Deal
----------------------------------------------------------------
In the case, SHIGE TAKIGUCHI, FUMI NONAKA, MITSUAKI TAKITA,
TATSURO SAKAI, SHIZUKO ISHIMORI, YUKO NAKAMURA, MASAAKI MORIYA,
HATSUNE HATANO, and HIDENAO TAKAMA, individually and on behalf of
all others similarity situated, Plaintiff, v. MRI INTERNATIONAL,
INC., EDWIN J. FUJINAGA, JUNZO SUZUKI, PAUL MUSASHI SUZUKI, LVT,
INC., dba STERLING ESCROW, and DOES 1-500, Defendants, Case No.
2:13-cv-01183-HDM-NJK (D. Nev.), Judge Howard D. McKibben of the
U.S. District Court for the District of Nevada approved the
Parties' stipulation for an order continuing the deadline to file
a motion for preliminary approval of class action settlement to
April 17, 2018.
On Nov. 17, 2017 the Court ordered the Parties to file a motion
for preliminary approval of class action settlement no later than
Dec. 11, 2017. The Parties reached a settlement in principle in
September 2017 and have exchanged drafts of the settlement
agreement.
On Nov. 17, 2017 Mr. Fujinaga raised, for the first time, his
concern that, since a receiver has been appointed by the Court in
the parallel U.S Securities and Exchange Commission's action
against MRI and himself (SEC v. MRI International, Inc., USDC
Nevada Case No. 2:13-cv-1658, Dkt. 226), he believed that he may
not be authorized to enter into any settlement on behalf of MRI
or himself.
On Nov. 18, 2017, the Court appointed the receiver in the SEC
Action, Robb Evans & Associates, confirmed its belief to the
Plaintiff's counsel that Mr. Fujinaga was not authorized to enter
into a settlement agreement with the Plaintiffs and directed that
the Plaintiffs send a copy of the Class Action Settlement
Agreement to the receiver's counsel, Lynch Law Practice.
On Nov. 30, 2017, the Receiver declined to enter into the Class
Action Settlement Agreement because he did not believe that the
settlement would benefit the receivership estate.
On Nov. 30, 2017, and Dec. 7, 2017, the Plaintiffs' counsel met
and conferred with the Receiver's counsel, Michael Lynch,
explaining that the order appointing receiver specifically
includes a carve-out provision exempting the present action from
the Receiver's control and that, in any event, the settlement is
in the best interest of all parties, including the receivership
estate. The Receiver maintains its position that he is unable to
authorize the settlement absent direction from the Court.
On Dec. 15, 2017, the Parties filed a joint motion in the SEC
Action requesting direction from the Court, either that the
Receiver lacks authority to direct the settlement in the action,
or that Judge Mahan order the Receiver to enter into the Class
Action Settlement Agreement. On Dec. 22, 2017, the Receiver
filed a response to the joint motion.
On Jan. 8, 2018, the Parties filed a reply conveying the Court's
strong belief that it is in the best interest of all the parties
for Judge Mahan to approve the settlement. Judge Mahan has not
yet ruled on the joint motion.
It is the Parties' third request for a continuance and they
jointly move that the Court enter an order providing for a 60-day
continuance of the deadline to file a motion for preliminary
approval to April 17, 2018. Judge McKibben approved.
A full-text copy of the Court's Feb. 16, 2018 Order is available
at https://is.gd/EJUpSr from Leagle.com.
Shige Takiguchi, Fumi Nonaka, Kaoruko Koizumi, Tatsuro Sakai &
Mitsuaki Takita, Plaintiffs, represented by James Edwin Gibbons -
- jeg@manningllp.com -- Manning & Kass Ellrod, Ramirez, Trester
LLP, James R. Olson, Olson, Cannon, Gormley, Angulo & Stoberski,
Mariko Taenaka, Law Offices of Robert W. Cohen, Robert W. Cohen,
Law Offices of Robert W. Cohen, APC & Steven Jeff Renick --
sjrnull@nullmanningllp.com -- Manning & Kass, Ellrod, Ramirez,
Trester LLP.
Shizuuko Ishimori, Yoko Hatano, Yuko Nakamura, Hidehito Miura,
Yoshiko Tazaki, Masaaki Moriya, Hatsune Hatano, Satoru Moriya,
Hidenao Takama, Shigeru Kurisu, Saka Ono, Kazuhiro Matsumoto,
Kaya Hatanaka, Hiroka Yamajiri, Kiyoharu Yamamoto, Junko
Yamamoto, Koichi Inoue, Akiko Naruse, Toshimasa Nomura & Ritsu
Yurikusa, Plaintiffs, represented by James Edwin Gibbons, Manning
& Kass Ellrod, Ramirez, Trester LLP, James R. Olson, Olson,
Cannon, Gormley, Angulo & Stoberski, Mariko Taenaka, Law Offices
of Robert W. Cohen, Robert W. Cohen, Law Offices of Robert W.
Cohen, APC & Steven Jeff Renick, Manning & Kass, Ellrod, Ramirez,
Trester LLP, pro hac vice.
MRI International, Inc. & Edwin J Fujinaga, Defendants,
represented by Daniel L. Hitzke, Hitzke & Associates & Erick M.
Ferran.
Junzo Suzuki, Defendant, represented by Jeffrey A. Silvestri --
jsilvestri@mcdonaldcarano.com -- McDonald Carano Wilson, Nicolas
Morgan -- nicolasmorgan@paulhastings.com -- Paul Hastings LLP,
pro hac vice & Paul J. Georgeson -- pgeorgeson@mcdonaldcarano.com
-- McDonald Carano Wilson LLP.
ICAG, INC., Defendant, represented by Jacob A. Reynolds --
jreynolds@hutchlegal.com -- Hutchison & Steffen, Mark A.
Hutchison -- mhutchison@hutchlegal.com -- Hutchison & Steffen,
LLC & Robert T. Stewart -- rstewart@hutchlegal.com -- Hutchison &
Steffen, LLC.
First Hawaiian Bank, Defendant, represented by Christopher R.
Ramos -- cramos@vedderprice.com -- Vedder Price (CA), LLP, pro
hac vice, Rex Garner -- rex.garner@akerman.com -- Akerman LLP,
Ariel E. Stern -- ariel.stern@akerman.com -- Akerman LLP, Lisa M.
Simonetti -- lsimonetti@vedderprice.com -- Vedder Price, LLP.
Suzuki Enterprises, Inc. Profit Sharing Plan, Defendant,
represented by Gregg D. Zucker -- gregg@foundationlaw.com --
Foundation Law Group & Robert A. Rabbat --
rrabbat@enensteinlaw.com -- Enenstein Ribakoff LaVina & Pham.
Damon Key Leong Kupchak Hastert, Interested Party, represented by
Paul D. Alston -- PAlston@ahfi.com -- Alston Hunt Floyd & Ing,
Albert G. Marquis -- amarquis@maclaw.com -- Marquis & Aurbach,
Candice Renka -- crenka@maclaw.com -- Marquis & Aurbach &
Nickolas A. Kacprowski -- NKacprowski@ahfi.com -- Alston Hunt
Floyd & Ing.
Mary Luszczyk, Material Witness, represented by Mark S.
Dzarnoski, Gordan & Silver, Ltd.
NAVY FEDERAL: Faces "Chavez" Class Suit Over Automated Calls
------------------------------------------------------------
Adrian Chavez, individually and on behalf of all others similarly
situated v. Navy Federal Credit Union, Case No. 3:18-cv-00372-
MMA-BGS (S.D. Cal., February 16, 2018), seeks damages as a result
of the Defendant's practice of initiating telephonic
communications to the Class using an automatic dialing system or
prerecorded voice to any telephone number assigned to a cellular
phone service without prior express consent of the called party.
Headquartered in Vienna, Virginia, Navy Federal Credit Union is a
credit union chartered and regulated under the authority of the
National Credit Union Administration. [BN]
The Plaintiff is represented by:
Abbas Kazerounian, Esq.
Mona Amini, Esq.
Veronica Cruz, Esq.
KAZEROUNI LAW GROUP, APC
245 Fischer Avenue, Unit D1
Costa Mesa, CA 92626
Telephone: (800) 400-6808
Facsimile: (800) 520-5523
E-mail: ak@kazlg.com
mona@kazlg.com
veronica@kazlg.com
- and -
Daniel G. Shay, Esq.
LAW OFFICE OF DANIEL G. SHAY
409 Camino Del Rio South, Suite 101B
San Diego, CA 92108
Telephone: (619) 222-7429
Facsimile: (866) 431-3292
E-mail: danielshay@tcpafdcpa.com
NESTLE USA: Court Denies Bid to Dismiss "Hawkins" Suit
------------------------------------------------------
Judge Henry Edward Autrey of the U.S. District Court for the
Eastern District of Missouri, Eastern Division, denied the
Defendant's Motion to Dismiss the case, LAHONEE HAWKINS,
individually and on behalf of all others similarly situated,
Plaintiffs, v. NESTLE U.S.A. INC., Defendant, Case No. 4:17CV205
HEA (E.D. Mo.).
Consumers spend an average of 13 seconds making an in-store
purchasing decision. The decision is heavily dependent on a
product's packaging, in particular, the package dimensions. When
faced with a large box and a smaller box, both containing the
same amount of product, a consumer is more likely to choose the
larger one, thinking it is a better value.
The dimensions of a Raisonets box are 3 1/8; x 11/16" 6 3/16".
The front of the box includes the description, "California
Raisins covered in chocolate." The front of the box also states:
"NET WEIGHT 3.5 OZ (99.2 g)"; "190 CALORIES"; "5 g SAT FAT"; "15
mg SODIUM"; and "28 g SUGARS" per 1/4 cup. About 45% of each box
has "slack filled," or empty, space.
The Plaintiff alleges that she "attached importance" to the
"size" of the Raisonets boxes, and was misled to believe that she
was "purchasing more Product than was actually received." She
alleges that boxes are "uniformly under-filled" or "slack-
filled"; the slack-filled space serves no purpose; and had she
known the boxes were "substantially slack-filled," she would not
have purchased the products or would have purchased them on
different terms. She alleges that she suffered an ascertainable
loss as a result of Defendant's unlawful conduct because the
actual value of the Products as purchased was less than the value
of the Products as represented. The Plaintiff alleges that she
would likely purchase the Products in the future if the Products
complied with applicable laws.
The Plaintiff filed the lawsuit as a putative class action. In
Count I, she claims a violation of the Missouri Merchandising
Practices Act ("MMPA") for a Missouri Consumer Subclass, and she
requests injunctive relief and damages under the statute. Count
II is a claim for unjust enrichment brought on behalf of All
Classes (the class members in all states who purchased the
products), in which she requests restitution or disgorgement of
the Defendant's economic enrichment.
The Defendant moves to dismiss the Amended Complaint under Fed.
R. Civ. P. 12(b)(6) and 12(b)(1). It argues that Count I must be
dismissed because the Plaintiff fails to state a claim under the
MMPA and has no standing to seek injunctive relief. The
Defendant also argues that argues that Count II must be dismissed
because it is derivative of her legally insufficient MMPA claim.
As to Count I, Judge Autrey concludes that the allegations are
sufficient to state a claim. He finds that the analysis
consistent with Missouri law leads to the conclusion that the
Plaintiff has plausibly alleged a claim under the MMPA and that
reasonableness is an issue of fact, which cannot be resolved on a
motion to dismiss. He also finds that the Plaintiff has
sufficiently alleged ascertainable loss for purposes of
withstanding the motion to dismiss and that the alleged loss was
the result of the packaging. For these reasons, he denied the
Defendant's motion to dismiss the request for injunctive relief.
As to Count II, the Judge concludes that the unjust enrichment
claim is sufficiently pled under Missouri law. He has concluded
that the Plaintiff states a claim under the MMPA. It is
generally permissible to pursue alternative theories at the
pleading stage, and courts generally permit unjust enrichment
claims to proceed alongside a properly-pled MMPA claim. The
Plaintiff has also alleged sufficient facts to demonstrate
Article III standing to pursue the claim, in that she has alleged
an injury in fact, which is fairly traceable to the Defendant's
conduct, and which will likely be redressed by a favorable
decision. For these reasons, the Judge denied the Defendant's
motion to dismiss Count II.
Based upon the foregoing analysis, Judge Autrey holds that the
Plaintiff's Amended Complaint satisfies the requirements of Rules
12(b)(6) and 12(b)(1). Accordingly, he denied the t Defendant's
Motion to Dismiss the Amended Complaint.
A full-text copy of the Court's Feb. 16, 2018 Amended Opinion,
Memorandum and Order is available at https://is.gd/gPbZMA from
Leagle.com.
Lahonee Hawkins, Individually and on behalf of all others
similarly situated in Missouri, Plaintiff, represented by David
L. Steelman, STEELMAN, GAUNT & HORSEFIELD & Naomi B. Spector,
KAMBERLAW LLP.
Nestle USA, Inc., Defendant, represented by Carmine R. Zarlenga,
III -- czarlenga@mayerbrown.com -- MAYER BROWN LLP, Dale Joseph
Giali -- dgiali@mayerbrown.com -- MAYER BROWN LLP, Elizabeth Jean
Crepps -- ecrepps@mayerbrown.com -- Mayer Brown LLP & Keri E.
Borders -- kborders@mayerbrown.com -- MAYER BROWN LLP.
NEVADA: Court Dismisses "Porter" Suit vs. SNAMHS
------------------------------------------------
Judge Andrew P. Gordon of the U.S. District Court for the
District of Nevada dismissed with prejudice the case, CLORISSA D.
PORTER and WILLIAM D. SPENCER, on behalf of themselves and all
those similarly situated, Plaintiffs, v. SOUTHERN NEVADA ADULT
MENTAL HEALTH SERVICES, et al., Defendants, Case No. 2:16-cv-
02949-APG-PAL (D. Nev.).
Porter and Spencer bring the putative class action against
SNAMHS, also known as Rawson-Neal Psychiatric Hospital, and
numerous individuals employed by the state of Nevada. On Dec.
13, 2017, Judge Gordon dismissed the case because the Named
Plaintiffs are time-barred, but gave their counsel the
opportunity to substitute in class representatives with timely
claims.
The Plaintiffs have stated their intent to stand on the pleadings
and have chosen not to name new Plaintiffs. Judge Gordon
therefore dismissed the case with prejudice as time-barred for
the reasons discussed in his previous order. He expressed no
opinion as to whether the statute of limitations for other
putative class members is stayed pending appeal.
A full-text copy of the Court's Feb. 16, 2018 Order is available
at https://is.gd/2kOxSz from Leagle.com.
Clorissa D. Porter & William D. Spencer, Plaintiffs, represented
by Allen Lichtenstein -- allaw@lvcoxmail.com -- Allen
Lichtenstein, Ltd. & Mark Edwin Merin -- mark@markmerin.com --
Law Office of Mark E. Merin.
Southern Nevada Adult Mental Health Services, a mental health
treatment operation licensed by the State of Nevada, Chelsea
Szklany, and as Hospital Administrator re: Southern Nevada Adult
Mental Health Services, Joanne Malay, in her official capacity as
Hospital Administrator of Southern Nevada Adult Mental Health
Services, Paul Shubert, in his official capacity as Bureau Chief
of Nevada Bureau of Health Care Quality and Compliance, the
licensing authority, Richard Whitely, in his official capacity as
Director of Nevada Department of Health and Human Services, a
department of the State of Nevada, Cody Phinney, in his official
capacity as Administrator of Nevada Division of Public and
Behavioral Health, Leon Ravin, in individual capacity as previous
Associate Medical Director of Rawson-Neal Psychiatric Hospital
and in his official capacity as Statewide Psychiatric Medical
Director of the State of Nevada & Leo Gallofin, in his official
capacity as Associate Medical Director of Rawson-Neal Psychiatric
Hospital, Defendants, represented by Linda C. Anderson, Nevada
Attorney General's Office.
Linda J. White, and as statewide Psychiatric Medical Director of
the State of Nevada, Defendant, represented by Gerald L. Tan --
gltan@cktfmlaw.com -- Carroll Kelly Trotter Franzen McKenna &
Peabody & Robert Cary McBride -- rcmcbride@cktfmlaw.com --
Carroll, Kelly, Franzen, McKenna & Peabody.
NEW FOOD CORP: Wins Final OK of $1.5-Mil. Deal in "de los Santos"
-----------------------------------------------------------------
The Hon. Anne Y. Shields enters a final judgment and order
granting final approval of class action settlement resolving the
lawsuit entitled Andres de los Santos, Domingo Franco, Angel
Rodriguez, Ramon Santos, and Jose Ramon Lopez, individually and
on behalf of all others similarly situated v. New Food Corp.
d/b/a Foodtown, JCA Food Corp. d/b/a Metfood, JJC Food Corp.
d/b/a Foodtown, SWF Food Corp. d/b/a Foodtown, Mother Food Corp.
d/b/a Foodtown, Jason Ferreira, and Jose Ferreira, Case No. 2:14-
cv-04541-AYS (E.D.N.Y.).
On July 29, 2014, the Plaintiffs commenced the action on behalf
of themselves and all similarly situated workers employed by the
Defendants for the six-year period preceding the filing of the
complaint. The Parties resolved this case at a Settlement
Conference on June 6, 2016. The terms of the settlement were
clarified in the Court's Minute Order of January 24, 2017.
The Settlement calls for the payment of $1.4 million to resolve
the claims of the opt-in plaintiffs, and $167,500 to resolve the
claims of a putative class.
The Court finally certifies this class for settlement purposes
only:
The Rule 23 Class Representative {Ramon Santos] and all
individuals (other than Andres De Los Santos, Domingo
Franco, Angel Rodriguez, and Jose Ramon Lopez, and the FLSA
Collective Members) who: (a) provided services as employees
for Defendants between April 9, 2011 to May 9, 2017, and (b)
do not timely and properly opt out of the settlement of the
NYLL claims for Defendants' alleged failure to provide wage
notices pursuant to NYLL Section 195(1) and Defendants'
alleged failure to provide wage statements pursuant to NYLL
Section 195(3).
The Court finds that a service award of $5,000 to the class
representative Ramon Santos is reasonable due to the significant
contribution he made to advance the prosecution and resolution of
the lawsuit. The Court confirms Settlement Services, Inc. as the
Settlement Claims Administrator and the Court approves
administration costs and fees in the amount of $12,700 as fair
and reasonable. The Court also approves attorneys' fees related
to the prosecution of the Class Action in the amount of $55,833,
which is one-third of the class action settlement amount.
The case is dismissed in its entirety with prejudice and without
attorneys' fees or costs to any party except as provided in the
Class Action Settlement Agreement, and FLSA Settlement Agreement.
All claims released under the Class Action Settlement Agreement
and FLSA Settlement, Agreement as against Defendants, are
released and discharged with prejudice.
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=L0h2y3wM
NORTH PORT: Court Refuses to Certify FLSA Class in "Morgan" Suit
----------------------------------------------------------------
The Hon. Steven D. Merryday entered an order in the lawsuit
styled NICHELE Y. MORGAN and TACOVIA N. MCCULLOR v. NORTH PORT
RETIREMENT CENTER, INC. and ZIA BUTT, Case No. 8:17-cv-02394-SDM-
CPT (M.D. Fla.):
-- denying the Plaintiffs' motion for conditional
certification of a collective action because the putative
class fails to meet Fair Labor Standards Act's "similarity"
requirement;
-- denying the request for leave to notify the putative class
about this action;
-- denying motion to dismiss because the Plaintiffs allege
facts sufficient to state a claim;
-- striking Gabrielle Peavy's notice of consent to join this
action because the Plaintiffs fail to show that Peavy is
similarly situated to the them;
-- dismissing without prejudice Peavy's FLSA claim; and
-- striking Morgan's and McCullor's notices of consent to join
this action because they are already parties to this
action.
Suing under the Fair Labor Standards Act, Nichele Morgan and
Tacovia McCullor allege that North Port Retirement Center and Zia
Butt failed to pay time-and-a-half when the Plaintiffs worked
more than 40 hours in a week at the Defendants' assisted-living
facility in Sarasota. The Defendants move to dismiss for failure
to state a claim, and the Plaintiffs move for conditional
certification of a collective action under 29 U.S.C. Section
216(b).
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=HoiNK3Px
NUCO2 MANAGEMENT: "Hernandez" Remanded to California State Court
----------------------------------------------------------------
Judge Lawrence J. O'Neill of the U.S. District Court for the
Eastern District of California granted the Plaintiff's motion to
remand the case, ALEJANDRO HERNANDEZ, individually, and on behalf
of other members of the general public similarly situated,
Plaintiffs, v. NUCO2 MANAGEMENT, LLC, a Delaware Company; and
DOES 1 through 100, inclusive, Defendants, Case No. 1:17-cv-
01645-LJO-JLT (E.D. Cal.).
The Plaintiff was employed by the Defendant as an hourly, non-
exempt "Field Operations" worker. He alleges the Defendant
engaged in a pattern and practice of wage abuse of its hourly,
non-exempt employees by failing to pay them for missed meal
periods and rest breaks, by failing to pay overtime compensation,
and by failing to pay minimum wage compensation for all hours
worked. The complaint alleges the Defendant failed to pay
overtime compensation for any hours the class members worked more
than eight hours per day and/or 40 hours per week.
The Defendant removed the case from Kern County Superior Court on
Dec. 17, 2017, asserting federal removal jurisdiction exists
under the Class Action Fairness Act ("CAFA"). The Plaintiff
filed a motion to remand, arguing the Court lacks jurisdiction
under CAFA because the Defendant has not proven by a
preponderance of evidence the amount in controversy exceeds $5
million, as required under 28 U.S.C. Section 1332(d).
Judge O'Neill finds that after considering the amount placed into
controversy by the Plaintiff's claims for overtime and missed
meal and rest breaks, it is clear that the Defendant cannot
satisfy its burden to show at least $5 million is placed into
controversy by the complaint. Even assuming the Defendant's
calculations for each of the remaining claims, including those
for minimum wage/liquidated damages and attorney's fees, are
reasonable and supported, the total in controversy remains far
below the $5 million threshold: $3,798,047.05.
As the Defendant has not met its burden of proving by a
preponderance of the evidence that the amount placed in
controversy by the Plaintiff's complaint exceeds $5 million, the
Court lacks subject matter jurisdiction.
For the reasons set forth, Judge O'Neill granted the Plaintiff's
motion to remand. He directed the Clerk of the Court (i) to
serve a copy of the Order on the Kern County Superior Court, and
(ii) to close the case as the matter has been remanded and is
returned to the jurisdiction of the Kern County Superior Court.
A full-text copy of the Court's Feb. 16, 2018 Memorandum Decision
and Order is available at https://is.gd/3e1cEy from Leagle.com.
Alejandro Hernandez, individually, and on behalf of other members
of the general public similarly situated, Plaintiff, represented
by Daniel J. Park -- dpark@justicelawcorp.com -- Justice Law
Corporation & Douglas Han -- dhan@justicelawcorp.com -- Justice
Law Corporation.
Nuco2 Management, LLC, a Delaware Company, Defendant, represented
by Amy Ramsey -- aramsey@littler.com -- Littler Mendelson PC &
Elizabeth Chau Buu Nguyen -- enguyen@littler.com -- Littler
Mendelson.
ODWALLA INC: Wilson Moves to Certify 3 Classes of Juice Consumers
-----------------------------------------------------------------
The Plaintiff in the lawsuit entitled STEPHEN WILSON,
individually, and on behalf of other members of the general
public similarly situated v. ODWALLA, INC., a California
corporation; THE COCA-COLA COMPANY, a Delaware corporation; and
DOES 1-10, inclusive, Case No. 2:17-cv-02763-DSF-FFM (C.D. Cal.),
seeks to certify these classes under Rules 23(b)(2) and 23(b)(3)
of the Federal Rules of Civil Procedure:
-- Odwalla Orange Juice Class:
All individuals who purchased one or more 15.2 oz. Bottles
of Odwalla Orange Juice in California from June 2016, until
the date of trial;
-- 59 oz. Odwalla Orange Juice Class:
All individuals who purchased one or more 59 oz. Bottles of
Odwalla Orange Juice in California from April 2015, until
the date of trial; and
-- 128 oz. Odwalla Orange Juice Class:
All individuals who purchased one or more 128 oz. Bottles
of Odwalla Orange Juice in California from September 2016,
until the date of trial.
Mr. Wilson also asks the Court to appoint him as representative
for the classes and to appoint his counsel as Class Counsel.
The Court will commence a hearing on May 14, 2018, at 1:30 p.m.,
to consider the Motion.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=B0009Qm4
The Plaintiff is represented by:
Bevin Allen Pike, Esq.
Robert K. Friedl, Esq.
Trisha K. Monesi, Esq.
CAPSTONE LAW APC
1875 Century Park East, Suite 1000
Los Angeles, California 90067
Telephone: (310) 556-4811
Facsimile: (310) 943-0396
E-mail: Bevin.Pike@capstonelawyers.com
Robert.Friedl@capstonelawyers.com
Trisha.Monesi@capstonelawyers.com
ORTSAC MANAGEMENT: Faces "Perez" Suit Over Failure to Pay OT
------------------------------------------------------------
Hector Perez, and all others similarly situated v. Ortsac
Management LLC and Robert a/k/a "Bobby" Castro, Case No. 1:18-cv-
20630-CMA (S.D. Fla., February 19, 2018), is brought against the
Defendants for failure to pay overtime wages in violation of the
Fair Labor Standards Act.
The Defendants own and operate an investment firm in Dade County.
Florida. [BN]
The Plaintiff is represented by:
J.H. Zidell, Esq.
J.H. ZIDELL, P.A.
300 71st Street, Suite 605
Miami Beach, FL 33141
Telephone: (305) 865-6766
Facsimile: (305) 865-7167
PROGRESSIVE DIRECT: Jones Moves to Certify Class and 4 Subclasses
-----------------------------------------------------------------
The Plaintiff in the lawsuit entitled BOBBY JONES, individually,
and on behalf of all others similarly situated v. PROGRESSIVE
DIRECT INSURANCE COMPANY, PROGRESSIVE SELECT INSURANCE COMPANY,
PROGRESSIVE CASUALTY INSURANCE COMPANY, MITCHELL INTERNATIONAL,
INC.; and DOES 3 through 50, inclusive, Case No. 3:16-cv-06941-JD
(N.D. Cal.), moves the Court for an order granting class
certification for purposes of injunctive and declaratory relief
on behalf of the Injunctive Relief Class:
The First Party Insureds of Progressive Insurance who, as
California Residents, received comparable vehicle
information from Progressive or Mitchell for their first
party total vehicle property loss during the four years
preceding the filing of this action.
Bobby Jones also seeks an order granting class certification for
purposes of monetary relief on behalf of these Monetary Relief
Subclasses:
(1) The First Party Insureds of Progressive Casualty and
Progressive Select who, as California Residents, did not
receive adequate compensation for their first party total
vehicle property loss during the four years preceding the
filing of the action because Defendants Progressive
Casualty, Progressive Select and Mitchell International
Inc. used vehicles with salvage titles as a "comparable
vehicle" without disclosing the fact that they were
salvage vehicles, and without making any adjustment for
the fact that it used a salvage vehicle as a comparable;
(2) The First Party Insureds of Progressive Casualty and
Progressive Select who, as California Residents, did not
receive adequate compensation for their first party total
vehicle property loss during the four years preceding the
filing of the action because Defendants Progressive
Casualty, Progressive Select and Mitchell acted
arbitrarily and capriciously in using market dealer survey
reports without providing the insured with information
regarding the condition of the vehicle that was used to
establish a comparative value;
(3) The First Party Insureds of Progressive Casualty and
Progressive Select who, as California Residents, received
comparable vehicle information from Progressive Casualty
and Progressive Select or Mitchellfor their first party
total vehicle property loss during the four years
preceding the filing of this action; and
(4) The First Party Insureds of Progressive Casualty and
Progressive Select who, as California Residents received
less than actual cash value for their claim within the
four year period preceding the filing of this action based
on improper MITCHELL WCTL condition valuation process, aka
'double dipping'.
The Plaintiff also moves for an order appointing Bobby Jones as
class representatives for the Class and Subclasses, appointing
attorneys David A. Kleczek, Esq., and H. Paul Bryant, Esq., as
class counsel for the proposed classes, and issuing class notice
with the opportunity to opt out of the Monetary Relief
Class.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=oIqHWB5x
The Plaintiff is represented by:
David A. Kleczek, Esq.
KLECZEK LAW OFFICE
825 Washington Street, Suite 301
Oakland, CA 94607
Telephone: (510) 663-7100
Facsimile: (510) 663-7102
E-mail: david.Kleczek@kleczeklaw.com
- and -
H. Paul Bryant, Esq.
LAW OFFICES OF H. PAUL BRYANT
825 Washington Street, Suite 303
Oakland, CA 94607
Telephone: (510) 272-0700
Facsimile: (510) 272-0776
E-mail: hpaulbryantlaw@gmail.com
PROMOLOGICS INC: America's Health's Bid to Certify Class Denied
---------------------------------------------------------------
The Clerk of the U.S. District Court for the Northern District of
Illinois made a docket entry on March 2, 2018, in the case
entitled America's Health & Resource Center, Ltd., et al. v.
Promologics, Inc., et al., Case No. 1:16-cv-09281 (N.D. Ill.),
relating to a hearing held before the Honorable Harry D.
Leinenweber.
The minute entry states that given the Seventh Circuit's decision
in Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir.
2015)overruling Damasco v. Clearwire Corp., 662 F.3d 891, 895
(7th Cir. 2011), the Plaintiff's motion for class certification
is denied without prejudice as premature.
A copy of the Notification of Docket Entry is available at no
charge at http://d.classactionreporternewsletter.com/u?f=akWRnbyr
REGENCY GP: Delaware Chancery Court Narrows Claims in "Dieckman"
----------------------------------------------------------------
The Court of Chancery of Delaware granted in part and denied in
part the Defendant's motion to dismiss the case, ADRIAN DIECKMAN,
on behalf of himself and all others similarly situated,
Plaintiff, v. REGENCY GP LP, REGENCY GP LLC, ENERGY TRANSFER
EQUITY, L.P., ENERGY TRANSFER PARTNERS, L.P., ENERGY TRANSFER
PARTNERS, GP, L.P., MICHAEL J. BRADLEY, JAMES W. BRYANT, RODNEY
L. GRAY, JOHN W. McREYNOLDS, MATTHEW S. RAMSEY and RICHARD
BRANNON, Defendants, C.A. No. 11130-CB (Del. Ch.).
Before April 2015, Regency Energy Partners LP ("Regency" or the
"Partnership") was a publicly listed master limited partnership
("MLP") that gathered, processed, treated, and transported
natural gas. Regency was managed by its general partner,
Defendant Regency GP, LP, which in turn was managed by the board
of directors of its general partner, Regency GP, LLC. The
Regency Board consisted of the six individual Defendants:
Bradley, Brannon, Bryant, Gray, McReynolds, and Ramsey.
Regency, the General Partner, and Regency GP, LLC were indirectly
owned by defendant Energy Transfer Equity, L.P. ("ETE"), a MLP
that sat atop of the "Energy Transfer family." The Energy
Transfer family also included Energy Transfer Partners, L.P.
("ETP"), Sunoco LP, and Sunoco Logistics Partners, L.P.
The rights and the duties of the General Partner, Regency GP LLC,
and the unitholders were governed by Regency's Amended and
Restated Agreement of Limited Partnership ("Partnership
Agreement" or "LPA"). The default standard of conduct in the LPA
is that the General Partner must act in "good faith" when taking
action as the General Partner.
On Jan. 16, 2015, the boards of ETE and ETP held a joint meeting
to discuss a potential merger of ETP and Regency. Later that
day, the ETP board made a proposal to merge Regency into ETP for
a combination of cash and stock reflecting an exchange ratio of
0.4044 ETP common units per one common unit of Regency and a $137
million cash payment. On the same day, Brannon was appointed to
the Regency Board while he was still a director of an affiliated
entity (Sunoco LP) within the Energy Transfer family, and the
Regency Board determined that it would delegate authority to the
Conflicts Committee to review and analyze the proposed
transaction.
The Conflicts Committee came to have two members: Bryant and
Brannon. Brannon was appointed to the Conflicts Committee on
Jan. 20, 2015, the same day he resigned from Sunoco LP's board.
Before Brannon even was appointed to the Conflicts Committee, he
and Bryant met with Akin Gump (selected by Regency) to discuss
general issues and strategy with regard to the proposed
transaction and the draft merger agreement. Brannon and Bryant
retained as the Conflict Committee's financial advisor JP Morgan,
which had been selected by Regency's CFO, Thomas Long, and which
had a highly lucrative relationship with ETP and its affiliates
in recent years.
On Jan. 25, 2015, the Conflicts Committee accepted ETP's merger
proposal, offering an exchange ratio of 0.4066 and a cash payment
of $0.32 per common unit of Regency, and it recommended that the
Regency Board approve the proposal as well. The Regency Board
accepted ETP's offer that day, although the terms of the Merger
subsequently were amended to provide additional ETP stock in lieu
of the cash component. The Conflicts Committee did not solicit
any other potential buyers or conduct a market check.
On April 28, 2015, a majority of Regency's unitholders voted to
approve the Merger, which closed on April 30. That same day,
Brannon rejoined, and Bryant joined, Sunoco LP's board.
On June 10, 2015, the Plaintiff filed the action. On March 29,
2016, the Court issued a memorandum opinion and dismissed the
Plaintiff's complaint on the ground that the Defendants had
availed themselves of the unitholder approval safe harbor in the
LPA. That conclusion caused the Plaintiff's other claims to fail
as well.
On Jan. 20, 2017, the Delaware Supreme Court reversed that
decision, concluding that the Plaintiff had pled sufficient facts
that neither safe harbor was available to the general partner
because it allegedly made false and misleading statements to
secure Unaffiliated Unitholder Approval, and allegedly used a
conflicted Conflicts Committee to obtain Special Approval.
On May 5, 2017, the Plaintiff filed the Verified Amended Class
Action Complaint asserting four claims. Count I asserts that the
General Partner and Regency GP LLC breached the LPA by approving
the Merger when they did not believe that it was in the best
interests of the Partnership. Count II asserts that the General
Partner and Regency GP LLC breached the implied covenant of good
faith and fair dealing by approving the Merger. Count III
asserts that all defendants, other than the General Partner and
Regency GP LLC, aided and abetted a breach of the LPA. Count IV
asserts that all defendants, other than the General Partner and
Regency GP LLC, tortiously interfered with the LPA.
On May 19, 2017, the Defendants moved to dismiss the Amended
Complaint in its entirety under Court of Chancery Rule 12(b)(6)
for failure to state a claim for relief.
The Court denied the Defendants' motion to dismiss Count I
because the Amended Complaint alleges facts from which it is
reasonably conceivable that the General Partner and Regency GP
LLC did not believe that the Merger was in the best interests of
the Partnership and thus violated LPA Section 7.9(b).
It granted the Defendants' motion to dismiss Count II because it
impermissibly repackages Count I, the Plaintiff's breach of
contract claim. The implied covenant of good faith and fair
dealing is the doctrine by which Delaware law cautiously supplies
terms to fill gaps in the express provisions of a specific
agreement. If the language of the contract expressly covers a
particular issue, then the implied covenant will not apply.
It also granted the Defendants' motion to dismiss Count III
because there can be no liability for aiding and abetting a
breach of a contractual duty created by the LPA under Delaware
law. The Court finds that the Delaware law does not recognize a
claim for aiding and abetting a breach of contract. An exception
to this rule arises where a contract creates fiduciary duties,
but that exception does not apply in the matter.
Finally, granted the Defendants' motion to dismiss Count IV
because the Amended Complaint fails to allege facts from which it
reasonably can be inferred that ETE, ETP, or Energy Transfer
Partners, GP, L.P. had the requisite mental state or committed
any "intentional act" necessary to state a tortious interference
claim.
A full-text copy of the Court's Feb. 20, 2018 Order is available
at https://is.gd/SKrRBM from Leagle.com.
S&A UNIFIED HOME: "Stalling" Suit Seeks Late OT Pay, Other Wages
----------------------------------------------------------------
Nicole Stallings, Individually, and on behalf of all others
similarly situated, Plaintiff, v. S & A Unified Home Care, Inc.,
Defendant, Case No. 701420/2018 (N.Y. Sup., January 29, 2018),
seeks maximum liquidated damages for late overtime wages and non-
overtime wages, spread-of-hours premium, recovery of compensation
for not receiving notices and statements, costs and attorneys'
fees pursuant to the New York Labor Law.
Defendant was engaged in the business of providing home care
services where Stallings was employed as a home care worker. [BN]
Plaintiff is represented by:
Abdul K. Hassan, Esq.
ABDUL HASSAN LAW GROUP, PLLC
215-28 Hillside Avenue
Queens Village, NY 11427
Tel: (718) 740-1000
Fax: (718) 355-9668
Email: abdul@abdulhassan.com
SENATOR CONSTRUCTION: Faces "Cepeda" Suit Over Failure to Pay OT
----------------------------------------------------------------
Orlando de la Torre Cepeda and Carlos Plata, on behalf of
themselves and others similarly situated v. Senator Construction
Group Inc. and Atiq Rehman, Case No. 1:18-cv-01045 (E.D.N.Y.,
February 18, 2018), is brought against the Defendants for failure
to pay overtime wages in violation of the Fair Labor Standards
Act.
The Defendants own and operate a construction business in
New York. [BN]
The Plaintiff is represented by:
Ariadne Panagopoulou, Esq.
PARDALIS & NOHAVICKA, LLP
950 Third Avenue, 25th Floor
New York, NY 10022
Telephone: (718) 777-0400
Facsimile: (718) 777-0599
E-mail: ari@pnlawyers.com
SNYDER'S-LANCE: Sciabacucchi Seeks to Halt Sale to Campbell
-----------------------------------------------------------
Matthew Sciabacucchi, Individually and on behalf of all others
similarly situated, Plaintiff, v. Snyder's-Lance, Inc., Jeffrey
A. Atkins, Peter P. Brubaker, C. Peter Carlucci, Jr., John E.
Denton, Brian J. Driscoll, Lawrence V. Jackson, James W.
Johnston, David C. Moran, Dan C. Swander, Isaiah Tidwell,
Patricia A. Warehime, Campbell Soup Company, and Twist Merger
Sub, Inc., Defendants, Case No. 18-cv-00049 (W.D. N.C., January
29, 2018), seeks to enjoin defendants and all persons acting in
concert with them from proceeding with, consummating or closing
the acquisition of Snyder's-Lance by Campbell Soup Company,
rescinding it in the event defendants consummate the merger. The
lawsuit also seeks rescissory damages, costs of this action,
including reasonable allowance for plaintiff's attorneys' and
experts' fees and such other and further relief under the
Securities Exchange Act of 1934.
Pursuant to the merger agreement, shareholders of Snyder's-Lance
will receive $50.00 per share in cash.
Snyder's-Lance manufactures and markets snack foods throughout
the United. Snyder's-Lance's products include pretzels, sandwich
crackers, pretzel crackers, potato chips, cookies, tortilla
chips, restaurant style crackers, popcorn, nuts, and other
snacks.
The complaint ssys the proxy statement omitted financial
projections and analyses performed by the company's financial
advisor, Goldman Sachs & Co. LLC, in particular, unlevered free
cash flow, depreciation and amortization, taxes, increase in net
working capital, capital expenditures, net operating losses and a
reconciliation of all non-GAAP to GAAP metrics. Said disclosure
provides stockholders with a basis to project the future
financial performance of a company, and allows stockholders to
better understand the financial analyses, it says. [BN]
Plaintiff is represented by:
Nancy Meyers, Esq.
WARD BLACK LAW
208 West Wendover Avenue
Greensboro, NC 27401
Tel: (336) 510-2014
Fax: (336) 510-2181
Email: nmeyers@wardblack1aw.com
- and -
RIGRODSKY & LONG, PA.
300 Delaware Avenue, Suite 1220
Wilmington, DE 19801
Tel.: (302) 295-5310
- and -
RM LAW, P.C.
1055 Westlakes Drive, Suite 300
Berwyn, PA 19312
Tel: (484) 324-6800
TOP'S PERSONNEL: Moves to Certify Policyholders Class in AUI Suit
-----------------------------------------------------------------
Top's Personnel, Inc., Defendant/Counterclaim Plaintiff in the
lawsuits captioned APPLIED UNDERWRITERS, INC., Nebraska
Corporation v. TOP'S PERSONNEL, INC., New Jersey Corporation,
Case No. 8:15-cv-00090-JMG-CRZ (D. Neb.) and TOP'S PERSONNEL,
INC., a New Jersey Corporation, individually and on behalf of all
others similarly situated, Counterclaim Plaintiff v. APPLIED
UNDERWRITERS, INC., a Nebraska Corporation, Counterclaim
Defendant, moves the Court for an order granting class
certification.
The proposed Nationwide Class is defined as:
All individuals or entities in the United States who
purchased an EquityComp or SoultionOne workers' compensation
insurance policy from Applied Underwriters, Inc. or any of
its affiliates, and subsequently executed a promissory note
with Applied Underwriters, Inc. or one of its affiliates
relating to sums allegedly owed pursuant to either the
EquityComp or SolutionOne programs.
In the alternative, Top's seeks certification of this New Jersey
statewide subclass:
New Jersey Subclass:
All individuals or entities in the state of New Jersey who
purchased an EquityComp or SolutionOne workers' compensation
insurance policy from Applied Underwriters, Inc. or any of
its affiliates, and subsequently executed a promissory note
with Applied Underwriters, Inc. or one of its affiliates
relating to sums allegedly owed pursuant to either the
EquityComp or SolutionOne programs.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=nzjFUVxm
Top's Personnel Inc. is represented by:
Brian T. McKernan, Esq.
MCGRATH NORTH
First National Tower, Suite 3700
1601 Dodge Street
Omaha, NE 68102
Telephone: (402) 633-6896
Facsimile: (402) 952-6896
E-mail: bmckernan@mcgrathnorth.com
- and -
Ralph P. Ferrara, Esq.
Aaron L. Peskin, Esq.
FERRARA LAW GROUP, P.C.
One State Street Square
50 W. State St., Suite 1100
Trenton, NJ 08608
Telephone: (609) 571-3738
Facsimile: (609) 498-7440
E-mail: ralph@ferraralawgp.com
aaron@ferraralawgp.com
- and -
Benjamin F. Johns, Esq.
Andrew W. Ferich, Esq.
Zachary P. Beatty, Esq.
CHIMICLES & TIKELLIS LLP
361 West Lancaster Avenue
Haverford, PA 19041
Telephone: (610) 642-8500
Facsimile: (610) 649-3633
E-mail: BFJ@chimicles.com
AWF@chimicles.com
ZPB@chimicles.com
UBER TECHNOLOGIES: Court Certifies Class of Drivers in "Dulberg"
----------------------------------------------------------------
Judge William Alsup of the U.S. District Court for the Northern
District of California granted the Plaintiff's motion to certify
a class in the case, MARTIN DULBERG, individually and on behalf
of all others similarly situated, Plaintiff, v. UBER
TECHNOLOGIES, INC., and RASIER, LLC, Defendants, Case No. C 17-
00850 WHA (N.D. Cal.).
Dulberg asserts a single breach of contract claim against the
Defendants, on behalf of a putative class of Uber drivers.
Dulberg signed up as a driver for the UberX program in May 2014
and as a driver for the UberSelect program in February 2015. A
"Technology Services Agreement" dated Dec. 11, 2015 governed the
compensation scheme between Uber and its drivers during the
relevant time period.
Under the driver agreement, the drivers like Dulberg could charge
passengers (1) a "Fare" calculated based on the distance and time
of the ride, (2) Uber's "Booking Fee," and (3) any applicable
tolls, taxes, or fees for the ride. Uber collected these amounts
from passengers on Dulberg's behalf and withheld (1) its Booking
Fee plus (2) a "Service Fee" equal to 20% of each UberX ride and
28% of each UberSelect ride before remitting anything to Dulberg.
In late 2016, Uber's policy changed from calculating the price
for each ride after the ride to calculating the price upfront
before the ride. This new "upfront pricing" policy, according to
Dulberg, violated the driver agreement because Uber used
aggressively estimated time and distance amounts to calculate
costs to passengers but continued to use actual time and distance
amounts to calculate driver compensation, keeping the difference
for itself. This, according to Dulberg, effectively altered the
fixed percentage-based breakdown of Fares between drivers'
remittances and Uber's Service Fees, contrary to the driver
agreement.
A prior order denied Uber's motion to dismiss Dulberg's claim.
The discovery followed. Uber produced a spreadsheet that
identified ride-by-ride data over the time period in question for
over nine thousand drivers who opted out of arbitration. Based
on this data, Dulberg filed a motion to certify a class of all
natural persons nationwide who (1) worked as a driver for UberX
or UberSelect; (2) opted out of arbitration; and (3) transported
a passenger who was charged an upfront fare before they accepted
Uber's updated fee addendum, which it issued on May 22, 2017.
Having met the prerequisites of Rule 23(a) and Rule 23(b), Judge
Alsup granted the Plaintiff's motion for class certification.
The Judge certified the class of all persons nationwide who (1)
drove for UberX or UberSelect; (2) opted out of arbitration; (3)
transported a passenger who was charged an upfront Fare before
May 22, 2017, when Uber issued its updated fee addendum; and (4)
made less money overall on rides where they transported
passengers who were charged an upfront Fare because they were
paid on a Fare calculated based on actual time and distance
values instead of the upfront Fare calculated based on estimated
time and distance values.
The class definition will apply for all purposes, including
settlement. The Judge appointed Dulberg as the class
representative and the Plaintiff's counsel from the law firm of
Napoli Shkolnik PLLC as the class counsel.
By March 1, 2018 at noon, the parties will jointly submit a
proposal for class notification, with the plan to distribute
notice by March 22, 2018. In crafting their joint proposal, the
Judge directed the counsel to please keep in mind his guidelines
for notice to class members in the "Notice Regarding Factors to
be Evaluated for Any Proposed Class Settlement" filed
concurrently with the Order.
The order will remain under seal until Feb. 16, 2018 at noon,
after which it will be unsealed and filed on the public docket in
its entirety unless one or more parties move to keep specific
portions of the order under seal.
A full-text copy of the Court's Feb. 16, 2018 Order is available
at https://is.gd/k68jiK from Leagle.com.
Martin Dulberg, individually, and on behalf of all others
similarly-situated, Plaintiff, represented by Jennifer R. Liakos
-- jliakos@napolilaw.com -- Napoli Shkolnik PLLC, Andrew Dressel
-- ADressel@napolilaw.com -- Napoli Shkolnik PLLC & Paul B. Maslo
-- PMaslo@napolilaw.com -- Napoli Shkolnik PLLC.
Uber Technologies, Inc. & Rasier, LLC, Defendants, represented by
Adam Manes Kaplan -- akaplan@omm.com -- O'Melveny & Myers LLP,
Damali A. Taylor -- dtaylor@omm.com -- O'Melveny& Myers LLP,
Matthew David Powers -- mpowers@omm.com -- O'Melveny & Myers LLP
& Randall W. Edwards -- redwards@omm.com -- O'Melveny & Myers
LLP.
UNITED STATES: Garza Files Renewed Motion for Class Certification
-----------------------------------------------------------------
The Plaintiffs in the lawsuit styled ROCHELLE GARZA, as guardian
ad litem to unaccompanied minor J.D., on behalf of herself and
others similarly situated, et al. v. ALEX M. AZAR II, et al.,
Case No. 1:17-cv-02122-TSC (D.D.C.), submit their renewed motion
for class certification, for provisional class certification and
notice, and for preliminary injunctive relief.
Alex M. Azar II is the Secretary of U.S. Department of Health and
Human Services.
Since the filing of those motions, additional facts have come to
light that reveal the extreme lengths to which Defendants will go
in their attempts to obstruct access to abortion and coerce young
girls into carrying their pregnancies to term, the Plaintiffs
contend. The Plaintiffs assert that these additional facts
confirm their assertion that Defendants have violated, and will
continue to violate, the putative class members' constitutional
right to access abortion unless and until they are enjoined from
doing so by an order of the Court.
A copy of the Renewed Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=HmToYxgd
The Plaintiffs are represented by:
Arthur B. Spitzer, Esq.
Scott Michelman, Esq.
Shana Knizhnik, Esq.
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
OF THE DISTRICT OF COLUMBIA
915 15th Street NW, Second Floor
Washington, DC 20005
Telephone: (202) 457-0800
Facsimile: (202) 457-0805
E-mail: aspitzer@acludc.org
smichelman@acludc.org
sknizhnik@acludc.org
- and -
Brigitte Amiri, Esq.
Meagan Burrows, Esq.
Jennifer Dalven, Esq.
Lindsey Kaley, Esq.
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
125 Broad Street, 18th Floor
New York, NY 10004
Telephone: (212) 549-2633
Facsimile: (212) 549-2652
E-mail: bamiri@aclu.org
mburrows@aclu.org
jdalven@aclu.org
lkaley@aclu.org
- and -
Daniel Mach, Esq.
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
915 15th Street NW
Washington, DC 20005
Telephone: (202) 675-2330
E-mail: dmach@aclu.org
- and -
Elizabeth Gill, Esq.
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
OF NORTHERN CALIFORNIA, INC.
39 Drumm Street
San Francisco, CA 94111
Telephone: (415) 621-2493
Facsimile: (415) 255-8437
E-mail: egill@aclunc.org
- and -
Melissa Goodman, Esq.
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
OF SOUTHERN CALIFORNIA
1313 West 8th Street
Los Angeles, CA 90017
Telephone: (213) 977-9500
Facsimile: (213) 977-5299
E-mail: mgoodman@aclusocal.org
- and -
Mishan Wroe, Esq.
RILEY SAFER HOLMES & CANCILA LLP
456 Montgomery Street, 16th Floor
San Francisco, CA 94104
Telephone: (415) 275-8522
E-mail: mwroe@rshc-law.com
US TOBACCO: $24MM Settlement in "Speaks" Suit Has Final Approval
----------------------------------------------------------------
In the case, TERESA M. SPEAKS, TOBY SPEAKS, STANLEY SMITH, EDDIE
BROWN, ROBERT POINDEXTER, MIKE MITCHELL, ROY L. COOK, ALEX
SHUGART, H. RANDLE WOOD, ROBIN ROGERS, and DANIEL LEE NELSON,
Plaintiffs, v. U.S. TOBACCO COOPERATIVE, INC., f/k/a FLUE-CURED
TOBACCO COOPERATIVE STABILIZATION CORPORATION, Defendant, Case
No. 5:12-CV-729-D (E.D. N.C.), Judge James C. Denver, III, of the
U.S. District Court for the Eastern District of North Carolina,
Western Division, granted the Plaintiffs' motion for final
approval of the class action settlement.
On Oct. 31, 2012, the Plaintiffs, on behalf of themselves and the
class they seek to represent, filed a complaint against the
Cooperative, asserting claims for declaratory judgment, forced
distribution of reserves, and judicial dissolution. The
Plaintiffs are members of the Cooperative and current or former
flue-cured tobacco farmers. They contend that after Congress
enacted the Fair and Equitable Tobacco Reform Act in 2004 and
ended the Tobacco Price Support Program, the Cooperative's
purpose ended and that the Cooperative should therefore be forced
to distribute its reserves and be judicially dissolved.
When the Plaintiffs filed the federal complaint, a competing
putative class action by a different group of Cooperative members
was pending against the Cooperative in Wake County Superior Court
("Fisher/Lewis action"). On Dec. 5, 2012, the parties in this
federal case moved to stay the case pending the outcome of a
motion for class certification in the Fisher/Lewis action. On
Dec. 17, 2012, the court granted the motion to stay.
The litigation in state court concerning class certification took
longer than anticipated, and the Court received updates from the
parties in the action and granted a series of joint motions to
stay. On Dec. 21, 2016, approximately three and a half years
after the Wake County Superior Court granted the motion for class
certification in the Fisher/Lewis action and after the Supreme
Court of North Carolina permitted an interlocutory appeal of that
order, the Supreme Court of North Carolina affirmed the order
granting class certification.
In early 2017, the parties in the federal case began discussing
how to proceed with the case. On May 11 and 12, 2017, pursuant
to the Court's local rules which mandate mediation, the parties
in the federal case participated in a hard-fought two-day
mediation with the Honorable Frank W. Bullock, Jr., a
distinguished, retired United States District Judge and certified
mediator. After extensive negotiations, the parties in the
putative federal class action entered into a $24 million proposed
class action settlement agreement.
On Sept. 8, 2017, the Plaintiffs moved to certify a settlement
class and for preliminary approval of the proposed class action
settlement. On Sept. 13, 2017, the Court entered an order
preliminarily approving the class action settlement and scheduled
the final fairness hearing for Jan. 19, 2018. On Sept. 13, 2017,
the Plaintiffs filed an amended complaint.
Shortly thereafter, the parties designed and implemented an
extensive notice program. The notice program cost approximately
$1.5 million, and the Cooperative paid for the notice program
pursuant to the settlement agreement. Meanwhile, the
Fisher/Lewis action is ongoing in Wake County Superior Court, has
proceeded through its own notice program, but has not proceeded
to judgment.
On Jan. 5, 2018, the Plaintiffs moved for final approval of the
class action settlement. On Jan. 19, 2018, the Court held a
final fairness hearing. At the fairness hearing, the Court heard
arguments from the Plaintiffs' counsel, the defense counsel, and
the objectors. The Court has carefully considered all arguments
made by the Plaintiffs' counsel, the defense counsel, and the
objectors (including some who are represented by the lawyers
representing the plaintiffs in the competing Fisher/Lewis
action). As often happens when there are competing class
actions, these lawyers are concerned about, inter alia, the
preclusive effect that the proposed class action settlement will
have on the Fisher/Lewis class action.
After considering the substantial benefits that the $24 million
settlement will provide to the settlement class, as well as the
factors described in the final approval order, Judge Denver finds
that the settlement is fair, reasonable, and adequate under
Federal Rule of Civil Procedure 23(e). Accordingly, he granted
the Plaintiffs' motion for final approval of the class action
settlement. The Judge also granted the Plaintiffs' and the
Defendant's motion to strike class-wide opt-outs. He denied the
Defendant's motion to strike objections filed by Pender Farms and
the Plaintiffs' motion to exclude testimony of Glenn W. Harrison.
The Judge directed the class counsel to communicate with the
settlement class and advise the settlement class of the final
approval order and the accompanying final judgment. The class
counsel will continue to communicate with the settlement class
concerning further proceedings and the settlement process. He
also ordered that the class counsel to post a copy of thefinal
approval order and the final judgment on the settlement website
with a statement that, "The United States District Court for the
Eastern District of North Carolina has approved the class action
settlement.
Any class member seeking relief must submit a Group 1 claim, a
Group 2 claim, or claims under both Group 1 and Group 2 no later
than May 26, 2018. The settlement website describes how to
submit claims." The Judge will enter a final judgment consistent
with the Order.
A full-text copy of the Court's Feb. 20, 2018 Order is available
at https://is.gd/6svmuL from Leagle.com.
Teresa M. Speaks, Toby Speaks, Stanley Smith, Eddie Brown, Robert
Poindexter, Mike Mitchell, Roy L. Cook, Alex Shugart, H. Randle
Wood, Robin Rogers & Daniel Lee Nelson, Plaintiffs, represented
by Gary K. Shipman -- gshipman@shipmanlaw.com -- Shipman &
Associates, LLP, Namon Leo Daughtry -- leodaughtry@hotmail.com --
Daughtry, Woodard, Lawrence & Starling & William Grainger Wright,
Sr. -- wright@shipmanlaw.com -- Shipman and Wright, LLP.
U.S. Tobacco Cooperative, Inc., Defendant, represented by Derek
Lawrence Shaffer -- derekshaffer@quinnemanuel.com -- Quinn
Emanuel
Urquhart & Sullivan, Lee M. Whitman -- lwhitman@wyrick.com --
Wyrick Robbins Yates & Ponton, LLP & Paul J. Puryear, Jr. --
ppuryear@wyrick.com -- Wyrick Robbins Yates & Ponton, LLP.
Nellirea Miles, On Behalf of Herself and James D. Miles,
Deceased, Interested Party, pro se.
James A. Miles, Interested Party, pro se.
Melvin M McElveen, Interested Party, pro se.
Sharp Farms, Objector, represented by James L. Ward, Jr. ,
McGowan Hood & Felder LLC, Philip R. Isley -- pisley@bmlilaw.com
-- Blanchard, Miller, Lewis & Isley, P.A., Charles Alan Runyan,
Runyan & Platte & John L. Coble -- jlc@mwglaw.com -- Marshall,
Williams & Gorham.
Pender Sharp, Objector, represented by Philip R. Isley,
Blanchard, Miller, Lewis & Isley, P.A. & John L. Coble, Marshall,
Williams & Gorham.
David L. Rose, E. Jerome Vick, Vick Family Farming Partnership,
E.J. Vick Farming Company, LLC, Jerome B Vick, J.B. Rose & Sons,
Inc., Charles Allen Rose, Sr., Cheryl G Rose, Sheree B. Rose,
Estate of James B. Rose, Jr. & Estate of James B Rose, III,
Objectors, represented by Christopher S. Battles --
cbattles@shanahanmcdougal.com -- Shanahan Law Group, PLLC &
Kieran J. Shanahan -- kieran@shanahanmcdougal.com -- Shanahan Law
Group, PLLC.
North Carolina Department of Agriculture and Consumer Services &
South Carolina Department of Agriculture, Amicuss, represented by
Anne J. Brown , NC Department of Justice.
US TOBACCO: Court Awards $1.9MM Attorneys' Fee in "Speaks" Suit
---------------------------------------------------------------
In the case, TERESA M. SPEAKS, TOBY SPEAKS, STANLEY SMITH, EDDIE
BROWN, ROBERT POINDEXTER, MIKE MITCHELL, ROY L. COOK, ALEX
SHUGART, H. RANDLE WOOD, ROBIN ROGERS, and DANIEL LEE NELSON,
Plaintiffs, v. U.S. TOBACCO COOPERATIVE, INC. f/k/a FLUE-CURED
TOBACCO COOPERATIVE STABILIZATION CORPORATION, Defendant, Case
No. 5:12-CV-729-D (E.D. N.C.), Judge James C. Denver, III of the
U.S. District Court for the Eastern District of North Carolina,
Western Division, granted the Plaintiffs' motion for attorney's
fees, expenses, and incentive awards.
The parties entered into a Stipulation and Agreement of Class
Action Compromise, Settlement and Release intended to resolve the
action. In the action, the Plaintiffs contend that after
Congress enacted the Fair and Equitable Tobacco Reform Act of
2004 and ended the Tobacco Price Support Program, the
Cooperative's purpose ended and the Cooperative should be forced
to distribute its reserves and be judicially dissolved.
On Sept. 13, 2017, the Court granted preliminary approval of the
$24 million Settlement Agreement, preliminarily certified a
settlement class for settlement purposes only, and directed the
class counsel to submit their application for attorneys' fees,
expenses, and incentive awards. On Nov. 20, 2017, the class
counsel filed an unopposed motion for attorneys' fees, expenses,
and incentive awards and a memorandum in support.
On Nov. 27, 2017, the class counsel filed declarations of named
class representative Plaintiffs. On Jan. 19, 2018, the Court
held a fairness hearing. On Jan. 24, 2018, the class counsel
filed supplemental declarations in support of the class counsel's
motion for attorneys' fees, expenses, and incentive awards. On
Feb. 20, 2018, the Court granted the Plaintiffs' motion for final
approval of a class action settlement and entered a final
approval order.
Judge Denver granted the Plaintiffs' motion for attorney's fees,
expenses, and incentive awards. He approved a fee-and-expense
award of $1.9 million to the settlement class counsel, with the
sum of $760,000 to be paid from the settlement fund upon the
effective date of settlement as defined in the Settlement
Agreement; the sum of $380,000 to be paid from the settlement
fund upon the payment of the second settlement payment as defined
in the Settlement Agreement; the sum of $380,000 to be paid from
the settlement fund upon the payment of the third settlement
payment as defined in the Settlement Agreement; and the sum of
$380,000 to be paid from the settlement fund upon the payment of
the fourth settlement payment as defined in the Settlement
Agreement.
The Judge also approved incentive awards in the amount of $10,000
to Teresa and Toby Speaks (together) and $10,000 each to Stanley
Smith, Eddie Brown, Robert Poindexter, Mike Mitchell, Roy L.
Cook, Alex Shugart, H. Randle Wood, Robin Rogers, and Daniel Lee
Nelson. This figure totals $100,000 and will be paid from the
settlement fund upon the effective date of settlement as defined
in the Settlement Agreement.
A full-text copy of the Court's Feb. 20, 2018 Order is available
at https://is.gd/JQJFCl from Leagle.com.
Teresa M. Speaks, Toby Speaks, Stanley Smith, Eddie Brown, Robert
Poindexter, Mike Mitchell, Roy L. Cook, Alex Shugart, H. Randle
Wood, Robin Rogers & Daniel Lee Nelson, Plaintiffs, represented
by Gary K. Shipman -- gshipman@shipmanlaw.com -- Shipman &
Associates, LLP, Namon Leo Daughtry -- leodaughtry@hotmail.com --
Daughtry, Woodard, Lawrence & Starling & William Grainger Wright,
Sr. -- wright@shipmanlaw.com -- Shipman and Wright, LLP.
U.S. Tobacco Cooperative, Inc., Defendant, represented by Derek
Lawrence Shaffer -- derekshaffer@quinnemanuel.com -- Quinn
Emanuel
Urquhart & Sullivan, Lee M. Whitman -- lwhitman@wyrick.com --
Wyrick Robbins Yates & Ponton, LLP & Paul J. Puryear, Jr. --
ppuryear@wyrick.com -- Wyrick Robbins Yates & Ponton, LLP.
Nellirea Miles, On Behalf of Herself and James D. Miles,
Deceased, Interested Party, pro se.
James A. Miles, Interested Party, pro se.
Melvin M McElveen, Interested Party, pro se.
Sharp Farms, Objector, represented by James L. Ward, Jr. ,
McGowan Hood & Felder LLC, Philip R. Isley -- pisley@bmlilaw.com
-- Blanchard, Miller, Lewis & Isley, P.A., Charles Alan Runyan,
Runyan & Platte & John L. Coble -- jlc@mwglaw.com -- Marshall,
Williams & Gorham.
Pender Sharp, Objector, represented by Philip R. Isley,
Blanchard, Miller, Lewis & Isley, P.A. & John L. Coble, Marshall,
Williams & Gorham.
David L. Rose, E. Jerome Vick, Vick Family Farming Partnership,
E.J. Vick Farming Company, LLC, Jerome B Vick, J.B. Rose & Sons,
Inc., Charles Allen Rose, Sr., Cheryl G Rose, Sheree B. Rose,
Estate of James B. Rose, Jr. & Estate of James B Rose, III,
Objectors, represented by Christopher S. Battles --
cbattles@shanahanmcdougal.com -- Shanahan Law Group, PLLC &
Kieran J. Shanahan -- kieran@shanahanmcdougal.com -- Shanahan Law
Group, PLLC.
North Carolina Department of Agriculture and Consumer Services &
South Carolina Department of Agriculture, Amicuss, represented by
Anne J. Brown , NC Department of Justice.
US TOBACCO: Court Enters Final Judgment in "Speaks" Suit
--------------------------------------------------------
In the case, TERESA M. SPEAKS, TOBY SPEAKS, STANLEY SMITH, EDDIE
BROWN, ROBERT POINDEXTER, MIKE MITCHELL, ROY L. COOK, ALEX
SHUGART, H. RANDLE WOOD, ROBIN ROGERS, and DANIEL LEE NELSON,
Plaintiffs, v. U.S. TOBACCO COOPERATIVE, INC., f/k/a FLUE-CURED
TOBACCO COOPERATIVE STABILIZATION CORPORATION, Defendant, Case
No. 5:12-CV-729-D (E.D. N.C.), Judge James C. Denver, III of the
U.S. District Court for the Eastern District of North Carolina,
Western Division,
On Feb. 20, 2018, the Court granteed the Plaintiffs' motion for
final approval of a class action settlement and entered a Final
Approval Order. It finds that the Settlement Class as defined in
the Settlement Agreement meets the requirements of Federal Rules
of Civil Procedure 23(a), (b)(3). Thus, it certified the
Settlement Class. The Court finds that class notice satisfied
the requirements of Rule 23 and the Due Process Clause. It also
finds that the Settlement Agreement is fair, reasonable, and
adequate under Federal Rule of Civil Procedure 23(e).
Accordingly, it approved the final class action settlement.
Judge Denver ordered that the Final Judgment and the Final
Approval Order incorporate the Settlement Agreement, and all
definitions set forth in the Settlement Agreement.
The Settlement Class includes all individuals, proprietorships,
partnerships, corporations, and other entities that are or were
shareholders and/or members of U.S. Tobacco at any time during
the Class Period, without any exclusion, including any heirs,
representatives, executors, powers-of-attorney, successors,
assigns, or others purporting to act for or on their behalf with
respect to U.S. Tobacco and/or the Settled Claims. The certified
Settlement Class includes all Settlement Class Members to whom
notice was directed and who did not timely request to be excluded
from the Settlement Class.
Regardless of whether the Settlement Class Members make claims
under the Settlement Agreement, the Judge's Final Approval Order
and Final Judgment dismissed with prejudice the Plaintiffs' and
Settlement Class Members' claims. All the Settled Claims as
against the Defendant and the Released Parties are dismissed with
prejudice.
Judge Denver expressly directed the Clerk of Court immediately to
enter the Final Judgment. Upon entry, the Court decrees that the
document be deemed a Final Judgment.
A full-text copy of the Court's Feb. 20, 2018 Order is available
at https://is.gd/SEC4LG from Leagle.com.
Teresa M. Speaks, Toby Speaks, Stanley Smith, Eddie Brown, Robert
Poindexter, Mike Mitchell, Roy L. Cook, Alex Shugart, H. Randle
Wood, Robin Rogers & Daniel Lee Nelson, Plaintiffs, represented
by Gary K. Shipman -- gshipman@shipmanlaw.com -- Shipman &
Associates, LLP, Namon Leo Daughtry -- leodaughtry@hotmail.com --
Daughtry, Woodard, Lawrence & Starling & William Grainger Wright,
Sr. -- wright@shipmanlaw.com -- Shipman and Wright, LLP.
U.S. Tobacco Cooperative, Inc., Defendant, represented by Derek
Lawrence Shaffer -- derekshaffer@quinnemanuel.com -- Quinn
Emanuel
Urquhart & Sullivan, Lee M. Whitman -- lwhitman@wyrick.com --
Wyrick Robbins Yates & Ponton, LLP & Paul J. Puryear, Jr. --
ppuryear@wyrick.com -- Wyrick Robbins Yates & Ponton, LLP.
Nellirea Miles, On Behalf of Herself and James D. Miles,
Deceased, Interested Party, pro se.
James A. Miles, Interested Party, pro se.
Melvin M McElveen, Interested Party, pro se.
Sharp Farms, Objector, represented by James L. Ward, Jr. ,
McGowan Hood & Felder LLC, Philip R. Isley -- pisley@bmlilaw.com
-- Blanchard, Miller, Lewis & Isley, P.A., Charles Alan Runyan,
Runyan & Platte & John L. Coble -- jlc@mwglaw.com -- Marshall,
Williams & Gorham.
Pender Sharp, Objector, represented by Philip R. Isley,
Blanchard, Miller, Lewis & Isley, P.A. & John L. Coble, Marshall,
Williams & Gorham.
David L. Rose, E. Jerome Vick, Vick Family Farming Partnership,
E.J. Vick Farming Company, LLC, Jerome B Vick, J.B. Rose & Sons,
Inc., Charles Allen Rose, Sr., Cheryl G Rose, Sheree B. Rose,
Estate of James B. Rose, Jr. & Estate of James B Rose, III,
Objectors, represented by Christopher S. Battles --
cbattles@shanahanmcdougal.com -- Shanahan Law Group, PLLC &
Kieran J. Shanahan -- kieran@shanahanmcdougal.com -- Shanahan Law
Group, PLLC.
North Carolina Department of Agriculture and Consumer Services &
South Carolina Department of Agriculture, Amicuss, represented by
Anne J. Brown, NC Department of Justice.
VIRIDIAN ENERGY: $18.5MM "Sanborn" Settlement Has Prelim Approval
-----------------------------------------------------------------
In the case, LORI SANBORN, BDK ALLIANCE LLC, IRON MAN LLC,
STEPHANIE SILVER, DAVID STEKETEE, SUSANNA MIRKIN, BORIS MIRKIN,
ELIZABETH HEMBLING, PATRICIA KULESA, STEWART CONNARD and STEVEN
LANDAU, on behalf of themselves and all others similarly
situated, Plaintiffs, v. VIRIDIAN ENERGY, INC., VIRIDIAN ENERGY
PA LLC, Viridian Energy NY LLC, and Viridian Energy LLC,
Defendants, Case No. 3:14-cv-01731 (SRU)(D. Conn.), Judge Stefan
r. Underhill of the U.S. District Court for the District of
Connecticut granted the Plaintiffs' motion for entry of an order
certifying the classes pursuant to Federal Rules of Civil
Procedure 23(a) and 23(b)(3) for settlement purposes only,
granting preliminary approval to the settlement set forth in the
Class Action Settlement Agreement, and approving Notice to the
Class and other related matters.
On Dec. 7, 2017, the Parties entered into the Agreement. The
Agreement provides for a nationwide class settlement of the
Released Claims of two proposed classes concerning certain
practices with respect to Viridian variable rate electricity
and/or gas plans.
The Settlement requires Viridian to pay (i) Administration and
notice expenses, (ii) valid claims for cash benefits to members
of the Settlement Classes, and (iii) an award to Class Counsel
for attorneys' fees and costs and service awards to Class
Representatives, with the aggregate amounts of (i), (ii), and
(iii) limited to a maximum of $18,500,000 as more particularly
described in the Settlement Agreement.
The Average Usage Class Members have a cash benefit option of the
greater of $5 or 65% of the Calculated Amount, which takes into
account the difference between what the Average Usage Class
Member paid pursuant to a Viridian variable rate electricity or
gas plan during the Claim Period versus what the Average Usage
Class Member would have paid the local public utility during the
same period.
The Average Usage cash benefit cannot exceed $425.00 per valid
claim. For Average Usage Class Members who: (i) are current
customers of Viridian at the time a claim under this Settlement
is made or (ii) former customer Average Usage Class Members who
wish to re-enroll with Viridian and who have a Calculated Amount
above zero dollars ($0), there also is a billing credit option,
in lieu of a cash benefit, that is worth $102 over twelve months
to be credited at the end of the Settlement Class Member's
service period (or 12 months, whichever date comes first).
The Above Average Usage Class Members have a cash benefit option
of the greater of $10 or 65% of the Calculated Amount, which
takes into account the difference between what the Above Average
Usage Class Member paid pursuant to a Viridian variable rate
electricity or gas plan during the Claim Period versus what the
Above Average Usage Class Member would have paid the local public
utility during the same period. The Above Average Usage cash
benefit cannot exceed $500 per valid claim.
For Above Average Usage Class Members who: (i) are current
customers of Viridian at the time a claim under the Settlement is
made or (ii) former customer Above Average Usage Class Members
who wish to re-enroll with Viridian, and who have a Calculated
Amount above zero dollars ($0), there also is the billing credit
option, in lieu of a cash benefit, that is worth $102 over twelve
months, net of any early termination fees, to be credited at the
end of the Settlement Class Member's service period (or 12
months, whichever date comes first).
The monetary value of Billing Credit Options elected by the
Settlement Class Members will not count against the Settlement
Amount.
Further, Viridian will provide its current Independent Viridian
Associates ("IVAs") who are involved in the solicitation of
potential Viridian customers with written notice of the IVAs'
contractual requirement to abide by Viridian's policies regarding
advertising and marketing claims including, but not limited to,
refraining from making unsubstantiated claims regarding cost
savings or how Viridian's variable rates are determined, and
advising IVAs that Viridian will penalize IVAs for any failure to
comply with Viridian's policies, including, where appropriate, by
terminating the IVA's relationship with Viridian.
The Parties have submitted the following proposed notices,
modified from the versions originally appended as Exhibits B, C,
D and E to the Settlement Agreement, that incorporate revisions
requested by the Court and agreed to by the Parties: (i) a Long
Form Notice for the Average Usage Class, (ii) a Long Form Notice
for the Above Average Usage Class, (iii) a Short Form Notice to
the Average Usage Class, and (iv) a proposed Short Form Notice
for the Above Average Usage Class. A proposed Claim Form also
has been submitted to the Court.
The notice plan provides that no later than 30 days after the
Court grants Preliminary Approval, the Settlement Administrator
will disseminate the Short Form Notices with a unique Class
Member identifier by either (1) email to the email address of
Class Members if an e-mail address was provided by the Class
Member, or (2) mail to the last known postal address to those
Class Members who did not provide an email address. The
Settlement Agreement sets forth adequate provisions for the
handling of any returned mail or emails.
Not later than 30 days after entry of the Order, the Settlement
Administrator will create and maintain a website applicable to
each Settlement Class to provide, among other things, copies of
the applicable Long-Form Notices, the Settlement Agreement, the
Settlement Administrator's and Class Counsel's contact
information, certain selected pleadings and Court orders from the
Action, a method for the electronic submission of Claim Forms, a
method for requesting the Claim Form(s) by mail, and a list of
frequently asked questions likely to be made by Settlement Class
Members and answers thereto.
Not later than 30 days after the entry of the Order, the
Settlement Administrator will set up and operate a case-specific
toll-free number with an automated system providing information
about the Settlement with the ability to request copies of the
Notice, the Settlement Agreement, and Claim Form and the ability
to communicate orally with a Settlement Administrator employee.
Having reviewed the Agreement and considered the Plaintiffs'
submissions in support of the class certification for settlement
purposes and preliminary approval of the Agreement, Judge
Underhill preliminarily approved the Settlement Agreement.
He certified these two Settlement Classes pursuant to Fed. R.
Civ. P. 23(a) and 23(b)(3) for settlement purposes only:
a. Average Usage Class: All persons in the United States
who, during July 1, 2009 through Dec. 31, 2016, were enrolled
(either initially or through rolling over from a fixed rate plan)
in a Viridian variable rate electricity and/or gas plan with an
average annual utilization rate of 25,000 or less kilowatt hours
or 2,500 or less therms.
b. Above Average Usage Class: All persons in the United
States who, during July 1, 2009 through Dec. 31, 2016, were
enrolled (either initially or through rolling over from a fixed
rate plan) in a Viridian variable rate electricity and/or gas
plan with an average annual utilization rate of more than 25,000
kilowatt hours or more than 2,500 therms, respectively.
The Judge appointed Plaintiffs Lori Sanborn, Iron Man, LLC,
Stephanie Silver, David Steketee, Susanna and Boris Mirkin,
Elizabeth Hembling, Stewart Connard, Patricia Kulesa, and Steven
Landau as the Class Representatives of the Average Usage Class;
Plaintiff BDK Alliance as the Class Representative of the Above
Average Usage Class; IZARD, KINDALL & RAABE, LLP; WITTELS LAW,
P.C.; HYMOWITZ LAW GROUP, PLLC; KOHN SWIFT & GARF PC; MARCUS &
MACK, P.C.; GREENFIELD & GOODMAN LLC; and CUNEO, GILBERT &
LADUCA, LLP as the Class Counsel for the Settlement Classes;
IZARD, KINDALL & RAABE, LLP and WITTELS LAW, P.C. as the Lead
Class Counsel for the Settlement Classes; and Heffler Claims
Group as the Settlement Administrator.
Judge Underhill approved the form and content of the proposed
Class Notices and Claim Form. Promptly following the entry of
the Order, he directed the Parties and the Settlement
Administrator to prepare final versions of the Class Notices and
Claim Form, incorporating into each of them the Fairness Hearing
date and other deadlines set forth in the Order.
The Notice Commencement Date will be the date that the Short Form
Notices are first mailed to the last known postal addresses. The
Parties will determine in advance the date the mailing will occur
and will calculate and set forth in the Notices the applicable
Opt-Out Deadline and the Objection Deadline, which will be 60
days from the Notice Commencement Date.
No later than 21 days prior to the Final Approval Hearing, the
Settlement Administrator will certify to the Court compliance
with the notice provisions of the Order. The Court will hold a
Final Approval Hearing at 10:00 a.m. on June 25, 2018. The
Objection and Opt-Out Deadline is 60 days after the Notice
Commencement Date. The Class members will have 90 days from the
Notice Commencement Date to submit a Claim Form for any of the
benefits available under the Settlement.
A full-text copy of the Court's Feb. 16, 2018 Order is available
at https://is.gd/6BIWrC from Leagle.com.
Lori Sanborn, on behalf of herself and all others similarly
situated, Iron Man LLC, on behalf of itself and all others
similarly situated & Stephanie Silver, on behalf of herself and
all others similarly situated, Plaintiffs, represented by Robert
A. Izard, Jr. -- rizard@izardnobel.com -- Izard, Kindall & Raabe,
LLP, Craig A. Raabe , Izard, Kindall & Raabe LLP, Douglas Patrick
Needham , Izard, Kindall & Raabe, LLP & Seth R. Klein --
sklein@ikrlaw.com -- Izard Kindall & Raabe.
David Steketee, on behalf of himself and all others similarly
situated, Plaintiff, represented by Craig A. Raabe --
craabe@ikrlaw.com -- Izard, Kindall & Raabe LLP, Robert A. Izard,
Jr., Izard, Kindall & Raabe, LLP & Seth R. Klein, Izard Kindall &
Raabe
Susanna Mirkin, on behalf of herself and all others similarly
situated & Boris Mirkin, on behalf of himself and all others
similarly situated, Plaintiffs, represented by Daniel Hymowitz,
Hymowitz Law Group, PLLC, pro hac vice, J. Burkett McInturff --
jbm@wittelslaw.com -- Wittels Law, P.C., pro hac vice, Joseph D.
Garrison, Garrison Levin-Epstein Fitzgerald & Pirrotti PC &
Steven L. Wittels -- slw@wittelslaw.com -- Wittels Law, P.C., pro
hac vice.
Viridian Energy, Inc., Defendant, represented by Daniel S. Blynn
-- dsblynn@Venable.com -- Venable LLP, pro hac vice, Eric S.
Berman -- esberman@Venable.com -- Venable LLP, pro hac vice,
Richard T. Bernardo -- richard.bernardo@skadden.com -- Skadden,
Arps, Slate, Meagher & Flom, pro hac vice, Shahin O. Rothermel --
sorothermel@Venable.com -- Venable LLP, pro hac vice, Maura Barry
Grinalds -- maurabarry.grinalds@skadden.com -- Skadden, Arps,
Slate, Meagher & Flom LLP, Patrick J. McHugh --
pmchugh@patrickmchughlaw.com -- Law Offices of Patrick Mchugh &
Stephen C. Robinson -- stephen.robinson@skadden.com -- Skadden,
Arps, Slate, Meagher & Flom LLP.
Viridian Energy PA LLC, Defendant, represented by Maura Barry
Grinalds, Skadden, Arps, Slate, Meagher & Flom LLP.
W AVIATION LLC: Class of Technicians Certified in "Dean" Suit
-------------------------------------------------------------
The Hon. Beth Bloom granted in part and denied in part the
Plaintiff's Motion to Conditionally Certify Collective Action and
Facilitate Notice to Potential Class Members in the lawsuit
titled MATTHEW DEAN, on behalf of himself and others similarly
situated v. W. AVIATION, LLC, Case No. 0:17-cv-62282-BB (S.D.
Fla.).
The Court conditionally certifies the collective action under
Section 216(b) of the Fair Labor Standards Act:
"All hourly paid 'Line Service Technicians' of Defendant W.
Aviation, LLC, at any time during the last three (3) years,
who were not paid full and proper overtime compensation for
all hours worked over forty (40) in one or more workweeks."
Judge Bloom directs the Defendant to produce a list containing
the names of all individuals, who worked for Defendant as "Line
Service Technicians" from November 20, 2014, until November 20,
2017, along with their last-known address and e-mail address, if
known, no later than March 20, 2018. Upon delivery of this list,
Defendant shall promptly file a notice of compliance with this
part of the Court's Order.
By April 9, 2018, Plaintiff's counsel shall mail and email, to
the extent available, the Court-approved Notice and Consent to
all individuals identified on the Class List. Defendant shall
also prominently post the Court-approved Notice and Consent in
its break/lunch room next to any posting of employment law
notices for the entirety of the opt-in period from April 9, 2018,
until June 8, 2018.
By June 8, 2018, any individuals, who wish to opt into this
collective action as Plaintiffs shall return and file their
executed Court-approved Consent. The revised Notice shall
clearly identify in bolded type that the deadline to file the
Consent is June 8, 2018.
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=Awt6tAMn
WDE GROUP: Smith Seeks to Certify Class of Delivery Drivers
-----------------------------------------------------------
Robert Smith moves the Court to issue an order authorizing the
case entitled ROBERT SMITH, Individually, and on behalf of
himself and on behalf of all other similarly situated current and
former employees v. WDE GROUP, Inc., a Tennessee Corporation, and
JAMISON KUHN ENTERPRISES, Inc. an Ohio Corporation, Case No.
3:17-cv-00143-JRG-DCP (E.D. Tenn.), to proceed as a collective
action against the Defendants to recover alleged unpaid wages and
overtime compensation, liquidated damages, unlawfully withheld
wages, statutory penalties, attorneys' fees and costs, and other
damages owed, for overtime wage violations under the Fair Labor
Standards Act on behalf of non-exempt delivery drivers of the
Defendants during the last three years.
Mr. Smith also seeks an order:
(1) directing Defendants to immediately provide a list of
names, last known addresses, and last known telephone
numbers for all putative class members within the last
three years;
(2) providing that notice be prominently posted at each of
Defendants' facilities in the United States where putative
class members work, be attached to their current
non-exempt delivery drivers' next scheduled pay check, and
be mailed to each such current and former non-exempt
delivery driver who was so employed during the last three
years so each can assess their claims on a timely basis as
part of this litigation;
(3) issue an Order tolling the statute of limitations for the
putative Class as of the date this motion is granted
(except for those who already have opted into this
action); and
(4) requiring that the opt in Plaintiff's Consent Forms be
deemed "filed" on the date they are postmarked.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=L5MCnj0F
The Plaintiff is represented by:
Gordon E. Jackson, Esq.
James L. Holt, Jr., Esq.
J. Russ Bryant, Esq.
Paula R. Jackson, Esq.
JACKSON, SHIELDS, YEISER & HOLT
262 German Oak Drive
Memphis, TN 38018
Telephone: (901) 754-8001
Facsimile: (901) 754-8524
E-mail: gjackson@jsyc.com
jholt@jsyc.com
rbryant@jsyc.com
pjackson@jsyc.com
WISCONSIN: Seeks Decertification of Class in "Austin" Suit
----------------------------------------------------------
The Defendants in the lawsuit styled DAVID D. AUSTIN II v. JUDY
P. SMITH, EDWARD WALL, REXFORD SMITH, and JON LITSCHER, Case No.
3:15-cv-00525-jdp (W.D. Wisc.), file with the Court a motion to
decertify class or, in the alternative, to narrow the class.
In the event their Motion for Summary Judgment (filed
concurrently) is not granted, the Defendants move the Court for
an order decertifying the class or, in the alternative, narrowing
the class definition.
Mr. Austin is currently incarcerated in the R-Unit block of the
Oshkosh Correctional Institution.
Judy Smith is the warden of the Oshkosh Correctional Institution,
and Edward Wall is the secretary of the Wisconsin Department of
Corrections. Rexford Smith is the R-Unit manager. Jon Litscher
is the Secretary of the Wisconsin Department of Corrections.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=rjkjgbZ1
The Defendants are represented by:
Brad D. Schimel, Esq.
Katherine D. Spitz, Esq.
Gesina Seiler Carson, Esq.
Michael D. Morris, Esq.
WISCONSIN DEPARTMENT OF JUSTICE
Post Office Box 7857
Madison, WI 53707-7857
Telephone: (608) 266-1001
Facsimile: (608) 267-8906
E-mail: schimelbd@doj.state.wi.us
spitzkd@doj.state.wi.us
carsongs@doj.state.wi.us
morrismd@doj.state.wi.us
WOORI AMERICA BANK: "Duncan" Claims Website Not Blind Friendly
--------------------------------------------------------------
Eugene Duncan, on behalf of himself and all others similarly
situated Plaintiffs, v. Woori America Bank, Defendant, Case No.
18-cv-00597 (E.D. N.Y., January 29, 2018), seeks a permanent
injunction to cause a change in Woori's website to be accessible
to blind and visually-impaired consumers pursuant to the
Americans with Disabilities Act.
Defendant's banks maintain a website that provides consumers with
access to an array of products and services including bank
locations and hours, information about the financial and banking
products and services that it provides, fees and charges, FDIC
Insurance coverage, telephone contacts, online banking and bill
paying, direct deposits and overdraft features.
Plaintiff is a visually-impaired and legally blind person who
requires screen-reading software to read website content using
his computer. [BN]
Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
JOSEPH H. MIZRAHI LAW P.C.
300 Cadman Plaza West, 12 Fl.
Brooklyn, NY 11201
Telephone: (917) 299-6612
Facsimile: (718) 425-8954
Email: joseph@jmizrahilaw.com
- and -
Jeffrey M. Gottlieb, Esq.
Dana L. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 East 18th Street, Suite PHR
New York, NY 10003-2461
Telephone: (212) 228-9795
Facsimile: (212) 982-6284
Email: nyjg@aol.com
danalgottlieb@aol.com
WORTHINGTON PJ: Bid to Amend "O'Connor" Deal Prelim Approval OK'd
-----------------------------------------------------------------
In the case, RONALD O'CONNOR, individually, and on behalf of
others similarly situated Plaintiff, v. WORTHINGTON PJ, INC.,
Defendant, Case No. 2:16-cv-608-FtM-38MRM (M.D. Fla.), Judge
Sheri Polster Chappell of the U.S. District Court for the Middle
District of Florida, Fort Myers Division, granted the parties'
Joint Motion to Amend the Preliminary Settlement Approval.
The case involves claims relating to alleged minimum wage
violations under the Fair Labor Standards Act, the Florida
Minimum Wage Act, and the Florida Constitution, Art. X, as both a
collective action and Rule 23 class action.
Judge Chappell preliminarily approved the parties' settlement in
the Amended Preliminary Approval Order and set the following
schedule for the further approval and administration of the
settlement:
a. The Defendants must provide the Class Counsel with the
class list and the addresses for Class Notice to be mailed - Feb.
22, 2018
b. Deadline for the Class Counsel to mail Class Notice,
Class Forms, and Opt-Out Forms - March 2, 2018
c. Deadline for the Potential Claimants to post-mark Opt-Out
Out Forms and Objections - April 16, 2018
d. Deadline for the Potential Claimants to post-mark Claim
Forms - May 1, 2018
e. Deadline for the Parties to file response to objections -
May 8, 2018
f. Deadline for the Class Counsel to provide list of
Claimants to Parties - May 11, 2018
g. Deadline to file the Motion for Final Approval - April
20, 2018
h. Final Fairness Hearing - TBD by United States Magistrate
Judge Mac R. McCoy
i. Entry of Final Approval Order - TBD by Court
j. Effective Date - Within the later of 30 days after (1)
the Final Approval Order; (2) the dismissal of any timely filed
appeal; or (3) a final appellate judgment
k. Deadline for the Defendant to Fund Claims Within 14 days
of Effective Date
l. Deadline for Settlement Administrator to mail individual
payments to each Participant Claimant - Within 30 days of
Effective Date
The Judge certified, for purposes of settlement only, the
Settlement Class defined as all persons who worked for
Worthington PJ, Inc. at its Papa John's franchises as delivery
drivers at any time from Aug. 4, 2012 through March 31, 2017.
She appointed named Plaintiff O'Connor and Opt-in Plaintiff
Jordan Garret to be representatives for the Settlement Class, and
Sommers Schwartz, P.C. and Butcher & Associates, P.L. as the
Class Counsel for the Plaintiffs and the Settlement Class.
Further, upon consideration of the relevant authorities, Judge
Chappell preliminarily approved the proposed Class
Representatives' service awards.
The Judge referred a fairness hearing to U.S. Magistrate Judge
Mac R. McCoy. The parties must contact Judge McCoy's Chambers to
arrange a mutually agreeable time to participate in the fairness
hearing.
The expenses of printing and mailing and publishing all notices
required will be paid as described in the Settlement Agreement.
The Defendant's counsel and the Class Counsel will promptly
furnish each other with copies of any objections that come into
their possession, and will make sure the same are electronically
filed with the Court.
The Court reserves the right to continue the Fairness Hearing
without further written notice. The Order does not resolve the
last pending claim or close the case.
A full-text copy of the Court's Feb. 20, 2018 Amended Order is
available at https://is.gd/1322DD from Leagle.com.
Ronald O'Connor, individually, and on behalf of others similarly
situated, Plaintiff, represented by Charles R. Ash, IV --
cash@sommerspc.com -- Sommers Schwartz, P.C., pro hac vice, Jesse
L. Young -- jyoung@sommerspc.com -- Sommers Schwartz, PC, Bradley
William Butcher -- bwb@b-a-law.com -- Butcher & Associates, PL,
Jason J. Thompson -- jthompson@sommerspc.com -- Sommers Schwartz
& Neil B. Pioch -- npioch@sommerspc.com -- Sommers Schwartz,
P.C..
Worthington PJ, Inc., a Florida corporation, Defendant,
represented by Ignacio J. Garcia -- ignacio.garcia@ogletree.com -
- Ogletree Deakins Nash Smoak & Stewart, P.C., J. Robert
McCormack -- bob.mccormack@ogletree.com -- Ogletree Deakins Nash
Smoak & Stewart, P.C. & Jennifer K. Oldvader, Ogletree Deakins,
PC.
*********
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