/raid1/www/Hosts/bankrupt/CAR_Public/180405.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, April 5, 2018, Vol. 20, No. 69
Headlines
1-800-FLOWERS TEAM: Fails to Properly Pay Workers, Harrison Says
20/20 COMMUNICATIONS: "Cobble" Transferred to N.D. Tex.
ABSOLUTE RESOLUTIONS: Illegally Collects Debt, "Allen" Suit Says
ADT LLC: Magistrate Recommends Final OK of $310K "Flores" Deal
ALIANT PAYMENT: Abante Rooter Suit Alleges TCPA Violation
ALIANTE MASTER: Final Judgment in Prem Deferred Suit Reversed
ALLSTATE CORP: Court Denies Bid to Dismiss Securities Suit
AMOREPACIFIC US: "Bishop" Suit Alleges ADA Violation
ANTHEM HEALTH: Faces "Young" Suit in S.D. New York
ARBENI MANAGEMENT: "Rojas" Suit Alleges FLSA Violation
ASTRA HOME: "Shillingford" Class Has Conditional Certification
AT&T MOBILITY: Must Cure Issues in Bid to File Amended "Sandoval"
AUTOZONE INC: Court Certifies Class in "Hernandez" ADA Suit
BANK OF AMERICA: Faces "Morris" Suit in W.D. North Carolina
BANK OF AMERICA: "Foreman" Suit Alleges EFTA Violation
BENCHMARK BRANDS: Default Judgment Entered in "Bonny" WARN Suit
BENJAMIN MOORE & CO: Faces "Andry" Suit in E.D. New York
BJ'S RESTAURANT: Faces "Esry" Suit Over Failure to Pay Wages
BLACKHAWK NETWORK: "Cohenmeyer" Challenges Sale to Silver Lake
BONNEVILLE COLLECTIONS: Faces "Israelson" Suit in S.D. Florida
C.R. ENGLAND: Faces "Castro" Suit in C.D. California
CABOT OIL AND GAS: Faces "Conley" Suit in N.D. Texas
CAESARS ENTERTAINMENT: Dismissed as Defendant in "Ames" Suit
CALSHEA RESTAURANT: Faces "Kamara" Suit in S.D. New York
CASH BIZ: Texas Supreme Ct. Affirms Arbitration Ruling in "Henry"
CASHCALL INC: Denial of Arbitration Bid in "MacDonald" Affirmed
CHARLOTTE SCHOOL: "Barchiesi" Dismissal Bid Reply Moved
CLARK COUNTY SCHOOL: Current Deadlines in Sex Abuse Suit Extended
COINBASE INC: "Faasse" Suit Alleges UPL Violation
COMCAST CORP: Court Denies Bid to Dismiss "Gottman" Suit
COMMUNICATIONS UNLIMITED: Bid to Toll "Fair" Opt-in Claims OK'd
COMPASS BANK: Faces "Bellissimo" Suit Over Unauthorized Robocalls
CONVERGENT OUTSOURCING: Faces "Lowendern" Suit in E.D. New York
CONVERGENT OUTSOURCING: Faces "Ebanks" Suit in S.D. New York
CORNERSTONE STAFFING: Denial of Arbitration Bid in "Muro" Upheld
CREDIT CONTROL: Settlement in "Rincon-Marin" Has Prelim Approval
CVS RX: Seeks Ninth Circuit Review of Ruling in "Cabrera" Suit
DAIRYAMERICA INC: Court Modifies Scheduling Order in "Carlin"
DANELL CUSTOM: $1.5MM Settlement in "Rodriguez" Has Prelim OK
DAVIDSON COUNTY, TN: Claims in Immigrant Detention Suit Narrowed
DCH REGIONAL: Court Denies Bid to Dismiss "McAteer" Suit
DIVERSIFIED RESTAURANT: Cross Seeks to Recover Minimum & OT Wages
DYNAMIC RECOVERY: Illegally Collects Debt, "Ibarra" Suit Says
EMERALD STAFFING: Faces "Lopez" Suit in S.D. New York
FACEBOOK INC: Court Denies Bid to Dismiss "Patel"
FCA USA: Court Partly Grants Summary Judgment Bid in "Victorino"
FINANCE SYSTEM: Faces "Larkin" Suit in E.D. Wisconsin
FIVE STARS: Sued by Ferjean for Violating TCPA by Sending Texts
FLORIDA: DOT Faces "Acevedo-Diaz" Suit Over Racial Discrimination
FLUENT LLC: Faces "Elser" Suit in S.D. New York
FRED'S INC: Eddington "Seeks" Suit to Recover Overtime Wages
FUNKO INC: "Baskin" Class Suit Removed to W.D. Washington
FUNSAN K. CORP: Court Denies Class Certification in "Martinez"
GENERAL INFORMATION: "Black" Suit Brought Before 6th Cir.
GENER8 MARITIME: "Fragapane" Suit Wants to Stop Sale to Euronav
HOME ENERGY: Faces "Melton" Suit in D. Minnesota
HOME DEPOT: Court Denies Jackson's Bid for Attorney Fees
JSH RESTAURANT: Fails to Pay Minimum & Overtime Wages, Lira Says
JPAY INC: Court Denies DeFazio's Bid to Appoint Pro Bono Counsel
KRATON CORPORATION: Sued in Texas Over Misleading Company Reports
LA QUINTA HOLDINGS: Faces "Cunha" Class Suit Over Sale to Wyndham
LEAFGUARD HOLDINGS: "Alley" Suit Alleges FLSA Violation
LIBERTY UNIVERSITY: Has 28-Day Extension to Answer "Hendricks"
LIFE CARE: "Cantu" Suit Seeks to Recover Overtime for Sales Staff
LOUISIANA: Court Certifies Class of LSP Inmates in ADA Suit
LOUISVILLE METRO: Denial of "Moorman" Class Certification Upheld
MADISON HOTEL: "Fischler" Suit Alleges ADA Violation
MAIN STREAT: "Makaron" Suit Seeks Damages under TCPA
MARIETTA MEMORIAL: Court Denies Bid to Decertify "Myers" Class
MARRIOTT VACATIONS: Court Issues Remand Show Cause Order
MARTIN-BROWER CO: $393K Settlement in "Titus" Has Prelim Approval
MAXIMUM TUBULAR: "Salinas" Suit Alleges Violation of FLSA
MDL 1264: Court Grants Bid to Distribute $9,950 Funds
MDL 1720: Court Affirms Work Product Protection for Fellman Docs
MDL 2599: Court Approves Settlement with Honda Defendants
MEDICREDIT INC: Accused of Wrongful Conduct Over Debt Collection
MICHIGAN: MDOC Wins Summary Judgment in Juveniles' Suit
MIDLAND CREDIT: Faces "Webster" Suit in D. New Jersey
MILLER & MILONE: Faces "Taubenfliegel" Suit in E.D. New York
MIMEDX GROUP: Faces "Kline" Suit Over False Company Reports
MONDELEZ INT'L: Court Dismisses "Daniel" Slack-fill Suit
MRI INT'L: Receiver Has No Control Over Securities Suit Deal
NAT'L RIFLE: Court Won't Reconsider Minute Order in "Kalmbach"
NATIONAL FACILITIES: Faces "Acosta" Suit in E.D. New York
NATUS MEDICAL: Court Dismisses "Costabile" Securities Fraud Suit
PET SUPERMARKET: Eleventh Circuit Appeal Filed in "Kirchein" Suit
PJ OPS: Court Consolidates on Delivery Drivers' Wage & Hour Suit
PLANET FITNESS: Faces "Sullivan" Suit in S.D. New York
PLY GEM: "Miller" Suit Alleges Breach of Fiduciary Duties
PNC BANK: Court Narrows Claims in "Dan-Harry"
PUBLIC STORAGE: Court Stays "Martinez-Santiago"
PURDUE PHARMA: City of Rome, et al. Allege False Marketing
REGO FURNITURE: Faces "Santana" Suit in S.D. New York
REWALK ROBOTICS: Ct. Denies Bid to Dismiss "Yan" Securities Suit
RH INC: Court Denies Bid to Dismiss Securities Fraud Suit
ROCKEFELLER GROUP: Faces "Burbon" Suit in S.D. New York
SAN FRANCISCO, CA: Court Certifies Modified Class in "Buffin"
SCHAUMBURG TOYOTA: "Abedi" Suit Seeks Damages Under TCPA
SCO SILVER: Court Denies Bid to Dismiss "Matson" FLSA/NJWHL Suit
SCOTTRADE INC: Lewis May File Sup. Ct. Petition for Writ by May 9
SHELL OIL: $4.48MM Settlement in "Parko" Suit Has Final Approval
SKC ENTERPRISES: "Davis" Suit Alleges FLSA and AMWA Violations
ST. GEORGE HOLDING: Faces "Ramos" Suit in E.D. New York
STERLING INFOSYSTEMS: Sued Over Inaccurate Consumer Reports
SUFFOLK COUNTY, NY: Court Consolidates "Miller," "Butler" Suits
TGI FRIDAYS: Ct. Grants Partial Summ. Judgment Bid in "Williams"
ULTA BEAUTY: "Chandler" Suit Alleges Exchange Act Violation
UNITED STATES: Ct. Grants Final OK of "Sherman" Class Settlement
UNITED STATES: SCOTUS Reverses Permanent Injunction in "Jennings"
YOUNG SHING: Court Narrows Claims in "Escamilla" FLSA/NYLL Suit
YOUR ALL AROUND: Green Seeks to Recover Overtime Wages Under FLSA
WELLS FARGO: Court Narrows Claims in "Hefler" Securities Suit
*********
1-800-FLOWERS TEAM: Fails to Properly Pay Workers, Harrison Says
----------------------------------------------------------------
JENNIFER HARRISON, on behalf of herself and all others similarly
situated v. 1-800-FLOWERS TEAM SERVICES, INC., 1-800-FLOWERS
SERVICE SUPPORT CENTER, INC., and 1-800-FLOWERS.COM, INC., Case
No. 1:18-cv-00410-CL (D. Ore., March 8, 2018), alleges that 1-
800-Flowers has a common policy and practice of failing to pay
its call center workers for all time worked, in violation of the
Fair Labor Standards Act.
Based in Carle Place, New York, 1-800-Flowers Team Services,
Inc., is a Delaware Corporation doing business in Medford,
Jackson County, Oregon. 1-800-Flowers Service Support Center,
Inc., is a New York Corporation doing business in Medford. 1-
800-Flowers.com, Inc., is a Delaware Corporation doing business
in Medford.
1-800-Flowers operates call centers across the United States,
including in Oregon. 1-800-Flowers employs thousands of
individuals in its call centers to handle calls on behalf of the
1-800-Flowers.com, Inc. Family of Brands (for example, Harry &
David, FruitBouquets.com, The Popcorn Factory, etc.).[BN]
The Plaintiff is represented by:
Steve D. Larson, Esq.
Jennifer S. Wagner, Esq.
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.
209 SW Oak Street, Suite 500
Portland, OR 97204
Telephone: (503) 227-1600
Facsimile: (503) 227-6840
E-mail: slarson@stollberne.com
jwagner@stollberne.com
- and -
David W. Garrison, Esq.
Joshua A. Frank, Esq.
BARRETT JOHNSTON MARTIN & GARRISON, LLC
Bank of America Plaza
414 Union Street, Suite 900
Nashville, TN 37219
Telephone: (615) 244-2202
Facsimile: (615) 252-3798
E-mail: dgarrison@barrettjohnston.com
jfrank@barrettjohnston.com
- and -
Peter Winebrake, Esq.
R. Andrew Santillo, Esq.
WINEBRAKE & SANTILLO, LLC
715 Twining Road, Suite 211
Dresher, PA 19025
Telephone: (215) 884-2491
Facsimile: (215) 884-2492
E-mail: pwinebrake@winebrakelaw.com
asantillo@winebrakelaw.com
20/20 COMMUNICATIONS: "Cobble" Transferred to N.D. Tex.
-------------------------------------------------------
In the case captioned JAMES COBBLE, et al., Plaintiffs, v. 20/20
COMMUNICATIONS, INC., Defendant, Case No. 2:17-CV-53-TAV-MCLC
(E.D. Tenn.), Judge Thomas A. Varlan of the U.S. District Court
for the Eastern District of Tennessee adopted Magistrate Judge
Clifton L. Corker's Report and Recommendation ("R&R") entered on
Nov. 2, 2017 (i) granting the Defendant's Motion to Transfer the
Claims of the Opt-In Plaintiffs and the Defendant's Supplemental
Motion to Transfer the Claims of the Opt-In Plaintiffs; (ii)
transferring the action to the U.S. District Court for the
Northern District of Texas; and (iii) denying as moot the
Defendant's Motion for Rule 16 Conference and for a Stay of
Discovery and Other Pretrial, and the Plaintiff's Expedited
Motion to Conditionally Certify Collective Action and Facilitate
Notice to Potential Opt-In Plaintiffs.
The case concerns allegations of unpaid overtime wages under the
federal Fair Labor Standards Act (the "FLSA"). The Plaintiff
seeks to represent all similarly situated Field Sales Managers
("FSMs") whom the Defendant employed in the past three years to
service its account with Samsung Electronics America, Inc., and
to whom it allegedly failed to pay overtime wages. The
Plaintiff's complaint asserts that defendant employed hundreds of
FSMs who worked over forty hours per week but did not receive
sufficient overtime pay.
The heart of the present dispute is, however, identifying the
proper forum for the action. The Defendant submits that, as a
condition of employment, all FSMs signed various employment
agreements ("Agreements"). One of these was a Mutual Arbitration
Agreement ("MAA"), which allegedly requires the FSMs to submit
all non-excepted disputes to arbitration. The MAA also contains
a waiver of the FSMs' right to bring a collective action.
The Defendant notes that the MAA provides a mechanism for
employees to opt out of the agreement by delivering a completed
opt-out form to the Director of Human Resources within 15 days of
receipt of the MAA. It submits that none of the FSMs involved in
the litigation ever completed this procedure. The Defendant
further submits that the Agreements contain a provision selecting
Texas law to govern and fixing venue in Tarrant County, Texas.
This choice of law and forum selection clauses reside in a
document distinct from the MAA ("Employment Agreement"), but are
expressly made applicable to all of the Agreements.
The Defendant asserts that all Plaintiffs signed identical choice
of law and forum selection clauses at the time they began their
employment. It has, however, been able to produce signed
Agreements for only some of the FSMs. The Plaintiff denies that
he ever signed an MAA, noting that the Defendant has been unable
to produce the original, signed documents. The Defendant has
also been unable to produce the email that defendant allegedly
would have sent to him with links to the onboarding documents.
None of the opt-in Plaintiffs have submitted declarations or
other evidence denying they consented to the Agreements.
The civil action is before the Court on multiple motions filed by
the parties. These are: (1) the Defendant's Motion to Dismiss
or, in the Alternative, Transfer Venue; (2) the Defendant's
Motion for Sanctions Pursuant to 28 U.S.C. Section 1927 [Doc. 7];
(3) the Defendant's Motion to Transfer the Claims of the Opt-In
Plaintiffs; (4) the Defendant's Motion for Rule 16 Conference and
for a Stay of Discovery and Other Pretrial Deadlines; (5) the
Defendant's Supplemental Motion to Transfer the Claims of the
Opt-In Plaintiffs; and (6) the Plaintiff's Expedited Motion to
Conditionally Certify Collective Action and Facilitate Notice to
Potential Opt-In Plaintiffs.
The Court referred these motions to Magistrate Judge Corker for
his consideration. Magistrate Judge Corker then entered his R&R
on Nov. 2, 2017. The R&R recommends that the Court grants the
Defendant's motion to transfer the opt-in Plaintiffs' claims,
transfer the entire action to the Northern District of Texas, and
deny the remaining referred motions as moot.
The Court held a hearing on Jan. 11, 2018, to address the
Defendant's motions to transfer, the recommendations of the R&R,
and the Plaintiff's objections to the R&R. The Defendant argues
that the Court should transfer the claims of all the Plaintiffs
to the Northern District of Texas under in light of the forum
selection clause all the Plaintiffs executed.
Judge Varlan finds that the Defendant has proven by clear and
convincing evidence that no person could have been hired as an
FSM for the Defendant without completing the Enwisen onboarding
process. Thus, the Judge concludes that all the Plaintiffs to
the action signed an Employment Agreement containing a forum
selection clause.
Having concluded that a forum selection agreement exists between
all the Plaintiffs here and the Defendant, the Judge then
determines whether this agreement is enforceable, and therefore
whether a transfer of venue is warranted. He finds that the
parties' forum selection agreements are enforceable and
controlling. He concludes that the Employment Agreement's forum
selection clause encompasses FLSA claims and that all three Wong
factors suggest that the Court should enforce this agreement.
Having determined that the forum selection clause is enforceable,
the Judge then considers whether a transfer under Section 1404(a)
is warranted in light of that holding. He finds that the case
lacks any extraordinary circumstances that would prevent
enforcement of the forum selection clause. Therefore, he
concludes that it must give effect to the parties' agreement and
transfer the action to the Northern District of Texas.
For the reasons explained, Judge Varlan accepted in whole the
R&R, and the Plaintiff's objections to the R&R are thus
overruled. Furthermore, the Judge granted the Defendant's Motion
to Dismiss or, in the Alternative, Transfer Venue, Motion to
Transfer the Claims of the Opt-In Plaintiffs, and Supplemental
Motion to Transfer the Claims of the Opt-In Plaintiffs. He
directed the Clerk of Court to transfer the entire action to the
U.S. District Court for the Northern District of Texas, pursuant
to 28 U.S.C. Section 1404(a). In addition, he declined to
address the remaining motions pending in the action, finding it
appropriate to permit the Northern District of Texas to resolve
those motions in the first instance following transfer.
A full-text copy of the Court's Feb. 23, 2018 Memorandum Opinion
and Order is available at https://is.gd/CGDKIf from Leagle.com.
James Cobble, on behalf of himself and those similarly situated,
Freddie Tubbs, Kari Miller, Marty Sullivan, Samantha Queszada,
Jordan Hurley, Vanessa Hernandez, Jeffrey Leonetti, Maderral
Dunn, John Hargett, Dr Michael Sanders, Jorge Caballero, Jeffrey
Hawkins, Mickel Camp, Robert Danella, John Wichert, Bernice
Stubbs, Brian Bloomfield, Ashley Williams, Molly Hangartener,
Christopher Mandia, Jorge Bastidas, Brian Geraci, Kyle Ruiz,
Tracey Rodgers, Jesse Owen, Jesse Mcintyre, Gregory Villicana,
Shauna Ashdown, James Freeman, Jared Ross, Kimberly Koppelman &
Philip Mills, Plaintiffs, represented by Andrew Ross Frisch --
afrisch@forthepeople.com -- Morgan & Morgan PA.
20/20 Communications, Inc., a Foreign Profit Corporation,
Defendant, represented by Elizabeth S. Washko --
liz.washko@ogletree.com -- Ogletree, Deakins, Nash, Smoak &
Stewart, P.C.
The Plaintiff is represented by:
Andrew Ross Frisch, Esq.
MORGAN & MORGAN PA
600 N Pine Island Road, Suite 400
Plantation, FL 33324
Telephone: (954) 967-5377
Facsimile: (954) 327-3013
E-mail: afrisch@forthepeople.com
The Defendant is represented by:
Elizabeth S. Washko, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
SunTrust Plaza
401 Commerce Street, Suite 1200
Nashville, TN 37219
Telephone: (615) 254-1900
Facsimile: (615) 254-1908
E-mail: liz.washko@odnss.com [BN]
ABSOLUTE RESOLUTIONS: Illegally Collects Debt, "Allen" Suit Says
----------------------------------------------------------------
Anastasia Allen, and all others similarly situated v. Absolute
Resolutions Corporation, Case No. 2:18-cv-00068-SMJ (E.D. Wa.,
February 23, 2018), is an action for damages for the Defendant's
actions of using unfair and unconscionable means to collect a
debt.
Absoulte Resolutions Corporation operates a debt collection
agency with its principal place of business located at 1455
Frazee Rd, Ste 550, San Diego, CA 92108. [BN]
The Plaintiff is represented by:
Kirk D. Miller, P.S.
LAW OFFICE OF KIRK D. MILLER
421 W. Riverside Avenue Suite 660
Spokane, WA 99201
Telephone: (509)413-1494
Facsimile: (509)413-1724
ADT LLC: Magistrate Recommends Final OK of $310K "Flores" Deal
--------------------------------------------------------------
In the case, EDHER FLORES, individually and on behalf of other
members of the general public similarly situated, Plaintiff, v.
ADT LLC, Defendant, Case No. 1:16-cv-0029-AWI-JLT (E.D. Cal.),
Magistrate Judge Jennifer L. Thurston of the U.S. District Court
for the Eastern District of California recommended that the
Plaintiff's motion for final approval of the class action
settlement, and the Plaintiff's motions for fees and class
representative incentive payment be granted.
The Plaintiff alleges he was employed by ADT LLC as an hourly-
paid, non-exempt Service Technician from approximately August
2012 to March 2015. He reports that as a Service Technician, he
typically worked 11 hours or more per day, five days per week.
According to him, he and other Service Technicians were not paid
for all hours worked, because all hours worked were not recorded.
He contends his employer failed to pay at least minimum wages for
work that ADT knew or should have known was performed off-the-
clock.
Based upon these facts, the Plaintiff identified the following
causes of action in his complaint filed in Kern County Superior
Court, Case No. BCV-15-101564: (1) unpaid overtime in violation
of Cal. Labor Code Sections 510 and 1198; (2) unpaid minimum
wages in violation of Cal. Labor Code Section 1194, 1194, and
1197.1; (3) failure to provide proper meal periods in violation
of Cal. Labor Code Sections 226.7 and 512(a); (4) failure to
provide proper rest breaks in violation of Cal. Labor Code
Section 226.7; (5) failure to provide complaint wage statements
and maintain accurate payroll records in violation of Cal. Labor
Code Sections 226(a) and 1174(d); (6) failure to provide timely
wages upon termination in violation of Cal. Labor Code Sections
201 and 202; (7) unfair business practices in violation of Cal.
Bus. & Prof. Code Section 17200; and (8) unlawful business
practices in violation of Section 17200.
The Defendant filed a Notice of Removal on Jan. 8, 2017, thereby
initiating the action in the Court. The Court entered its
Scheduling Order on March 18, 2016.
The parties engaged in a private mediation session with Alan
Berkowitz in February 2017. In May 2017, the Defendant began
contacting the putative class members to seek individual
settlements of the claims against it. As a result, the Defendant
obtained releases from many putative class members, each of whom
received payment in the gross amount of $750.
On June 16, 2017, the parties reached an agreement on the
principal terms of a settlement on June 16, 2017. The parties
finalized their agreement with preparing a written settlement
agreement, and the Plaintiff sought preliminary approval of the
terms. The Court granted preliminary approval of the settlement
on Oct. 25, 2017.
The Court appointed Plaintiff Flores as the Class Representative,
and authorized him to seek an award enhancement up to $7,500. In
addition, the Court appointed GPT Group, Inc. as the Class
Counsel, and authorized the Class Counsel to seek fees that did
not to exceed 33 1/3% of the gross settlement amount and expenses
up to $25,000.
On Nov. 1, 2017, the Court approved the Class Notice which the
Settlement Administrator mailed the Class Notice to the 117 class
members. The Settlement Administrator did not receive any
Requests for Exclusion or objections to the settlement terms.
The Plaintiff filed the motion now pending before the Court for
final approval of the Settlement on Jan. 23, 2018. The Defendant
did not oppose the motion.
The parties agreed to settle all class claims and representative
claims alleged in the Action in exchange for the Class Settlement
Amount of up to $310,000. The Defendant agrees to fund the
Settlement for the class defined as all persons who worked as
non-exempt or hourly employees of the Defendant in California as
Service Technicians at any time from Aug. 18, 2013 to the
Preliminary Approval Date, and who do not timely opt out of
participation in the Action.
Specifically, the settlement provides for the following payments
from the gross settlement amount: (i) the class representative
will receive $7,500; (ii) the class counsel will receive fees not
to exceed one-third of the Class Settlement Amount (of $103,333)
and expenses not to exceed $25,000; and (iii) the settlement
administrator will receive reasonable costs of administration.
In addition, the Defendant will receive a credit for the amounts
paid individuals who have released their claims, in the amount of
$76,989. After the identified deductions and payments, the
remaining funds will be distributed to all participating class
members. Currently, the average net recovery is estimated to be
$805 per class member.
Magistrate Thurston finds that the factors set forth by the Ninth
Circuit weigh in favor of final approval of the Settlement.
Therefore, she will recommend that the final approval of the
Settlement Agreement be granted.
Pursuant to the Settlement, the Class Counsel may request
attorneys' fees not more than $103,333, which represents a third
of the gross settlement fund. Here, the Class Counsel seeks fees
totaling $103,330 and $17,760.72 in litigation costs and
expenses. Mr. Morales now reports that "CPT's costs in
connection with the administration of this Settlement are $8,500.
The Magistrate Judge finds that the lodestar exceeds the amount
of fees requested by the Class Counsel. Thus, the lodestar cross
check supports a conclusion that the fees requested are
reasonable. Accordingly, she will recommend that the request for
a fee award in the amount of $103,333 be granted. And since the
administrative expenses requested are within the range of
previous costs for claims administration awarded in this
District, the Magistrate Judge will recommend that the request
for $8,500 in expenses for the settlement administration by CPT
Group be granted.
The Settlement provides that the Plaintiff may apply to the
District Court for a class representative enhancement of $7,500,
to be paid from the gross settlement amount. Given the lack of
information related to the actions taken by the Plaintiff and the
minimal time expended, Magistrate Judge Thurston is unable to
find the requested award of $7,500 is appropriate. However, the
Plaintiff clearly expended efforts on behalf of the class,
submitted to a deposition, and participated in mediation. In
light of the factors addressed, the Judge finds $3,000 is an
appropriate incentive award. Thus, she recommends the
Plaintiff's request for an incentive payment be granted in the
modified amount of $3,000.
Based upon this, Magistrate Thurston recommended that (i) the
Plaintiff's motion for final approval of the Settlement
Agreement; (ii) the certification of the Settlement Class defined
as all persons who worked as non-exempt or hourly employees of
Defendant in California as Service Technicians at any time from
Aug. 18, 2013 to the Oct. 25, 2017; (iii) the Plaintiff's'
request for class representative incentive payments in the
modified amount of $3,000; (iv) the Class Counsel's motion for
attorneys' fees in the amount of $103,333, which is 33% of the
gross settlement fund; (v) the Class Counsel's request for costs
in the amount of $17,760.72; (vi) the request for fees for the
Settlement Administrator, GPT Group, in the amount of $8,500 be
granted.
The action be dismissed with prejudice, with each side to bear
its own costs and attorneys' fees except as otherwise provided by
the Settlement and ordered by the Court. Within 14 days after
being served with these Findings and Recommendations, any party
may file written objections with the Court. Such a document
should be captioned "Objections to Magistrate Judge's Findings
and Recommendations." The parties are advised that failure to
file objections within the specified time may waive the right to
appeal the District Court's order.
A full-text copy of the Court's Feb. 27, 2018 Findings &
Recommendations is available at https://is.gd/oRcc3R from
Leagle.com.
Edher Flores, individually, and on behalf of other members of the
general public similarly situated, Plaintiff, represented by
Arnab Banerjee -- Arnab.Banerjee@CapstoneLawyers.com -- Capstone
Law APC, Brandon Kyle Brouillette --
Brandon.Brouillette@CapstoneLawyers.com -- Capstone Law APC,
Melissa Grant -- Melissa.Grant@CapstoneLawyers.com -- Capstone
Law APC, Raul Perez -- Raul.Perez@CapstoneLawyers.com -- Capstone
Law APC, Ruhandy Glezakos -- Ruhandy.Glezakos@CapstoneLawyers.com
-- Capstone Law APC & Suzy E. Lee -- Suzy.Lee@CapstoneLawyers.com
-- Capstone Law, APC.
ADT LLC, a Delaware limited liability company, Defendant,
represented by Alec Hillbo -- alec.hillbo@ogletree.com --
Ogletree Deakins Nash Smoak and Stewart, P.C., Jennifer Lindsay
Katz -- jennifer.katz@ogletree.com -- Ogletree Deakins Nash Smoak
& Stewart, Linda Claxton -- linda.claxton@ogletree.com --
Ogletree Deakins Nash Smoak & Stewart, P.C. & Fontaine Yuk --
fontaine.yuk@ogletree.com -- Ogletree, Deakins, Nash, Smoak &
Stewart, P.c..
ALIANT PAYMENT: Abante Rooter Suit Alleges TCPA Violation
---------------------------------------------------------
Abante Rooter and Plumbing Inc., individually and on behalf of
all others similarly situated v. Aliant Payment Systems, Inc.,
and Does 1 through 10, Case No. 3:18-cv-01420 (N.D. Calif., March
5, 2018), seeks damages for Defendants' violation of the
Telephone Consumer Protection Act.
Plaintiff Abante Rooter and Plumbing Inc. is a rooting and
plumbing business in Emeryville, California.
Defendant Aliant Payment Systems is a loan provider. [BN]
The Plaintiff is represented by:
Todd M. Friedman, Esq.
Adrian R. Bacon, Esq.
Meghan E. George, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard St., Suite 780
Woodland Hills, CA 91367
Tel: (877) 206-4741
Fax: (866) 633-0228
E-mail: tfriedman@toddflaw.com
abacon@toddflaw.com
mgeorge@toddflaw.com
ALIANTE MASTER: Final Judgment in Prem Deferred Suit Reversed
-------------------------------------------------------------
In the case, ALIANTE MASTER ASSOCIATION, Appellant, v. PREM
DEFERRED TRUST, ON BEHALF OF ITSELF AND AS REPRESENTATIVES OF THE
CLASS HEREIN DEFINED, Respondent, Case No. 71026 (Nev.), Judge
Michael Douglas of the Supreme Court of Nevada reversed the
district court's final judgment, vacated the district court's
awards for damages and attorney fees, and remanded the matter for
further proceedings.
The matter is an appeal from a final judgment in a real property
matter involving HOA superpriority liens.
At various foreclosure auctions, Respondent Prem Deferred Trust
and the putative class members purchased real property located
within a community subject to the covenants, conditions and
restrictions ("CC&Rs") of appellant Aliante Master Association.
Aliante's superpriority liens remained on each property, and
Aliante subsequently sought and received payment from Prem and
the class members to remove the liens.
Prem claims, however, that it and the class members overpaid for
removal of the liens. After submitting its claims to alternative
dispute resolution pursuant to NRS 38.310, Prem brought a class-
action suit in district court requesting a business court
assignment and challenging, in part, the amount that Aliante
demanded and collected from Prem and any putative class members
as exceeding the superpriority amount permitted under NRS
116.3116(2). The district court subsequently granted the class
certification.
After the case was assigned to business court, the district court
granted summary judgment in favor of Prem and the class. The
district court determined that the payments Aliante collected
exceeded the superpriority amount permitted under NRS
116.3116(2), and concluded that Prem and the class were entitled
to recoup their overpayments in the form of damages under NRS
116.4117. The district court awarded attorney fees to Prem and
entered final judgment. Aliante appealed.
Aliante's primary arguments on appeal are: (1) the district court
lacked subject matter jurisdiction over the class members' claims
because they were not first submitted to the Nevada Real Estate
Division ("NRED") for mediation or arbitration under NRS 38.310;
(2) the district court erred in concluding the voluntary payment
doctrine does not apply to Prem and the class members' claims for
breach of NRS 116.3116(2) based on the non-waiver provision of
NRS 116.1104; (3) the district court erred in concluding Aliante
violated NRS 116.3116(2) because the statute set forth no
obligation with which Aliante failed to comply; (4) the district
court abused its discretion in granting class certification; and
(5) the district court erred in granting default summary
judgment.
Judge Douglas concludes that Prem and the class members' claims
are subject to NRS 38.310's mediation or arbitration requirement,
and that pursuant to NRS 38.310(2), the district court should
have dismissed all class members whose claims were not submitted
to mediation or arbitration. Therefore, as Prem was the only
party to submit its claims to NRED, the district court erred
under NRS 38.310(2) by entertaining the claims of the other class
members.
The Judge agrees with Aliante that the district court erred in
concluding Aliante was prohibited from asserting the voluntary
payment doctrine as an affirmative defense based on the non-
waiver provision of NRS 116.1104. He concludes that the district
court erred. He further concludes Prem's reliance on SFR is
misplaced and that the plain text of the relevant statutes
defeats Prem's arguments.
Because the Judge concludes that the district court erred as a
matter of law in prohibiting Aliante from asserting the voluntary
payment doctrine as an affirmative defense to Prem's claims, he
reverses the district court's final judgment, vacates the
district court's awards for damages and attorney fees, and
remands the matter for further proceedings. Accordingly, he
reversed the judgment of the district court and remanded the
matter to the district court for proceedings consistent with his
Order.
A full-text copy of the Court's Feb. 23, 2018 Order is available
at https://is.gd/zrEStX from Leagle.com.
ALLSTATE CORP: Court Denies Bid to Dismiss Securities Suit
----------------------------------------------------------
Judge Robert W. Gettleman of the U.S. District Court for the
Northern District of Illinois, Eastern Division, denied the
Defendants' motion to dismiss the case, CARPENTERS PENSION TRUST
FUND FOR NORTHERN CALIFORNIA and CARPENTERS ANNUITY TRUST FUND
FOR NORTHERN CALIFORNIA, individually and on behalf of all others
similarly situated, Plaintiff, v. THE ALLSTATE CORPORATION,
THOMAS J. WILSON, and MATTHEW E. WINTER, Defendants, Case No. 16
C 10510 (N.D. Ill.).
The Plaintiffs bring the complaint on behalf of a class of
investors that purchased Allstate common stock between Oct. 29,
2014, and Aug. 3, 2015. They claim that the Defendants are
liable under Sections 10(b) and 20(a) for material false
statements and omissions regarding the cause of an alleged spike
in auto insurance claims frequency. According to them, Allstate
implemented a plan to attract more auto insurance customers
starting in 2013. They further allege that an undisclosed
element of that plan was to greatly reduce Allstate's
underwriting standards to attract customers who would have
previously been considered too risky, and would not have been
approved for an Allstate auto insurance policy. The Plaintiffs
claim that this undisclosed strategy to attract more customers
worked, and resulted in a significant increase in auto insurance
claims frequency starting in October 2014.
The Plaintiffs further allege that, when asked about the increase
in auto insurance claims frequency, the Defendants made several
materially false statements attributing the increase to external
factors rather than Allstate's undisclosed reduction in
underwriting standards. According to them, these misstatements
convinced initially skeptical securities analysts to view
Allstate's financial outlook favorably despite the fact that its
competitors were not experiencing similar increases in auto
insurance claims frequency.
Additionally, the Plaintiffs allege that Wilson engaged in
suspicious insider selling when he liquidated $33 million worth
of Allstate stock, which represented 85% of his direct holdings,
in November 2014. Then, in May 2015 Wilson allegedly sold
another $6.2 million worth of his stock.
The Plaintiffs have brought a two-count putative class action
amended complaint against Allstate, its CEO, Chairman, and
President from 2005 to 2015 Thomas Wilson, and the CEO and
President of Allstate Financial Matthew Winter, who also took
over for Wilson as President in 2015. Count I alleges that
defendants violated Section 10(b) of the Securities Exchange Act,
and Securities and Exchange Commission ("SEC") Rule 10b-5
promulgated thereunder. Count II, brought only against Wilson
and Winter, alleges control person liability under Section 20(a)
of the Exchange Act.
The Defendants have moved to dismiss the complaint for failure to
state a claim under Fed. R. Civ. P. 12(b)(6), and failure to meet
the heightened pleading requirements of the Private Securities
Litigation Reform Act. According to the Defendants, the
Plaintiffs have failed to identify any statements that were false
or misleading, primarily because the Defendants' statements
regarding the reasons for an increase in auto claims frequency
were opinions, not determinable facts. They argue that the
Plaintiffs fail to meet the burden due to Allstate's partial
disclosure of increased claims frequency in May 2015, and that
the Plaintiffs' allegations suggest nothing more than normal
market movements following a disappointing earnings report.
Judge Gettleman disagrees. He finds that the Plaintiffs provide
numerous allegedly misleading factual statements. The Plaintiffs
(i) allege that during an Oct. 30, 2014, earnings call an analyst
asked Wilson and Winter whether Allstate was pricing for
increased claims frequency; and (ii) allege that on May 5, 2015,
Allstate reported a second quarter of increasing claims
frequency, but continued to blame external factors such as
adverse weather for the increase. He also finds that the
Plaintiffs' complaint read in its entirety gives rise to a strong
inference of scienter, that is, one that is at least as
compelling as any opposing inference one could draw from the
facts alleged. Consequently, the Judge concludes that Count I
states a claim based on Allstate's alleged failure to disclose
its reduced underwriting standards.
The Judge also disgrees with the Defendant's second argument. He
finds that Wilson and Winter had direct and supervisory
involvement in the day-to-day operations of the Company and
regularly spoke on behalf of the company. They exercised control
over the operations of Allstate and had the power to control the
public statements about Allstate giving rise to the securities
violations as alleged herein, and exercised the same. Thus,
Count II states a claim based on Wilson and Winter's failure to
disclose Allstate's reduced underwriting standards, and their
alleged impact on Allstate's claims frequency.
For the reasons stated, Judge Gettleman denied the Defendants'
motion to dismiss on all counts. He directed the Defendants to
answer the complaint on or before March 27, 2018. The parties
are directed to prepare and file a joint status report using the
Court's form on or before April 2, 2018. The case is set for a
report on status on April 11, 2018, at 9:00 a.m.
A full-text copy of the Court's Feb. 27, 2018 Memorandum Opinion
and Order is available at https://is.gd/gUCdxj from Leagle.com.
City of St. Clair Shores Police and Fire Retirement System,
Individually and on Behalf of All Others Similarly Situated,
Plaintiff, Pro Se.
The Allstate Corporation, Thomas J. Wilson & Matthew E. Winter,
Defendants, represented by John J. Clarke, Jr. --
john.clarke@dlapiper.com -- DLA Piper LLP & Raja S. Gaddipati,
DLA Piper LLP.
Carpenters Pension Trust Fund for Northern California &
Carpenters Annuity Trust Fund for Northern California, Movants,
represented by Christopher Daniel Barraza -- cbarraza@labaton.com
-- Labaton Sucharow LLP, pro hac vice, Louis Carey Ludwig,
Pomerantz LLP, Thomas A. Dubbs -- tdubbs@labaton.com -- Labaton
Sucharow LLP, pro hac vice & Thomas Gregory Hoffman, Jr. --
thoffman@labaton.com -- Labaton Sucharow LLP, pro hac vice.
AMOREPACIFIC US: "Bishop" Suit Alleges ADA Violation
----------------------------------------------------
Cedric Bishop, on behalf of himself and all others similarly
situated v. Amorepacific US, Inc. dba Innisfree, Case No. 1:18-
cv-01969 (S.D. N.Y., March 5, 2018), is brought against the
Defendant violation of the Americans with Disabilities Act.
Plaintiff brings this civil rights action against the Defendant
for its failure to design, construct, maintain, and operate
its website to be fully accessible to and independently usable by
Plaintiff and other blind or visually-impaired people.
Plaintiff Cedric Bishop is a resident of New York, New York.
Plaintiff is a blind, visually-impaired handicapped person and a
member of member of a protected class of individuals under the
ADA.
Defendant operates Innisfree retail bath, body and cosmetic
products stores as well as the Innisfree website, and advertises,
markets, distributes, and sells bath, body and cosmetic products
in the State of New York and throughout the United States.
Defendant is, upon information and belief, licensed to do
business and is doing business in the State of New York. [BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Fl.
Brooklyn, NY 11201
Tel: (929) 575-4175
Fax: (929) 575-4195
E-mail: Joseph@cml.legal
- and -
Jeffrey M. Gottlieb, Esq.
Dana L. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 East 18th Street, Suite PHR
New York, NY 10003
Tel: (212) 228-9795
Fax: (212) 982-6284
E-mail: nyjg@aol.com
danalgottlieb@aol.com
ANTHEM HEALTH: Faces "Young" Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Anthem Health
Services, Inc. The case is styled as Lawrence Young and on behalf
of all other persons similarly situated, Plaintiff v. Anthem
Health Services, Inc., Defendant, Case No. 1:18-cv-02808 (S.D.
N.Y., March 29, 2018).
Anthem is a trusted health insurance plan provider.[BN]
The Plaintiff is represented by:
Bradly Gurion Marks, Esq.
The Marks Law Firm PC
175 Varick Street 3rd Floor
New York, NY 10014
Tel: (646) 770-3775
Fax: (646) 867-2639
Email: bmarkslaw@gmail.com
ARBENI MANAGEMENT: "Rojas" Suit Alleges FLSA Violation
------------------------------------------------------
Ulises Rojas, on behalf of himself and all others similarly
situated v. Arbeni Management Company, Inc. et al., Case No.
1:18-cv-02007 (S.D. N.Y., March 6, 2018), is brought against the
Defendants for violations of the Fair Labor Standards Act and the
New York Labor Law.
Plaintiff Ulises Rojas is a resident of New York and was employed
by Defendants in January 2004. Plaintiff worked as a janitor in
three buildings owned and managed by Defendants.
Defendant Arbeni is a domestic corporation with its principal
place of business located at 2465 Arthur Avenue, Bronx, New York.
At all relevant times, Arbeni is in the business of owning and
renting to the general public residential properties. [BN]
The Plaintiff is represented by:
Glendoval J. Stephens, Esq.
CASTILLO STEPHENS LLP
305 Broadway, Suite 1200
New York, NY 10007
Tel: (212) 385-1400
Fax: (212) 385-1401
E-mail: firm@castillostephens.com
ASTRA HOME: "Shillingford" Class Has Conditional Certification
--------------------------------------------------------------
In the case, ELLA SHILLINGFORD, Plaintiff, v. ASTRA HOME CARE,
INC. d/b/a TRUE CARE HOME HEALTH CARE, MICHAEL WERZBERGER,
REBECCA ROSENZWEIG, and JOHN DOES #1-10, Defendants, Case No. 16
Civ. 6785 (KPF) (S.D. N.Y.), Judge Katherine Polka Failla of the
U.S. District Court for the Southern District of New York granted
the Plaintiff's motion for conditional certification, but denied
without prejudice the Plaintiff's motion for class certification.
The Plaintiff brings the action Aug. 29, 2016 for violations of
the Fair Labor Standards Act ("FLSA") and the New York Labor Law,
Consol. Laws 1909, ch. 31 ("NYLL"), against the Defendants. The
gravamen of the Plaintiff's complaint is that she often worked
24-hour shifts as a home health care aide without receiving
breaks for sleep or meals and, further, that the Defendants
improperly counted each 24-hour period as a single shift (without
regard to the number of hours actually worked), for which she was
paid a flat fee. The Plaintiff also alleges, more broadly, that
she was not given overtime pay for hours worked in excess of 40
hours in a workweek; that she did not receive the requisite
minimum wage; and that the Defendants did not comply with New
York's "spread of hours" requirement, the New York Wage Parity
Act ("WPA"), or the New York Wage Theft Prevention Act ("WTPA").
The Defendants filed their Answer on Oct. 7, 2016. On Jan. 11,
2017, the Court granted in part the Plaintiff's motion for
discovery related to her class and collective action claims. It
ordered the Defendants to produce (i)the name and contact
information and (ii) the wage and hour information of two
randomly selected home health aide employees for each of the six
years that Plaintiff was allegedly employed by Defendants,
resulting in the sampling of twelve aides.
The parties completed collective and class discovery on March 30,
2017, and on May 2, 2017, the Plaintiff moves for conditional
certification of a collective action under Section 216(b) of the
FLSA for her overtime and minimum wage claims. She also moves
under Federal Rule of Civil Procedure 23 to certify several
classes under the NYLL.
The Defendants filed their opposition on June 1, 2017. The
Plaintiff filed her reply brief on June 15, 2017. The unredacted
Declaration of Ella Shillingford and Exhibits B through M of the
Declaration of William C. Rand, Esq. were filed under seal, but
redacted versions are on the docket at Docket Entries 34 and 35.
On Jan. 4, 2018, the Court ordered the parties to appear for oral
argument to discuss certain concerns about the record on the
Plaintiff's collective claims. The Court held oral argument on
Jan. 12, 2018, and the Court's resolution of the motion
benefitted greatly from the capable advocacy on both sides.
Because she is persuaded that the Plaintiff has met her modest
burden on conditional certification, Judge Failla will
conditionally certify a collective action of home health care
aides who (i) worked for Astra from Jan. 1, 2015, to present,
(ii) worked live-in shifts in 50% or more of the weeks that they
were on Astra's payroll, and (iii) were not paid adequate
overtime. She will also conditionally certify a collective
action of home health care aides who (i) worked for Astra from
Jan. 1, 2015, to the present, (ii) worked live-in shifts during
50% or more of the weeks that they were on Astra's payroll, and
(iii) were not paid a minimum wage.
Finally, to establish liability under the NYLL minimum wage
provision, the class Plaintiffs would have to show that they
worked so many hours that their effective hourly wage rate fell
below the minimum wage. Judge Failla finds that while the
Plaintiff's counsel argues that these questions of liability are
provable through the pay stub documents alone, she does not share
that view. Without more evidence in the record about the
conditions of employment for Astra's aides who worked overnight
shifts, she cannot find at this juncture that the Plaintiff has
shown by a preponderance of the evidence that liability under the
NYLL can be established through generalized proof or that the
issues subject to individualized proof are not more substantial
than those susceptible to class-wide proof.
For these reasons, Judge Failla granted the Plaintiff's motion
for conditional certification of a collective action under 29
U.S.C. Section 216(b) as defined by the Court. She denied
without prejudice the Plaintiff's motions under Federal Rule of
Civil Procedure 23 for certification of classes for (i) minimum
wage violations under the NYLL; (ii) overtime pay violations
under the NYLL; (iii) "spread of hours" under the NYLL; (iv)
violations of the WTPA; and (v) minimum wage under the WPA. The
case will proceed to discovery on the Plaintiff's collective FLSA
claims, and if in the course of that discovery the Plaintiff can
compile a more robust record on which the Court can find that the
Defendants' liability can be established without an
individualized inquiry into the working conditions of each aide,
the Plaintiff may renew the motion.
The Judge directed the parties to meet and confer within 10 days
of the date of the Opinion and to submit within 14 days of the
date of the Opinion a proposed notice to the potential opt-in
collective action members for the Court's consideration.
A full-text copy of the Court's Feb. 23, 2018 Opinion and Order
is available at https://is.gd/pL423r from Leagle.com.
Ella Shillingford, Individually and on behalf of all other
persons similarly situated, Plaintiff, represented by William
Coudert Rand -- wcrand@wcrand.com -- Law Office of William
Coudert Rand.
Astra Home Care, Inc., doing business as, Michael Werzberger &
Rebecca Rosenzweig, Defendants, represented by Christopher Paul
Hampton -- champton@meltzerlippe.com -- Meltzer, Lippe, Goldstein
& Breitstone, LLP, Gerald Charles Waters --
gwaters@meltzerlippe.com -- Meltzer, Lippe, Goldstein &
Breitstone, LLP, Jonathan D. Farrell -- jfarrell@meltzerlippe.com
-- Meltzer, Lippe, Goldstein & Breitstone, LLP & Larry Rafael
Martinez -- lmartinez@meltzerlippe.com -- Meltzer, Lippe,
Goldstein & Breitstone, LLP.
AT&T MOBILITY: Must Cure Issues in Bid to File Amended "Sandoval"
-----------------------------------------------------------------
In the case, KARLA SANDOVAL, et al., Plaintiffs, v. AT&T MOBILITY
SERVICES LLC, et al., Defendants, Case No. 16-cv-03406-PJH (N.D.
Cal.), Judge Phyllis J. Hamilton of the U.S. District Court for
the Northern District of California gave the parties an
opportunity to address the issues in the Plaintiffs' motion for
leave to file an amended complaint by March 14, 2018.
On Feb. 7, 2018, the Plaintiffs from both the Sandoval Action and
the Rodriguez Action jointly filed in the Court an unopposed
motion for preliminary approval of class action settlement. That
motion also requests the Court to grant the Plaintiffs leave to
file an amended complaint that adds the Rodriguez Action's
Plaintiffs and causes of action.
Judge Hamilton has had the opportunity to review the Plaintiffs'
motion and the supporting documents. For at least the three
reasons, the Judge believes there are serious impediments to
granting the Plaintiffs' motion.
First, he says the Plaintiffs' motion is premature under the
parties' own settlement agreement. Further, the parties to the
Rodriguez Action have made representations to Judge Orrick that
directly contradict Paragraph 70 of the Settlement Agreement.
Specifically, on Feb. 13, 2018, the parties in that action
requested that Judge Orrick continue a Feb. 20, 2018 case
management conference to June 26, 2018, because if the settlement
in the Sandoval Action is approved, the Rodriguez Action will be
consolidated with Sandoval for settlement purposes and then
dismissed.
The Judge says he cannot consider, order notice, and approve a
class action settlement for a matter pending before a different
court. If the parties want the Court to consider and approve a
settlement involving parties and claims from both actions, the
parties must follow proper procedure to incorporate the Rodriguez
causes of action and the named Plaintiffs into the action first.
Otherwise the two cases will have to be resolved individually.
Second, he finds that the Plaintiffs' motion and the Settlement
Agreement contemplate that $125,000 of the settlement fund will
be used to pay separate consideration to certain class members
who release claims that could have been brought under the Fair
Labor Standards Act ("FLSA"). However, there is no FLSA cause of
action alleged in the Sandoval Action, in the Rodriguez Action,
or in the proposed amended complaint.
Third, the parties' supporting papers are sometimes substantively
inconsistent. In addition to substantive inconsistencies, the
supporting papers contain a number of drafting errors.
Because the Court has continued the hearing on the Plaintiffs'
motion to March 28, 2018, Judge Hamilton will provide the parties
an opportunity to address the issues by March 14, 2018. At
minimum, if the parties wish the Court to consider the pending
motion, the parties must cure the Paragraph 70 issue, explain the
FLSA issues in a jointly filed supplemental brief of no more than
10 pages, and ensure the class notice accurately reflects the
parties' agreement. The parties must file any amended supporting
documents and a PDF redline showing what changes were made.
A full-text copy of the Court's Feb. 23, 2018 Order is available
at https://is.gd/DHKIzo from Leagle.com.
Karla Sandoval, Fernando Felix, Mariana Vasquez, Valerie Calderon
& Ariana Moreno, individually and on behalf of all others persons
similarly situated, Plaintiffs, represented by David Harmik
Yeremian -- david@yeremianlaw.com -- David Yeremian & Associates,
Inc. & Emil Davtyan -- emil@davtyanlaw.com -- Davtyan
Professional Law Corporation.
AT&T Mobility Services LLC, a Delaware limited liability company,
AT&T Services, Inc., a Delaware Corporation & Pacific Bell
Telephone Company, a California corporation, Defendants,
represented by Max Fischer -- MFISCHER@SIDLEY.COM -- Sidley
Austin LLP, Cody Emily Schvaneveldt -- cschvaneveldt@littler.com
-- Sidley Austin LLP & Francis Sin Wai Lam -- flam@sidley.com --
Sidley Austin LLP.
AT&T, a business entity of unknown form, Defendant, represented
by Cody Emily Schvaneveldt, Sidley Austin LLP & Francis Sin Wai
Lam, Sidley Austin LLP.
AUTOZONE INC: Court Certifies Class in "Hernandez" ADA Suit
-----------------------------------------------------------
In the case, KENNETH HERNANDEZ, individually and on behalf of all
others similarly situated, Plaintiff, v. AUTOZONE, INC.,
Defendant, Case No. 1:15-cv-05593-FB-RLM (E.D. N.Y.), Judge
Frederic Block of the U.S. District Court for the Eastern
District of New York granted the Plaintiff's motion for class
certification.
Hernandez, a U.S. military veteran and former police officer, has
relied on a wheelchair for mobility since a 2014 car accident
left him paralyzed from the waist down. Both before and after
his accident, Hernandez was a repeat visitor to an AutoZone store
in Brooklyn.
Hernandez brings a putative class action against AutoZone for
violations of Title III of the Americans with Disabilities Act
("ADA"), and its implementing regulations. He claims primarily
that AutoZone's centralized maintenance policies are inadequate
to detect and remedy accessibility barriers in its parking lots
and walkways. He claims that (1) the parking lots and walkways
at AutoZone stores were not accessible to individuals with
disabilities, and (2) AutoZone's centralized policies regarding
ADA compliance were inadequate to identify and remedy
accessibility problems.
He sought a declaration that AutoZone's facilities were not fully
accessible in violation of the ADA and a permanent injunction
directing AutoZone to (1) take all necessary steps to make its
facilities ADA compliant, (2) change its corporate policies to
ensure ongoing ADA compliance, and (3) directing Plaintiffs to
monitor AutoZone facilities for satisfaction of such an
injunction.
Hernandez moves to certify a class under Rule 23(b)(2) of all
persons with qualified mobility disabilities, who have visited or
will visit any AutoZone store where AutoZone owns, controls
and/or operates the parking facility. He seeks declaratory and
injunctive relief on behalf of the class. AutoZone opposes the
motion.
Judge Block concludes that Hernandez has met the requirements of
Rule 23. Accordingly, he granted the Plaintiff's motion for
class certification. The Judge may take judicial notice of the
foregoing sources of data, which together show that there are
enough class members to satisfy the numerosity requirement for
class certification. He finds that whether AutoZone's policies
result in ADA violations is capable of classwide resolution, and
determination of its truth or falsity will resolve an issue that
is central to the validity of each one of the claims in one
stroke. Hernandez therefore satisfies the commonality and
typicality requirement of Rules 23(a)(2) and (a)(3).
For adequacy, AutoZone does not challenge the qualifications of
the class counsel. Rather, it argues that there is a conflict
because class members will prefer to combine their claims for
declaratory and injunctive relief with their claims for damages.
However, the Judge finds that money damages are not available
under Title III of the ADA. Other the class members' interest in
bringing nonexistent damages claims does not present a conflict.
Finally, the Judge finds that proposed class meets the
requirements of Rule 23(b)(2). Because AutoZone follows the same
maintenance procedures for all the stores it owns, the challenged
conduct applies generally to the class. And, similarly,
injunctive or declaratory relief regarding AutoZone's maintenance
policies would be appropriate for the class as a whole.
A full-text copy of the Court's Feb. 27, 2018 Memorandum and
Order is available at https://is.gd/tWcHLg from Leagle.com.
Kenneth Hernandez, individually and on behalf of all others
similarly situated, Plaintiff, represented by Edwin J. Kilpela,
Jr. -- ekilpela@carlsonlynch.com -- Carlson Lynch Sweet Kilpela &
Carpenter, LLP, Kevin Abramowicz -- kabramowicz@carlsonlynch.com
-- Carlson Lynch Sweet Kilpela & Carpenter, LLP, Stephanie K.
Goldin -- sgoldin@carlsonlynch.com -- Carlson Lynch Sweet &
Kilpela LLP, pro hac vice & John Domenick Zaremba --
jzaremba@zarembabrown.com -- Zaremba Brownell & Brown PLLC.
AutoZone, Inc., Defendant, represented by Christopher F. Wong --
christopher.wong@ogletree.com -- Ogletree Deakins Nash Smoak &
Stewart, P.C., David Raizman -- david.raizman@ogletree.com --
Ogletree, Deakins, Nash, Smoak & Stewart, P.C. & Evan Benjamin
Citron -- evan.citron@ogletree.com -- Ogletree Deakins Nash Smoak
& Stewart P.C..
BANK OF AMERICA: Faces "Morris" Suit in W.D. North Carolina
-----------------------------------------------------------
A class action lawsuit has been filed against Bank of America,
N.A. The case is styled as Lisa Morris, on behalf of herself and
all others similarly situated, Plaintiff v. Bank of America,
N.A., Defendant, Case No. 3:18-cv-00157 (W.D. N.C., March 29,
2018).
Bank of America Corporation is an American multinational
financial services company headquartered in Charlotte, North
Carolina.[BN]
The Plaintiff is represented by:
David M. Wilkerson, Esq.
The Van Winkle Law Firm
P.O. Box 7376
Asheville, NC 28802-7376
Tel: (828) 258-2991
Fax: (828) 257-2767
Email: dwilkerson@vwlawfirm.com
BANK OF AMERICA: "Foreman" Suit Alleges EFTA Violation
------------------------------------------------------
James Foreman, on behalf of himself and all others similarly
situated v. Bank of America, N.A., Case No. 5:18-cv-01375 (N.D.
Calif., March 2, 2018), is brought against the Defendant for
violation of the Electronic Funds Transfer Act.
Plaintiff James Foreman is a natural person residing in this
District and Division.
Defendant Bank of America, N.A. is a financial institution, with
its principal office in Charlotte, North Carolina. [BN]
The Plaintiff is represented by:
Jeffrey D. Kaliel, Esq.
Sophia G. Gold, Esq.
KALIEL PLLC
1875 Connecticut Ave., NW, 10th Floor
Washington, DC 20009
Tel: (202) 350-4783
E-mail: jkaliel@kalielpllc.com
sgold@kalielpllc.com
BENCHMARK BRANDS: Default Judgment Entered in "Bonny" WARN Suit
---------------------------------------------------------------
In the case, TERRI BONNY, et al., on behalf of themselves and all
others similarly situated, Plaintiffs, v. BENCHMARK BRANDS, INC.,
Defendant, Case No. 1:16-cv-3150-WSD (N.D. Ga.), Judge William S.
Duffey, Jr., of the U.S. District Court for the Northern District
of Georgia, Atlanta Division, granted the Plaintiffs' (i) Motion
to Amend Complaint to Correct Misnomer; (ii) Motion for Class
Certification; and (iii) Motion for Default Judgment Against
Defendant Benchmark Brands, Inc.
The Plaintiffs are former employees of FootSmart, a division of
Benchmark. On Aug. 11, 2016, the Plaintiffs were informed, for
the first time, that the Defendant was ceasing all operations and
closing all facilities effective immediately and that their
employment was terminated as of Aug. 11, 2016.
The Plaintiffs were provided with a letter, also dated Aug. 11,
2016, from the Defendant notifying them that as of Aug. 11, 2016,
it has ceased all operations and closed all facilities (i.e., all
plants). As a result of these closing, as of Aug. 11, their
employment with the Company has ended and their layoff will be
permanent. Lastly, it tried to explain to them why they could
not provide the Notice 60 days prior to the closing, or even
earlier than they have.
The Plaintiffs contend, on information and belief, that, more
than 60 days prior to Aug. 11, 2016, the Defendant was actively
contemplating and/or negotiating the sale of its assets to The
Walking Co. and discussing a resolution of its indebtedness.
They allege that none of them or their co-workers received any
type of additional, or "severance," payment upon their
termination. The Plaintiffs received their final wage payments
on the date of their termination, and these final wage payments
did not include any pay above their regular wages for time worked
or any pay in lieu of the required 60-day notice period.
On Aug. 26, 2016, the Plaintiffs, on behalf of themselves and all
others similarly situated, filed the Complaint alleging that the
Defendant violated the Worker Adjustment and Retraining
Notification Act ("WARN"). They allege that their Aug. 11, 2016,
termination of employment at Benchmark constituted a "plant
closing" or "mass layoff" under the WARN Act. The Plaintiffs
allege that the Notice received by the Plaintiffs on Aug. 11,
2016, was ineffective Notice under the provisions of the WARN
Act. They seek to recover back pay, benefits, attorney's fees,
and other relief.
On Nov. 28, 2016, the Plaintiffs filed their initial Motion for
Default Judgment. On March 10, 2017, the Court granted the
motion and directed the clerk to enter default. The clerk
entered default on March 10, 2017.
On June 16, 2017, the Plaintiffs filed the Motion to Amend
seeking to correct a misnomer of one the Named Plaintiffs. The
same day, the Plaintiffs filed their Motion for Default Judgment
and Motion for Class Certification.
In their Motion for Class Certification, they seek certification
of a class consisting of any employee of the Defendant terminated
on Aug. 11, 2016 who was not given a minimum of 60 days-notice of
termination and whose employment was terminated as a result of a
'mass layoff' or 'plant closing' as defined by the WARN Act.
In their Motion for Default Judgment, the Plaintiffs contend that
the Defendant has not appeared or otherwise responded to the
Complaint, the Complaint sufficiently alleges all of the elements
of a WARN Act violation, and because the Defendant admits to
those allegations, default judgment should be entered.
Judge Duffey finds further that the Amended Complaint relates
back to the Original Complaint. The amendment permitted is a
simple name change of one of the Named Plaintiffs. The opposing
party has received notice of the action and will not be
prejudiced in defending on the merits. He also finds that the
opposing party knew or should have known that the action would
have been brought against it, but for a mistake concerning the
proper party's identity.
Upon review of the record, the Judge finds the Proposed Class is
adequately defined and clearly ascertainable. The Declarations
of former Human Resources Director Danese Simpkins and former
Payroll Manager Shalece Upshur plainly identify a list of each
full time and permanent part-time employee employed by the
Defendant on Aug. 11, 2016, for at least 120 days. The
allegations in the Complaint and the evidence provided in the
record demonstrate that it will be straightforward and simple to
fully identify those members of the Proposed Class. He finds
further that the Proposed Class meets the four requirements of
Rule 23(a).
Finally, the Judge finds that the Complaint sufficiently alleges
all of the elements of a WARN Act violation. It is plain that
the Plaintiffs and the Proposed Class are "aggrieved employees"
who suffered an "employment loss" due to the Defendant's ordering
of a mass layoff/plant closing without providing its employees 60
days advance notice. Because the Plaintiffs have alleged
sufficient facts to state a plausible claim for relief, a motion
for default judgment is warranted.
For the foregoing reasons, Judge Duffey granted the Plaintiffs'
(i) Motion to Amend Complaint to Correct Misnomer; (ii) Motion
for Class Certification; and (iii) Motion for Default Judgment
Against Defendant Benchmark Brands, Inc.
The Judge dismissed the action and directed the Clerk to enter
judgment in favor of the Plaintiffs, on behalf of themselves and
the members of the Proposed Class, in the total amount of
$2,482,922.06, plus $80.81 in daily prejudgment interest accrued
from June 16, 2017, until the date of the Order, which
represents: (a) $2,050,598.21 in back pay damages; (b)
$289,552.33 in vacation pay damages; (c) $113,911.42 in medical
benefits damages; (d) $3,970 in dental benefits damages; and (e)
$24,890.10 in prejudgment interest plus $80.81/day from June 16,
2017, until the date of the Order. Funds paid pursuant to the
Judgment may not be distributed to the class members without the
specific approval of the Court.
A full-text copy of the Court's Feb. 27, 2018 Opinion and Order
is available at https://is.gd/C8Waz1 from Leagle.com.
Terri Bonny, on behalf of themselves and all others similarly
situated, Plaintiff, represented by David S. Fried --
dfried@friedbonder.com -- Fried & Bonder, LLC & Joseph Alan White
-- jwhite@friedbonder.com -- Fried & Bonder, LLC.
Jerome Bramlett, on behalf of themselves and all others similarly
situated, Jessica Dingle, on behalf of themselves and all others
similarly situated, Tonge A. English, on behalf of themselves and
all others similarly situated, Latonya Z. Green, on behalf of
themselves and all others similarly situated, Karen Keaton, on
behalf of themselves and all others similarly situated, Sharon
Lake, on behalf of themselves and all others similarly situated,
Robin Lee, on behalf of themselves and all others similarly
situated, Onika Lopez, on behalf of themselves and all others
similarly situated, Stephanie D. Marshall, on behalf of
themselves and all others similarly situated, Krystine Maynard,
on behalf of themselves and all others similarly situated,
Samantha Maynard, on behalf of themselves and all others
similarly situated, Vera J. McAdoo, Taryn McFarthing, on behalf
of themselves and all others similarly situated, Anthony K.
Mensah, on behalf of themselves and all others similarly
situated, Evelyn Moore, on behalf of themselves and all others
similarly situated, Haydee Nunez-Gellineau, on behalf of
themselves and all others similarly situated, Danese Simpkins, on
behalf of themselves and all others similarly situated, Jennifer
Solarsh, on behalf of themselves and all others similarly
situated, Nadia Torres, on behalf of themselves and all others
similarly situated, Shalece Veshur, on behalf of themselves and
all others similarly situated & Nichole C. Whiteman, on behalf of
themselves and all others similarly situated, Plaintiffs,
represented by Barbara Evans, BRE Law, LLC, David S. Fried, Fried
& Bonder, LLC & Joseph Alan White, Fried & Bonder, LLC.
BENJAMIN MOORE & CO: Faces "Andry" Suit in E.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Benjamin Moore &
Co., Inc. The case is styled as Adrienne Andry, on behalf of
herself and all others similarly situated, Plaintiff v. Benjamin
Moore & Co., Inc., Defendant, Case No. 1:18-cv-01923 (E.D. N.Y.,
March 29, 2018).
Benjamin Moore & Co., also known as Benjamin Moore Paints or
simply Benjamin Moore, is an American company that produces
paint. It is owned by Berkshire Hathaway. Founded in 1883,
Benjamin Moore is based in Montvale, New Jersey.[BN]
The Plaintiff appears PRO SE.
BJ'S RESTAURANT: Faces "Esry" Suit Over Failure to Pay Wages
------------------------------------------------------------
Jacqueline Esry, individually and on behalf of all others
similarly situated v. BJ's Restaurant, Inc., and BJ's Restaurant
Operations Company, each d/b/a BJ's Restaurant & Brewhouse, Case
No. 4:18-cv-00157-KGB (E.D. Ark., February 23, 2018), is brought
against the Defendants for failure to pay minimum wages in
violation of the Fair Labor Standards Act.
The Defendants own and operate restaurants in the United States
under the "BJ's Restaurant & Brewhouse" and "BJ's Restaurant &
Brewery" trademarks. [BN]
The Plaintiff is represented by:
Allison Koile, Esq.
Chris Burks, Esq.
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
One Financial Center
650 South Shackleford, Suite 411
Little Rock, AR 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
E-mail: allison@sanfordlawfirm.com
chris@sanfordlawfirm.com
josh@sanfordlawfirm.com
BLACKHAWK NETWORK: "Cohenmeyer" Challenges Sale to Silver Lake
--------------------------------------------------------------
NICK COHENMEYER, Individually and on Behalf of All Others
Similarly Situated v. BLACKHAWK NETWORK HOLDINGS, INC., ANIL D.
AGGARWAL, RICHARD H. BARD, THOMAS BARNDS, STEVEN A. BURD, ROBERT
L. EDWARDS, MOHAN GYANI, PAUL HAZEN, ROBERT B. HENSKE, TALBOTT
ROCHE, ARUN SARIN, WILLIAM Y. TAUSCHER, and JANE J. THOMPSON,
Case No. 5:18-cv-01492-BLF (N.D. Cal., March 8, 2018), seeks to
enjoin the Defendants from taking any steps to consummate a
proposed merger/sale transaction or, in the event the Proposed
Transaction is consummated, to recover damages resulting from the
Defendants' wrongdoing.
The purported class action lawsuit stems from a proposed
transaction announced on January 16, 2018, pursuant to which
Blackhawk will be acquired by private equity firm Silver Lake
Partners and hedge fund P2 Capital Partners.
On January 15, Blackhawk's Board of Directors caused the Company
to enter into an agreement and plan of merger with the Acquirers.
Pursuant to the terms of the Merger Agreement, the Acquirers will
purchase each issued and outstanding share of Blackhawk common
stock for $45.25 in cash.
Blackhawk is a Delaware corporation, with its principal executive
offices located in Pleasanton, California. The Individual
Defendants are directors and officers of the Company.
Blackhawk is a global financial technology company that
specializes in the sale of prepaid products, such as gift cards,
to consumers at its retail distribution partners and online and
the sale of telecom handsets to retail distribution partners for
resale to consumers. The Company's Hawk Commerce division offers
technology solutions to businesses and direct to consumers.
Non-Party Silver Lake is a private equity firm that specializes
in technology investing. Silver Lake has approximately $39
billion in combined assets under management and committed
capital. Silver Lake's current portfolio of investments includes
Alibaba Group, Ancestry, Broadcom Limited, Cast & Crew, Ctrip,
Dell Technologies, Endeavor, Fanatics, Global Blue, GoDaddy,
Motorola Solutions, Red Ventures, Sabre, SoFi, SolarWinds and
Symantec.
Non-Party P2 is a New York-based hedge fund that manages a
concentrated portfolio of significant ownership stakes in public
companies in which it is an active shareholder focused on
creating long-term value in partnership with management. P2's
limited partners include leading public pension funds, corporate
pension funds, endowments, foundations, insurance companies, and
high net worth investors.[BN]
The Plaintiff is represented by:
Lionel Z. Glancy, Esq.
Robert V. Prongay, Esq.
Lesley F. Portnoy, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
E-mail: lglancy@glancylaw.com
rprongay@glancylaw.com
lportnoy@glancylaw.com
- and -
Carl L. Stine, Esq.
Robert S. Plosky, Esq.
WOLF POPPER LLP
845 Third Avenue
New York, NY 10022-6601
Telephone: (212) 759-4600
Facsimile: (212) 486-2093
E-mail: cstine@wolfpopper.com
rplosky@wolfpopper.com
BONNEVILLE COLLECTIONS: Faces "Israelson" Suit in S.D. Florida
--------------------------------------------------------------
A class action lawsuit has been filed against Bonneville
Collections. The case is styled as Brian Israelson, individually
and on behalf of all others similarly situated, Plaintiff v.
Bonneville Collections, Defendant, Case No. 9:18-cv-80402-DMM
(S.D. Fla., March 29, 2018).
The Defendant is a debt collection agency.[BN]
The Plaintiff is represented by:
Jon Paul Dubbeld, Esq.
Berkowitz & Myer
4900 Central Ave
St. Petersburg, FL 33707
Tel: (727) 344-0123
Fax: (727) 344-0185
Email: Jon@berkmyer.com
C.R. ENGLAND: Faces "Castro" Suit in C.D. California
----------------------------------------------------
A class action lawsuit has been filed against C.R. England, Inc.
The case is styled as Salvador Castro, on behalf of himself and
those similarly situated, Plaintiff v. C.R. England, Inc.,
Defendant, Case No. 5:18-cv-00655 (C.D. Cal., March 29, 2018).
C.R. England, Inc. is an American family-owned trucking company
founded in 1920. The company provides temperature-controlled
transportation services throughout North America and Mexico.[BN]
The Plaintiff appears PRO SE.
CABOT OIL AND GAS: Faces "Conley" Suit in N.D. Texas
----------------------------------------------------
A class action lawsuit has been filed against Cabot Oil and Gas
Corporation. The case is styled as Jackie D Conley, individually
and on behalf of all others similarly situated, Plaintiff v.
Cabot Oil and Gas Corporation, Defendant, Swift Technical
Services, L.L.C., Defendant/Movant, Case No. 3:18-mc-00025-S
(N.D. Tex., March 29, 2018).
Cabot Oil & Gas Corporation is a petroleum, natural gas, and
natural gas liquids exploration and production company organized
in Delaware and based in Houston, Texas.[BN]
The Plaintiff appears PRO SE.
The Defendant/Movant is represented by:
Michael J Lombardino, Esq.
Jackson Lewis P.C.
1415 Louisiana Street, Suite 3325
Houston, TX 77002
Tel: (713) 650-0404
Fax: (713) 650-0405
Email: michael.lombardino@jacksonlewis.com
CAESARS ENTERTAINMENT: Dismissed as Defendant in "Ames" Suit
------------------------------------------------------------
Judge Cam Ferenbach of the U.S. District Court for the District
of Nevada dismissed without prejudice Caesars Entertainment from
the case, JAY AMES, Individually and on behalf of all others
similarly situated, Plaintiff(s), v. CAESARS ENTERTAINMENT
CORPORATION, et al., Defendant(s), Case No. 2:17-cv-02910-GMN-VCF
(D. Nev.).
On Oct. 11, 2017, the Plaintiff filed the putative class action
in the District Court, Clark County, Nevada. On Nov. 8, 2017,
the Plaintiff filed his First Amended Class Action Complaint. On
Nov. 20, 2017, the Defendants removed the matter to the Court
from the District Court, Clark County, Nevada.
Pursuant to a Stipulation and Order, the Defendants filed their
Motion to Dismiss on Dec. 28, 2017. The Plaintiff filed his
Response on Jan. 11, 2018. The Defendants filed their Reply in
Support of their Motion to Dismiss on Jan. 18, 2018.
On Feb. 7, 2018, the counsel for the Plaintiff requested that the
counsel for the Defendants stipulate to the filing of a SAC.
Thereafter, during a meet and confer, the counsel for the
Plaintiff also requested that the Defendants agree to the
substitution of named-Plaintiff from Ames to the named-
Plaintiffs, Aaron Leigh-Pink and Tana Emerson.
During that meet and confer, the counsel for the Defendants
explained that Caesars Entertainment is an improperly-named
entity in thie matter and should be dismissed. The Defendants
requested the dismissal of Caesars Entertainment without
prejudice. They agreed that they would consent to the filing of
the Second Amended Complaint ("SAC") provided that: (i) their
time to answer, move, or otherwise respond to the SAC is extended
to 28 days from the date of the Plaintiffs' filing of the SAC;
and (2) the Plaintiffs agree to dismiss Defendant Caesars
Entertainment from the action without prejudice.
The Parties agreed and Judge Ferenbach approved that the
Plaintiff will file the SAC within 14 days after the Stipulation
and Order is granted. Plaintiff Ames is voluntarily dismissed
from the action pursuant to FRCP 41 and is replaced by Plaintiffs
Leigh-Pink and Emerson. The Judge dismissed Caesars
Entertainment from the action without prejudice. The time within
which the Defendants will have to answer, move, or otherwise
respond to the SAC is extended until 28 days after the Plaintiffs
file the SAC.
A full-text copy of the Court's Feb. 27, 2018 Order is available
at https://is.gd/3JQnE8 from Leagle.com.
Aaron Leigh-Pink & Tana Emerson, Plaintiffs, represented by Adam
C. Rapaport -- adamrapaportesq@gmail.com -- The Law Office of
Adam C. Rapaport & Robert A. Waller, Jr., Law Office of Robert A.
Waller, Jr., pro hac vice.
Rio Properties LLC, Defendant, represented by Justin Smerber,
Moran Law Firm, LLC, Lewis W. Brandon, Jr., Moran & Associates &
Richard Fama -- rfama@cozen.com -- Cozen O'Connor, pro hac vice.
CALSHEA RESTAURANT: Faces "Kamara" Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Calshea Restaurant
Corp. The case is styled as Susan Clara Kamara, on behalf of
similarly situated employees, Plaintiff v. Calshea Restaurant
Corp doing business as: The Triple Crown, Martin O'shea and
Graeme A Healy, Defendants, Case No. 1:18-cv-02761 (S.D. N.Y.,
March 28, 2018).
The Defendant operates in the restaurant industry.[BN]
The Plaintiff appears PRO SE.
CASH BIZ: Texas Supreme Ct. Affirms Arbitration Ruling in "Henry"
-----------------------------------------------------------------
Judge Phil Johnson of the Supreme Court of Texas affirmed the
trial court's order denying the Defendants' motion to compel
arbitration in the case captioned HIAWATHA HENRY, ADDIE HARRIS,
MONTRAY NORRIS, AND ROOSEVELT COLEMAN, JR., ON BEHALF OF
THEMSELVES AND FOR ALL OTHER SIMILARLY SITUATED, Petitioners, v.
CASH BIZ, LP, CASH ZONE, LLC D/B/A CASH BIZ, AND REDWOOD
FINANCIALS, LLC, Respondents, Case No. 16-0854 (Tex.).
Cash Biz is a registered Texas credit services organization that
assists customers in obtaining short-term loans. Henry, Harris,
Norris, and Coleman, Jr. contracted with Cash Biz for such loans.
Each of the loan contracts contains an identical Waiver of Jury
Trial and Arbitration Provision.
As security for the loans, the Borrowers provided postdated
personal checks made out to Cash Biz for the amount of the loan
plus a finance charge. After the Borrowers defaulted on the
loans, Cash Biz deposited their checks. The checks, predictably,
were returned for insufficient funds. The parties do not
disagree that the Borrowers were charged with issuance of bad
checks, and that the charges were eventually dismissed. But they
disagree about what the record shows as to whether Cash Biz
simply forwarded information about the Borrowers and their
returned checks to the district attorney as Cash Biz maintains it
did, or somehow actually filed criminal charges, as the Borrowers
argue Cash Biz did.
In any event, the Borrowers sued Cash Biz on behalf of themselves
and a proposed class of similarly situated borrowers. They
claimed that Cash Biz wrongfully used the criminal justice system
to collect unpaid loans by filing false charges against them.
The Borrowers asserted causes of action for malicious
prosecution, fraud, and violations of the Deceptive Trade
Practices Act, Consumer Protection Act, and the Finance Code.
Cash Biz responded by filing a motion to compel arbitration,
arguing that the loan documents -- including the contracts --
comprised the basis of the Borrowers' claims because the claims
arose out of Cash Biz's attempts to collect the loans. Further,
according to Cash Biz, the broad arbitration provision waived the
Borrowers' right to file a class action lawsuit.
The Borrowers countered that the arbitration clause was
inapplicable because they were not suing on the contract.
Rather, their allegations related solely to Cash Biz's illegal
use of the criminal justice system to enforce civil debts. They
also contended that even if the arbitration and class action
waiver provisions applied, Cash Biz's "filing of criminal
charges," participating in criminal trials, and obtaining
"criminal judgments" substantially invoked the judicial process
and therefore waived its right to enforce the provisions.
The trial court denied Cash Biz's motion. The court agreed with
the Borrowers that (1) their allegations related solely to Cash
Biz's use of the criminal justice system so the arbitration
clause was inapplicable, and (2) Cash Biz waived its right to
arbitration by substantially invoking the judicial process. Cash
Biz filed an interlocutory appeal. The court of appeals
reversed.
In the Court, the Borrowers assert the same substantive arguments
that they did in the court of appeals. That is, they first argue
that Cash Biz failed to meet its burden to prove their claims are
within the scope of the arbitration agreement. In the
alternative, they maintain that if the claims fall within the
scope of the agreement, Cash Biz waived its right to arbitration
by substantially invoking the judicial process to their prejudice
by filing criminal charges against them.
Cash Biz responds, as it did in the courts, that it met its
burden to prove the arbitration agreement encompasses the claims
and that the Borrowers failed to meet their burden to prove it
waived its right to arbitrate. Further, it contends that the
Borrowers produced no evidence to prove they were actually
prejudiced by any of its actions. Finally, Cash Biz asserts that
the trial court erred by not enforcing the contractual waiver-of-
class-action provision.
Judge Johnson finds that the Borrowers' claims are not for breach
of any specific obligations under the loan contracts.
Nevertheless, their claims are based on the manner in which Cash
Biz pursued collection of loans and are at least indirectly
related to the contracts the Borrowers signed obligating them to
repay the loans. Therefore, the Judge agrees with Cash Biz that
the Borrowers' claims are within the scope of the arbitration
provision. In light of the foregoing, the Borrowers must
arbitrate their claims unless they prove the affirmative defense
on which they rely, that Cash Biz waived its right to arbitrate
disputes.
The Judge also finds that the Borrowers did not present evidence
that Cash Biz went beyond providing truthful information to the
district attorney. Cash Biz's conduct arguably demonstrates the
intent to cause the district attorney to initiate a judicial
proceeding. But even so, it is not more than initiating
litigation, which the Judge has held does not substantially
invoke the judicial process and waive the right to arbitrate. He
concludes that Cash Biz did not substantially invoke the judicial
process. Accordingly, he says he needs not address whether the
Borrowers were actually prejudiced by Cash Biz's conduct.
The Judge recognizes that his opinion does not accord with the
decision in Vine v. PLS Financial Services, Inc. There, as did
Cash Biz here, a short-term lender had borrowers sign postdated
checks, which were presented for payment after the borrowers
defaulted. When the checks were not paid, the lender submitted
the unpaid checks and affidavits to the local district attorneys.
The Vine court declined to follow the decision of the court of
appeals in the instant case. Rather, it concluded that the
lender's actions in submitting affidavits to prosecuting
attorneys waived its right to enforce the arbitration agreement.
With due respect and recognizing that it is important for federal
and state law to be as consistent as possible in this area where
the Court has concurrent jurisdiction, Judge Johnson agrees with
the dissenting justice in Vine. He concludes, as he did, that
although some lenders may be "gaming the system" by taking
actions like the lenders took there and as Cash Biz took here,
more is required for waiver of a contractual right to arbitrate.
For these reasons, the Judge holds that the claims brought by the
Borrowers fell within the scope of the arbitration agreement and
there was no evidence to support the trial court's finding that
Cash Biz waived its right to arbitrate. Accordingly, he affirmed
the judgment of the court of appeals.
A full-text copy of the Court's Feb. 23, 2018 Opinion is
available at https://is.gd/3gi4Qc from Leagle.com.
Edward S. Hubbard -- ehubbard@lanealton.com -- Patrick E. Gaas --
pgaas@coatsrose.com -- for Cash Biz, L.P., Respondent.
H. Mark Burck -- mburck@hanszenlaporte.com -- Daniel R. Dutko --
ddutko@hanszenlaporte.com -- for All Similarly Situated
Plaintiffs, Petitioner.
H. Mark Burck, Daniel R. Dutko, for Montray Norris, Petitioner.
H. Mark Burck, Daniel R. Dutko, for Hiawatha Henry, Petitioner.
Daniel R. Dutko, H. Mark Burck, for Addie Harris, Petitioner.
Ricardo G. Cedillo -- rcedillo@lawdcm.com -- for Texas Appleseed,
Amicus Curiae.
H. Mark Burck, Daniel R. Dutko, for Roosevelt Coleman, Jr.,
Petitioner.
Patrick E. Gaas, Edward S. Hubbard, for Cash Zone, LLC d/b/a Cash
Biz, Respondent.
Patrick E. Gaas, Edward S. Hubbard, Sumit Kumar Arora, for
Redwood Financials, LLC, Respondent.
CASHCALL INC: Denial of Arbitration Bid in "MacDonald" Affirmed
---------------------------------------------------------------
Judge Patty Shwartz of the U.S. Court of Appeals for the Third
Circuit affirmed the District Court's denial of the Defendants'
motion to compel arbitration in the case, JOHN S. MacDONALD, v.
CASHCALL, INC; WS FUNDING, LLC; DELBERT SERVICES CORP; AND J.
PAUL REDDAM, Appellants, Case No. 17-2161 (3d. Cir.).
MacDonald, on behalf of himself and a putative class, sued the
Defendants over a loan agreement that he contends is usurious and
unconscionable. The agreement includes (1) a provision requiring
that all disputes be resolved through arbitration conducted by a
representative of the Cheyenne River Sioux Tribe ("CRST") and (2)
a clause that delegates questions about the arbitration
provision's enforceability to the arbitrator.
MacDonald sued the Defendants, alleging violations of the federal
Racketeering Influenced and Corrupt Organization Act and New
Jersey usury, consumer finance, and consumer fraud laws. The
Complaint asserted that Western Sky and the Defendants' have a
long history of unlawful and deceptive lending practices and that
federal circuit courts have characterized the arbitration
provisions in the loan agreements as "a sham and an illusion."
MacDonald requested a declaration voiding the arbitration, choice
of law, and class waiver clauses, and sought restitution.
The Defendants moved to compel arbitration and, alternatively, to
dismiss the Complaint. The District Court declined to compel
arbitration because the Loan Agreement's express disavowal of
federal and state law rendered the arbitration agreement invalid
as an unenforceable prospective waiver of statutory rights.
The Defendants appeal the District Court's denial of their motion
to compel arbitration. They assert that the District Court erred
in refusing to compel arbitration because, among other things;
(1) MacDonald did not specifically challenge the enforceability
of the Loan Agreement's delegation clause, which directs the
arbitrator to decide the enforceability of the arbitration
agreement; (2) the District Court erroneously construed the
arbitration provisions as an impermissible prospective waiver of
federal statutory rights, (3) the AAA and JAMS arbitral forums
are available to arbitrate pursuant to the arbitration provisions
of the Loan Agreement; and (4) the Loan Agreement contains an
enforceable severability clause that should have been applied to
sever any unenforceable provisions while allowing arbitration to
proceed.
Judge Schwartz finds that contesting the validity of an
arbitration agreement as a whole, without specifically disputing
the delegation clause contained therein, is not sufficient to
challenge the delegation provision. Therefore, the District
Court did not err in assessing the delegation clause's
enforceability.
The Judge also finds that that the arbitral forum provided for in
the Loan Agreement is nonexistent. As a result, there is no
arbitration forum in which an arbitrator could evaluate whether
the arbitration provision is enforceable. Thus, she concludes,
like the sister circuits, that the CRST arbitral forum is
nonexistent.
Finally, the Judge finds that the Loan Agreement reflects that
the CRST arbitration provision was an integral, not ancillary,
part of the parties' agreement to arbitrate, despite the
inclusion of a severability clause in the contract. She
therefore join the sister circuits in concluding that the CRST
arbitral forum clause is integral to the entire arbitration
agreement and cannot be severed.
Judge Schwartz holds that because the Loan Agreement's forum
selection clause is an integral, non-severable part of the
arbitration agreement and because the CRST arbitral forum
designated in that clause is illusory, the entire arbitration
agreement, including the delegation clause, is unenforceable.
Thus, the District Court had the authority to decide whether the
arbitration agreement was valid, correctly decided that it was
not, and did not err in denying the Defendants' motion to compel
arbitration. Therefore, the Judge affirmed.
A full-text copy of the Court's Feb. 27, 2018 Opinion is
available at https://is.gd/PmrM2A from Leagle.com.
Joseph L. Barloon -- joseph.barloon@skadden.com -- [ARGUED],
Austin K. Brown -- austin.brown@skadden.com -- Skadden, Arps,
Slate, Meagher & Flom LLP, 1440 New York Ave., NW, Washington, DC
20005.
Andrew Muscato -- andrew.muscato@skadden.com -- Skadden, Arps,
Slate, Meagher & Flom LLP, 4 Times Square, New York, NY 10036,
Counsel for Appellant.
Matthew W.H. Wessler -- matt@guptawessler.com -- [ARGUED], Gupta
Wessler PLLC, 1900 L Street, NW, Suite 312, Washington, DC 20036.
Brock J. Specht -- bspecht@nka.com -- Nichols Kaster, PLLP, 4600
IDS Center, 80 South Eighth Street, Minneapolis, MN 55402,
Counsel for Appellee.
CHARLOTTE SCHOOL: "Barchiesi" Dismissal Bid Reply Moved
-------------------------------------------------------
In the cases, ROBERT C. BARCHIESI, and LEJLA HADZIC, Individually
and in a representative capacity on behalf of a class of all
persons similarly situated Plaintiffs, v. CHARLOTTE SCHOOL OF
LAW, LLC and INFILAW CORPORATION, Defendants. SPENCER KREBS, ET
AL, Plaintiffs, v. CHARLOTTE SCHOOL OF LAW, LLC, ET AL,
Defendants, RAISSA LEVY, ET AL, Plaintiffs, v. CHARLOTTE SCHOOL
OF LAW, LLC and INFILAW CORPORATION, Defendants. LEAH ASH,
Plaintiff, v. CHARLOTTE SCHOOL OF LAW, LLC, INFILAW, INC., and
DOES 1-20, et al Defendants, Civil Action Nos. 3:16-cv-00861-GCM,
3:17-CV-00190-GCM, 3:17-cv-00026, 3:17-cv-00039-GCM (W.D. N.C.),
Judge Graham C. Mullen of the U.S. District Court for the Western
District of North Carolina, Charlotte Division, extended to March
2, 2018 the Plaintiffs' time for responding to the Defendants'
Motion to Dismiss.
The Plaintiffs moved for an order extending the time to respond
to Defendants Chidi Ogene and Jay Conison's Motion to Dismiss.
Judge Mullen finds that the time allowed has not expired and,
therefore, the motion will be granted. Accordingly, he extended
the Plaintiffs' time for responding to the Defendants' Motion to
Dismiss to March 2, 2018.
A full-text copy of the Court's Feb. 23, 2018 Order is available
at https://is.gd/I4PZXE from Leagle.com.
Robert C Barchiesi, Individually and in a Representative capacity
on behalf of a class of all persons similarly situated & Lejla
Hadzic, Individually and in a Representative capacity on behalf
of a class of all persons similarly situated, Plaintiffs,
represented by Angelique Adams, Shipman & Wright, LLP, Gary K.
Shipman, Shipman & Wright, LLP, John Alan Jones, Martin and
Jones, PLLC, Karl Joseph Amelchenko, Martin & Jones, Kyle Joseph
Nutt, Shipman & Wright, LLP, Steven Dennis Corriveau, Martin &
Jones & H. Forest Horne, Jr., Jones, Martin, Parris & Tessener.
Raissa Levy, James Villanueva, Shanna Rivera & 17cv26 Levy
Plaintiffs, Consol Plaintiffs, represented by Amanda A. Mingo,
Rawls, Scheer, Foster, Mingo & Culp, PLLC, Brian Leighton
Kinsley, Crumley Roberts, Daniel Ray Francis, Crumley Roberts,
Philip Bohrer, Bohrer Brady LLC, pro hac vice, Robert Andre
Fleury, Jr., Crumley Roberts & Scott E. Brady --
scott@bohrerbrady.com -- Bohrer Brady LLC, pro hac vice.
Andre McCoy, Consol Plaintiff, represented by Amanda A. Mingo,
Rawls, Scheer, Foster, Mingo & Culp, PLLC, Daniel Ray Francis,
Crumley Roberts, Philip Bohrer, Bohrer Brady LLC, pro hac vice,
Robert Andre Fleury, Jr., Crumley Roberts & Scott E. Brady,
Bohrer Brady LLC, pro hac vice.
Andre McCoy, Consol Plaintiff, represented by Brian Leighton
Kinsley, Crumley Roberts.
Leah Ash & 17cv39 Ash Plaintiff, Consol Plaintiffs, represented
by Michael John Messinger, Law Offices of Michael Messinger,
PLLC.
Spencer Krebs, Morgan Switzer, Dave Wyatt, Case No. 317cv190,
Jacenta Marie Price, Krystal Horsley, Markisha Dobson & 17cv190
Plaintiffs, Consol Plaintiffs, represented by Anthony J. Majestro
-- amajestro@powellmajestro.com -- Powell & Majestro, PLLC, pro
hac vice, Douglas B. Abrams, Abrams & Abrams, P.A., Noah Abrams,
Abrams & Abrams PA, Taylor M. Norman -- tnorman@bjc4u.com --
Bailey Javins & Carter, LC, pro hac vice & Timothy C. Bailey,
Bailey Javins & Carter, LC, pro hac vice.
Charlotte School of Law, LLC, Defendant, represented by David
Edward Mills -- dmills@cooley.com -- Cooley LLP, Debbie W. Harden
-- debbie.harden@wbd-us.com -- Womble Bond Dickinson (US) LLP,
Johnny M. Loper -- johnny.loper@wbd-us.com -- Womble Bond
Dickinson (US) LLP, Michael DeWayne Hays -- mhays@cooley.com --
Cooley LLP, pro hac vice, Rebecca Claire Fleishman --
rebecca.fleishman@wbd-us.com -- Womble Carlyle Sandridge & Rice,
LLP, Robert Cahill -- rcahill@cooley.com -- Cooley LLP, pro hac
vice & Sarah Motley Stone -- sarah.stone@wbd-us.com -- Womble
Bond Dickinson (US) LLP.
InfiLaw Corporation, Defendant, represented by David Edward
Mills, Cooley LLP, Johnny M. Loper, Womble Bond Dickinson (US)
LLP, Sarah Motley Stone, Womble Bond Dickinson (US) LLP, Debbie
W. Harden, Womble Bond Dickinson (US) LLP, Michael DeWayne Hays,
Cooley LLP, pro hac vice & Robert Cahill, Cooley LLP, pro hac
vice.
Jay Conison, Consol Defendant, represented by David Edward Mills,
Cooley LLP, Johnny M. Loper, Womble Bond Dickinson (US) LLP,
Sarah Motley Stone, Womble Bond Dickinson (US) LLP, Debbie W.
Harden, Womble Bond Dickinson (US) LLP, Michael DeWayne Hays,
Cooley LLP, pro hac vice & Robert Cahill, Cooley LLP, pro hac
vice & Sarah Motley Stone, Womble Bond Dickinson (US) LLP.
Chidi Ogene, Consol Defendant, represented by David Edward Mills,
Cooley LLP, Debbie W. Harden, Womble Bond Dickinson (US) LLP,
Johnny M. Loper, Womble Bond Dickinson (US) LLP, Robert Cahill,
Cooley LLP, pro hac vice & Sarah Motley Stone, Womble Bond
Dickinson (US) LLP.
Sterling Partners & Sterling Capital Partners IV, LLC, Consol
Defendants, represented by Adam Karl Doerr -- adoerr@rbh.com --
Robinson Bradshaw & Hinson & Robert Evans Harrington, Robinson,
Bradshaw & Hinson, P.A..
CLARK COUNTY SCHOOL: Current Deadlines in Sex Abuse Suit Extended
-----------------------------------------------------------------
Judge Peggy A. Leen of the U.S. District Court for the District
of Nevada has entered an order extending the current deadlines
for approval of the Court in the case, JOHN and JANE DOE I,
Guardians Ad Litem for JOANN DOE I, a minor, individually and on
behalf of all those similarly situated, and JOHN and JANE DOE II,
Guardians Ad Litem for JOANN DOE II, a minor, individually and on
behalf of all those similarly situated; Plaintiffs, v. JEREMIAH
MAZO; CLARK COUNTY SCHOOL DISTRICT; DOES 1 through 20; DOE 1
through 20; ROE CORPORATIONS 1 through 20; Defendants, Case No.
2:16-cv-00239-APG-PAL (D. Nev.).
The case was filed on Feb. 5, 2016, alleging abuse of students by
a former CCSD teacher, Mazo, and bringing claims under Title IX
against CCSD and state tort claims against all defendants.
Plaintiffs filed a First Amended Class Action Complaint on March
1, 2017. CCSD filed its Answer to the First Amended Class Action
Complaint on March 16, 2017, and asserted cross-claims against
Defendant Mr. Mazo. Mr. Mazo filed an Answer to the Plaintiffs'
First Amended Class Action Complaint on June 2, 2017 and his
answer to CCSD's Cross-Claims on July 6, 2017.
The parties have reached an agreement to attend mediation and to
delay the limited remaining depositions in the case until after
the mediation has taken place. In light of this agreement, the
parties jointly submit their proposed amended stipulation
extending certain case deadlines for the approval of the Court.
The current deadlines are:
(i) Discovery Cut-Off Date: Jan. 29, 2018;
(ii) Dispositive Motions - Feb. 28, 2018; and
(iii) Proposed Joint Pretrial Order - March 28, 2018 or 30 days
after the Court rules on any dispositive motions.
The parties request this extension to allow the depositions of
Joann Doe I, Joann Doe II, Jeremy Mazo, and the parties' expert
witnesses to take place after a mediation, which the parties have
scheduled for March 29, 2018 with Bongiovi Dispute Resolutions,
LLC. The parties have diligently engaged in discovery and
believe that allowing these final depositions to take place
following the mediation will further mediation discussions.
Accordingly, the parties request an extension to allow for the
foregoing outstanding discovery to be completed after the
anticipated completion of mediation which is scheduled for March
29, 2018.
Based on this, the parties jointly seek a modification of the
current deadlines to:
(i) Discovery Cut-Off Date - May 29, 2018;
(ii) Dispositive Motions - June 28, 2018; and
(iii) Proposed Joint Pretrial Order - July 31, 2018 or 30 days
after the Court rules on any dispositive motions.
Judge Leen approved.
A full-text copy of the Court's Feb. 23, 2018 Order is available
at https://is.gd/WTdTD4 from Leagle.com.
John Doe I, Guardian Ad Litem, Jane Doe I, Guardian Ad Litem,
Joann Doe I, a minor, individually and on behalf of all those
similarly situated, John Doe II, Guardian Ad Litem, Jane Doe II &
Joann Doe II, a minor, individually and on behalf of all those
similarly situated, Plaintiffs, represented by Aaron D. Ford,
Eglet Prince, Artemus W. Ham, IV, Eglet Prince, Richard Hy &
Robert T. Eglet, Eglet Prince.
Jeremiah Mazo, Defendant, represented by John G. George --
jgeorge@grayreed.com -- John George.
Clark County School District, Defendant, represented by Kara B.
Hendricks -- hendricksk@gtlaw. -- Greenberg Traurig LLP, Mark E.
Ferrario -- ferrariom@gtlaw.com -- Greenberg Traurig, Michelle R.
Schwarz -- ntact@lawhjc.com -- Hall Jaffe & Clayton, LLP, Moorea
L. Katz, Greenberg Traurig, LLP & Steven T. Jaffe, Hall Jaffe &
Clayton, LLP.
Clark County School District, Cross Claimant, represented by Kara
B. Hendricks, Greenberg Traurig LLP, Mark E. Ferrario, Greenberg
Traurig, Michelle R. Schwarz, Hall Jaffe & Clayton, LLP, Moorea
L. Katz, Greenberg Traurig, LLP & Steven T. Jaffe, Hall Jaffe &
Clayton, LLP.
Jeremiah Mazo, Cross Defendant, represented by John G. George,
John George.
COINBASE INC: "Faasse" Suit Alleges UPL Violation
-------------------------------------------------
Timothy G. Faasse and Jeffrey Hansen, individually and on behalf
of all others similarly situated v. Coinbase, Inc., Case No.
4:18-cv-01382 (N.D. Calif., March 2, 2018), is brought against
the Defendant for violation of California's Unclaimed Property
Law.
Plaintiff Timothy Faasse is a citizen of the United States and
resident of the State of Michigan, and a resident of Kent County.
On or about October 20, 2013, Faasse was sent 0.10 Bitcoin
through Coinbase.com to his email address.
Plaintiff Jeffrey Hansen is a citizen of the United States and
the State of California, and a resident of the County of San
Diego. On or about September 14, 2013, Hansen was sent 0.01
Bitcoin through Coinbase.com to his email address. Hansen
received no other notifications from Defendant.
Defendant Coinbase maintains its principal place of business in
San Francisco, California and is incorporated in Delaware. It is
one of the most powerful digital currency exchanges in the world,
buying and selling Bitcoin, BCH, Litecoin, and Ethereum. [BN]
The Plaintiffs are represented by:
William R. Restis, Esq.
THE RESTIS LAW FIRM, P.C.
550 West C Street, Suite 1760
San Diego, CA 92101
Tel: (619) 270-8383
Fax: (619) 752-1552
E-mail: william@restislaw.com
COMCAST CORP: Court Denies Bid to Dismiss "Gottman" Suit
--------------------------------------------------------
Judge William B. Shubb of the U.S. District Court for the Eastern
District of California denied Comcast's Motion to dismiss the
case, JAYSON GOTTMAN, Plaintiff, v. COMCAST CORPORATION, and DOES
1 through 50, inclusive, Defendants, Civ. No. 2:17-2648 WBS AC
(E.D. Cal).
Gottman brought the putative class action against Comcast,
alleging violations of state law arising out of the Defendant's
failure to protect consumers from identity theft.
On Dec. 23, 2016, Comcast called the Plaintiff to try to collect
an unpaid balance of $786.34 on a fraudulent account created in
the Plaintiff's name. Over the next two weeks, the Plaintiff
learned that Comcast had made an inquiry into his credit report
for purposes of establishing the new account. The address
provided in conjunction with the new account did not match any of
the addresses reflected on his credit report.
The Plaintiff provided Comcast with evidence that the account was
fraudulent, which included a police report and a declaration of
identity theft. He asked Comcast for compensation for the
expenses he incurred as a result of the fraudulent account. He
alleges that he received a call from "Lynell," a representative
from Comcast, rejecting his request for compensation. The
Plaintiff allegedly asked "Lynell" what additional steps were
taken to confirm the identity of the individual opening the
account in his name, and "Lynell" replied, that they don't use
additional steps, people move all the time.
On Oct. 6, 2017, the Plaintiff filed a putative class action
against the Defendant in California Superior Court alleging that
the Defendant failed to take reasonable steps to verify consumer
identities when setting up accounts for cable television and
other services, in violation of California Civil Code Section
1785.20.3 and California Business and Professions Code Section
17200.
The Plaintiff seeks to certify a class consisting of all persons
in the State of California who suffered injury when Comcast
accounts were fraudulently created in their names, where Comcast,
among other things, failed to take reasonable steps in response
to mismatched information on their credit reports, as required by
California Civil Code section 1785.20.3, and its related
statutes.
On Dec. 19, 2017, the Defendant removed the case under 28 U.S.C.
Section 1441(a) based on diversity jurisdiction under 28 U.S.C.
Section 1332(d).
Presently before the Court is Comcast's Motion to dismiss this
action under Federal Rule of Civil Procedure 12(b)(6) on the
ground that the claims asserted by the Plaintiff are preempted by
federal law. It argues that the Plaintiff's first cause of
action under California Civil Code Section 1785.20.3 is expressly
preempted by the Fair Credit Reporting Act ("FCRA"). It argues
that because both provisions address the same subject,
specifically situations where the information on an application
for credit does not match the information on the consumer's
credit report, the state statute is expressly preempted under
section 1681t(b)(1)(E) of the FCRA.
Judge Shubb explains that California's decision to regulate the
obligations of users of consumer credit reports does not obstruct
the obligations of consumer reporting agencies or furnishers
under federal law when informational discrepancies are found in
the consumer's information. Nor does the obligation conflict
with Section 1681c(h)(2) because the conduct which forms the
basis of a violation of section 1785.20.3 does not implicate
section 1681c(h). Thus, California may add protections for
consumers by defining the obligations of users of consumer credit
reports. Accordingly, Section 1681c(h) of the FCRA does not
preempt Section 1785.20.3 of California's Civil Code. For these
reasons, the Judge denied Comcast's Motion to dismiss.
A full-text copy of the Court's Feb. 23, 2018 Order is available
at https://is.gd/gNyrvg from Leagle.com.
Jayson Gottman, Plaintiff, represented by Clayeo C. Arnold --
carnold@justice4you.com -- Clayeo C. Arnold, A Professional Law
Corp. & Joshua H. Watson -- jwatson@justice4you.com -- Clayeo C.
Arnold, APC.
Comcast Corporation, Defendant, represented by David J. Silbert -
- dsilbert@keker.com -- Keker, Van Nest & Peters LLP.
COMMUNICATIONS UNLIMITED: Bid to Toll "Fair" Opt-in Claims OK'd
---------------------------------------------------------------
In the case, TACITA FAIR, Plaintiff, v. COMMUNICATIONS UNLIMITED,
INC, et al., Defendants, Case No. 4:17 CV 2391 RWS (E.D. Mo.),
Judge Rodney W. Sippel of the U.S. District Court for the Eastern
District of Missouri, Eastern Division, (i) granted Fair's
original motion to equitably toll the claims of opt-in
individual; (ii) granted in part and denied in part Fair's
amended motion to equitably toll the claims of opt-in
individuals; (iii) denied as moot the Defendants' motion to stay
proceedings, and motions for extension of time to file an answer.
Marcus Fulton filed a Fair Labor Standards Act ("FLSA")
collective action case against Defendants on March 8, 2016.
After participating in alternative dispute resolution, Fulton
failed to comply with court orders, failed to timely file a class
certification brief, and failed to respond to Defendants motion
to dismiss his class action claims. Because Fulton failed to
prosecute his case, on Aug. 29, 2017, Judge Sippel dismissed the
claims of individuals who signed notices of consent to join his
action.
Thirteen days later, Plaintiff Fair filed the action for FLSA
overtime compensation. Within three days of filing her
complaint, Fair filed a motion to certify a collective action
class of cable installers, and a motion for relief by tolling of
the FLSA statute of limitations.
On Oct. 11, the Judge ordered that the Defendants' responses to
these motions would not be due until a briefing schedule was
established at a forthcoming Rule 16 conference. The last
outstanding Defendant answered the complaint on Jan. 3, 2018, and
the Judge held a Rule 16 conference on Jan. 19, 2018.
In her amended motion for equitable tolling, Fair requests that
the claims of individuals that filed notices of consent in Fulton
be equitably tolled until such time as they file notices of
consent in the action. She argues that, because they were not
parties to the original action, these individuals have not had
notice of the dismissal of their claims in Fulton, nor of their
opportunity to opt-in to her suit. The Defendants argue that
Fair has not met her burden to show that these individuals have
diligently pursued their claims or that exceptional circumstances
exist to justify equitable tolling.
After carefully considering both arguments, Judge Sippel agrees
with Fair. As Fair notes, FLSA collective action cases may
present unique circumstances where equitable tolling is
appropriate for the claims of opt-in Plaintiffs. Because the
opt-in individuals are not parties to FLSA collective action
suits until the class is certified, they might not receive
constructive notice of a dismissal and a need to refile their
claim. In the case, the Judge finds that the opt-in individuals
claims were dismissed in the prior case not through any lack of
diligence on their part. Instead, the named Plaintiff, who is
not a party to the case, failed to prosecute his case in a timely
manner. These opt-in individuals were afforded no court-ordered
notice that the claim was dismissed because they were not parties
to the litigation.
Further, in the current action, Fair has not had access to opt-in
individuals' contact information to inform them of her suit.
Some United States District Courts have tolled opt-in
individuals' claims when defendants have delayed providing
contact information. In the case, the Judge finds that the
Defendants have delayed Fair's access to opt-in contact
information by filing a motion to stay proceedings, and allegedly
by avoiding service. Because the potential opt-in individuals
have already opted-in to a previous suit, he finds find that
these delays constitute an exceptional circumstance in the
context of the suit.
As a result, he will toll the claims of individuals who opted-in
to Fulton's suit from the date their claims were dismissed in
Fulton to the time when the Defendants provide their contact
information to Fair.
Accordingly, Judge Sippel granted that Fair's original motion to
equitably toll the claims of opt-in individuals. He granted in
part and denied in part Fair's amended motion to equitably toll
the claims of opt-in individuals. The claims of the opt-in
individuals who opted-in to Fulton will be equitably tolled until
such time as the Defendants provide those individuals' contact
information to Fair.
The Judge directed the Defendants to provide to Fair in a
readable electronic format the full names, phone numbers, email
addresses, and dates of service for their "Technicians," as
defined in Fair's complaint, no later than March 8, 2018. He
said that Fair may submit affidavits and a supplemental
memorandum in support of her motion to certify her collective
action class, no later than March 22, 2018. The Defendants may
file a supplemental memorandum in opposition to Fair's motion to
certify, no later than March 29, 2018.
The Judge denied as moot the Defendants' motion to stay
proceedings, and the motions for extension of time to file an
answer. A motion hearing will be held on Fair's motion to
certify on April 5, 2018, at 11:00 a.m. in Courtroom 16-South.
A full-text copy of the Court's Feb. 23, 2018 Memorandum and
Order is available at https://is.gd/Zto0s8 from Leagle.com.
Tacita Fair, individually and on behalf of those similarly
situated, Plaintiff, represented by Kevin J. Dolley --
kevin@dolleylaw.com -- LAW OFFICES OF KEVIN J. DOLLEY, LLC &
Michael G. Mueth -- michael.mueth@dolleylaw.com -- LAW OFFICES OF
KEVIN J. DOLLEY, LLC
C.U. Employment, Inc., Communications Unlimited Contracting
Services, Inc. & Martin C. Rocha, Defendants, represented by
Steven H. Schwartz -- sschwartz@bjpc.com -- BROWN AND JAMES, P.C.
Communications Unlimited Alabama, Inc., Defendant, represented by
Fredrick J. Ludwig -- info@ludwig.law -- LUDWIG LAW FIRM, LLC.
COMPASS BANK: Faces "Bellissimo" Suit Over Unauthorized Robocalls
-----------------------------------------------------------------
LARA BELLISSIMO, individually and on behalf of a class of
similarly situated individuals v. COMPASS BANK D/B/A BBVA
COMPASS, an Alabama banking corporation, Case No. 2018-CH-03641
(Ill. Cir. Ct., Cook Cty., March 20, 2018), seeks to stop the
Defendant's alleged practice of placing unauthorized telephone
calls to consumers, and to obtain redress for all persons injured
by its conduct.
In a misguided effort to collect overdue debt from consumers, the
Defendant violated the Telephone Consumer Protection Act by
making unauthorized telephone calls using a prerecorded or
artificial voice ("robocalls") to the telephones of individuals
throughout the country, Ms. Bellissimo contends.
Compass Bank operates banks throughout the United States as a
subsidiary of BBVA Compass Bancshares, Inc., and is incorporated
in the state of Alabama. BBVA is a nationwide provider of
banking services such as checking and savings accounts.[BN]
The Plaintiff is represented by:
Evan M. Meyers, Esq.
Eugene Y. Turin, Esq.
MCGUIRE LAW, P.C.
55 W. Wacker Drive, 9th Floor
Chicago, IL 60601
Telephone: (312) 893-7002
Facsimile: (312) 275-7895
E-mail: emeyers@mcgpc.com
eturin@mcgpc.com
CONVERGENT OUTSOURCING: Faces "Lowendern" Suit in E.D. New York
---------------------------------------------------------------
A class action lawsuit has been filed against Convergent
Outsourcing, Inc. The case is styled as Joseph Lowendern also
known as: Joseph Lowenbien, on behalf of himself and all other
similarly situated consumers, Plaintiff v. Convergent
Outsourcing, Inc., Defendant, Case No. 1:18-cv-01885 (E.D. N.Y.,
March 28, 2018).
Convergent Outsourcing, Inc. offers business process outsourcing,
revenue cycle, and receivables management services.[BN]
The Plaintiff is represented by:
Adam Jon Fishbein, Esq.
Adam J. Fishbein, P.C.
735 Central Avenue
Woodmere, NY 11598
Tel: (516) 668-6945
Email: fishbeinadamj@gmail.com
CONVERGENT OUTSOURCING: Faces "Ebanks" Suit in S.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against Convergent
Outsourcing, Inc. The case is styled as Rosalind Ebanks, a/k/a
Rosalind Aebenus, individually and on behalf of all others
similarly situated, Plaintiff v. Convergent Outsourcing, Inc. and
John Does 1-25, Defendants, Case No. 1:18-cv-02783 (S.D. N.Y.,
March 29, 2018).
Convergent Outsourcing, Inc. offers business process outsourcing,
revenue cycle, and receivables management services. It also
provides receivables collection services to credit grantors in
retail, telecommunications, and utilities industries.[BN]
The Plaintiff appears PRO SE.
CORNERSTONE STAFFING: Denial of Arbitration Bid in "Muro" Upheld
----------------------------------------------------------------
In the case, TONY MURO, Plaintiff and Respondent, v. CORNERSTONE
STAFFING SOLUTIONS, INC., Defendant and Appellant, Case No.
D070206 (Cal. App.), Judge William S. Dato of the Court of
Appeals of California for the Fourth District, Division One,
affirmed the trail court's denial of Cornerstone's motion to
compel arbitration and dismiss the class claims.
Cornerstone hired Muro around May 2012 to drive trucks for
Cornerstone's client, Team Campbell, which ships products from
its Fontana, California location throughout the country. Muro
occupied that position from approximately May 2012 through August
2014. During his tenure as a driver, he had routes both within
California and across state lines. He made frequent trips to or
through Arizona, Nevada, Utah, Oregon, Washington, New Mexico,
Idaho, and Wyoming.
As part of his employment contract, Muro signed an agreement
containing the arbitration provisions that are at the center of
the present dispute. Under the relevant Mutual Arbitration
Policy, nearly all disputes had to be submitted to binding
arbitration. The policy is governed solely by the Federal
Arbitration Act and provides that arbitration would be pursuant
to the National Rules for the Resolution of Employment Disputes
of the American Arbitration Association. The parties agreed to
waive a jury trial and the right to initiate or proceed on a
class action basis or participate in a class action in the
arbitration.
Muro filed his initial complaint against Team Campbell and
subsequently added Cornerstone as a Defendant. The complaint,
styled as a proposed class action complaint, alleged causes of
action for: (1) failure to pay all compensation for time worked;
(2) failure to provide meal periods; (3) failure to authorize and
permit rest breaks; (4) knowing and intentional failure to comply
with itemized wage statements; (5) failure to pay timely wages
due at termination/waiting time penalties; and (6) violation of
the unfair competition law.
Cornerstone petitioned to compel Muro to arbitrate his claims on
an individual basis. It maintained the FAA applied because
Cornerstone and Muro were engaged in interstate commerce and
because the policy itself referred to the FAA. It further
asserted that the FAA required the court to enforce the policy
according to its terms, ordering Muro to arbitrate his various
wage and hour claims on an individual basis and dismissing all
purported class claims.
Muro opposed the petition claiming he was a "transportation
worker" within the ambit of a specific FAA exemption. He argued
that under the pertinent analysis in Garrido v. Air Liquide
Industrial, U.S. LP (2015), the FAA did not govern the court's
evaluation of Cornerstone's petition to compel arbitration.
According to Muro, because the FAA did not apply, California law
as expressed in Gentry continued to govern. He also argued that
under Labor Code section 229, his action to recover unpaid wages
could proceed notwithstanding the terms of the policy.
Relying on Garrido, the trial court held that the express
exemption contained in section 1 made the FAA inapplicable to the
policy because Muro was a transportation worker. The court also
rejected Cornerstone's claim that it was not part of the
"transportation industry," concluding that evidence of
Cornerstone's employment of a Department of Transportation
Compliance Coordinator and its transportation-related revenues
demonstrated that it was at least somewhat involved in the
transportation industry.
Because the FAA did not apply, the court turned to the California
Arbitration Act to assess whether Cornerstone's petition to
compel individual arbitration was proper under Gentry. It found
that each of the four Gentry factors militated in favor of
finding the policy's class action waiver unenforceable, and
therefore denied Cornerstone's petition.
Cornerstone appeals. It maintains that Muro's job as a
transportation worker, while a necessary predicate, it is not
sufficient to trigger section 1's exemption. It urges the Court
to disagree with Garrido and instead adopt the rationale of Hill
v. Rent-A-Center, Inc., which concluded that the section 1
exemption applies only to transportation workers who are employed
by an employer within the transportation industry.
Judge Dato declines the invitation because he questions whether
Hill's gloss on section 1 and the Circuit City Stores, Inc. v.
Adams (2001) decision are supported by the language of the
statute. Absent specific direction from the United States
Supreme Court, the Judge declines to engraft additional language
on section 1 by requiring that workers who are actually engaged
in transporting goods in foreign or interstate commerce also
prove that their employer is involved in the "transportation
industry."
Moreover, he says, even assuming Hill correctly determined that
the employer's business must be part of the transportation
industry, the Garrido court rejected the specific argument
advanced by Cornerstone. He believes Garrido's analysis is sound
and Cornerstone's contrary arguments are unpersuasive.
Accordingly, the Judge concludes that section 1 exempts Muro's
employment contract from the operation of the FAA.
Because he has concluded the FAA is not applicable, the
appropriate test under California law to determine whether to
enforce the "class waiver" provisions of an arbitration agreement
remains the four-part analysis under Gentry v. Superior Court
(2007). He concludes that the trial court's factual
determinations were supported by substantial evidence, and its
decision that Gentry was satisfied was not an abuse of
discretion. The trial court expressly drew that inference,
noting Muro's declaration further confirms that his employer did
not inform him of his rights and it is reasonable for the court
to infer that putative class members may not have been informed
of their rights.
In sum, Judge Dato concludes that, in light of these
determinations, the trial court correctly found a class
proceeding would be a significantly more effective way of
permitting the employees to enforce their statutory rights.
Cornerstone's petition sought exclusively individual rather than
class arbitration, and neither party has indicated an intent or
willingness to engage in class arbitration. For these reasons,
based on its finding the class waiver constituted an unlawful
exculpatory clause, the trial court properly denied the petition
to compel arbitration. Accordingly, the Judge affirmed. The
Respondent is entitled to recover his costs on appeal.
A full-text copy of the Court's Feb. 23, 2018 Order is available
at https://is.gd/mht2Of from Leagle.com.
Ogletree, Deakins, Nash, Smoak & Stewart, Jack S. Sholkoff --
jack.sholkoff@ogletree.com -- Alexandra A. Bodnar --
abodnar@schwabe.com -- and Ashley B. McAteer for Defendant and
Appellant.
Turley & Mara, William Turley -- bturley@turleylawfirm.com --
David Mara -- mara@turleylawfirm.com -- and Jamie Serb --
jserb@turleylawfirm.com -- for Plaintiff and Respondent.
CREDIT CONTROL: Settlement in "Rincon-Marin" Has Prelim Approval
----------------------------------------------------------------
In the case, PABLO RINCON-MARIN, Plaintiff, Individually and on
behalf of all other persons similarly situated, v. CREDIT
CONTROL, LLC, Defendant, Civil Action No. 3:17-cv-07 (VLB) (D.
Conn.), Judge Vanessa L. Bryant of the U.S. District Court for
the District of Connecticut granted the parties' joint motion for
preliminary approval of the class settlement agreement.
Rincon-Marin, individually and on behalf of all other persons
similarly situated brings the action against Credit Control for
sending debt collection letters which included false and
deceptive language concerning credit reporting of the account and
the accrual of interest in violation of the Fair Debt Collections
Practices Act ("FDCPA") and the Connecticut Unfair Trade
Practices Act, Conn. Gen. Stat. Section 41-110a et seq.
The parties have jointly moved for certification of the class of
the class of all consumers nationwide who were sent collection
letters and/or notices from the Defendant attempting to collect a
consumer debt wherein said collection letters state both that
'Please note that a negative credit bureau report reflecting on
your credit record may be submitted to a credit reporting agency
by the current account owner if you fail to fulfill the terms of
your credit obligations. The notice in no way affects any rights
you may have,' and 'The law limits how long you can be sued on a
debt. Because of the age of your debt, LVNV Funding LLC will not
sue you for it and LVNV Funding LLC will not report it to any
credit reporting agency,' since Jan. 3, 2016 through Oct. 26,
2017.
They further jointly move for approval of their proposed class
settlement agreement. The proposed class settlement agreement
contemplates liability for the first alleged inconsistency,
regarding reporting to credit reporting agencies, under the
FDCPA.
Judge Bryant is satisfied that the terms of the settlement
agreement were reached through thorough discovery and careful
evaluation of the strengths of each party's claims and defenses.
Specifically, he finds that the proposed settlement agreement
provides reasonable settlement awards to class members and to the
lead Plaintiff in light of the settlement award limitations
imposed by the FDCPA, the Defendant's potential bona fide error
defense, and the general acceptability of reasonable "incentive
awards" to the lead Plaintiffs. Accordingly, the Judge will
preliminarily approve the settlement agreement.
The Judge finds that all of the prerequisites under Rule 23(a)
are satisfied and certification under Rule 23(b)(3) is warranted.
Judge Bryant therefore certified the class articulated, appointed
Daniel Zemel and Peter M. Van Dyke as the Class Counsel, and
appointed Mr. Rincon-Marin as the representative of the
Settlement Class.
The Judge also preliminarily approved the proposed settlement
agreement, approved the mailing of the notice and claim form to
settlement Class members as found in the Motion at Exhibit 1 to
Exhibit A.
The Judge directed that the Class notice is to be mailed by March
26, 2018. The Settlement Class members will have until May 10,
2018 to exclude themselves from, or object to, the settlement
agreement. Any Settlement Class members desiring to exclude
themselves from the action must serve copies of the request on
the Class Administrator by the same date. Any Settlement Class
members who wish to object to the settlement must submit an
objection in writing to the District of Connecticut's Clerk's
Office and serve copes of the objection on the Class
Administrator by the same date.
The parties will file with the Court a report of the results of
class notification, including the number of class members who
excluded themselves from or objected to the settlement agreement,
by June 11, 2018.
A final hearing on the fairness and reasonableness of the
settlement agreement will take place on July 26, 2018, at 10:00
a.m. At the hearing, the Judge will also determine whether to
grant final approval to the settlement agreement and whether to
grant the parties' requests for fees and expenses by the Class
Counsel
A full-text copy of the Court's Feb. 23, 2018 Order is available
at https://is.gd/JJFVe7 from Leagle.com.
Pablo Rincon-Marin, on behalf of himself and all other similarly
situated consumers, Plaintiff, represented by Daniel Zemel pro
hac vice & Peter M. Van Dyke -- pvd@eddf-law.com -- Eagan,
Donohue, Van Dyke & Falsey, LLP.
Credit Control LLC, Defendant, represented by Martin Brent
Yarborough -- martin.yarborough@gmail.com -- pro hac vice, Thomas
R. Dominczyk -- tdominczyk@MauriceWutscher.com -- pro hac vice &
Richard S. Gora -- rich@goralaw.com -- Gora LLC.
CVS RX: Seeks Ninth Circuit Review of Ruling in "Cabrera" Suit
--------------------------------------------------------------
Defendants CVS Pharmacy, Inc., CVS RX Services, Inc. and Garfield
Beach CVS, LLC, filed an appeal from a court ruling in the
lawsuit entitled Sigfredo Cabrera, et al. v. CVS RX Services,
Inc., et al., Case No. 3:17-cv-05803-WHA, in the U.S. District
Court for the Northern District of California, San Francisco.
As previously reported in the Class Action Reporter, the lawsuit
seeks alleged unpaid overtime wages and interest thereon, redress
for failure to authorize or permit required meal periods,
statutory penalties for failure to provide accurate wage
statements, waiting time penalties in the form of continuation
wages for failure to timely pay employees all wages due upon
separation of employment, failure to maintain time-keeping
records, reimbursement for business-related expenses, injunctive
relief and other equitable relief, reasonable attorney's fees,
costs and interest under California Labor Code and applicable
Industrial Wage Orders.
The appellate case is captioned as Sigfredo Cabrera, et al. v.
CVS RX Services, Inc., et al., Case No. 18-15459, in the United
States Court of Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Transcript must be ordered by April 19, 2018;
-- Transcript is due on May 21, 2018;
-- Appellants CVS Pharmacy, Inc., CVS RX Services, Inc. and
Garfield Beach CVS, LLC's opening brief is due on June 28,
2018;
-- Appellees Sigfredo Cabrera, Christine McNeely and Enko
Telahun's answering brief is due on July 30, 2018; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiffs-Appellees SIGFREDO CABRERA, ENKO TELAHUN and CHRISTINE
MCNEELY, as individuals, on behalf of themselves and all other
similar persons similarly situated, are represented by:
R. Craig Clark, Esq.
CLARK LAW GROUP
205 W Date Street
San Diego, CA 92101
Telephone: (619) 239-1321
Facsimile: (888) 273-4554
E-mail: cclark@clarklawyers.com
- and -
Walter L. Haines, Esq.
UNITED EMPLOYEES LAW GROUP
5500 Bolsa Ave.
Huntington Beach, CA 92649
Telephone: (562) 256-1047
Facsimile: (562) 256-1006
E-mail: walter@whaines.com
Defendants-Appellants CVS RX SERVICES, INC., a New York
corporation; CVS PHARMACY, INC., a Rhode Island corporation; and
GARFIELD BEACH CVS, LLC, a California limited liability company,
are represented by:
Tyler Ryan Andrews, Esq.
GREENBERG TRAURIG, LLP
3161 Michelson Drive
Irvine, CA 92612
Telephone: (949) 732-6500
E-mail: andrewst@gtlaw.com
DAIRYAMERICA INC: Court Modifies Scheduling Order in "Carlin"
-------------------------------------------------------------
The United States District Court for the Eastern District of
California, Fresno Division, issued an Order modifying the
Scheduling Order in the case captioned GERALD CARLIN, JOHN RAHM,
PAUL ROZWADOWSKI and DIANA WOLFE, individually and on behalf of
themselves and all others similarly situated, Plaintiffs, v.
DAIRYAMERICA, INC., and CALIFORNIA DAIRIES, INC., Defendants,
Case No. 1:09 CV 00430-AWI (EPG)(E.D. Calif.).
The deadlines set forth in the Court's Amended Scheduling Order
are be modified as follows, inter alia:
CURRENT PROPOSED
EVENT DEADLINE DEADLINE
----- -------- --------
Completion of document
productions 02/16/2018 04/12/2018
Completion of depositions 06/29/2018 08/13/2018
Contention interrogatory
responses 07/27/2018 09/10/2018
Motion for class
certification and motions
for summary judgment 08/10/2018 09/24/2018
Expert disclosures (class
and merits, with the
exception of report
regarding calculation of
damages) 08/10/2018 09/24/2018
Oppositions to motion for
class certification and
motions for summary
judgment 10/12/2018 11/30/2018
Rebuttal expert disclosures
(class and merits, with the
exception of report
regarding calculation of
damages) 10/12/2018 11/30/2018
Reply briefs supporting
motion for class
certification and motions
for summary judgment 12/07/2018 01/25/2019
The Motion for Class Certification hearing set for January 11,
2019 at 10 a.m. before Judge Grosjean is continued to March 1,
2019 at 10 a.m. in Courtroom 10 (EPG) before Magistrate Judge
Erica P. Grosjean.
The deadline for DairyAmerica to file a Request for
Reconsideration by the District Court of the Magistrate Judge's
Ruling Granting Plaintiffs' Motion to Compel is extended to April
12, 2018.
A full-text copy of the District Court's February 26, 2018 Order
is available at https://tinyurl.com/y6vt7g7n from Leagle.com.
Gerald Carlin, individually and on behalf of themselves and all
others similarly situated, John Rahm, individually and on behalf
of themselves and all others similarly situated & Paul
Rozwadowski, individually and on behalf of themselves and all
others similarly situated, Plaintiffs, represented by A. Chowning
Poppler -- apoppler@bermantabacco.com -- Berman Tabacco, Anthony
David Phillips -- aphillips@bermandevalerio.com -- Berman
DeValerio, Benjamin Doyle Brown -- bbrown@cohenmilstein.com --
Cohen Milstein Sellers & Toll PLLC, Brent W. Johnson, Cohen
Milstein Hausfeld and Toll PLLC, 1100 New York Avenue, NW. Suite
500, West Tower. Washington, DC 20005, pro hac vice, Cari C.
Laufenberg -- claufenberg@kellerrohrback.com -- Keller Rohrback
L.L.P., pro hac vice, Christopher Heffelfinger --
cheffelfinger@bermantabacco.com -- Berman Tabacco, George F.
Farah, Cohen Milstein Hausfeld and Toll PLLC, 1100 New York
Avenue, NW. Suite 500, West Tower. Washington, DC 20005, pro hac
vice, Juli E. Farris -- jfarris@kellerrohrback.com -- Keller
Rohrback LLP, Justin N. Saif -- jsaif@bermandevalerio.com --
Berman DeValerio, pro hac vice, Leslie M. Kroeger, Cohen Milstein
Sellers & Toll PLLC, 1100 New York Avenue, NW. Suite 500, West
Tower. Washington, DC 20005, pro hac vice & Ryan McDevitt --
rmcdevitt@kellerrohrback.c0, -- Keller Rohrback L.L.P., pro hac
vice.
DairyAmerica, Inc., Defendant, represented by Charles Morton
English, Davis Wright Tremaine LLP, 1919 Pennsylvania Avenue
N.W., Suite 800. Washington, D.C. 20006-3401, pro hac vice, E.
John Steren, Ober Kaler, 1401 H Street NW, Suite 500. Washington,
D.C. 20005, pro hac vice, John D. Seiver, Davis Wright Tremaine
LLP, 1919 Pennsylvania Avenue N.W., Suite 800. Washington, D.C.
20006-3401, pro hac vice, Joseph Michael Marchini, Baker, Manock
& Jensen, Wendy M. Yoviene, Ober Kaler, 1401 H Street NW, Suite
500. Washington, D.C. 20005, pro hac vice, Allison Ann Davis,
Davis Wright Tremaine LLP, Joy G. Kim, Davis Wright Tremaine LLP
& Sanjay Mohan Nangia, Davis Wright Tremaine LLP, 1919
Pennsylvania Avenue N.W., Suite 800. Washington, D.C. 20006-3401.
DANELL CUSTOM: $1.5MM Settlement in "Rodriguez" Has Prelim OK
-------------------------------------------------------------
In the case captioned FRANCISCO RODRIGUEZ, et al., Plaintiffs, v.
DANELL CUSTOM HARVESTING, LLC, et al., Defendants, Case No. 1:16-
cv-01848-SAB (E.D. Cal.), Magistrate Judge Stanley A. Boone of
the U.S. District Court for the Eastern District of California
granted the Plaintiffs' motion for preliminary approval of the
class action settlement.
The Plaintiffs, on behalf of themselves and other members of the
public similar situated, filed the action on Dec. 7, 2016 against
the Defendants, alleging failure to pay overtime wages in
violation of the Fair Labor Standards Act ("FLSA"); failure to
pay overtime wages in violation of California Labor Code sections
510, 1194 and IWC wage orders; failure to provide meal and rest
periods in violation of California Labor Code section 226.7 and
IWC wage orders; failure to furnish accurate wage statements in
violation of California Labor Code section 226; indemnification
of work related expenses, California Labor Code section 2802;
waiting time penalties, California Labor Code section 203; Unfair
Business Practices in violation of California Business and
Professions Code section 17200, et seq.; and civil penalties for
violation of the California Labor Code section 2699.
The Plaintiffs brought the action proposing six classes of non-
exempt employees who worked for the Defendants during the
limitations period: (i) a class of mechanics, maintenance
workers, truck drivers, and weighers who worked more than 40
hours per work week, and were not compensated for all said
overtime hours at the appropriate rates of pay ("FLSA Overtime
Class"); (ii) a class of mechanics and weighers who worked more
than eight hours per work day and/or 40 hours per work week, and
were not compensated for all said overtime hours at the
appropriate rates of pay ("Labor Code Overtime Class"); (iii) a
class of employees (all five employee groups) who were not
provided with adequate meal and rest breaks as required by law
("Meal and Rest Period Class"); (iv) a class of employees (all
five employee groups) who were not furnished with accurate wage
statements ("Wage Statement Class"); (v) a class of mechanics,
maintenance workers and weighers who have not been reimbursed for
out-of-pocket expenses ("Indemnification of Work-Related Expenses
Class"); and (vi) a class of employees (all five employee groups)
whose employment ended and were not paid all of their wages
("Waiting Time Penalties Class").
On Feb. 28, 2017, the scheduling order issued setting dates and
deadlines in the action. On June 9, 2017, the action was stayed
for the parties to engage in mediation. On Oct. 16, 2017, the
stay was lifted. The Plaintiffs' filed a motion for preliminary
approval of the class action settlement on Nov. 22, 2017. A
hearing on the motion for preliminary approval was held on Dec.
13, 2017, after which the Plaintiffs were granted the opportunity
to file supplemental briefing. On Jan. 17, 2018, the Plaintiffs
filed supplemental briefing to address the issues raised at the
Dec. 13, 2017 hearing.
An informal teleconference was conducted on Jan. 23, 2018, to
address several issues the Court identified in the documents upon
review. The parties agreed to continue the hearing set for Jan.
24, 2018, until Feb. 21, 2018, to continue to address the issues
identified. An informal conference with the parties was set for
Feb. 7, 2018, and the parties submitted amended documents for the
Court's review on Feb. 1, 2018.
On Feb. 5, 2018, an informal conference call was held to address
the amended documents. On Feb. 14, 2018, amended documents were
filed in support of the motion for preliminary approval of the
class action settlement.
The settlement agreement provides $1.5 million to resolve all
claims of the settlement class for the alleged failure to provide
meal and rest breaks and pay wages, penalties, reimbursement of
work related expenses, and attorney fees and costs. The
following class is certified for purposes of settlement only: all
persons who are or were employed in California by Defendants as
non-exempt (i) mechanics, (ii) maintenance workers, (iii) farm
equipment operators, (iv) truck drivers, and (v) weighers at any
point during the Class Period and who do not properly and timely
opt out of the Settlement Class by having requested exclusion.
The class period is defined as any time between Dec. 7, 2012, and
the preliminary approval order.
Prior to any settlement funds being paid to eligible class
members, deductions to the common fund will be made for service
awards to the named Plaintiffs, an award of attorney fees and
costs to the class counsel, all costs of settlement
administration, and a Private Attorneys General Act ("PAGA")
payment to the California Labor and Workforce Development Agency
("LWDA"). The Class counsel will receive 25% of the gross
settlement fund for a total of $375,000. Additionally, the class
counsel will be paid 31,000 for the costs incurred in prosecuting
the action.
The named Plaintiffs will each receive a payment of $7,500 as a
service award for the efforts that they have taken on behalf of
the class, in addition to the amount he or she will receive under
the settlement. The remainder of the common fund constitutes the
net settlement fund. The Defendants will separately pay their
share of the payroll taxes to the Claims Administrator.
The net settlement funds are allocated as follows: 25% for unpaid
wage claims; 80% less $10,000 for statutory penalties and
interest. Of the $10,000 withheld for penalties, $7,500 will be
paid to the LWDA as the agency's share of the PAGA penalties.
The Settlement shares will be distributed by using the dates
worked by each class member from Dec. 10, 2012 through May 2017
and calculating the number of pay periods worked by each class
member and the combined number of pay periods for the entire
class. The actual hours worked and the hourly rate of each class
member will be used to calculate damages and the percentage that
each employee would be entitled to from the collective total
amount owed. This will determine the percentage that each
settlement class member will receive from the net settlement
amount. Twenty-one percent of the net settlement fund
constitutes overtime wages for the FLSA class.
Any unclaimed funds will be sent to the State of California
Unclaimed Property Fund to be held in the name of and for the
benefit of the class member under California's escheatment laws.
Having considered the moving papers, the declarations and
exhibits attached thereto, arguments presented at the Dec. 13,
2017 hearing, as well as the Court's file, Magistrate Judge Boone
granted the Plaintiffs' motion for preliminary approval of the
class action settlement.
The settlement class is defined as all persons who are or were
employed in California by the Defendants as non-exempt (i)
mechanics, (ii) maintenance workers, (iii) farm equipment
operators, (iv) truck drivers, and (v) weighers at any point
during the Class Period (any time between Dec. 7, 2012 and the
Preliminary Approval Order) and who do not properly and timely
opt out of the Settlement Class by requesting exclusion.
The Magistrate Judge appointed (i) John E. Hill, State Bar No.
45338 Enrique Mart°nez, State Bar No. 206884 Law Offices of John
E. Hill 333 Hegenberger Road, Ste. 500 Oakland, CA 94621
Telephone: (510) 588-1000 Facsimile: (510) 632-1445 Email:
enriquemartinez@hill-law-offices.com, as the Class Counsel; (ii)
Francisco Rodriguez, Jesus Hernandez Infante, Marco Garcia, Juan
Manuel Bravo, Estela Patino, Jose F. Orozco, and Antonio Ortiz as
the class representatives; and (iii) CPT Group Class Action
Administrators to serve as the settlement administrator.
He approved the method of disseminating notice to the settlement
class and members of the FLSA collective action. A final
fairness hearing is set for June 20, 2018, at 10:00 a.m. in
Courtroom 9. He directed the parties to file any motions in
support of final approval of the settlement no later than May 21,
2018.
The dates and deadlines set by the Order are:
i. Last day for the Defendants to provide claims information
pertaining the FLSA collective action to the members of class,
the settlement administrator and the class counsel - no later
than five days of the date of entry of the Order
ii. Notice date - No later than 14 days from the date of entry
of the Order
iii. Consent to join/opt-in deadline - 60 days from Notice Date
iv. Opt-out deadline - 60 days from Notice Date
v. Objection deadline - 60 days from Notice Date
vi. Last day for (a) the Parties to file any motions in
support of final approval of settlement; and (b) the class
counsel to file their application for attorneys' fees and costs -
May 21, 2018
vii. Fairness hearing - June 20, 2018, at 10:00 a.m.
A full-text copy of the Court's Feb. 23, 2018 Order is available
at https://is.gd/IvOQqO from Leagle.com.
Francisco Rodriguez, Jesus Hernandez Infante, Marco Garcia, Juan
Manuel Bravo, Estela Patino, Jose F. Orozco & Antonio Ortiz,
Plaintiffs, represented by Enrique Martinez, Law Offices of John
E. Hill.
Danell Custom Harvesting, LLC, a California Company, Rance
Danell, Eric Danell, David Danell & Justin Danell, Defendants,
represented by Howard A. Sagaser -- has@sw2law.com -- Sagaser,
Watkins & Wieland, PC, Ian Blade Wieland -- ian@sw2law.com --
Sagaser, Watkins & Wieland, PC & William M. Woolman --
bill@sw2law.com -- Sagaser, Watkins & Wieland PC.
DAVIDSON COUNTY, TN: Claims in Immigrant Detention Suit Narrowed
----------------------------------------------------------------
The United States District Court for the Middle District of
Tennessee, Nashville Division, issued a Memorandum granting in
part and denying in part Defendant's Motion to Dismiss the case
captioned ABDULLAH ABRIQ, on behalf of himself and all others
similarly situated, Plaintiff, v. DARON HALL, in his official
capacity as Sheriff of Davidson County, and the METROPOLITAN
GOVERNMENT OF NASHVILLE/DAVIDSON COUNTY, Defendants, No. 3:17-cv-
00690 (M.D. Tenn.).
Pending before the Court, among other things, is the Metropolitan
Government's Motion to Dismiss Amended Complain.
This purported class action is one of several such cases filed
across the country in recent years challenging the
constitutionality of local law enforcement's detaining immigrants
subject to detainers from the U.S. Department of Homeland
Security, Immigration and Customs Enforcement (ICE). Plaintiff
Abdullah Abriq is a foreign national who immigrated to the United
States under an F-1 student visa.
Plaintiff contends that, despite the agreement's expiration and
having no new Section 287 agreement, Metro, through an ongoing
custom, policy and practice and at the direction of Sheriff Hall,
has continued to seize and hold administrative detainees for ICE,
including Plaintiff, with no lawful authority to do so. Plaintiff
asserts causes of action against Metro for:
Count I - violation of the Fourth Amendment to the U.S.
Constitution
Count II - violation of the Fourteenth Amendment to the U.S.
Constitution
Count III - false imprisonment under Tennessee law
Count IV - unjust enrichment under Tennessee law
Count V - declaratory judgment for ultra vires actions
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face. A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.
As noted, Plaintiff brings this action pursuant to 42 U.S.C.
Section 1983, which provides a private right of action against
anyone who subjects any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any
rights or privileges secured by the Constitution and laws of the
United States.
Plaintiff alleges that Metro's detention of him, without probable
cause to believe he had committed a criminal offense, and based
solely on a civil ICE detainer, violated the Fourth Amendment.
The Fourth Amendment provides that the right of the people to be
secure against unreasonable searches and seizures shall not be
violated.
Here, Plaintiff has sufficiently alleged that Metro took custody
of him with no probable cause. If Metropolitan Government of
Nashville and Davidson County (Metro) had been acting pursuant to
an agreement with ICE, it may have had authority to take custody
of Plaintiff, but Plaintiff alleges that Metro had no such
agreement in April 2017.
Metro also contends that the sheriff has power, pursuant to Tenn
Code Ann. Section 8-8-201, to hold individuals such as Plaintiff
in the jail. Section 8-8-201 provides a list of the duties of a
sheriff. Tenn. Code Ann. Section 50-1-101(a) provides that the
sheriff (local law enforcement) may enter into a written
agreement with the Department of Homeland Security concerning the
enforcement of immigration laws, detention and removals. If such
an agreement is executed, then the local law enforcement officers
may be trained to carry out such duties.
Accordingly, Metro's argument runs afoul of the maxim generalia
specialibus non derogant, that the provisions of a general
statute must yield to those of a special one. Regardless,
Plaintiff alleges the lack of an agreement, so Section 50-1-
101(a) appears to be inapplicable at this juncture.
The Court finds that Plaintiff has sufficiently alleged, for
purposes of a motion to dismiss, that Metro had no probable cause
and no lawful authority to detain him based solely on an ICE
detainer and, therefore, violated his Fourth Amendment rights.
The motion to dismiss on this issue is denied.
Plaintiff also alleges that Metro's seizure and detention
constituted a significant deprivation of life and liberty that
requires due process protection under the Fourteenth Amendment.
Metro asserts that Plaintiff cannot state a substantive due
process claim under the Fourteenth Amendment because the Fourth
Amendment protects against the type of conduct Plaintiff also
alleges violated his Fourteenth Amendment rights.
Here, Plaintiff's claim for illegal seizure by Metro falls under
the Fourth Amendment, not the Fourteenth. The Fourth Amendment,
as explained above, specifically prohibits unreasonable searches
and seizures. Plaintiff has not sufficiently alleged a Fourteenth
Amendment claim, and Metro's Motion to Dismiss the Fourteenth
Amendment claim is granted.
Plaintiff alleges that Metro received money for housing
immigration detainees, including Plaintiff, from the federal
government. Plaintiff does not allege that he conferred a benefit
to Metro. Instead, Plaintiff appears to allege that his detention
by ICE and placement in Metro's facility served to confer a
benefit to Metro. The alleged connection between Plaintiff and
any benefits received by Metro from ICE is too attenuated to
support a claim that Plaintiff, even indirectly, conferred
benefits upon Metro.
Metro's Motion to Dismiss Plaintiff's unjust enrichment claim is
granted, and that claim is dismissed.
Metro asserts immunity from Plaintiff's false imprisonment claim
under the Tennessee Governmental Tort Liability Act (TGTLA).
Plaintiff's First Amended Complaint does not allege facts related
to the false imprisonment claim that could establish the elements
of negligence. Indeed, Plaintiff alleges that since September 1,
2012, Metro has intentionally detained administrative detainees
without lawful authority. Therefore, Metro's Motion to Dismiss
this claim is granted.
Metro's Motion to Dismiss is granted in part and denied in part.
Plaintiff's claims for violation of the Fourteenth Amendment, for
unjust enrichment, and for false imprisonment are dismissed.
A full-text copy of the District Court's February 26, 2018
Memorandum is available at https://tinyurl.com/y9pwcna8 from
Leagle.com.
Abdullah Abriq, on behalf of himself and all others similarly
situated, Plaintiff, represented by Anthony A. Orlandi --
aorlandi@bsjfirm.com -- Branstetter, Stranch & Jennings, PLLC,
Harry Elliott Ozment, Ozment Law, James Gerard Stranch, IV,
Branstetter, Stranch & Jennings, PLLC & Tricia Herzfeld,
Branstetter, Stranch & Jennings, PLLC, 1214 Murfreesboro Pike.
Nashville, TN 37217
Metropolitan Government of Nashville & Davidson County,
Defendant, represented by Allison L. Bussell --
allison.bussell@kleinbussell.com -- Klein Bussell, PLLC & Kevin
C. Klein -- kevin.klein@kleinbussell.com -- Klein Bussell, PLLC.
Immigration Reform Law Institute, Amicus, represented by John I.
Harris, III -- jharris@slblawfirm.com -- Schulman, LeRoy &
Bennett.
Immigration and Customs Enforcement, Objector, represented by
Mark H. Wildasin, U.S. Attorney's Office & Michael L. Roden,
Office of the United States Attorney.
DCH REGIONAL: Court Denies Bid to Dismiss "McAteer" Suit
--------------------------------------------------------
The United States District Court for the Northern District of
Alabama, Southern Division, issued a Memorandum Opinion denying
Defendant's Motion to Dismiss the case captioned MITCHELL
McATEER, on behalf of himself and all others similarly situated,
Plaintiff, v. DCH REGIONAL MEDICAL CENTER, et al., Defendants,
Case No. 2:17-cv-00859-MHH (N.D. Ala.).
Plaintiff Mitchell McAteer alleges that defendants DCH Regional
Medical Center, DCH Health Systems, and Avectus Healthcare
Solutions, LLC, improperly billed DCH patients and tried to
collect payments to which the defendants were not entitled. Mr.
McAteer asserts state law claims against DCH and Avectus for
tortious interference with a contractual relationship or business
expectancy, unjust enrichment, money paid by mistake, civil
conspiracy, breach of contract (third party beneficiary), and
violations of the Alabama Deceptive Trade Practices Act.
The defendants acknowledge that Class Action Fairness Act
provides a basis for federal jurisdiction, but they argue that
the local controversy and home state exceptions to CAFA apply, so
that the Court must decline to exercise jurisdiction.
Rule 12(b)(6) enables a defendant to move to dismiss a complaint
for failure to state a claim upon which relief can be granted.
CAFA Jurisdiction Exists.
Pursuant to 28 U.S.C. Section 1332(d)(2)(A), CAFA grants subject
matter jurisdiction to federal district courts over class actions
in which (1) any member of the plaintiff class is a citizen of a
state different from the state of citizenship of any defendant,
(2) the aggregate amount in controversy exceeds $5 million, and
(3) the proposed plaintiff class contains at least 100 members.
Mr. McAteer's putative class action meets the three criteria for
federal jurisdiction under Section 1332(d).
The defendants also maintain that a finding in Jenkins that the
defendant hospital was contractually barred from asserting a
hospital lien or in Raymond that the defendant hospital was
statutorily-barred from doing the same says nothing about DCH's
contractual duties in this case.
The Court does not disagree, but the defendants' position ignores
the plain meaning of CAFA. CAFA does not require common questions
or law or fact. CAFA does not require identical parties. For an
action to qualify as another class action for purposes of the
local controversy exception, the action need only concern the
same or similar factual allegations against any of the defendants
on behalf of the same or other persons.
As stated above, in Jenkins and Raymond, other plaintiffs assert
substantially similar factual allegations against Avectus for
Avectus's role in collecting payments for medical services that
violated the terms of agreements between hospitals and insurance
companies. Therefore, the Court concludes that Avectus, like DCH,
has faced a similar class action lawsuit in the three years
preceding the filing of the complaint in this case.
Accordingly, the Court finds that the local controversy exception
does not apply.
CAFA's home state exception applies if two-thirds or more of the
members of all proposed plaintiff classes in the aggregate, and
the primary defendants, are citizens of the State in which the
action was originally filed.
It also is unclear whether Avectus is the real target of Mr.
McAteer's request for declaratory and injunctive relief. Mr.
McAteer asks the Court to declare that the defendants "through
their actions, policies, procedures and misconduct have violated
the terms of their agreements with the various health insurance
providers and that the defendants' billing practices and policies
are invalid and void as a matter of law. Mr. McAteer also seeks a
declaration that the defendants have been unjustly enriched
through their actions and conduct and an order that requires the
defendants to disgorge any unlawfully gained proceeds.
Finally, Mr. McAteer asks the Court to enjoin the defendants from
engaging in the unlawful billing practices. Again, because Mr.
McAteer does not distinguish between DCH and Avectus in the
complaint, the Court cannot determine from the face of the
complaint whether Avectus is a significant target of the request
for injunctive and declaratory relief.
To provide a record on which the Court may make an informed
analysis of CAFA's home state exception, the Court instructs the
parties to engage in jurisdictional discovery that will enable
the parties to provide evidence that will allow the Court to
determine whether Avectus is a primary target of this litigation.
The Court denies the defendants' motions to dismiss without
prejudice.
A full-text copy of the District Court's February 26, 2018
Memorandum Opinion is available at https://tinyurl.com/yc4kmae5
from Leagle.com.
Mitchell McAteer, on behalf of himself and all others similarly
situated, Plaintiff, represented by J. Allen Schreiber --
aschreiber@burkeharvey.com -- BURKE HARVEY LLC, Lauren Elizabeth
Miles, Burke Harvey, LLC, C. Lance Gould --
lance.gould@beasleyallen.com -- BEASLEY ALLEN CROW METHVIN PORTIS
& MILES PC, Leslie Lee Ann Pescia --
leslie.pescia@beasleyallen.com -- BEASLEY ALLEN CROW METHVIN
PORTIS & MILES PC & Wilson Daniel Miles, III --
dee.miles@beasleyallen.com -- BEASLEY ALLEN CROW METHVIN PORTIS &
MILES PC.
DCH Regional Medical Center, Defendant, represented by James J.
Jenkins, PHELPS JENKINS GIBSON & FOWLER LLP & Terri Olive
Tompkins, PHELPS JENKINS GIBSON & FOWLER, PO Box 387. Brewton,
AL 36427
DCH Health Systems, Defendant, represented by James J. Jenkins,
PHELPS JENKINS GIBSON & FOWLER LLP.
DIVERSIFIED RESTAURANT: Cross Seeks to Recover Minimum & OT Wages
-----------------------------------------------------------------
MONIQUE CROSS, DORAI BLACK, and AMERICA THOMAS, on behalf of
themselves and all other persons similarly situated, known and
unknown v. DIVERSIFIED RESTAURANT HOLDINGS, INC., a Michigan for-
profit corporation, Case No. 2:18-cv-10771-NGE-SDD (E.D. Mich.,
March 8, 2018), seeks to recover the benefits due to them from
DRH under the Fair Labor Standards Act as a result of its alleged
failure to pay proper minimum and overtime wages to the
Plaintiffs.
The Plaintiffs are current and former employees of DRH in its
location at 1218 Randolph Street, in Detroit, Michigan.
DRH is a for-profit Michigan corporation. DRH is the largest
franchisee of Buffalo Wild Wings restaurants and has 65 Buffalo
Wild Wings restaurants located in Florida, Illinois, Indiana,
Michigan, and Missouri.[BN]
The Plaintiffs are represented by:
Bryan Yaldou, Esq.
Omar Badr, Esq.
THE LAW OFFICES OF BRYAN YALDOU, PLLC
23000 Telegraph, Suite 5
Brownstown, MI 48134
Telephone: (734) 692-9200
Facsimile: (734) 692-9201
E-mail: Bryan@yaldoulaw.com
Ted@Yaldoulaw.com
DYNAMIC RECOVERY: Illegally Collects Debt, "Ibarra" Suit Says
-------------------------------------------------------------
Jenaro Ibarra, individually and on behalf of all others similarly
situated v. Dynamic Recovery Solutions, LLC, LVNV Funding, LLC
and John Does 1-25, Case No. 4:18-cv-00166-A (N.D. Tex., February
26, 2018), seeks to stop the Defendants' practice of sending an
initial collection letter attempting to collect a consumer debt
that fails to disclose that the previously-lapsed statute of
limitations to file a lawsuit to collect the debt will recommence
upon payment.
The Defendants own and operate a company that uses the mail,
telephone, and facsimile and regularly engages in business the
principal purpose of which is to attempt to collect debts alleged
to be due another. [BN]
The Plaintiff is represented by:
Jonathan Kandelshein, Esq.
THE LAW OFFICES OF JONATHAN KANDELSHEIN
18208 Preston Rd, Suite D-9 #256
Dallas, TX 75252
Telephone: (469) 677-7863
Facsimile: (972) 380-8118
E-mail: jonathan.kandelshein@gmail.com
EMERALD STAFFING: Faces "Lopez" Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Emerald Staffing,
Inc. The case is styled as Herminio Javier Lopez, Javier De
Jesus, Jorge Ramon, Carmelo Velazquez and Hector Ramirez, on
behalf of others similarly situated, Plaintiffs v. Emerald
Staffing, Inc., Elizabeth Slavutsky, Boris Slavutsky and Blue Dog
Kitchen, Defendants, Case No. 1:18-cv-02788 (S.D. N.Y., March 29,
2018).
Staffing the Greater Portland Metro area since 1978, Emerald
specializes in administrative, accounting, legal, medical as well
as sales and management staffing.[BN]
The Plaintiffs appear PRO SE.
FACEBOOK INC: Court Denies Bid to Dismiss "Patel"
-------------------------------------------------
The United States District Court for the Northern District of
California issued an Order denying Defendant's Motion to Dismiss
the case captioned NIMESH PATEL, et al., Plaintiffs, v. FACEBOOK
INC., Defendant, Case No. 3:15-cv-03747-JD, (N.D. Cal.), for lack
of subject matter jurisdiction.
In this putative class action case under the Illinois Biometric
Information Privacy Act (BIPA), named plaintiffs allege that
defendant Facebook, Inc. (Facebook) unlawfully collected and
stored their biometric data without prior notice or consent.
A Rule 12(b)(1) jurisdictional attack may be facial or factual.
In a facial attack, the challenger asserts that the allegations
contained in a complaint are insufficient on their face to invoke
federal jurisdiction.
As the Supreme Court recently reiterated, a plaintiff must
demonstrate standing to sue by alleging the irreducible
constitutional minimum of (1) an injury in fact (2) that is
fairly traceable to the challenged conduct of the defendants" and
(3) likely to be redressed by a favorable judicial decision.
Facebook insists that the collection of biometric information
without notice or consent can never support Article III standing
without real-world harms such as adverse employment impacts or
even just anxiety.
While McCollough v. Smarte Carte, Inc., No. 16 C 03777, 2016 WL
4077108 (N.D. Ill. Aug. 1, 2016), and Vigil v. Take-Two
Interactive Software, Inc., 235 F.Supp.3d 499, 513 (S.D.N.Y.
2017), involved BIPA, they turned on circumstances that are a far
cry from the ones alleged here. In those cases, the plaintiffs
indisputably knew that their biometric data would be collected
before they accepted the services offered by the businesses
involved. Vigil had the specific fact of prior written notice and
click-through consent. In each case, the plaintiffs had
sufficient notice to make a meaningful decision about whether to
permit the data collection. That factual difference makes these
cases of little value in addressing the allegations in the
consolidated complaint that Facebook afforded plaintiffs no
notice and no opportunity to say no.
Facebook's reliance on Spokeo II is also misplaced. It highlights
a comment in a footnote that a plaintiff might have a hard time
showing standing under FCRA provisions which do not turn on any
alleged reporting inaccuracy. Spokeo II, 867 F.3d at 1116 n.2.
This point appears to be a further elaboration on Facebook's real
harm contention and is unpersuasive for the same reasons. But
even taken on its own, it is again of little relevance because
BIPA, unlike FCRA, targets the unauthorized collection of
information in the first instance. The two statutes are
sufficiently distinct so that Spokeo II's FCRA concerns simply do
not apply here. In addition, as the footnote itself suggests, the
comment is likely dicta because the plaintiff in Spokeo II did
not allege a claim independent of a reporting inaccuracy.
Facebook's motion to dismiss for lack of subject matter
jurisdiction is denied.
A full-text copy of the District Court's February 26, 2018 Order
is available at https://tinyurl.com/yd67qa6j from Leagle.com.
Nimesh Patel, Individually and on Behalf of All Others Similarly
Situated, Plaintiff, represented by Paul Jeffrey Geller --
pgeller@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac
vice, Alexander Nguyen -- anguyen@edelson.com -- Edelson P.C.,
Amanda M. Frame -- aframe@rgrdlaw.com -- Robbins Geller Rudman
and Dowd LLP, Christopher Chagas Gold -cgold@rgrdlaw.com --
Robbins Geller Rudman Dowd LLP, Frank Anthony Richter --
frichter@rgrdlaw.com -- Robbins Geller Rudman & Dowd, John
Hamilton George -- jgeorge@rgrdlaw.com -- Robbins Geller Rudman
and Dowd LLP, Mark J. Dearman -- mdearman@rgrdlaw.com -- Robbins
Geller Rudman and Dowd LLP, pro hac vice, Paul Jeffrey Geller,
Robbins Geller Rudman & Dowd LLP, pro hac vice, Rafey Sarkis
Balabanian -- rbalabanian@edelson.com -- Edelson PC, pro hac
vice, Shawn A. Williams -- shawnw@rgrdlaw.com -- Robbins Geller
Rudman & Dowd LLP, Stuart Andrew Davidson --
sdavidson@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro
hac vice & James E. Barz -- jbarz@rgrdlaw.com -- Robbins Geller
Rudman & Dowd LLP.
Facebook Inc., Defendant, represented by Vincent J. Connelly --
vconnelly@mayerbrown.com -- Mayer Brown LLP, Archis Ashok
Parasharami -- aparasharami@mayerbrown.com -- Mayer Brown LLP,
pro hac vice, Archis Ashok Parasharami, Mayer Brown LLP, John
Nadolenco -- jnadolenco@mayerbrown.com -- Mayer Brown LLP, Lauren
R. Goldman -- lrgoldman@mayerbrown.com -- Mayer Brown Llp, pro
hac vice & Matthew David Provance -- mprovance@mayerbrown.com --
Mayer Brown LLP, pro hac vice.
FCA USA: Court Partly Grants Summary Judgment Bid in "Victorino"
----------------------------------------------------------------
In the case, CARLOS VICTORINO and ADAM TAVITIAN, individually,
and on behalf of other members of the general public similarly
situated, Plaintiffs, v. FCA US LLC, a Delaware limited liability
company, Defendant, Case No. 16cv1617-GPC(JLB)(S.D. Cal.), Judge
Gonzalo P. Curiel of the U.S. District Court for the Southern
District of California granted in part and denied in part the
Defendant's motion for summary judgment.
The Plaintiffs filed a purported first amended class action
complaint based on defects in the 2013-2016 Dodge Dart vehicles
equipped with a Fiat C635 manual transmission that cause their
vehicles' clutches to fail and stick to the floor. FCA designs,
manufactures, markets, distributes, sells warrants and services
these vehicles.
The Plaintiffs claim the clutch pedal loses pressure, sticks to
the floor, and fails to engage/disengage gears. As a result, the
Class Vehicles exhibit stalling, failure to accelerate, and
premature failure of the Clutch System's components, including
the clutch master cylinder ("CMC") and reservoir hose, clutch
slave cylinder ("CSC") and release bearing, clutch disc, pressure
plate, and flywheel. The clutch defect is caused by the
degradation of the clutch reservoir hose, which releases
plasticizer and fibers, causing contamination of the hydraulic
fluid that bathes the components of the Clutch System. As a
result, the contamination causes the internal and external seals
of the CMC and CSC to swell and fail.
According to the Plaintiffs, when fluid in the hydraulic system
becomes contaminated, all of the components that have been
exposed to the contaminated fluid must be replaced and any steel
tubing must also be thoroughly cleaned with brake cleaner and
blown out until dry to ensure that none of the contaminants
remain. They also claim an additional defect in the CSC which
exacerbates the problems with the Clutch System. The Defendant's
two-piece design destabilizes the cylinder at its base, which can
result in unintended lateral movement and cause the piston inside
the cylinder to become jammed.
The Plaintiffs allege five causes of action for violations of
California's Consumer Legal Remedies Act ("CLRA"), California's
unfair competition law ("UCL"), breach of implied warranty
pursuant to Song-Beverly Consumer Warranty Act, breach of implied
warranty pursuant to the Magnuson-Moss Warranty Act, and unjust
enrichment. The allegations are based on the theory that the
Defendant knew about these alleged defects and failed to disclose
and/or intentionally concealed the defects in the Clutch System.
Before the Court is the Defendant's motion for summary judgment.
The Plaintiffs filed an opposition on May 12, 2017. A reply was
filed on Jan. 26, 2018.
Judge Curiel granted in part and denied in part the Defendant's
motion for summary judgment. Specifically, he granted the
Defendant's motion for summary judgment on the CLRA and UCL
causes of action with the exception of Plaintiff Victorino's
claims of an alleged defect of the CMC and the reservoir hose due
to leaching plasticizer. He finds that there appears to be no
indication that the Plaintiffs are asserting an affirmative
misrepresentation claim in their FAC. However, to the extent
they do not oppose the Defendant's argument, and the allegation
could broadly be interpreted to include a claim of affirmative
misrepresentation, the Judge granted the Defendant's motion for
summary judgment on an affirmative misrepresentation claim under
the UCL as unopposed.
The Judge denied the Defendant's motion for summary judgment on
the breach of implied warranty of merchantability under state and
federal law. He has concluded that the Plaintiffs Victorino and
Tavitian raised a genuine issue of fact whether the alleged
defects in the Clutch System was an unreasonable safety hazard,
he necessarily concludes that they have raised a genuine issue of
material fact whether the alleged defects breached the implied
warranty of merchantability. The allegations of the breach of
the implied warranty under state and federal law are similar.
Finally, because the Judge granted the Defendant's summary
judgment motion as to Tavitian on the CLRA and UCL claims, and
granted in part the summary judgment motion as to Victorino on
these claims, he granted the Defendant's motion for summary
judgment on the unjust enrichment claim based on the CLRA and UCL
claims as to Plaintiff Tavitian, and as to Plaintiff Victorino
but only as to the alleged defects in the CSC.
A full-text copy of the Court's Feb. 27, 2018 Order is available
at https://is.gd/k64Tn9 from Leagle.com.
Carlos Victorino, individually, and on behalf of a class of
similarly situated individuals & Adam Tavitian, individually, and
on behalf of a class of similarly situated individuals,
Plaintiffs, represented by Cody R. Padgett --
Cody.Padgett@CapstoneLawyers.com -- Capstone Law APC, represented
by Jordan L. Lurie -- Jordan.Lurie@CapstoneLawyers.com --
Capstone Law APC, Karen Lynn Wallace --
Karen.Wallace@CapstoneLawyers.com -- Capstone Law APC, Robert
Kenneth Friedl -- Robert.Friedl@CapstoneLawyers.com -- Capstone
Law APC & Tarek H. Zohdy -- Tarek.Zohdy@CapstoneLawyers.com --
Capstone Law APC.
FCA US LLC, a Delaware limited liability company, Defendant,
represented by Kathleen Ann Wisniewski --
kwisniewski@thompsoncoburn.com -- Thompson Coburn LLP, pro hac
vice, Scott H. Morgan -- smorgan@thompsoncoburn.com -- Thompson
Coburn LLP, pro hac vice, Stephen Anthony D'Aunoy --
sdaunoy@thompsoncoburn.com -- Thompson Coburn LLP, pro hac vice,
Thomas L. Azar -- tazar@thompsoncoburn.com -- Jr., Thompson
Coburn LLP, pro hac vice, William M. Low, Higgs Fletcher & Mack
LLP & Edwin Mendelson Boniske -- boniske@higgslaw.com -- Higgs
Fletcher & Mack, LLP.
FINANCE SYSTEM: Faces "Larkin" Suit in E.D. Wisconsin
-----------------------------------------------------
A class action lawsuit has been filed against Finance System of
Green Bay Inc. The case is styled as Jennifer R Larkin,
individually and on behalf of all those similarly situated,
Plaintiff v. Finance System of Green Bay Inc and John Does 1-25,
Defendants, Case No. 1:18-cv-00496 (E.D. Wis., March 28, 2018).
Finance System of Green Bay, Inc. is a debt collector.[BN]
The Plaintiff is represented by:
Andrew T Thomasson, Esq.
Stern Thomasson LLP
150 Morris Ave-2nd Fl
Springfield, NJ 07081
Tel: (973) 379-7500
Fax: (973) 532-5868
Email: andrew@sternthomasson.com
FIVE STARS: Sued by Ferjean for Violating TCPA by Sending Texts
---------------------------------------------------------------
ALLISON FERJEAN, individually and on behalf of all others
similarly situated v. FIVE STARS LOYALTY, INC., and DOES 1
through 10, inclusive, and each of them, Case No. 3:18-cv-01490
(N.D. Cal., March 8, 2018), is brought under the Telephone
Consumer Protection Act arising from the transmission of text
messages to the cellular telephones of the Plaintiff and members
of the class for the purpose of promoting the Defendant's
services.
The Defendant is a Delaware limited liability company whose
principal office is located in San Francisco, California. The
true names and capacities of the Doe Defendants are currently
unknown to the Plaintiff.
Five Stars operates a rewards and marketing program. To drum-up
new business, the Defendant engages in telemarketing
campaigns.[BN]
The Plaintiff is represented by:
Todd M. Friedman, Esq.
Adrian R. Bacon, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard St., Suite 780
Woodland Hills, CA 91367-7104
Telephone: (877) 206-4741
Facsimile: (866) 633-0228
E-mail: tfriedman@toddflaw.com
abacon@toddflaw.com
- and -
Manuel S. Hiraldo, Esq.
HIRALDO PA
401 E. Las Olas Boulevard, Suite 1400
Ft. Lauderdale, FL 33301
Telephone: (954) 400-4713
E-mail: mhiraldo@hiraldolaw.com
FLORIDA: DOT Faces "Acevedo-Diaz" Suit Over Racial Discrimination
-----------------------------------------------------------------
Wilfredo Acevedo-Diaz, individually and on behalf of all others
similarly situated v. Florida Department of Transportation, Case
No. 4:18-cv-00110-MW-CAS (N.D. Fla., February 23, 2018), is an
action for race and national origin discrimination in violation
of the Civil Rights Act.
Florida Department of Transportation is a Florida governmental
entity with its principal headquarters in Tallahassee, Florida.
[BN]
The Plaintiff is represented by:
Diane P. Perez, Esq.
DIANE PEREZ, P.A.
201 Alhambra Circle, Suite 1200
Coral Gables, FL 33134
Telephone: (305) 985-5676
Facsimile: (305) 985-5677
E-mail: diane@dianeperezlaw.com
FLUENT LLC: Faces "Elser" Suit in S.D. New York
-----------------------------------------------
A class action lawsuit has been filed against Fluent, LLC. The
case is styled as Joshua Elser, individually and on behalf of all
others similarly situated, Plaintiff/Respondent v. Fluent, LLC,
Defendant/Movant, Case No. 1:18-mc-00118 (S.D. N.Y., March 28,
2018).
Fluent, LLC offers a people-based digital marketing and customer
acquisition platform.[BN]
The Plaintiff appears PRO SE.
FRED'S INC: Eddington "Seeks" Suit to Recover Overtime Wages
------------------------------------------------------------
ABEL EDDINGTON and JUDY HUDSON, Individually and on behalf of all
others similarly situated v. FRED'S, INC. and FRED'S STORES OF
TENNESSEE, INC., Case No. 2:18-cv-00056-JRG (E.D. Tex., March 8,
2018), seeks to recover unpaid wages, overtime wages and other
applicable damages and penalties pursuant to the Fair Labor
Standards Act, the Kentucky Wage and Hour Act and Texas common
law.
Fred's Inc. and Fred's Stores of Tennessee, Inc., are domestic
for-profit corporations licensed to and doing business in the
state of Tennessee. Fred's, Inc., currently operates over 600
discount general merchandise and pharmacy stores throughout the
United States. Fred's Stores is a wholly owned subsidiary of
Fred's Inc.[BN]
The Plaintiffs are represented by:
Clif Alexander, Esq.
Lauren E. Braddy, Esq.
Alan Clifton Gordon, Esq.
ANDERSON ALEXANDER, PLLC
819 N. Upper Broadway
Corpus Christi, TX 78401
Telephone: (361) 452-1279
Facsimile: (361) 452-1284
E-mail: clif@a2xlaw.com
lauren@a2xlaw.com
cgordon@a2xlaw.com
- and -
William S. Hommel, Jr., Esq.
HOMMEL LAW FIRM
1404 Rice Road, Suite 200
Tyler, TX 75703
Telephone: (903) 596-7100
Facsimile: (469) 533-1618
E-mail: bhommel@hommelfirm.com
FUNKO INC: "Baskin" Class Suit Removed to W.D. Washington
---------------------------------------------------------
The class action lawsuit filed on January 30, 2018, captioned
Ernest Baskin, individually and on behalf of all others similarly
situated v. Funko, Inc.; Brian Mariotti; Russell Nickel; Ken
Brotman; Gino Dellomo; Charles Denson; Diane Irvine; Adam Kriger;
Richard Mcnally; Goldman, Sachs & Co.; J.P. Morgan Securities
LLC; Merrill Lynch, Pierce, Fenner & Smith Incorporated; Piper
Jaffray & Co.; Jefferies LLC; Stifel, Nicolaus & Company,
Incorporated; BMO Capital Markets Corp.; and Suntrust Robinson
Humphrey, Inc., Case No. 18-2-02535-4 was removed on February 23,
2018, from the Superior Court of Washington in and for King
County to the U.S. District Court for the Western District of
Washington. The District Court Clerk assigned Case No. 2:18-cv-
00281 to the proceeding.
The Complaint alleges only violations of Sections 11, 12, and 15
of the federal Securities Act of 1933.
Funko, Inc. owns and operates a pop culture consumer products
company located in Everett, Washignton. [BN]
The Plaintiff is represented by:
Roger M. 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
The Defendant is represented by:
Stephen C. Willey, Esq.
SAVITT BRUCE & WILLEY LLP
1425 Fourth Avenue, Suite 800
Seattle, WA 98101-2272
Telephone: (206) 749-0500
Facsimile: (206) 749-0600
E-mail: swilley@sbwllp.com
- and -
Benjamin Naftalis, Esq.
Kevin McDonough, Esq.
LATHAM & WATKINS LLP
885 Third Avenue
New York, NY 10022-4834
Telephone: (212) 906-1246
Facsimile: (212) 751-4864
E-mail: benjamin.naftalis@lw.com
kevin.mcdonough@lw.com
FUNSAN K. CORP: Court Denies Class Certification in "Martinez"
--------------------------------------------------------------
The United States District Court for the Southern District of New
York issued an Opinion and Order denying Plaintiffs' Motion for
Class Certification in the case captioned MARCOS NARCISO
MARTINEZ, et al., Plaintiffs, v. FUNSAN K. CORP. (d/b/a BEACON
WINES & SPIRITS), et al., Defendants, No. 16cv5828 (S.D.N.Y.).
Plaintiffs move to certify their New York Labor Law (NYLL) claims
as a class action.
Martinez is a former stocker, cashier, and deliveryman for
Defendants' two Manhattan liquor stores: (1) Beacon Wine &
Spirits (Beacon) and (2) Mitchell's Wine & Liquor Store
(Mitchell's). Beacon and Mitchell's are jointly owned and
operated. Martinez alleges minimum wage and unpaid overtime
violations under the Fair Labor Standards Act (FLSA), and various
wage-related claims under the NYLL.
Class actions are governed by Federal Rule of Civil Procedure 23.
Rule 23(a) imposes four requirements for class certification: (1)
the class must be so numerous that joinder of all members is
impracticable; (2) there must be common questions of law or fact
to the class; (3) the representative party's claims must be
typical of the claims or defenses of the class; and (4) the
representative party must be able to fairly and adequately
protect the interests of the class.
Here, Plaintiffs seek a Rule 23(b)(3) class, which requires that
questions of law or fact common to class members predominate over
any questions affecting only class members, making a class action
superior to other available methods for fairly and efficiently
adjudicating the controversy.
The Court finds that Plaintiffs fail to demonstrate that the
proposed class would be sufficiently numerous as to warrant class
certification. First, Plaintiffs' submit a list of twenty-six
employees provided by Defendants and compiled from Defendants'
records from July 21, 2013 through December 2016.
However, two employees listed, Felipe Jaramillo and Christopher
Rudney are managers, and thus exempt from the Class. And two
others, Carlos Ortega and Eduardo Maldonado already settled a
FLSA case with Defendants.
Here, it is doubtful that the class is geographically dispersed,
as all potential class members worked for the same Manhattan
liquor stores. And Plaintiffs' counsel cites no evidence
supporting the proposition that the class members are largely
low-wage immigrant workers and lack the financial resources to
bring individual actions.
Plaintiffs fail to satisfy the numerosity requirement of Rule
23(a)(1). Accordingly, their motion for class certification is
denied.
A full-text copy of the District Court's February 26, 2018
Opinion and Order is available at https://tinyurl.com/yawwork6
from Leagle.com.
Marcos Narciso Martinez, Individually and on Behalf of All Others
Similarly Situated, Marcos Narciso Martinez, On Behalf of All
Others Similarly Situated, Mr. Bernardino Sierra, Mr. Hugo
Maldonado, Mr. Jorge Tellez, Mr. Sergio Tellez, Mr. Antonio
Morales, Jose Luis Delgado & Mr. Marcial Galvez, Plaintiffs,
represented by Brent Edward Pelton -- pelton@peltongraham.com --
Pelton Graham LLC.
Funsan K. Corp., Jointly and Severally, C.Y. New Corp., Jointly
and Severally, Chi Young Chung, Jointly and Severally & Kyong Suk
Yi, Jointly and Severally, Defendants, represented by Sang Joon
Sim, Sim & Record, LLP, 4240 Bell Boulevard, Suite 602, Bayside,
NY 11361-2861, Yosef Hyunseong Lee, The Law Office of Gary Park
& Young Suk Lim, Law Offices of Gary S. Park, P.C., 3901 Main St
Ste 608, Flushing, NY 11354-5482
John Doe, as personal representative of the estate of Chi Young
Chung, Defendant, represented by Sang Joon Sim, Sim & Record,
LLP.
GENERAL INFORMATION: "Black" Suit Brought Before 6th Cir.
---------------------------------------------------------
The case styled as Thomas Black, On behalf of himself and all
others similarly situated, Plaintiff v. General Information
Services, Inc., Defendant, Case No. 18-3272, was brought before
the United States Court of Appeals for the Sixth Circuit on
March 28, 2018.
General Information Services, Inc. provides background screening
services to various industries.[BN]
The Plaintiff is represented by:
Jason R. Bristol, Esq.
Cohen, Rosenthal & Kramer
700 W. St. Clair Avenue, Suite 400
Cleveland, OH 44113
Tel: 216-781-77956
216-781-7956
The Defendant is represented by:
Jonathan Henry Krol, Esq.
Reminger Company
101 W. Prospect Avenue, Suite 1400
Cleveland, OH 44115
Tel: 216-687-1311
216-687-1311
GENER8 MARITIME: "Fragapane" Suit Wants to Stop Sale to Euronav
---------------------------------------------------------------
JOSEPH FRAGAPANE, individually and on behalf of all others
similarly situated v. GENER8 MARITIME, INC., PETER C.
GEORGIOPOULOS, ETHAN AUERBACH, NICOLAS BUSCH, DAN ILANY, ADAM
PIERCE, ROGER SCHMITZ, STEVEN D. SMITH, EURONAV NV, and EURONAV
MI INC., Case No. 1:18-cv-02097 (S.D.N.Y., March 8, 2018), is a
stockholder class action for alleged violations of the Securities
and Exchange Act of 1934 and for breaches of fiduciary duty as a
result of the Defendants' efforts to sell the Company to Euronav
NN. ("Parent") and Euronav MI Inc. (the "Merger Sub") as a result
of an unfair process for an unfair price, and to enjoin the
stockholder vote on a proposed stock for stock transaction valued
at approximately $490 million.
The terms of the Proposed Transaction were memorialized in a
December 20, 2017, filing with the Securities and Exchange
Commission on Form 8-K attaching the definitive Agreement and
Plan of Merger. Under the terms of the Merger Agreement, Gener8
will become an indirect wholly-owned subsidiary of Euronav, and
Gener8 shareholders will receive 0.7272 shares of Euronav common
stock for each share of Gener8 common stock they own.
Gener8 engages in the transportation of international seaborne
crude oil and petroleum products. As of March 13, 2017, it owned
a fleet of 41 vessels, including 25 very large crude carriers, 10
suezmax vessels, 4 aframax vessels, and 2 panamax vessels, with
an aggregate carrying capacity of 9.7 million deadweight tons.
Gener8 is organized under the laws of the Republic of the
Marshall Islands and has its principal place of business in New
York City. The Individual Defendants are directors and officers
of the Company.
Parent, together with its subsidiaries, owns, operates, and
manages a fleet of vessels for the ocean transportation and
storage of crude oil and petroleum products worldwide. Parent
operates through two segments, Tankers; and Floating Production,
Storage, and Offloading Operations. As of August 23, 2017, it
owned and operated a fleet of 56 double hulled vessels, including
30 VLCCs, 1 V-Plus vessel, 19 Suezmax vessels, and 2 floating,
storage, and offloading vessels, as well as 4 Suezmax vessels
under construction. Parent is a corporation organized under the
laws of the Kingdom of Belgium and has its principal place of
business at in Antwerp, Belgium. Merger Sub is a Marshall
Islands corporation and a wholly owned subsidiary of Parent, and
can be served care of parent.[BN]
The Plaintiff is represented by:
Evan J. Smith, Esq.
BRODSKY & SMITH, LLC
240 Mineola Boulevard, First Floor
Mineola, NY 11501
Telephone: (516) 741-4977
Facsimile: (516) 741-0626
E-mail: esmith@brodsky-smith.com
HOME ENERGY: Faces "Melton" Suit in D. Minnesota
------------------------------------------------
A class action lawsuit has been filed against Home Energy Center,
Inc. The case is styled as Eric S. Melton, on behalf of himself
and all others similarly situated, Plaintiff v. Home Energy
Center, Inc. and Home Depot U.S.A., Inc., Defendants, Case No.
0:18-cv-00873-PAM-HB (D. Minn., March 28, 2018).
Home Energy Center is a residential heating and cooling
contractor, and Authorized Service Provider for The Home Depot
serving the Twin Cities seven county metro area for home heating
and air conditioning needs.[BN]
The Plaintiff is represented by:
Katelyn Rae Cartier, Esq.
Consumer Justice Center P.A.
367 Commerce Court
Vadnais Heights, MN 55127
Tel: (651) 770-9707
Fax: (651) 704-0907
Email: kcartier@consumerjusticecenter.com
- and -
Thomas J Lyons, Jr., Esq.
Consumer Justice Center P.A.
367 Commerce Court
Vadnais Heights, MN 55127
Tel: (651) 770-9707
Fax: (651) 704-0907
Email: tommy@consumerjusticecenter.com
HOME DEPOT: Court Denies Jackson's Bid for Attorney Fees
--------------------------------------------------------
In the case, CITIBANK, N.A. Plaintiff, v. GEORGE W. JACKSON,
Defendant. GEORGE W. JACKSON, Third-Party Plaintiff, v. HOME
DEPOT U.S.A., INC. and CAROLINA WATER SYSTEMS, INC. Third-Party
Defendants, Case No. 3:16-cv-00712-GCM (W.D. N.C.), Judge Graham
C. Mullen of the U.S. District Court for the Western District of
North Carolina, Charlotte Division, lifted the Court's prior
stay, denied Jackson's Motion for Attorney Fees, and remanded the
case to the Superior Court of Mecklenburg County.
The case was initially filed in the Superior Court of Mecklenburg
County as an attempt by Citibank to collect an allegedly
outstanding debt for a water filtration system purchased by
Jackson from Home Depot and Carolina Water Systems ("CWS").
Jackson filed a counterclaim against Citibank and a third-party
class action suit against Home Depot and CWS, alleging that Home
Depot and CWS had a scheme of misleading customers about the
alleged dangerousness of their water and subsequently selling
them unnecessary water filtration systems.
Citibank voluntarily dismissed its claims against Jackson without
prejudice on Sept. 23, 2016. Home Depot removed the matter into
the Court on Oct. 12, 2016, asserting that the Court had subject
matter jurisdiction under the Class Action Fairness Act of 2005
("CAFA"), which established federal jurisdiction over certain
class action suits in which the matter in controversy exceeds the
sum or value of $5 million.
Jackson moved to remand on Nov. 8, 2016, arguing that (1) the
amount in controversy does not exceed $5 million, as required by
CAFA, (2) the requirements for the Local Controversy Exception
have not been met, and (3) third-party defendants, such as Home
Depot, are prohibited from removal under the statute. The Court
granted Jackson's Motion to Remand on Jackson's third ground,
finding that Fourth Circuit precedent precluded a third-party
defendant from removing a case from state court under CAFA.
Home Depot filed for permission to appeal the Court's Remand
Order to the Fourth Circuit. The Court stayed the Remand Order
while the case was pending before the Fourth Circuit. After the
appeal was filed, Jackson filed a Motion for Attorney's Fees in
the Court, alleging that Home Depot's attempt at removal was not
objectively reasonable. Jackson's only argument in support of a
fee award is that Home Depot knew or should have known that the
amount in controversy requirement was not met.
The Fourth Circuit subsequently affirmed the Remand Order and
issued its Mandate on Feb. 13, 2018. Pursuant to the Fourth
Circuit's opinion affirming the Remand Order of the Court, the
matter must be remanded to the Superior Court of North Carolina,
Mecklenburg County.
Judge Mullen finds that Home Depot has provided evidence that at
least 259 North Carolina customers have purchased water treatment
systems, totaling $1,623,424. Assuming the full value of each of
those contracts would be voided (per Jackson's complaint) and
then trebled, this amount reaches $4,870,273.
Home Depot then argues that the demanded injunctive relief and
attorney fees in Jackson's complaint easily push the amount in
controversy over $5 million. Both injunctive relief and attorney
fees can be considered in evaluating the amount in controversy.
And the state statutes that Jackson relies upon allow for these
awards.
While he needs not determine whether Home Depot has proven that
the amount in controversy exceeds $5 million by a preponderance
of the evidence, the Judge does find that Home Depot's
allegations regarding the amount in controversy made at the time
of filing the notice of removal were objectively reasonable.
Thus, he declines to award fees in the matter.
For the foregoing reasons, Judge Mullen lifted the Court's prior
stay, denied Jackson's Motion for Attorney Fees, and remanded the
case to the Superior Court of Mecklenburg County.
A full-text copy of the Court's Feb. 23, 2018 Order is available
at https://is.gd/hTDQX9 from Leagle.com.
George W. Jackson, ThirdParty Plaintiff, represented by Daniel
Kent Bryson -- dan@wbmllp.com -- Whitfield, Bryson & Mason, LLP,
Janet R. Varnell -- info@varnellandwarwick.com -- Varnell &
Warwick, P.A., pro hac vice & Rashad Blossom, Blossom Law PLLC.
Home Depot U.S.A., Inc., ThirdParty Defendant, represented by
Chelsea Corey -- ccorey@kslaw.com -- King & Spalding.
Carolina Water Systems, Inc., ThirdParty Defendant, represented
by Jack Gerald Zurlini, Jr. -- jgz@berensonllp.com -- Berenson
LLP, pro hac vice & William R. Terpening --
terpening@terpeninglaw.com -- Terpening Wilder Law.
George W. Jackson, Counter Claimant, represented by Daniel Kent
Bryson, Whitfield, Bryson & Mason, LLP, Janet R. Varnell, Varnell
& Warwick, P.A., pro hac vice & Rashad Blossom, Blossom Law PLLC.
Citibank, N.A., Counter Defendant, represented by Charles E.
Raynal, IV, Parker Poe Adams & Bernstein, LLP & Matthew Hilton
Mall, Parker Poe Adams & Bernstein LLP.
George W. Jackson, Counter Claimant, represented by Daniel Kent
Bryson, Whitfield, Bryson & Mason, LLP, Janet R. Varnell, Varnell
& Warwick, P.A. & Rashad Blossom, Blossom Law PLLC.
Carolina Water Systems, Inc., Counter Defendant, represented by
Jack Gerald Zurlini, Jr., Berenson LLP & William R. Terpening,
Terpening Wilder Law.
Home Depot U.S.A., Inc., Counter Defendant, represented by
Chelsea Corey, King & Spalding.
JSH RESTAURANT: Fails to Pay Minimum & Overtime Wages, Lira Says
----------------------------------------------------------------
ARMANDO CRUZ LIRA, individually and on behalf of others similarly
situated v. J.S.H. RESTAURANT CORP. (D/B/A THREE GUYS) and GEORGE
ARGINOS (A.K.A. GEORGIOS ARGIROS), Case No. 1:18-cv-02086
(S.D.N.Y., March 8, 2018), alleges that the Plaintiff has worked
for the Defendants in excess of 40 hours per week, without
appropriate minimum wage, overtime, and spread of hours
compensation for the hours that he has worked.
J.S.H. Restaurant Corp. is a domestic corporation organized and
existing under the laws of the state of New York. George
Arginos, also known as Georgios Argiros, serves or served as
owner, manager, principal, or agent of the Defendant Corporation.
The Defendants own, operate, or control an American Restaurant,
located at 1232 Madison Avenue, in New York City, under the name
"Three Guys."[BN]
The Plaintiff is represented by:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
E-mail: Faillace@employmentcompliance.com
JPAY INC: Court Denies DeFazio's Bid to Appoint Pro Bono Counsel
----------------------------------------------------------------
Magistrate Judge Steven C. Mannion of the U.S. District Court for
the District of New Jersey has entered a letter opinion-order
denying DeFazio's Motion to Appoint Pro Bono Counsel in the case,
DeFazio, v. JPAY, Inc., Civil Action No. 17-cv-10212 (KM)(SCM)(D.
N.J.).
The Magistrate finds that Mr. DeFazio's claim does not have
arguable merit in law. Mr. DeFazio is trying to bring a class
action on behalf of himself and approximately 22,000 of his
fellow prisoners. However, the Judge says every court that has
considered the issue has held that a prisoner proceeding pro se
is inadequate to represent the interests of his fellow inmates in
a class action. Though Mr. DeFazio may continue individually to
pursue his claims, his individual claims would not meet the
minimum amount in controversy in order to invoke the Court's
diversity jurisdiction, which Mr. DeFazio would be required to
invoke in order to bring his state claims.
Since Mr. DeFazio may not maintain the case as a class action,
and the Court would lack subject matter jurisdiction if he were
to maintain it individually, the Magistrate Judge fends that Mr.
DeFazio's claim does not have arguable merit in fact and in law.
He therefore needs not proceed to weigh the Tabron factors, and
denied Mr. DeFazio's Motion.
Magistrate Mannion notes that the District Court is currently
considering a pending motion to dismiss. Should the District
Court reach a different conclusion as to subject matter
jurisdiction in the case, then the Court may reconsider Mr.
DeFazio's application. The Clerk of Court will mail a copy of
the Order to Mr. DeFazio.
A full-text copy of the Court's Feb. 23, 2018 Letter Opinion-
Order is available at https://is.gd/1NPqHl from Leagle.com.
ANTHONY DEFAZIO, On behalf of himself and all others similarly
situated, Plaintiff, pro se.
JPAY, INC., Defendant, represented by GARY R. STUDEN --
gstuden@bsfllp.com -- BOLES, SCHILLER & FLEXNER LLP.
KRATON CORPORATION: Sued in Texas Over Misleading Company Reports
-----------------------------------------------------------------
Greg Hrasok, individually and on behalf of all others similarly
situated v. Kraton Corporation, Kevin M. Fogarty, and Stephen E.
Tremblay, Case No. 4:18-cv-00591 (S.D. Tex., February 26, 2018),
alleges that the Defendants made false and misleading statements,
as well as failed to disclose material adverse facts about the
Company's business, operations, and prospects. Specifically, the
Defendants made false and misleading statements and failed to
disclose that: (1) Kraton was transitioning customers to
Brazilian-produced Cariflex even though certain customers had
already rejected that product; (2) Kraton's Brazilian-produced
Cariflex was available to customers when in fact certain
customers had already rejected that product; (3) Kraton lacked
effective internal controls over financial reporting; and (4) as
a result, the Defendants' statements about Kraton's business,
operations and prospects were materially false and misleading and
lacked a reasonable basis at all relevant times.
Kraton Corporation is a Delaware corporation which produces
Cariflex, a polyisoprene product, in its Paulinia, Brazil
manufacturing facility located at 15710 John F. Kennedy Blvd,
Suite 300, Houston, TX 77032. [BN]
The Plaintiff is represented by:
R. Dean Gresham, Esq.
STECKLER GRESHAM COCHRAN PLLC
12720 Hillcrest Rd, Suite 1045
Dallas, TX 75230
Telephone: (972) 387-4040
Facsimile: (972) 387-4041
E-mail: dean@stecklerlaw.com
- and-
Phillip Kim, Esq.
Laurence M. Rosen, Esq.
THE ROSEN LAW FIRM, P.A.
275 Madison Avenue, 34th Floor
New York, NY 10016
Telephone: (212) 686-1060
Facsimile: (212) 202-3827
E-mail: pkim@rosenlegal.com
lrosen@rosenlegal.com
LA QUINTA HOLDINGS: Faces "Cunha" Class Suit Over Sale to Wyndham
-----------------------------------------------------------------
NATALIE CUNHA, Individually and on Behalf of All Others Similarly
Situated v. LA QUINTA HOLDINGS INC., JAMES R. ABRAHAMSON, GLENN
ALBA, SCOTT BERGREN, ALAN J. BOWERS, HENRY G. CISNEROS, GIOVANNI
CUTAIA, BRIAN KIM, MITESH B. SHAH, GARY M. SUMERS, WHG BB SUB,
INC., and WYNDHAM WORLDWIDE CORPORATION, Case No. 3:18-cv-00540-K
(N.D. Tex., March 8, 2018), arises out of the Board of Directors'
alleged attempt to sell the Company to Wyndham Worldwide
Corporation through its wholly-owned subsidiary WHG BB Sub, Inc.
La Quinta announced on January 18, 2017, that it planned to spin-
off its real estate assets. The spin-off would be accomplished
by conveying La Quinta's real estate assets to CorePoint Lodging
Inc. ("CorePoint"), currently a subsidiary of the Company, and
then distributing CorePoint's shares to current La Quinta
stockholders.
The Defendants have violated the Securities Exchange Act of 1934
by causing a materially incomplete and misleading preliminary
proxy statement to be filed with the Securities and Exchange
Commission on February 22, 2018, Ms. Cunha contends. The Proxy
recommends that La Quinta shareholders vote in favor of a
proposed transaction whereby La Quinta, after spinning off its
real estate assets, is acquired by Wyndham.
The Proposed Transaction was first disclosed on January 18, 2018,
when La Quinta and Wyndham announced that they had entered into a
definitive merger agreement pursuant to which Wyndham will
acquire La Quinta, minus its real estate assets, for $8.40 per
share. The deal is valued at approximately $1.95 billion and is
expected to close in the second quarter of 2018.
La Quinta is a corporation organized and existing under the laws
of the state of Delaware, with its principal executive offices
located in Irving, Texas. The Individual Defendants are
directors and officers of La Quinta.
La Quinta owns, manages or has franchised 888 hotels in 48 U.S.
States, Canada, Mexico, and Central and South America.
Wyndham Worldwide Corporation is a Delaware corporation with its
principal executive offices located in Parsippany, New Jersey.
WHG BB Sub, Inc. is a Delaware corporation and is a wholly owned
subsidiary of Wyndham.[BN]
The Plaintiff is represented by:
Joe Kendall, Esq.
Jamie J. McKey, Esq.
KENDALL LAW GROUP, PLLC
3232 McKinney Avenue, Suite 700
Dallas, TX 75204
Telephone: (214) 744-3000
Facsimile: (214) 744-3015
E-mail: jkendall@kendalllawgroup.com
jmckey@kendalllawgroup.com
- and -
Shane T. Rowley, Esq.
Danielle Rowland Lindahl
ROWLEY LAW PLLC
50 Main Street, Suite 1000
White Plains, NY 10606
Telephone: (914) 400-1920
Facsimile: (914) 301-3514
LEAFGUARD HOLDINGS: "Alley" Suit Alleges FLSA Violation
-------------------------------------------------------
Joshua Alley, on behalf of himself and other similarly situated
employees v. Leafguard Holdings, Inc., Case No. 3:18-cv-00255
(M.D. Tenn., March 5, 2018), is brought against the Defendant for
failure to pay overtime wages in violation of the Fair Labor
Standards Act and the Tennessee Human Rights Act.
Plaintiff Joshua Alley worked for the Defendant for approximately
three and a half years at the time of his termination in July
2017.
Defendant is a foreign for-profit corporation duly authorized and
registered to conduct business in the State of Tennessee. Its
principal office is located at 1200 Amboy Ave., Perth Amboy, NJ
08861. [BN]
The Plaintiff is represented by:
Nina Parsley, Esq.
MICHAEL D. PONCE & ASSOCIATES
1000 Jackson Road, Suite 225
Goodlettsville, TN 37072
Tel: (615) 851-1776
E-mail: nina@poncelaw.com
LIBERTY UNIVERSITY: Has 28-Day Extension to Answer "Hendricks"
--------------------------------------------------------------
The United States District Court for the Eastern District of
California issued an Order granting the stipulation extending the
time for Defendant to file an Answer or other responsive pleading
in the case captioned TWONESHA JOHNSON-HENDRICKS, individually
and on behalf of all others similarly situated, Plaintiff, v.
LIBERTY UNIVERSITY, INC.; DOES 1 through 10, inclusive,
Defendants, Case No. 2:18-cv-00072-MCE-DB (E.D. Cal.).
Pursuant to the parties' stipulation and good cause appearing,
Defendant be granted an extension of time of 28 days to file an
answer or other responsive pleading.
A full-text copy of the District Court's February 26, 2018 Order
is available at https://tinyurl.com/y999aj5q from Leagle.com.
Twonesha Johnson-Hendricks, Plaintiff, represented by Todd M.
Friedman -- tfriedman@attorneysforconsumers.com -- Law Offices of
Todd M. Friedman, P.C.
LIFE CARE: "Cantu" Suit Seeks to Recover Overtime for Sales Staff
-----------------------------------------------------------------
JENNIFER CANTU, Individually and on Behalf of Others Similarly
Situated v. LIFE CARE SERVICES LLC, d/b/a THE DELANEY AT PARKWAY
LAKES, and LCS COMMUNITY EMPLOYMENT LLC, Case No. 4:18-cv-00742
(S.D. Tex., March 8, 2018), seeks to recover alleged unpaid
overtime wages owed to Defendants' sales staff under the Fair
Labor Standards Act.
Life Care Services LLC, doing business as The Delaney at Parkway
Lakes, is an Iowa Limited Liability Company, with its principal
place of business in Des Moines, Iowa. Life Care manages and
operates the senior living community known as The Delaney at
Parkway Lakes, and a nationwide community of senior living
communities.
LCS Community Employment LLC is an Iowa Limited Liability Company
organized under the laws of the state of Iowa, doing business in
Texas. LCS maintains employment records for Life Care and The
Delaney at Parkway Lakes.[BN]
The Plaintiff is represented by:
Jason A. Richardson, Esq.
Nicholas R. Lawson, Esq.
MCDOWELL HETHERINGTON LLP
1001 Fannin Street, Suite 2700
Houston, TX 77002
Telephone: (713) 337-5580
Telecopy: (713) 337-8850
E-mail: Jason.Richardson@mhllp.com
Nick.Lawson@mhllp.com
LOUISIANA: Court Certifies Class of LSP Inmates in ADA Suit
-----------------------------------------------------------
The United States District Court for the Middle District of
Louisiana issued a Ruling granting Plaintiffs' Motion for Class
Certification in the case captioned JOSEPH LEWIS, JR., et al., v.
BURL CAIN, et al., Civil Action No. 15-318-SDD-RLB (M.D. La.).
The suit is brought by several inmates incarcerated at the
Louisiana State Penitentiary (LSP). Plaintiffs claim that the
medical care provided at LSP violates the Eighth Amendment
prohibition of cruel and unusual punishment. Plaintiffs also
claim that the medical treatment of disabled inmates at LSP
violates the Americans with Disabilities Act (ADA) and the
Rehabilitation Act (RA).
Plaintiffs seek to represent a class of all prisoners who are
now, or will in the future, be confined at LSP (Class), as well
as an ADA Subclass of inmates with disabilities who are now, or
will in the future, be confined at LSP (ADA Subclass). Plaintiffs
request injunctive relief to abate the alleged systemic
deficiencies in Defendants' policies and practices that subject
all inmates to unreasonable risks of serious harm.
Class Certification of the Class and ADA Subclass
Numerosity
Under Rule 23(a)(1), certification is only appropriate where the
class is so numerous that joinder of all members is
impracticable.
Plaintiffs' proposed Class consists of approximately 6400
incarcerated individuals. While the number of members in
Plaintiffs' proposed ADA Subclass is not exact, Plaintiffs
estimate that hundreds of inmates at LSP have mobility, visual,
cognitive, or other medical impairments.
Therefore, the Court finds that the numerosity requirement is
satisfied.
Commonality & Typicality
In order to satisfy commonality under Wal-Mart Stores, Inc. v.
Dukes. 131 S.Ct. at 2551-52, the claims of every class member
must depend upon a common contention that is capable of class
wide resolution, meaning that the contention is of such a nature
that determination of its truth or falsity will resolve an issue
that is central to the validity of each of the claims in one
stroke.
As to typicality, Rule 23(a) requires that the named
representatives' claims be typical of those of the class.
The Court finds that sufficient evidence has been presented to
establish that the commonality and typicality requirements are
met. Warden Darrel Vannoy testified that the prison's policies
and procedures regarding medical care apply across the board to
all prisoners. A great deal of evidence was introduced to suggest
that understaffing at LSP increases the risk of harm to inmates.
The Fifth Circuit has held that class claims could conceivably be
based on an allegation that the State engages in a pattern or
practice of agency action or inaction including a failure to
correct a structural deficiency within the agency, such as
insufficient staffing with respect to the class,' so long as
declaratory or injunctive relief settling the legality of the
State's behavior with respect to the class as a whole is
appropriate. Dr. Puisis testified that, what is eminently evident
in Angola is that they lack staffing for sure in nursing and in
physicians, and the EMT's are misplaced.
In other words, the Court thinks they're doing the wrong
assignments. Dr. Puisis also testified that this understaffing
was demonstrated by several non-nurses performing nursing duties.
Dr. Puisis stated that inmates were performing nursing duties in
the infirmary, inmate orderlies advised that they assist officers
in administering medications, and a large number of officers are
administering medications to a large number of seriously ill
patients. Thus, in Dr. Puisis' opinion: you don't have enough
staff if you have to use officers to administer medication.
Additionally, Dr. Puisis was critical of his observation that
diabetics seldom get, diabetics who are taking insulin seldom get
the number of blood sugar checks that the Court thinks is typical
of a diabetic. And that's a result of lack of access to nurses,
the Court believes.
The Court finds that the evidence clearly satisfies commonality
and typicality as the challenged policies and practices pose
several common question of fact and law as set forth above.
Because Defendants admit that these policies and practices apply
to all inmates, and all inmates will at some point will need some
type of medical care while incarcerated, the alleged exposure of
the entire Class to these policies is capable of class-wide
resolution under Rule 23. Further, the Court finds that there are
common resolutions that would answer these common questions
across the board.
ADA Sub-Class
Turning to the ADA Subclass, Plaintiff claim that the policies
and practices at LSP present common questions capable of class-
wide resolution.
Plaintiffs submitted evidence regarding, inter alia, the
inadequacy of the current LSP ADA Coordinator as required by 28
C.F.R. 35.107(a), the failure to adequately train employees on
the implementation of disability policies, placing disabled
inmates in "medical dormitories" not equipped for the disabled,
and LSP's alleged failure to provide adequate procedures for
requesting accommodations and appealing denials.
Because all of the ADA policies and procedures pose multiple
common questions of fact and law and apply across the board to
all disabled inmates, the Court finds that certification of the
ADA Subclass is appropriate. Whether Defendants had knowledge of
insufficient accommodations for persons with disabilities can be
evaluated in one stroke for this entire Subclass.
As the District Court for the Northern District of California
succinctly stated: No individualized inquiry into the experiences
of any particular inmate or Plaintiff is necessary. The claims of
the inmates with disabilities sub-class also satisfy the
commonality requirement: either the Plaintiffs are housed in a
facility that comports with the ADA or they are not.
Accordingly, the Court grants Plaintiffs' Motion for Class
Certification.
A full-text copy of the District Court's February 26, 2018 Ruling
is available at https://tinyurl.com/yc8cbk7h from Leagle.com.
Kentrell Parker, on behalf of themselves and all others similarly
situated, Farrell Sampier, on behalf of themselves and all others
similarly situated, Reginald George, John Tonubbee, on behalf of
themselves and all others similarly situated, Otto Barrera, on
behalf of themselves and all others similarly situated, Clyde
Carter, on behalf of themselves and all others similarly
situated, Edward Giovanni, on behalf of themselves and all others
similarly situated, Ricky D. Davis, on behalf of themselves and
all others similarly situated, Lionel Tolbert, on behalf of
themselves and all others similarly situated, Rufus White, on
behalf of themselves and all others similarly situated, Shannon
Hurd, Alton Adams, Ian Cazenave, Edward Washington & Alton
Batiste, Plaintiffs, represented by Mercedes Hardy Montagnes --
mercedesm@thejusticecenter.org -- The Promise of Justice
Initiative, Amanda Boozer, The Promise of Justice Initiative, 636
Baronne Street, New Orleans, LA 70113, pro hac vice, Bruce
Warfield Hamilton, ACLU of Louisiana, PO Box 56157. New Orleans,
LA 70156, Daniel A. Small -- dsmall@cohenmilstein.com -- Cohen
Milstein Sellers & Toll PLLC, pro hac vice, Jeffrey Dubner, Cohen
Milstein Sellers & Toll PLLC, 1100 New York Ave NW Ste 500. West
Washington, DC, 20005-3934, pro hac vice, Miranda Tait, Advocacy
Center, 600 Jefferson St Ste 812. Lafayette, LA, 70501-6982. &
Nishi Lal Kumar -- nkumar@thejusticecenter.org -- Promise of
Justice Initiative.
Stephanie Lamartiniere, Assistant Warden for Health Services, in
her official capacity, James M LeBlanc, Secretary of the
Louisiana Department of Public Safety and Corrections, in his
official capacity & The Louisiana Department of Public Safety and
Corrections, Defendants, represented by Mary E. Roper, Shows,
Cali, & Walsh LLP, 628 St. Louis Street, Baton Rouge, LA 70802-
6159 Randal J. Robert, Kantrow, Spaht, Weaver & Blitzer, PO Box
2997, Fax: (225) 343-0630. Baton Rouge, LA 70821-2997, Andrea
Leigh Barient, Louisiana Department of Justice, Angelique Duhon
Freel, Louisiana Department of Justice, Caroline Tomeny Bond,
Shows, Cali, & Walsh, LLP, 628 St. Louis Street, Baton Rouge, LA
70802-6159, Colin Andrew Clark, Office of the Louisiana Attorney
General -- Criminal Division, Connell Lee Archey, Kantrow, Spaht,
Weaver & Blitzer, PO Box 2997. Fax: (225) 343-0630. Baton Rouge,
LA 70821-2997, Elizabeth Baker Murrill, Office of Attorney
General Civil Division, George Holmes, Kantrow Spaht Weaver and
Blitzer, Jeffrey K. Cody, Shows, Cali, Berthelot & Walsh, LLP,
628 St. Louis Street, Baton Rouge, LA 70802-6159, John Clifton
Conine, Jr., Shows, Cali & Walsh, L.L.P., 628 St. Louis Street,
Baton Rouge, LA 70802-6159, Keith Fernandez, Kantrow, Spaht,
Weaver & Blizer, PO Box 2997. Fax: (225) 343-0630. Baton Rouge,
LA 70821-2997, Michelle Marney White, Louisiana Department of
Justice & Patricia Hill Wilton, Louisiana Department of Justice.
LOUISVILLE METRO: Denial of "Moorman" Class Certification Upheld
----------------------------------------------------------------
In the case captioned LA TONYA MOORMAN, PATRICIA LUSCO, SUSIE
MAXWELL, WALES HUNTER, SHENEE WHITLOCK AND MARK LYNCH,
Appellants, v. LOUISVILLE METRO HOUSING AUTHORITY DEVELOPMENT
CORP., TIMOTHY BARRY, LOUISVILLE/JEFFERSON COUNTY METRO
GOVERNMENT AND TED PULLEN, Appellees, Case No. 2014-CA-001449-MR
(Ky. App.), Judge Christopher Shea Nickell of the Court of
Appeals of Kentucky affirmed the opinion and order entered by the
Jefferson Circuit Court on Aug. 13, 2014 denying the Appellants'
(i) renewed request for class certification, and (ii) motion
seeking clarification of an order entered on Dec. 17, 2013.
In August of 2011, the Plaintiffs filed a purported class action
complaint alleging a building at 768 Barret Avenue in Louisville
was contaminated with toxic levels of hazardous mold to which
they -- current and former Louisville/Jefferson County Metro
Government ("L/JCMG") employees -- had been exposed for prolonged
periods of time. They alleged that the Appellees, owners and
operators of the building, ignored worker concerns about health
hazards identified at the site.
The Plaintiffs filed suit on behalf of themselves as individuals
and anyone else similarly situated. The complaint alleged common
law negligence, negligent infliction of emotional distress, gross
negligence, intentional infliction of emotional distress, private
and public nuisance, trespass, assault and battery, fraudulent
concealment and fraudulent misrepresentation. They demanded
damages, injunctive relief and a declaratory judgment regarding
the Appellees' alleged liability.
Over time, the complaint was refined to include more Plaintiffs
and more buildings. In September of 2012, citing CR 23.02(b) and
(c), the Plaintiffs moved for class action certification and
appointment of class counsel. The proposed class was to include
all persons who have worked in the Buildings as employee or
independent contractor of a commercial tenant at any time since
Jan. 1, 1993. Five subclasses were proposed -- one for each of
four separate buildings, and a fifth composed of those who have
suffered bodily injuries as a result of the Appellees' actions as
alleged in the Complaint.
In October of 2012, L/JCMG and Pullen moved for summary judgment
arguing the Plaintiffs' claims were barred by KRS 342.690(1).
The Plaintiffs opposed the motion, but on April 4, 2013,
successfully sought leave to file their third amended complaint.
The Appellees again objected to class certification.
On July 18, 2013, the trial court entered an opinion and order
denying the motion for class certification because the exact size
of the resulting class is unknown to the Court now that those
required to file a workers' compensation claim have been
eliminated from the potential class. Additionally, it found that
thePlaintiffs have not established that the class size is so
numerous that joinder of all of the members is impractical under
CR 23.01(a).
On Dec. 17, 2013, the trial court entered another opinion and
order. This one granted summary judgment to L/JCMG and Pullen on
three counts -- common law negligence, negligent infliction of
emotional distress and gross negligence. It further specified KRS
342.690(1) bars civil actions alleging workplace injuries, but
does not address other claims raised in the complaint -- namely
declaratory judgment, intentional infliction of emotional
distress and tort of outrage, third party beneficiary to lease
agreement, private and public nuisance, trespass, assault and
battery, fraudulent concealment, fraudulent misrepresentation,
and injunctive relief--all of which may go forward as to the
remaining Plaintiffs. The trial court then vacated the opinion
and order it had entered on July 18, 2013, directing all parties
to brief the CR 23 elements required for class certification and
explain whether each had been satisfied.
On Aug. 13, 2014, the trial court entered the opinion and order
at the heart of this appeal. Analyzing the requirements of CR
23.01, the trial court concluded Appellants had not established
any of the four mandatory requirements -- numerosity,
commonality, typicality, and adequacy of representation. The
trial court then turned its attention to CR 23.02(b) and (c) --
the two provisions Appellants claimed they had satisfied --
determining neither had been established. Thereafter, the trial
court denied the Appellants' motions for class certification and
to clarify the order entered Dec. 17, 2013. The appeal follows.
Analyzing the requirements of CR 23.01, Judge Nickell finds that
the Appellants failed to establish any of the mandatory
requirements of CR 23.01 -- let alone all four of them --.
Hence, the trial court properly denied certification of the
class. Full satisfaction of CR 23.01 being a hurdle to clear
prior to consideration of CR 23.02, there is no need to address
whether CR 23.02(b) or (c) was satisfied -- anything said would
be advisory.
The Appellants next argue certification was denied without an
evidentiary hearing being convened. The Judge explains that
while it is true the Appellants requested a hearing, the counsel
was unconvincing when the trial court asked what would be
accomplished by holding one. The Appellants cite no Kentucky
case law -- choosing to rely solely on federal cases -- requiring
a hearing prior to denial of class certification. While
permitted, a pre-certification hearing is not required in
Kentucky.
Finally, as an alternative argument, the Appellants fault the
trial court for not sua sponte certifying particular issues for
class treatment under CR 23.03(6). The Judge is not cited to any
point in the record at which the trial court was requested to do
so. Counsel for L/JCMG and Pullen state in their brief the issue
was not raised in the trial court, nor was it mentioned in the
prehearing statement. The claim is not subject to review.
Discerning no abuse of discretion, Judge Nickell affirmed the
opinion and order entered by the Jefferson Circuit Court on Aug.
13, 2014.
A full-text copy of the Court's Feb. 23, 2018 Opinion is
available at https://is.gd/AnyDez from Leagle.com.
Robert W. "Joe" Bishop, John S. Friend, Tyler Z. Korus,
Louisville, Kentucky, Briefs for Appellants.
Patricia C. Le Meur -- tlemeur@ppoalaw.com -- John F. Parker, Jr.
-- jparker@ppoalaw.com -- Nicholas R. Hart -- nhart@ppoalaw.com -
-
Louisville, Kentucky, Brief for Appellees, Louisville Metro
Housing Authority and Timothy Barry.
Christopher P. O'Bryan -- obryanc@obtlaw.com -- Christopher J.
Leopold -- chris.leopold@stinson.com -- Whitney R. Kramer --
kramerw@obtlaw.com -- Louisville, Kentucky, Brief for Appellees,
Louisville/Jefferson County Metro Government and Ted Pullen.
MADISON HOTEL: "Fischler" Suit Alleges ADA Violation
----------------------------------------------------
Brian Fischler, individually and on behalf of all other persons
similarly situated v. Madison Hotel LLC dba The Mave Hotel, Case
No. 1:18-cv-02046 (S.D. N.Y., March 6, 2018), is brought against
the Defendant violations of the Americans with Disabilities Act,
New York State Human Rights Law, and the New York City Human
Rights Law.
Plaintiff brings this civil rights action against the Defendant
for its failure to design, construct, maintain, and operate its
website, www.themavehotel.com, to be fully accessible to and
independently usable by Plaintiff Fischler and other blind or
visually-impaired people. Mave Hotel denies full and equal access
to its Website.
Plaintiff Brian Fischler is, at all relevant times, a resident of
Astoria, New York, Queens County. As a blind, visually-impaired
handicapped person, he is a member of a protected class of
individuals under ADA.
Defendant Mave Hotel owns and operates a hotel at 62 Madison
Avenue, New York, New York. Mave Hotel's website offers features
to the public that should allow all consumers to access the
facilities and services that it offers about its hotel. [BN]
The Plaintiff is represented by:
Douglas B. Lipsky, Esq.
LIPSKY LOWE LLP
630 Third Avenue, Fifth Floor
New York, NY 10017-6705
Tel: (212) 392-4772
Fax: (212) 444-1030
E-mail: doug@lipskylowe.com
MAIN STREAT: "Makaron" Suit Seeks Damages under TCPA
----------------------------------------------------
Edward Makaron, individually and on behalf of all others
similarly situated v. Main Streat Marketing, LLC and Does 1
through 10, Case No. 2:18-cv-01858 (C.D. Calif., March 6, 2018),
seeks damages and other available legal or equitable remedies
under the Telephone Consumer Protection Act.
Plaintiff Edward Makaron is a resident of Chatsworth, California.
Defendant Main Streat Marketing, LLC is an online marketing
company. [BN]
The Plaintiff is represented by:
Todd M. Friedman, Esq.
Adrian R. Bacon, Esq.
Meghan E. George, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard St., Suite 780
Woodland Hills, CA 91367
Tel: (877) 206-4741
Fax: (866) 633-0228
E-mail: tfriedman@toddflaw.com
abacon@toddflaw.com
mgeorge@toddflaw.com
MARIETTA MEMORIAL: Court Denies Bid to Decertify "Myers" Class
--------------------------------------------------------------
In the case, LYNNETT MYERS, et al., Plaintiffs, v. MARIETTA
MEMORIAL HOSPITAL, et al., Defendants, Case No. 2:15-CV-2956
(S.D. Ohio), Judge Algenon L. Marbley of the U.S. District Court
for the Southern District of Ohio, Eastern Division, granted the
Plaintiffs' Motion to Stay or Deny without Prejudice as Premature
Defendants' Motion for Decertification, and dismissed without
prejudice the Defendants' Motion to Decertify the Conditional
Class.
The Plaintiffs commenced the collective and class action against
the Defendants in October 2015. They bring causes of action
under the Fair Labor Standards Act ("FLSA") and related Ohio
laws.
In August 2016, the Court certified conditionally the class,
under the FLSA, of all of the Defendants' current and former
hourly employees who were responsible for direct patient care and
were subject to the Defendants' automatic meal deduction policy
at any time during the three years prior to the granting of the
motion for conditional certification to the present.
After the case was conditionally certified as a collective
action, the Plaintiffs filed a motion for a temporary restraining
order, alleging that the Defendants coerced, intimidated and
harassed absent class members and created an atmosphere of fear
such that the class members were afraid to opt in to the lawsuit.
The Court granted the Plaintiffs' motion, and granted in part
their subsequent motion for a preliminary injunction. In
granting Plaintiffs' motion for a preliminary injunction, the
Court re-opened the opt-in period for the class of nearly 2,000
individuals through May 1, 2017, and permitted the Plaintiffs to
reissue the previously approved notice to the entire class.
In November of 2016, the Plaintiffs moved to certify under
Federal Rule of Civil Procedure 23 a subclass of the class
previously conditionally certified by the Court. The Defendants
filed their opposition to the motion to certify a Rule 23 class
on April 18, 2017. On the same day, the Defendants filed the
instant motion to decertify the conditional class.
In May of 2017, in lieu of responding to the Defendants' motion
on the merits, the Plaintiffs filed the instant motion to stay or
deny without prejudice the Defendants' motion to decertify the
class. Both sides have since filed motions for summary judgment.
On Sept. 11, 2017, the Court granted the Plaintiffs' motion to
certify a class under Rule 23, and certified the class of all of
the Defendants' current and former Nurses and Patient Care
Technicians who were hourly employees and subject to the
Defendants' automatic meal deduction policy during the three
years before the Complaint was filed up to the present.
On Sept. 27, 2017, the Plaintiffs filed a motion to amend the
definition of the Rule 23 class, which is currently pending
before the Court. In December of 2017, the Court stayed
discovery pending the resolution of the motion to amend the class
definition.
In January of 2018, the Court set oral argument on the pending
motions for summary judgment. The Defendants requested a
continuance, arguing that because they have had no opportunity to
conduct merits discovery on the current class members, they are
unable to develop fully their arguments in opposition to the
Plaintiffs' summary judgment motion. The Defendants further
asked the Court to defer any ruling on their own motion for
summary judgment until the record is complete and the class
members are finalized. The Court granted the Defendants' motion
to continue oral argument and dismissed the Defendants' motion
for summary judgment without prejudice.
JGiven the procedural posture of the case, Judge Marbley finds
that the Defendants' Motion to Decertify is premature. It was
filed before the opt-in period ended, and merits discovery is not
yet complete. Indeed, the Defendants themselves recently
acknowledged that they have had no opportunity whatsoever to
conduct merits discovery on the current class members.
Additional discovery will give the Court more information on
which to base its decision under the exacting standard required
for the second stage analysis.
For these reasons, the Judge granted the Plaintiffs' Motion to
Stay or Deny Decertification, and denied without prejudice the
Defendants' Motion to Decertify. The Defendants may refile such
a motion upon completion of merits discovery.
A full-text copy of the Court's Feb. 23, 2018 Opinion and Order
is available at https://is.gd/g7K5oo from Leagle.com.
Lynnett Myers, individually and on behalf of all others similarly
situated, Carol Butler, individually and on behalf of all others
similarly situated & Arva Lowther, individually and on behalf of
all others similarly situated, Plaintiffs, represented by Lance
Chapin, Chapin Legal Group, LLC & Steven Charles Babin, Jr.,
Chapin Legal Group LLC.
Marietta Memorial Hospital, Marietta Health Care Inc, doing
business as & Selby General Hospital, Defendants, represented by
James Edward Davidson -- james.davidson@icemiller.com -- Ice
Miller LLP & Catherine L. Strauss --
Catherine.Strauss@icemiller.com -- Ice Miller LLP.
MARRIOTT VACATIONS: Court Issues Remand Show Cause Order
--------------------------------------------------------
The United States District Court for the District of Colorado
issued a Show Cause Order in the case captioned RCHFU, LLC, a
Colorado limited liability company, et al., Plaintiffs, v.
MARRIOTT VACATIONS WORLDWIDE CORPORATION, et al., Defendants,
Civil Action No. 16-cv-01301-PAB-GPG (D. Colo.).
Removing defendants claimed that the Court had subject matter
jurisdiction over this lawsuit pursuant to the Class Action
Fairness Act of 2002 (CAFA).
In every case and at every stage of the proceeding, a federal
court must satisfy itself as to its own jurisdiction, even if
doing so requires sua sponte action. First, it is the Court's
duty to do so. Second, subject matter jurisdiction cannot be
conferred or waived by consent, estoppel, or failure to challenge
jurisdiction early in the proceedings. Finally, delay in
addressing the issue only compounds the problem if it turns out
that, despite much time and expense having been dedicated to a
case, a lack of jurisdiction causes it to be dismissed or
remanded regardless of the stage it has reached.
Because the removing defendants seek to assert federal
jurisdiction and, therefore, bear the burden on this issue, the
Court will order the removing defendants to address whether the
local occurrence exception applies under the facts of this case
and, if so, whether compelling reasons exist for the Court to
exercise pendant jurisdiction.
For these reasons, it is ordered that, on or before 5:00 p.m. on
March 8, 2018, defendants Marriott Vacations Worldwide
Corporation, Marriott Ownership Resorts, Inc., The Ritz-Carlton
Management Company, LLC, The Cobalt Travel Company, LLC, and The
Lion & Crown Travel Company, LLC shall show cause why this case
should not be remanded due to the Court's lack of subject matter
jurisdiction.
A full-text copy of the District Court's February 26, 2018 Order
is available at https://tinyurl.com/ychvua8b from Leagle.com.
RCHFU, LLC, a Colorado limited liability company, Jeffrey A
Bayer, Gail L Bayer, Robert Buzzetti, Julie C Canner, Lee James
Chimerakis, Theresa Ann Chimerakis, Kevin Clare, Nancy Lynne
Shute, Toby L Cone Trust, Toby L Cone, its Trustee, Richard
Davis, Shirley J Davis, Carl Eichstaedt, III, James Richard
Farquhar, Jennifer Lucille Farquhar, Koppleman Family Trust,
Larry Koppleman, its Trustee, David Lancashire, Stephen Andrews,
Bonnie Likover, Craig Lipton, Jeremy Lowell, D.D.S., Lori Lowell,
Edward P Meyerson, Andrea C Meyerson, Jerry M. Nowell Trust,
Jerry M Nowell, its Trustee, Dee Ann Davis Nowell, its Trustee,
Dee Ann Davis Nowell Trust, Thomas M. Prose Revocable Living
Trust, Thomas M Prose, M.D., its Trustee, Casey M Rogers,
Courtney S Rogers, Robert A Sklar, its Trustee, Robert A. Sklar
Trust, C. Richard Stasney, M.D., Susan P Stasney, TSE Holdings,
LLC, a Colorado limited liability company, Stephen Weinstein,
Brenda Weinstein & Jack Zemer, on behalf of themselves and all
others similiarly situated, Plaintiffs, represented by Isabella
Martinez, Reiser Law P.C., 1475 N Broadway Ste 300. Walnut Creek,
CA, 94596-4643, Linda Pham Lam -- lpl@classlawgroup.com -- Gibbs
Law Group, Matthew C. Ferguson, Matthew C. Ferguson Law Firm,
P.C., 119 South Spring Street Suite 201. Aspen, CO, 81611.
Matthew Whitacre Reiser, Reiser Law P.C., Michael Joseph Reiser,
Reiser Law P.C., 1475 N Broadway Ste 300. Walnut Creek, CA,
94596-4643, Michael Lawrence Schrag -- mls@classlawgroup.com --
Gibbs Law Group & Tyler Roberts Meade, The Meade Firm, 1816 Fifth
Street. Berkeley, CA 94710
Marriott Vacations Worldwide Corporation, a Delaware corporation,
Marriott Ownership Resorts, Inc., a Delaware corporation, Ritz-
Carlton Management Company, LLC, a Delaware limited liability
company, Cobalt Travel Company, LLC, a Delaware limited liability
company & Lion & Crown Travel Co., LLC, The, a Delaware limited
liability company, Defendants, represented by Ian Scott Marx,
Greenberg Traurig, LLP, Philip Rabner Sellinger, Greenberg
Traurig, LLP & Naomi G. Beer, Greenberg Traurig, LLP, 500 Campus
Dr Ste 4, Florham Park, NJ 07932-1024
MARTIN-BROWER CO: $393K Settlement in "Titus" Has Prelim Approval
-----------------------------------------------------------------
In the case, JUSTIN TITUS, an individual, Plaintiff, v. THE
MARTIN-BROWER COMPANY, LLC; and DOES 1-100, inclusive,
Defendants, Case No. 2:17-cv-00558-JAM-GGH (E.D. Cal.), Judge
John A. Mendez of the U.S. District Court for the Eastern
District of California granted the Plaintiff's Motion for
Preliminary Approval of Class Action Settlement.
The Plaintiff's Motion came on for hearing on Feb. 27, 2017, at
1:30 p.m. Judge Mendez, has fully and carefully reviewed the
Plaintiff's Motion, the memorandum and declarations in support
thereof, the Joint Stipulation of Settlement and Release of
Claims, including the proposed Notice Packet. He granted
preliminary approval of the Settlement between the parties, based
upon the terms set forth in the Settlement Agreement.
Pursuant to Rule 23, and for purposes of settlement only, the
Judge preliminarily and conditionally certified the class of all
persons who have been employed by the Defendant as a non-exempt
truck driver at its facility in Stockton, California at any time
during the period from March 15, 2013 through the date that the
preliminary approval order is signed. The Class is estimated to
include approximately 200 truck drivers.
The Judge preliminarily appointed Titus as the Class
Representative; Mayall Hurley P.C. and Ackerman & Tilajef, P.C.,
by and through Lead Counsel Robert J. Wasserman and Craig J.
Ackermann, respectively, as the Class Counsel; and Atticus
Administration, LLC as the Settlement Administrator.
The Settlement Agreement appears to be fair, adequate and
reasonable, and the Judge preliminarily approved the terms of the
Settlement Agreement, including, without limitation: (i) a non-
reversionary Settlement Amount of $393,000 for an estimated 200
current and former truck drivers of the Defendant; (ii) the Class
Representative enhancement payment to the named Plaintiff of
$7,500; (iii) the Court approved attorneys' fees to the Class
Counsel of to $98,250, representing 25% of the Settlement Amount;
(iv) the Court approved litigation costs to Class Counsel of up
to $5,000; (v) fees and Costs of Settlement Administrator of up
to $6,000; (vi) payment of $7,500 to the California Labor &
Workforce Development Agency for its portion of the PAGA
penalties; and (vii) payment of $7,000 to the Class Counsel as
reimbursement for their previously-paid portion of the mediation
fee in the case.
Judge Mendez approved, as to form and content, the Notice of
Proposed Class Action Settlement. He further approved the
procedure for Class Members to opt out of, and to object to, the
Settlement as set forth in the Settlement Agreement and the
Notice Packet.
The Judge adopted these dates and deadlines:
a. A Defendant to provide Class List to the Settlement
Administrator - Within 20 calendar days of the Court's Order
Granting Preliminary Approval
b. The Settlement Administrator to mail Notice of the Packet
to the Class Members and establish the information only website -
Within 30 calendar days of the entry of Order Granting
Preliminary Approval
c. Deadline for the Class Members to object the Settlement -
Within 45 calendar days after mailing of to, or opt out of Notice
Packet
d. The Plaintiff to file Motion for Attorneys' Fees, Costs
and Service Payment - Not less than 35 calendar days after the
mailing of the Notice Packet
e. The Deadline for the Plaintiff to file Motion for Final
Approval - Not less than 10 calendar days before the Final
Approval hearing
f. Final Approval Hearing - June 19, 2018 at 1:30 p.m.
Finally, the Judge directed the parties to the Agreement to carry
out their obligations under the Settlement Agreement.
A full-text copy of the Court's Feb. 27, 2018 Order is available
at https://is.gd/sCIYyA from Leagle.com.
Justin Titus, Plaintiff, represented by Craig Justin Ackermann,
Ackermann & Tilajef, P.C., Nicholas John Scardigli --
nscardigli@mayallaw.com -- Mayall Hurley, PC, Robert Joshua
Wasserman -- rwasserman@mayallaw.com -- Mayall Hurley, PC,
Vladimir Joseph Kozina -- vjkozinaj@mayallaw.com -- Mayall
Hurley, P.C. & William J. Gorham, III -- wgorham@mayallaw.com --
Mayall Hurley, PC.
Martin-Brower Company, LLC, Defendant, represented by Reiko Linda
Furuta -- rfuruta@seyfarth.com -- Seyfarth Shaw LLP & David D.
Jacobson -- djacobson@seyfarth.com -- Seyfarth Shaw LLP.
MAXIMUM TUBULAR: "Salinas" Suit Alleges Violation of FLSA
---------------------------------------------------------
Reuben Salinas, individually and on behalf of all similarly
situated employees v. Maximum Tubular Make-ups, LLC and Robert
Bryan Mills, Case No. 5:18-cv-00224 (W.D. Tex., March 6, 2018),
is brought against the Defendants for violation of the Fair Labor
Standards Act.
Plaintiff Reuben Salinas is a resident of San Antonio, Texas, and
worked as a straight-time employee for the Defendant.
Defendant Maximum Tubular Make Ups LLC is a shipping and delivery
service company located in Universal City, Texas.
Defendant Mills is the sole managing member of Maximum Tubular
Make-ups, LLC. [BN]
The Plaintiff is represented by:
Dennis A. Clifford, Esq.
712 Main Street, Suite 900
Houston, TX 77002
Tel: (713) 999-1833
Fax: (866) 232-0999
E-mail: dennis@cliffordemploymentlaw.com
MDL 1264: Court Grants Bid to Distribute $9,950 Funds
-----------------------------------------------------
The United States District Court for the Eastern District of
Missouri, Eastern Division, issued a Memorandum and Order
granting Class Lead Counsel in IN RE BANK OF AMERICA CORP.
SECURITIES LITIGATION, Case No. 4:99 MD 1264 CDP (E.D. Mo.) to
distribute surplus settlement funds in the approximate amount of
$9,590 under the doctrine of cy pres.
This case is before the Court on the motion of Abbey Spanier,
LLP, as Lead Counsel for the BankAmerica Classes, to distribute
surplus settlement funds in the approximate amount of $9,590
under the doctrine of cy pres.
This litigation began as a class action under the Private
Securities Litigation Reform Act of 1995 (PSLRA), 15 U.S.C.
Section 78u-4. Plaintiffs alleged losses from misrepresentations
in the prospectus and proxy materials provided to shareholders
during the 1998 merger of NationsBank and BankAmerica.
Based on the ALI criteria and court precedent, the Eighth Circuit
established the following principles for application in cy pres
cases:
(1) a cy pres distribution to a third party is only
permissible when it is not feasible to make further distributions
to class members based on the administrative costs of such a
distribution;
(2) it is not sufficient to declare all class members
satisfied in full or fully compensated in order to authorize a cy
pres distribution;
(3) language in a settlement agreement ordering that a cy pres
distribution be made in the district court's sole discretion is
void and cannot be the basis for awarding such a distribution;
(4) when the amount of funds to de distributed cy pres is not
de minimis, the district court should make a cy pres proposal
publicly available and allow class member input; and
(5) if a district court applies the cy pres standards and
concludes that a distribution is appropriate, the unclaimed funds
should be distributed for a purpose as near as possible to the
legitimate objectives underlying the lawsuit, the interests of
class members, and the interests of those similarly situated.
Lead counsel for the BankAmerica Classes now argues that further
distribution of the Settlement Fund is economically infeasible
because the remaining amount of $9,590.52 is less than the cost
to execute a sixth distribution to class members.
First, Legal Counsel has thoroughly explored all alternative
recipients, including the SEC Fair Funds program, and no viable
recipients have been found.
Second, further search for more closely-related recipients is
uneconomical given the small amount of residual funds here.
Third, an equal distribution of the funds to two different public
legal service organizations in both Missouri and New York
accommodates the geographic scope of the underlying litigation.
Therefore, the Court finds that these two recipients' interests
reasonably approximate those interests being pursued by the class
in this case. Because these two legal aid organizations protect
the public from fraud and deception, their purposes are
consistent with the nature of the underlying action and they are
appropriate cy pres recipients.
Accordingly, motion of BankAmerica Classes for Cy Pres
Distribution is granted.
A full-text copy of the District Court's February 26, 2018
Memorandum and Order is available at https://tinyurl.com/ya8d9zp4
from Leagle.com.
BankAmerica Corporation, In Re, represented by Brian E. McGovern
--bmcgovern@mlklaw.com -- MCCARTHY AND LEONARD, James H. Ferrick,
III -jhf@greensfelder.com -- GREENSFELDER AND HEMKER, PC, Marie
Seth Weiner, COTCHETT AND PITRE, 840 Malcolm Road, Suite 200,
Burlingame, CA 94010, Richard M. Donaldson, GRANT AND EISENHOFER,
P.A. & Stuart M. Grant, GRANT AND EISENHOFER, P.A., 1220 North
Market Street. Suite 500. Wilmington, DE 19801
Joseph Hempen, Plaintiff, represented by Aaron L. Brody, STULL
AND STULL, 6 East 45th Street New York NY 10017, Andrew J.
Entwistle -- aentwistle@entwistle-law.com -- ENTWISTLE AND
CAPPUCCI, Donald H. Clooney, CLOONEY AND ANDERSON, 319 N. Fourth
Street, Suite 200. St. Louis, MO 63102, Harold F. McGuire, Jr.,
ENTWISTLE AND CAPPUCCI, 299 Park Avenue, 14'~ Floor. New York,
New York 10171-1499, Joe D. Jacobson, JACOBSON PRESS, P.C.,
Jonathan F. Andres, JONATHAN F. ANDRES, P.C., 168 North Meramec
Avenue, Suite 150, Clayton, MO 63105, Jules Brody, STULL AND
STULL, 6 East 45th Street New York NY 10017, Martin D. Chitwood,
CHITWOOD AND HARLEY, 2300 Promenade II. Atlanta, GA 30309, Martin
M. Green, LAW OFFICES OF MARTIN GREEN P.C., 8909 Ladue Rd., St.
Louis, MO 63124, Robert Abrams -- abrams@whafh.com -- WOLF AND
HALDENSTEIN & Vincent R. Cappucci -- vcappucci@entwistle-law.com
-- ENTWISTLE AND CAPPUCCI.
MDL 1720: Court Affirms Work Product Protection for Fellman Docs
----------------------------------------------------------------
The United States District Court for the Eastern District of New
York issued a Memorandum and Order affirming the Order that the
Fellman Documents are afforded heightened work product protection
in the case captioned IN RE PAYMENT CARD INTERCHANGE FEE AND
MERCHANT DISCOUNT ANTITRUST LITIGATION, This document refers to:
ALL ACTIONS, No. 05-MD-1720 (MKB).
Currently before the Court is 7-Eleven's appeal of Magistrate
Judge James Orenstein's Order denying 7-Eleven's request to
overrule Bank of America's assertions of work product and
attorney-client privilege over documents produced from the files
of Bank of America's former, non-attorney employee Herbert
Fellman (Fellman Documents).
A putative class of over twelve million merchants brought
antitrust actions under the Sherman Act, 15 U.S.C. Sections 1 and
2, and state antitrust laws, against Defendants Visa and
MasterCard networks, as well as various issuing and acquiring
banks, including Bank of America. Plaintiffs allege that
Defendants harmed competition and charged merchants supra
competitive prices by creating unlawful contracts and rules and
by engaging in conspiracies.
One of the challenged rules is the "Honor All Cards" rule, which
requires merchants that accept any Visa-branded or MasterCard-
branded payment cards to accept all Visa or MasterCard payment
cards. Id. Plaintiffs argue that their inability to steer
customers away from particular cards has resulted in supra
competitive interchange rates established by the networks.
At issue is a collection of documents retrieved from the files of
Mr. Fellman including emails, PowerPoint presentations,
handwritten notes, and graphs. These documents are identified as
Exhibits A through T and cover a range of redacted. According to
Bank of America, it inadvertently disclosed these documents in
the course of discovery.
7-Eleven made several arguments before Judge Orenstein.
First, it argued that the Fellman documents do not contain any
attorney-client communication and instead were fact-based
business analyses evaluating REDACTED.
Second, it argued that the documents do not constitute work
product as they contain Bank of America's strategic business
response and not the mental processes of counsel or its
litigation strategy.
Third, it argued that even if the documents can be labeled work
product, they are merely factual and do not involve any legal
analysis or opinion, and are therefore only entitled to minimal
protection.
Finally, 7-Eleven argued that any minimal protection is
outweighed by its substantial need for the documents and the
inability to obtain the information without undue hardship.
In response, Bank of America argued that the documents are both
attorney-client communication and work product, as they include
information gathered at the direction of outside counsel in
anticipation of litigation and reflect mental impressions and
analysis of counsel.
Under the Federal Magistrates Act, 28 U.S.C. Section 636, and
Rule 72 of the Federal Rules of Civil Procedure, a magistrate
judge is authorized to make findings as to non-dispositive pre-
trial matters, such as discovery matters, which may not be
disturbed by a district judge absent a determination that such
findings were clearly erroneous or contrary to law.
Work product doctrine
The work product doctrine exists to protect attorneys' mental
impressions, opinions, and/or legal theories concerning
litigation. The doctrine creates a zone of privacy for developing
litigation theories and strategies free from unnecessary
intrusion by adversaries.
A party asserting work product protection, whether with a
heightened or lower level of protection, has the initial burden
of showing that the material (1) is a document or tangible thing,
and (2) was prepared in anticipation of litigation. In addition,
if the party is seeking ordinary protection, it has to
demonstrate that the work product was prepared by or for a party,
or by or for his representative. However, if the party is seeking
heightened protection, the party must demonstrate that the work
product is an opinion attributed to the party's attorney or other
representative.
There is no dispute that the Fellman Documents constitute
documents or tangible things within the meaning of Rule 26
(b)(3). The Court reviews whether Judge Orenstein correctly found
that Bank of America has met its burden of demonstrating that the
documents were prepared in anticipation of litigation, and are
entitled to heightened protection.
The Fellman Documents were prepared in anticipation of litigation
The Court agrees with Judge Orenstein that the Fellman Documents
were clearly created for this litigation. The litigation was
commenced in 2005, and the documents were created between 2008
and 2009, while the litigation was ongoing. Even if these
documents were created to assess business implications of the
litigation or settlement, they are protected under Adlman II.
Adlman II, 134 F.3d at 1202.
Although the connection of some of the remaining documents to
this litigation is not apparent from the face of the documents,
the Court determines the documents' entitlement to work product
protection in light of the nature of the document and the factual
situation in the particular case. Here, Bank of America's outside
counsel, hired specifically for this litigation, has submitted a
declaration stating that these documents were prepared for the
litigation at the request of counsel in the context of REDACTED.
Bank of America also states that the recalled portions of the
Fellman Documents were not used for business purposes independent
of the litigation, and they have not been located in any other
Bank of America business-person's files. In addition, Mr. Fellman
testified at the deposition that the documents were prepared at
the instruction of counsel hired for the purposes of this
litigation. Thus, Judge Orenstein correctly found that Bank of
America met its burden of demonstrating that the documents were
prepared because of the litigation.
The level of work product protection
Bank of America argues that all of the documents are entitled to
heightened protection for two reasons: (1) the documents were
created as a result of back and forth between counsel and Mr.
Fellman and therefore necessarily reflect attorney opinions, and,
alternatively, (2) the documents reflect mental impressions of
Banks of America's other representatives -- Mr. Fellman and other
Bank of America's line of business employees.
In support of its first argument, Bank of America states that
REDACTED the meetings included give and take and back and forth
over what's the question the lawyers should pose, and what sort
of answer is necessary to feed into the litigation process, and
ultimately resulting in the attorneys proposing counterfactuals
regarding litigation outcomes for the business, and advising the
business on how to most hopefully phrase its answers. Bank of
America does not make any other document-specific arguments but
states that all of the documents were created as a result of back
and forth with counsel.
In support of its second, alternative, argument that Mr.
Fellman's opinions qualify as opinions of Bank of America's other
representative Bank of America relies on cases that afforded
heightened protection to opinions of "lawyers and non-lawyers
alike.
Mr. Fellman's Deposition
In addition to challenging Bank of America's claim of work
product protection over the documents, 7-Eleven challenges Mr.
Fellman's response to the question concerning the subject matter
of the Fellman Documents at his deposition. When Mr. Fellman was
asked REDACTED and therefore protected by work product doctrine.
Bank of America argues that the Fellman Documents served a solely
legal purpose because Mr. Fellman but otherwise does not
explicitly address the grounds for protection of Mr. Fellman's
oral responses. Judge Orenstein did not address whether the
assertion of work product protection in response to this question
was proper.
Work product that is not in a tangible form is protected under
Hickman v. Taylor, 329 U.S. 495 (1947).
Here, Mr. Fellman is not an attorney, his impressions are not
protected by Hickman, and his oral responses to the questions at
deposition are not protected by the work product doctrine. The
Court makes no determination as to whether 7-Eleven is entitled
to depose Mr. Fellman about his personal opinion as to REDACTED.
The Court's ruling is limited to its finding that Fellman's oral
responses to questions that do not ask for his impressions formed
in consultation with counsel are not protected by the work
product doctrine.
The Court affirms Judge Orenstein's Order that the Fellman
Documents are afforded heightened work product protection.
A full-text copy of the District Court's February 26, 2018
Memorandum and Order is available at https://tinyurl.com/yalol6v6
from Leagle.com.
Plaintiffs in civil action Jetro Holding, Inc. et al v. Visa
U.S.A., Inc. et al, Plaintiff, represented by K. Craig Wildfang -
- KCWildfang@RobinsKaplan.com -- Robins Kaplan L.L.P., Jeffrey
Isaac Shinder -- jshinder@constantinecannon.com -- Constantine
Cannon LLP, Richard J. Kilsheimer -- rkilsheimer@kaplanfox.com --
Kaplan Fox & Kilsheimer LLP, Thomas M. Campbell, Smith Campbell,
LLP, 110 Wall Street. New York, NY 10005& William Jay Blechman --
wblechman@knpa.com -- Kenny Nachwalter, P.A., pro hac vice.
Plaintiffs in civil action National Association of Convenience
Stores et al v. Visa U.S.A., Inc. et al & Plaintiffs in civil
action National Grocers Association et al v. Visa U.S.A., Inc. et
al, Plaintiffs, represented by Jeffrey Isaac Shinder, Constantine
Cannon LLP, Richard J. Kilsheimer, Kaplan Fox & Kilsheimer LLP,
Thomas M. Campbell, Smith Campbell, LLP & William Jay Blechman,
Kenny Nachwalter, P.A., pro hac vice.
Defendants in civil action Jetro Holding, Inc. et al v. Visa
U.S.A., Inc. et al 05-cv-4520 JG-JO, Defendant, represented by
Mark E. Tully -- mtully@goodwinlaw.com -- Goodwin Procter, LLP,
Peter Edward Greene -peter.greene@skadden.com -- Skadden, Arps,
Slate, Meagher & Flom LLP, William Harry Rooney --
wrooney@willkie.com -- Willkie Farr & Gallagher LLP, Andrew J.
McDonald -- amcdonald@pullcom.com -- Pullman & Comley, LLC, Brian
A. Herman -- brian.herman@morganlewis.com -- Morgan, Lewis &
Bockuis, LLP, David Sapir Lesser -- david.lesser@wilmerhale.com
-- Wilmer Cutler Pickering Hale & Dorr, LLP, Douglas Melamed,
Eric H. Grush, Sidley Austin LLP, 787 Seventh Avenue. New York,
NY 10019
MDL 2599: Court Approves Settlement with Honda Defendants
---------------------------------------------------------
The United States District Court for Southern District of
Florida, Miami Division issued an Order granting Final Approval
of Class Settlement in the case captioned IN RE: TAKATA AIRBAG
PRODUCTS LIABILITY LITIGATION. THIS DOCUMENT RELATES TO ALL
ECONOMIC LOSS ACTIONS AGAINST HONDA DEFENDANTS, MDL No. 2599,
Master No. 15-02599-MD-MORENO, No. 14-24009-CV-MORENO (S.D.
Fla.).
The Court approves the following settlement class:
(1) all persons or entities who or which owned and/or
leased, on the date of the issuance of the Preliminary Approval
Order, Subject Vehicles distributed for sale or lease in the
United States or any of its territories or possessions; and
(2) all persons or entities who or which formerly owned
and/or leased Subject Vehicles distributed for sale or lease in
the United States or any of its territories or possessions, and
who or which sold or returned, pursuant to a lease, the Subject
Vehicles after November 11, 2008 and through the date of the
issuance of the Preliminary Approval Order.
Excluded from this Class are: (a) Honda, its officers, directors,
employees and outside counsel; its affiliates and affiliates'
officers, directors and employees; its distributors and
distributors' officers and directors; and Honda's Dealers and
their officers, directors, and employees; (b) Settlement Class
Counsel, Plaintiffs' counsel, and their employees; (c) judicial
officers and their immediate family members and associated court
staff assigned to this case, any of the cases listed in Exhibit
1, or the 11th Circuit Court of Appeals; (d) Automotive Recyclers
and their outside counsel and employees; and (e) persons or
entities who or which timely and properly exclude themselves from
the Class.
The Court finds that the Settlement Agreement resulted from
extensive arm's length good faith negotiations between Settlement
Class Counsel and Honda, through experienced counsel.
Pursuant to FED. R. Civ. P. 23(e), the Court finally approves in
all respects the Settlement as set forth in the Settlement
Agreement and finds that the Settlement Agreement, and all other
parts of the settlement are, in all respects, fair, reasonable,
and adequate, and in the best interest of the Class and are in
full compliance with all applicable requirements of the Federal
Rules of Civil Procedure, the United States Constitution
(including the Due Process Clause), the Class Action Fairness
Act, and any other applicable law. The Court declares that the
Settlement Agreement is binding on all Class Members, except
those identified on Appendix B, and it is to be preclusive in the
Action. The decisions of the Settlement Special Administrator
relating to the review, processing, determination and payment of
Claims submitted pursuant to the Settlement Agreement are final
and not appealable.
The Court finds that the Settlement Agreement is fair, reasonable
and adequate based on the following factors, among other things:
(a) there is no fraud or collusion underlying the Settlement
Agreement; (b) the complexity, expense, uncertainty and likely
duration of litigation in the Action favor settlement on behalf
of the Class; (c) the Settlement Agreement provides meaningful
benefits to the Class; and (d) any and all other applicable
factors that favor final approval.
A full-text copy of the District Court's February 26, 2018 Order
is available at https://tinyurl.com/yb8d6d6u from Leagle.com.
Takata Airbag Products Liability Litigation, Cross Defendant,
represented by Christopher K. Eppich -- ceppich@cov.com --
Covington & Burling, LLP, pro hac vice.
John Delionado, Special Master, pro se.
Ryan K. Stumphauzer, Special Master, pro se.
Daniel S. Silva, James Herron, Leslie Flaherty, Holly Ruth, M&K
Used Auto Parts, Inc., Robert Barto, John Meiser, Charles &
Vickie Burd, Eugennie Sinclair, Quarnos Auto Salvage, Daniel
Thies, Rigsby's Auto Parts & Sales, Inc., Darla Spies, Vickie
Burd, Dana Talamantes, Alicia Benton, Justin S. Birdsall, Loren
Petersen, Eric Rosson, Teresa Woodard, Ella Ragan, Madilyn Fox,
Jennifer Manfrin, Whid Noori, Sinan Kalaba, Charles and Christina
Cochran, William James, David Brown, Mark Schmidt, Joan Overmyer,
Brian Calderone, Charon Berg, Richard McCormick, Richard Wright,
Frank Mason, Lucy Jackson, Matt Dean, Frank Smith, Walter and
Vicky Askew, Agaron Tavitian, Krystal Shelby, Travis Poper,
Christopher Kosherzenko, Carolyn Gamble, Harold Caraviello,
Eleanor & Anthony Settembrino, Mary Anne Pownall, Errol Jacobsen,
Mark Dieckman, Hayley Wells, Gary Guadagno, John Huff, Robert &
Angela Dickie, Julean Williams, Sue Radoff, Juan Lugo, Milton
Hanks, Jr., Elizabeth Pelayo, Angie Alomar, Farrell Moskow,
Gerald Ordonio, James Mancuso, Amy Roy, Andrew King, Rudolph
Otto, Jr., Bernard Cyrus, Jr., Brandon Hines, Nicholas Kinney,
Joe Emanus, Sheila Torregano, Victoria Barbarin, Brad Hays,
Tekeisha Washington, Enefiok Anwana, Valescia Starks, William
Reedy, Arthur and Yolanda Glynn, Jr., Kevin Roberts, Ty Kline,
Matthew Long, Ivana Smith, Kristin Petri, Kenisha Eron-Jones,
Arlan Albright, Randall Hall, Regina Tate, Boyd Cantu, Arthur
Hegewald, Subhija Imamovic, Thomas & Carolyn Adkins, Judy Vice,
Dianne Albright, Bernadette Heard, Joseph Przybszewski, Walter
Heinl, Catherine Davenport, Yolanda Dillard, Michael Etter,
Patricia Dumire, Janice LaPlante, Robert Carobene, Jean
Zimmerman, Doreen Kehoe, Vanessa Harris, Keith Marsden, Susan
Ginsberg, Cody Jacobs & George Agustin, Sr., Plaintiffs,
represented by Peter Prieto, Podhurst Orseck, P.A. One Southeast
3 Avenue, Suite 2700, Miami, Florida 33131
General Motors LLC, Defendant, represented by Laurie Michele
Riley -- lriley@joneswalker.com -- Jones Walker LLP, Leonid
Feller -- eonid.feller@kirkland.com -- Kirkland & Ellis, pro hac
vice, Marco Estevan Gonzales -- marco.gonzales@monrall.com
Modrall Sperling Law Firm, pro hac vice, Renee D. Smith --
renee.smith@kirkland.com -- Kirkland & Ellis, LLP, pro hac vice &
Rufus E. Thompson -- rthompson@modrall.com -- Modrall Sperling,
pro hac vice.
Sean Hull, James McCain, Ashley McCain & Kervin Walsh,
Defendants, represented by Jeffrey M. Brown --
jbrown@lavallebrown.com -- Lavalle Brown & Ronan, P.A.
FCA US LLC, Defendant, represented by Martin Leonard Steinberg,
Hogan Lovells US, LLP, Mitchell Edward Widom, Bilzin Sumberg
Baena Price & Axelrod & Scott M. Sarason, Rumberger Kirk &
Caldwell.
Inflation Systems Inc., Defendant, represented by Stephen J.
Krigbaum, Carlton Fields Jorden Burt, P.A.
Esq. Sekou Gary, Defendant, represented by Larry A. Strauss,
Gary, Williams, Parenti, Watson & Gary, PLLC.
General Motors LLC, Defendant, represented by Laurie Michele
Riley, Jones Walker LLP, Leonid Feller, Kirkland & Ellis, pro hac
vice, Marco Estevan Gonzales, Modrall Sperling Law Firm, pro hac
vice, Renee D. Smith, Kirkland & Ellis, LLP, pro hac vice & Rufus
E. Thompson, Modrall Sperling, pro hac vice.
Sean Hull, James McCain, Ashley McCain & Kervin Walsh,
Defendants, represented by Jeffrey M. Brown, Lavalle Brown &
Ronan, P.A.
Victor L Howser, Defendant, represented by Jonathon Douglas
Pressley, Smith, Gambrell and Russell, LLP & James Harvey
Cummings, Smith, Gambrell & Russell, LLP.
Takata Corporation, Consol Defendant, represented by Brian O.
Beverly, Young, Moore & Henderson, PA, Giovanna Tarantino
Bingham, Hartline Dacus et al, Keith A. Teel, Covington &
Burling, LLP, pro hac vice, Kevin M. Kelly, Covington & Burling,
LLP, pro hac vice, Kyle Harold Dreyer, Hartline Dacus Barger
Dreyer LLP, Lanny A. Breuer, Covington & Burling, LLP, pro hac
vice, Larry Don Grayson, Hartline Dacus et al., Madeline S. Baio,
Goldberg Segalla, Michael X. Imbroscio, Covington & Burling, LLP,
pro hac vice, Neil K. Roman, Covington & Burling, Paul W.
Schmidt, Covington & Burling, pro hac vice, Phillippa V. Ellis,
Owen, Gleaton, Egan, Jones & Sweeney, LLP, Shankar Duraiswamy,
Covington & Burling LLP, pro hac vice, T. Christopher Trent,
Johnson, Trent, West & Taylor, LLP, Emily Ullman, Covington &
Burling LLP, pro hac vice, John J. DeBoy, Covington & Burling,
LLP, pro hac vice, Mitchell Edward Widom, Bilzin Sumberg Baena
Price & Axelrod & Stephen J. Krigbaum, Carlton Fields Jorden
Burt, P.A.
TK Holdings, Inc., Consol Defendant, represented by Alex P.
Tilling, Leake & Anderson LLP, Benjamin W. Allen, Johnson, Trent,
West & Taylor LLP, Brian O. Beverly, Young, Moore & Henderson,
PA, Christine Diaz Reynolds, Taylor Anderson LLP, Christopher K.
Eppich, Covington & Burling, LLP, pro hac vice, Cristin
Fitzgerald Bordelon, Leake & Andersson, LLP, Cynthia A. Hawkins,
Law Office of Cynthia Hawkins, Damien Arthur Orato, Rumberger,
Kirk & Caldwell, Daniel John Kissane, Cole, Scott & Kissane,
Elizabeth V. McNulty, Taylor Anderson LLP, Frederick Rom, Womble
Carlyle Sandridge & Rice, Garth Thomas Yearick, Carlton Fields
Jorden Burt, P.A., Giovanna Tarantino Bingham, Hartline Dacus et
al, James B. Hood, Hood Law Firm, LLC, Jerry L. Saporito, Leake &
Anderson, LLP, Jill G. Okun, Porter, Wright, Morris & Arthur-
Cleveland, John O'Connor Radeck, Jr., Hood Law Firm, Keith A.
Teel, Covington & Burling, LLP, pro hac vice, Kevin M. Kelly,
Covington & Burling, LLP, pro hac vice, Kyle Harold Dreyer,
Hartline Dacus Barger Dreyer LLP, Lanny A. Breuer, Covington &
Burling, LLP, pro hac vice, Larry Don Grayson, Hartline Dacus et
al., Lena Marguerite Mirilovic, Rumberger, Kirk & Caldwell, P.A.,
Loren William Fender, Bowman and Brooke LLP, Madeline S. Baio,
Goldberg Segalla, Matthew J. Stanczyk, Plunkett Cooney, Michael
Daniel Begey, Rumberger Kirk & Caldwell, Michael X. Imbroscio,
Covington & Burling, LLP, pro hac vice, Neil K. Roman, Covington
& Burling, Paul W. Schmidt, Covington & Burling, pro hac vice,
Peter A. Querubin, Johnson, Trent & Taylor L.L.P., Phillippa V.
Ellis, Owen, Gleaton, Egan, Jones & Sweeney, LLP, Robert J.
Hoffman, Bryan Cave LLP - KC, Sally Rogers Culley, Rumberger Kirk
& Caldwell, Shankar Duraiswamy, Covington & Burling LLP, pro hac
vice, Stephen J. Krigbaum, Carlton Fields Jorden Burt, P.A.,
Sterling Gardner Culpepper, III, Rogers & Hardin, LLP, T.
Christopher Trent, Johnson, Trent, West & Taylor, LLP, William L.
Kirk, Jr., Rumberger Kirk & Caldwell, William W. Oxley, Orrick
Herrington & Sutcliff, pro hac vice, Yesenia Esmeralda Cardenas-
Colenso, Bowman and Brooke LLP, Christopher J. York, McGahren
Gaskill & York, LLC, Emily Ullman, Covington & Burling LLP, pro
hac vice, John J. DeBoy, Covington & Burling, LLP & Mitchell
Edward Widom, Bilzin Sumberg Baena Price & Axelrod.
Highland Industries, Inc., Consol Defendant, represented by
Benjamin W. Allen, Johnson, Trent, West & Taylor LLP, Christine
Diaz Reynolds, Taylor Anderson LLP, Elizabeth V. McNulty, Taylor
Anderson LLP, Frederick Rom, Womble Carlyle Sandridge & Rice,
Giovanna Tarantino Bingham, Hartline Dacus et al, James B. Hood,
Hood Law Firm, LLC, Jerry L. Saporito, Leake & Anderson, LLP,
John O'Connor Radeck, Jr., Hood Law Firm, Kyle Harold Dreyer,
Hartline Dacus Barger Dreyer LLP, Larry Don Grayson, Hartline
Dacus et al., Lena Marguerite Mirilovic, Rumberger, Kirk &
Caldwell, P.A., Robert J. Hoffman, Bryan Cave LLP - KC, Stephen
J. Krigbaum, Carlton Fields Jorden Burt, P.A., Sterling Gardner
Culpepper, III, Rogers & Hardin, LLP, T. Christopher Trent,
Johnson, Trent, West & Taylor, LLP, William W. Oxley, Orrick
Herrington & Sutcliff, pro hac vice, Michael Daniel Begey,
Rumberger Kirk & Caldwell & Sally Rogers Culley, Rumberger Kirk &
Caldwell.
Honda Motor Company, LTD, Consol Defendant, represented by Amanda
Farfel, Sidley Austin, LLP, Andrew J. Chinsky, Sidley Austin,
LLP, pro hac vice, Darlene M. Cho, Sidley Austin, LLP, pro hac
vice, Joel H. Smith, Bowman & Brooke, LLP, Martin Leonard
Steinberg, Hogan Lovells US, LLP, Matthew Brooks Miller, Bowman
and Brooke, Kimberly A. Cook, Goldberg Segalla, Mitchell Edward
Widom, Bilzin Sumberg Baena Price & Axelrod & Robert Mark
Brochin, Morgan, Lewis & Bockius LLP.
American Honda Co., Inc., Consol Defendant, represented by
Courtney Crook Shytle, Bowman and Brooke, Daniel John Kissane,
Cole, Scott & Kissane, Ellyce R. Cooper, Sidley Austin LLP, Eric
S. Mattson, Sidley Austin LLP, Mark Douglas Campbell, Sidley
Austin LLP, Michael C. Andolina, Sidley Austin LLP, Michael L.
Mallow, Sidley Austin LLP, Sean A. Commons, Sidley Austin LLP,
Thomas E. Scott, Jr., Cole Scott & Kissane & Catherine Valerio
Barrad, Sidley Austin LLP.
MEDICREDIT INC: Accused of Wrongful Conduct Over Debt Collection
----------------------------------------------------------------
Anne Keyte, on behalf of herself and all others similarly
situated v. Medicredit, Inc., Case No. 2:18-cv-14071-JEM (S.D.
Fla., February 26, 2018), seeks to put an end to the Defendant's
practice of sending initial medical debt communication letters
that did not name the creditor of the debt.
Medicredit, Inc., which operates from offices located at 3620
I-70 Drive SE, Suite C, Columbia, Missouri 65201, is engaged in
the business of collecting consumer debts. [BN]
The Plaintiff is represented by:
Leo W. Desmond, Esq.
DESMOND LAW FIRM, P.C.
5070 Highway A1A, Suite D
Vero Beach, FL 32963
Telephone: (772) 231-9600
Facsimile: (772) 231-0300
E-mail: lwd@desmondlawfirm.com
MICHIGAN: MDOC Wins Summary Judgment in Juveniles' Suit
-------------------------------------------------------
In the case, JOHN DOE 8, JOHN DOE 9, and JOHN DOE 10, Plaintiffs,
v. RICHARD SNYDER, et al., Defendants, Case No. 17-11181 (E.D.
Mich.), Judge Robert H. Cleland of the U.S. District Court for
the Eastern District of Michigan, Southern Division, granted the
Defendants' motion for summary judgment.
Before they turned 18, the Plaintiffs were imprisoned with adults
in MDOC facilities. They ate, washed, worked, spent free time,
and bunked with adult prisoners, a practice MDOC no longer
employs. The Plaintiffs allege that during the time they were
housed with adult prisoners, they were subject to an increased --
and unconstitutional -- risk of sexual harassment and assault.
As a result of the former housing policy, they allege they have
suffered sexual violence and abuse, physical injuries, and
trauma.
The Plaintiffs originally came before the Court as the Plaintiffs
in another class action setting forth nearly identical claims.
The Defendants there moved for summary judgment as to these
Plaintiffs, arguing that they had not exhausted their
administrative remedies and had no legal excuse for the failure.
The Court agreed. The Plaintiffs were dismissed without
prejudice for failure to exhaust. The Court determined that
MDOC's formal grievance process -- Policy Directive ("PD")
03.02.130 -- was the only method of exhaustion that MDOC has made
available to the Plaintiffs and the Plaintiffs had not utilized
it. Having no legally sufficient excuse for their failure to
exhaust, the Plaintiffs were dismissed in March 2017.
Running parallel to the Plaintiffs' case was the implementation
of new standards under "PREA," the Prison Rape Elimination Act,
34 U.S.C. Sections 30301-09. In 2012, the Department of Justice
adopted various standards for the detection, prevention,
reduction, and punishment of prison rape as required by PREA.
States receiving federal funding for prisons were required to
certify, within two years of the adoption of the rule, that the
State was in compliance with the national standard or that it was
using federal funds to achieve compliance. In 2014, the State of
Michigan certified that it was using federal funds to achieve
compliance.
In April 2016, MDOC issued Director's Office Memorandum ("DOM")
2016-29 establishing a two-step "PREA grievance process." Under
this process, an inmate may file a PREA grievance at any time by
submitting a completed PREA Prisoner Grievance Form. After
filing at Step I, the PREA coordinator or inspector must provide
a written response within 60 days unless an extension is granted.
An inmate may file a Step II appeal if he is unsatisfied or does
not receive a timely response at Step I. The PREA grievance
process serves to exhaust an inmate's administrative remedies
when filed through both steps of the process. The process was
implemented effective immediately.
John Doe 8 and 10 have now made "new" attempts to exhaust their
administrative remedies. John Doe 8 filed a grievance form on
May 20, 2016. John Doe 10 filed a grievance form on May 25,
2016. Each received a response to his grievance informing him
that his complaint was being referred to a "PREA investigator."
John Doe 8 received a response to the PREA grievance on June 13,
2016. John Doe 10 did not receive an answer to his Step I PREA
grievance. Plaintiff John Doe 9 alleges that, though he intended
to file a PREA grievance to exhaust his administrative remedies
following his dismissal, his intentions were thwarted by prison
officials who threatened retaliatory action.
The Defendants have again moved for summary judgment on the same
ground: failure to exhaust administrative remedies as required
under PD 03.02.130. The Plaintiffs filed a response and the
Defendants a reply.
Judge Cleland finds that the parties spend much of their briefing
debating whether John Doe 8 and John Doe 10 successfully appealed
through the PREA grievance process in a manner sufficient to
exhaust their claims. However, the Judge holds that whether John
Doe 8 and John Doe 10 made it through the PREA process is
irrelevant in light of the fact that the procedure may not
properly be applied retroactively. Because these two Plaintiffs
have not alleged that they exhausted in some other manner,
summary judgment is appropriate as to them.
John Doe 9, on the other hand, asserts that he was thwarted from
the PREA grievance process by the threats and retaliation he
experienced at the Alger Correctional Facility for reporting
sexual abuse that is the subject of the litigation. But even if
John Doe 9 had successfully proceeded through the PREA grievance
process, as he says he intended to do, that would not have served
to exhaust his claims here. Thus summary judgment is also
appropriate as to John Doe 9.
The Judge concludes that the Plaintiffs have not administratively
exhausted their claims as required by the PLRA. Thus, summary
judgment is again appropriate. Accordingly, he granted the
Defendants' motion for summary judgment. A separate judgment
will issue.
A full-text copy of the Court's Feb. 23, 2018 Opinion and Order
is available at https://is.gd/ejNt20 from Leagle.com.
JOHN DOE, 8-10, Plaintiff, represented by Anlyn Marie Ellen Addis
-- aaddis@sbcglobal.net -- Law Offices of Deborah LaBelle,
Deborah A. LaBelle -- deblabelle@aol.com -- & Jennifer B.
Salvatore -- jsalvatore@nachtlaw.com -- Salvatore Prescott, PLLC.
Rick Snyder, Heidi Washington, Daniel H. Heyns, THOMAS FINCO,
Dennis Straub, RANDY TREACHER, Mary Berghuis, David Bergh,
Jeffrey Woods, Carmen Palmer, Thomas Winn, Duncan MacLaren, Mitch
Perry & Kenneth McKee, Defendants, represented by Christina M.
Grossi, Michigan Dept of Attorney General, Heather S. Meingast,
MI Department of Attorney General Appellate Division, Margaret A.
Nelson, Michigan Department of Attorney General Civil Litigation,
Employment & Elections Division, Mark E. Donnelly, Michigan
Department of Attorney General Civil Litigation, Employment &
Elections Division & Michael F. Murphy, MI Dept of Attorney
General State Operations Division.
MIDLAND CREDIT: Faces "Webster" Suit in D. New Jersey
-----------------------------------------------------
A class action lawsuit has been filed against Midland Credit
Management, Inc. The case is styled as Frances Webster, on behalf
of herself and similarly situated consumers, Plaintiff v. Midland
Credit Management, Inc, Defendant, Case No. 1:18-cv-04735 (D.
N.J., March 29, 2018).
Midland Credit Management, Inc., a licensed debt collector,
assists customers in resolving past-due financial obligations
through various education and payment plans.[BN]
The Plaintiff appears PRO SE.
MILLER & MILONE: Faces "Taubenfliegel" Suit in E.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against Miller & Milone,
P.C. The case is styled as Elizabeth Taubenfliegel, on behalf of
herself and all other similarly situated consumers, Plaintiff v.
Miller & Milone, P.C., Defendant, Case No. 1:18-cv-01884 (E.D.
N.Y., March 28, 2018).
The Defendant is a law firm.[BN]
The Plaintiff is represented by:
Adam Jon Fishbein, Esq.
Adam J. Fishbein, P.C.
735 Central Avenue
Woodmere, NY 11598
Tel: (516) 668-6945
Email: fishbeinadamj@gmail.com
MIMEDX GROUP: Faces "Kline" Suit Over False Company Reports
-----------------------------------------------------------
Matthew Kline, individually and on behalf of all others similarly
situated v. Mimedx Group, Inc., Parker H. Petit and Michael J.
Senken, Case No. 1:18-cv-00859-ELR (N.D. Ga., February 26, 2018),
alleges that the Defendants made materially false and misleading
statements, as well as failed to disclose material adverse facts
about the Company's business, operations, and prospects.
Specifically, the Defendants failed to disclose: (1) MiMedx was
engaged in a "channel-stuffing" scheme designed to
inappropriately recognize revenue that had not yet been realized;
(2) that the Company failed to employ proper compliance measures
to ensure appropriate accounting practices; (3) that, as a
result, the Company's internal controls over financial reporting
were materially weak; (4) that, as a result, the Company's
financial statements were inaccurate and misleading; and, (5)
that, as a result of the foregoing, Defendants' statements about
MiMedx's business, operations, and prospects, were false and
misleading and lacked a reasonable basis.
Mimedx Group, Inc. owns and operates a medical device company
that focuses on supplying biomaterials for soft tissue repair, in
addition to other biomaterial-based products for other medical
applications. [BN]
The Plaintiff is represented by:
Corey D. Holzer, Esq.
Marshall P. Dees, Esq.
Alexandria P. Rankin, Esq.
HOLZER & HOLZER LLC
1200 Ashwood Parkway, Suite 410
Atlanta, GA 30338
Telephone: (770) 392-0090
Facsimile: (770) 392-0029
E-mail: cholzer@holzerlaw.com
mdees@holzerlaw.com
apatel@holzerlaw.com
- and -
Lionel Z. Glancy, Esq.
Robert V. Prongay, Esq.
Charles H. Linehan, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
E-mail: lglancy@glancylaw.com
rprongay@glancylaw.com
clinehan@glancylaw.com
MONDELEZ INT'L: Court Dismisses "Daniel" Slack-fill Suit
--------------------------------------------------------
The United States District Court for the Eastern District of New
York issued a Memorandum and Order granting Defendant's Motion to
Dismiss the case captioned TAMIKA DANIEL, on behalf of herself
and others similarly situated, Plaintiff, v. MONDELEZ
INTERNATIONAL, INC., Defendant, No. 17-CV-00174 (MKB)(E.D.N.Y.).
Defendant moves to dismiss the Complaint pursuant to Rules
12(b)(6) and 9(b) of the Federal Rules of Civil Procedure.
Plaintiff alleges that non-functional slack-fill (excessive empty
space) in Defendant's Swedish Fish brand candy product (Product)
misrepresents the amount of food, which violates sections 349 and
350 of New York's General Business Law (GBL) and constitutes
common law fraud under New York state law.
Standards of review
Rule 12(b)(6)
A complaint must plead enough facts to state a claim to relief
that is plausible on its face. A claim is plausible when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.
Rule 9(b)
Rule 9(b) requires that in alleging fraud or mistake, a party
must state with particularity the circumstances constituting
fraud or mistake. To satisfy this Rule, a complaint alleging
fraud must (1) specify the statements that the plaintiff contends
were fraudulent, (2) identify the speaker, (3) state where and
when the statements were made, and (4) explain why the statements
were fraudulent.
New York statutory claims under GBL sections 349 and 350
To assert a claim under either section, a plaintiff must allege
that a defendant has engaged in (1) consumer-oriented conduct
that is (2) materially misleading and that (3) [the] plaintiff
suffered injury as a result of the allegedly deceptive act or
practice.
Misleading slack-fill under the FDCA and parallel state statutes
Defendant first asserts that Plaintiff fails to sufficiently
allege that the Product's slack-fill is misleading as defined by
the FDCA and incorporated by the parallel New York state
statutes.
Plaintiff provides allegations plausibly suggesting the existence
of non-functional slack-fill in the Product. Plaintiff proffers a
comparison between the Product and Assorted Swedish Fish Box
(Assorted Box), presumably a later variation of the Product.
While packaged in boxes identical in size, the Product and the
Assorted Box contain candy pieces that are the same size, with
the latter even including red Swedish Fish that are identical to
those found in the Product.
The only physical difference between the Product and the Assorted
Box, other than color, is that the Assorted Box contains 3.5 oz.
(17 to 18 pieces), whereas the Product contains 3.1 oz. (14
pieces). Plaintiff persuasively argues that because the only
difference between the Product and the Assorted Box is in the
color and number of candies enclosed, the Product must have some
non-functional slack-fill. However, none of these allegations
are in the Complaint.
Further, even if these facts were properly alleged in the
Complaint, the claims pursuant to GBL sections 349 and 350
nevertheless fail because, as discussed below, Plaintiff fails to
plead a material misrepresentation.
Material misrepresentation under GBL sections 349 and 350
Under New York law, a material misrepresentation is one that is
likely to mislead a reasonable consumer acting reasonably under
the circumstances.
Plaintiff asserts for the first time in her Opposition brief that
the enlarged picture of the candy on the front of the box voided
any corrective disclosure, but nevertheless concedes that the
word enlarged appears next to the picture. Rather than dispute
the word's visibility, Plaintiff challenges the meaning a
reasonable consumer would attach to the term enlarged.
In doing so, Plaintiff makes a specious claim that it is unclear
whether the word is in reference to the candies within or just
the image. A reasonable consumer does not lack common sense.
Moreover, the back and sides of the box include pictures of the
candy that are clearly smaller than in reality. Plaintiff fails
to explain why a reasonable consumer would not take the shrunken
pictures into account. Furthermore, as Plaintiff acknowledges,
consumers care about the density or volume of a product only as
it relates to the amount or quantity of food.
Where consumers only care about the amount or quantity of food,
the actual size of the candies is immaterial when the Product
affirmatively discloses how much food the box contains. Consumers
receive the same amount or quantity of food, as provided on the
label, regardless of the density of the candy and whether the
container is larger than necessary.
Moreover, a reasonable consumer is even more likely to rely on
the label where, as here, there is a discrepancy as to the size
of the individual pieces of product. In short, Plaintiff has
failed to sufficiently plead a material misrepresentation.
Injury
Plaintiff's injuries are based on the payment of a price premium
Plaintiff is not asserting injury because she received less candy
in and of itself. Rather, Plaintiff is asserting injury because
the alleged lesser amount of food caused her to pay a higher
price per unit of candy.
In Lazaroff, 2011 WL 9962089, finding a cognizable injury for GBL
section 349, the court explained that: "Plaintiff had alleged
that, had he understood the true amount of the product, he would
not have purchased it, and that he and the purported members of
the class paid a higher price per gallon/pound of propane and
failed to receive what was promised and/or the benefit of his
bargain, i.e., a full 20 pound cylinder and the amount of propane
he was promised."
As the court explained, the only discrepancy was in the amount or
quantity of the product. Although the price of the product did
not change, the alleged lesser amount or quantity was sufficient
evidence of price premium.
Defendant erroneously argues that Plaintiff has failed to allege
price premium injury.
However, because sections 349 and 350 require the satisfaction of
each element, the Court does not find it necessary to resolve the
question of whether an injury requires an adequately pled
material representation given Plaintiff's failure to adequately
plead a material misrepresentation.
Assuming, however, that the injury element does not require an
adequately pled material misrepresentation, the Court finds that
Plaintiff has sufficiently pled injury. As in Lazaroff, Plaintiff
has alleged that she received less candy than promised,
consequently paying a higher price per candy, and had she
understood the true amount, she would not have purchased the
Product.
Nevertheless, because the Complaint fails to plead any conduct
that is materially misleading, the Court dismisses Plaintiff's
section 349 and 350 claims.
Common law fraud
Plaintiff argues that, through the Product's non-functional
slack-fill, Defendant has made an implied misrepresentation as to
the amount of product in the container.
To state a claim for fraud under New York law, a plaintiff must
allege (1) a material misrepresentation or omission of fact; (2)
which the defendant knew to be false; (3) which the defendant
made with the intent to defraud; (4) upon which the plaintiff
reasonably relied; and (5) which caused injury to the plaintiff.
Plaintiff does not dispute that the Product provided clearly
visible and accurate written labels as to net weight and quantity
of candies. In view of this accurate disclosure, a person of
ordinary intelligence could have learned of the extent of slack-
fill and the amount of food by looking to the labels, and also by
manipulation of the package. Since a simple investigation" would
have dispelled any misrepresentation as to the amount of food
arising from the size of the box, Plaintiff's common law fraud
claim is foreclosed as a matter of law.
The Court grants Defendant's motion to dismiss.
A full-text copy of the District Court's February 26, 2018
Memorandum and Order is available at https://tinyurl.com/y74m42b5
from Leagle.com.
Tamika Daniel, on behalf of herself and all others similarly
situated, Plaintiff, represented by Anne Seelig, Lee Litigation
Group, PLLC & C.K. Lee, Lee Litigation Group, PLLC, 30 East 39th
Street, Second Floor. New York, NY 10016
Mondelez International, Inc., Defendant, represented by Dean N.
Panos -- dpanos@jenner.com -- Jenner & Block LLP, Kenneth K. Lee
-- klee@jenner.com -- Jenner & Block & Kelly M. Morrison --
kmorrison@jenner.com -- Jenner & Block LLP, pro hac vice.
MRI INT'L: Receiver Has No Control Over Securities Suit Deal
------------------------------------------------------------
In the case, SECURITIES AND EXCHANGE COMMISSION, Plaintiff(s), v.
EDWIN YOSHIHIRO FUJINAGA and MRI INTERNATIONAL, INC., et al.,
Defendant(s), Case No. 2:13-CV-1658 JCM (CWH) (D. Nev.), Judge
James C. Mahan of the U.S. District Court for the District of
Nevada instructed the Receiver that he has no control over the
proposed settlement between the class action Plaintiffs and MRI
and Fujinaga.
On Dec. 15, 2017, Shige Takiguchi, et al. ("class action
Plaintiffs"), Fujinaga, and MRI, parties in a federal securities
class action pending in the U.S. District Court for Nevada,
Takiguchi, et al. v. MRI International Inc., et al., Case No.
2:13-cv-01183-HDM-NJK ("securities class action"), filed a joint
application for directions from the court to receiver regarding
proposed settlement. Rob Evans & Associates LLC ("Receiver")
filed a response, to which the class action Plaintiffs replied.
The class action Plaintiffs have entered into settlements with
all the Defendants in the securities class action except for MRI
and Fujinaga. They have reached a tentative settlement with MRI
and Fujinaga, but the Court-appointed Receiver in the action
claims that only he is authorized to settle on behalf of MRI and
Fujinaga. The Receiver refuses to settle.
Consequently, the class action Plaintiffs, MRI, and Fujinaga now
request the Court to instruct the Receiver either: (1) that the
Receiver has no control over the parties' proposed settlement and
no authority to obstruct the settlement; or (2) that the Receiver
should enter into the settlement on behalf of MRI and Fujinaga
because it is in the receivership's best interests.
The class action Plaintiffs note that the order appointing the
Receiver expressly includes a carve-out for the securities class
action.
It is well established that a Receiver's powers flow from and are
limited by the scope of a court's order appointing the Receiver.
Here, the Court's order states the Receiver's power will not
apply to Takiguchi v. MRI International, Inc., Case No. 2:13-cv-
1183, in for the District of Nevada, in which Defendants Fujinaga
and MRI are the Defendants.
In light of the explicit carve-out in the Court's order
appointing the Receiver, and Judge McKibben's intentions
(presiding over the securities class action), Judge Mahan
instructed the Receiver that he has no control over the proposed
settlement between the class action Plaintiffs and MRI and
Fujinaga.
A full-text copy of the Court's Feb. 23, 2018 Order is available
at https://is.gd/IClfyZ from Leagle.com.
Securities and Exchange Commission, Plaintiff, represented by
Danette Rae Edwards, U.S. Securities & Exchange Commission, Sarah
Heaton Concannon, U.S. Securities and Exchange Commission, Thomas
Swiers & Troy K. Flake, United States Attorney.
Arise Construction, Inc., Movant, represented by Jason G.
Landess, Jason G. Landess.
CSA Service Center, LLC, Relief Defendant, Defendant, pro se.
The Yunju Trust, Defendant, pro se.
June Fujinaga, Defendant, represented by Shauna M. Hughes, City
of Henderson & Dominic P. Gentile, Gentile, Cristalli, Miller,
Armeni & Savarese, PLLC.
The Factoring Co., Defendant, pro se.
June Fujinaga, Interested Party, represented by Shauna M. Hughes,
City of Henderson & Dominic P. Gentile, Gentile, Cristalli,
Miller, Armeni & Savarese, PLLC.
Shige Takiguchi, Interested Party, represented by Mariko Taenaka,
Law Offices of Robert W. Cohen, James Edwin Gibbons --
jeg@manningllp.com -- Manning & Kass Ellrod, Ramirez, Trester
LLP, pro hac vice & Robert W. Cohen, Law Offices of Robert W.
Cohen, APC, pro hac vice.
Helen Tang, Interested Party, represented by Daniel W. Glasser --
dglasser@chipmanglasser.com -- The Glasser Law Group.
Rob Evans & Associates LLC, Receiver, represented by Michael F.
Lynch -- Michael@LynchLawPractice.com -- Lynch Law Practice,
PLLC.
NAT'L RIFLE: Court Won't Reconsider Minute Order in "Kalmbach"
--------------------------------------------------------------
The United States District Court for the Western District of
Washington, Seattle, issued an Order denying Defendant's Motion
for Reconsideration in the case captioned KATHARYN KALMBACH,
individually and on behalf of all others similarly situated,
Plaintiff, v. NATIONAL RIFLE ASSOCIATION OF AMERICA, a New York
corporation, and INFOCISION, INC., a Delaware corporation,
Defendants, Case No. C17-399 RSM (W.D. Wash.).
This matter comes before the Court on Defendants' Motion for
Reconsideration. Defendants ask that the Court reconsider its
February 6, 2018, Minute Order re-noting Defendants' Motion to
Deny Class Certification to July 13, 2018, and requiring that
Plaintiff note her motion for class certification for that same
day.
The court will ordinarily deny such motions in the absence of a
showing of manifest error in the prior ruling or a showing of new
facts or legal authority which could not have been brought to its
attention earlier with reasonable diligence.
The Court has reviewed Defendants' Motion and finds that
Defendants fail to show manifest error or new facts or legal
authority. The Court finds that Defendants have failed to
convince the Court that reconsideration of its Minute Order will
reduce undue repetition and complication.
Defendants' Motion for Reconsideration is denied.
A full-text copy of the District Court's February 26, 2018 Order
is available at https://tinyurl.com/y733wfde from Leagle.com.
Katharyn Kalmbach, individually and on behalf of all others
similarly situated, Plaintiff, represented by Kim D. Stephens --
kstephens@tousley.com -- TOUSLEY BRAIN STEPHENS, Patrick Peluso -
- ppeluso@woodrowpeluso.com -- WOODROW & PELUSO LLC, pro hac
vice, Stefan Coleman, LAW OFFICE OF STEFAN COLEMAN, P.S., 201 S
Biscayne Blvd, 28th Floor, Miami, Fl 33131. 1072, pro hac vice,
Steven L. Woodrow -- swoodrow@woodrowpeluso.com -- WOODROW &
PELUSO LLC, pro hac vice & Chase Christian Alvord --
calvord@tousley.com -- TOUSLEY BRAIN STEPHENS.
National Rifle Association of America, a New York corporation &
InfoCision, Inc, a Delaware corporation, Defendants, represented
by Brett A. Wall -- bwall@bakerlaw.com -- BAKER HOSTETLER LLP,
pro hac vice, James Raymond Morrison -- jmorrison@bakerlaw.com --
BAKER HOSTETLER LLP, Michael D. Meuti -- mmeuti@bakerlaw.com --
BAKER HOSTETLER LLP, pro hac vice, Terry M. Brennan --
tbrennan@bakerlaw.com -- BAKER HOSTETLER, pro hac vice & Curt Roy
Hineline -- chineline@bakerlaw.com -- BAKER HOSTETLER LLP.
NATIONAL FACILITIES: Faces "Acosta" Suit in E.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against National Facilities
Maintenance LLC. The case is styled as Manuel Acosta,
individually and on behalf of all others similarly situated,
Plaintiff v. National Facilities Maintenance LLC, Sani-
Environmental Services Corp., Jack Freud and Freud Solomon,
Defendants, Case No. 2:18-cv-01892 (E.D. N.Y., March 28, 2018).
The Defendants offer maintenance and cleaning services.[BN]
The Plaintiff appears PRO SE.
NATUS MEDICAL: Court Dismisses "Costabile" Securities Fraud Suit
----------------------------------------------------------------
The United States District Court for the Northern District of
California issued an Order granting Defendant's Motion to Dismiss
the securities class action styled JOHN COSTABILE, Plaintiff, v.
NATUS MEDICAL INCORPORATED, et al., Defendants, Case No. 17-cv-
00458-JSW (N.D. Cal.).
Plaintiff John Costabile alleges that he purchased Natus Medical
common stock at artificially inflated prices due to alleged
misrepresentations and omissions made by Defendants regarding a
supply contract between a Natus Medical subsidiary and the
Venezuelan Ministry of Health. The representations by Hawkins and
Kennedy continued into November and December 2015 at various
healthcare conferences. On November 19, 2015, during his opening
remarks to a conference, Hawkins expressed pride at Natus
Medical's financials and lauded the major $232 million Supply
Contract.
In summary, throughout the fourth quarter of 2016, Defendants
represented that the Supply Contract was a done deal that would
have a significant positive impact on Natus Medical's revenue,
starting in the fourth quarter of 2015. As alleged in the FAC,
the market responded favorably to this news, and on December 17,
2015, Natus Medical shares reached an all-time high closing price
of $50.48 per share.
The Alleged Undisclosed Truth.
Plaintiff alleges, inter alia, that Defendants misrepresented to
investors that the Supply Contract called on the Ministry of
Health to make payments in dollars. In fact, Plaintiff contends
that the Supply Contract calls for payments to be made in
Argentinian Pesos at the current exchange rate for the effective
day of payment.
A motion to dismiss is proper under Rule 12(b)(6) where the
pleadings fail to state a claim upon which relief can be granted.
The complaint is construed in the light most favorable to the
non-moving party, and all material allegations in the complaint
are taken to be true.
Whether Plaintiff Has Alleged Actionable Misrepresentations or
Omissions.
Under Rule 9(b) and the PSLRA, a plaintiff must identify the
statements at issue and set[] forth what is false or misleading
about the statement and why the statements were false or
misleading at the time they were made.
Representations Relating to the Existence of the Contract.
Plaintiff contends, in essence, that every challenged
representation made during the Class Period is false or
misleading for one simple reason: The Supply Contract was not
signed and, as a result, there was no agreement between Natus
Medical/Medix in the fourth quarter of 2015.
Plaintiff has not plead sufficient facts to support the
probability that CW1 possesses information regarding whether the
Supply Contract was executed.
Having found that Plaintiff fails to adequately allege that the
Supply Contract unexecuted, the Court makes the following two
observations. First, if Plaintiff is able to adequately allege
that the Supply Contract was unexecuted in the fourth quarter
2015, that will have major implications for how the Court views
the other challenged statements.
Second, the Court finds it necessary to address an issue
resulting from the parties' briefing. Plaintiff's counsel has
drafted a FAC that takes the position the Supply Contract was not
executed in the fourth quarter of 2015. The filing of this FAC
contains certain implicit representations by counsel regarding
the existence of a sufficient basis for those allegations.
Defendants' Representations Regarding the Prepayments.
The Court finds that Defendant Hawkins' statements regarding the
prepayments are not forward looking statements for purposes of
the PSLRA safe harbor. The Court acknowledges that each of the
three statements discussed above contain a forward looking
component, namely that Defendants expected to receive the first
prepayment by the end of the year. Notably, however, Hawkins'
stated expectation related directly to a term of the Supply
Contract, and both the Supply Contract and its terms were
existing, present facts.
Further, Hawkins' statement was made in the context of a larger
statement about the formation of the Supply Contract and its
total value, again, both statements of present fact. Given this
context, and the nature of Hawkins' statements, the Court
concludes that the challenged statements included implicit
representations that the stated "expectation" was consistent with
the Supply Contract's term. On the facts alleged, this implicit
representation was, at best, misleading given the Supply
Contract's prepayment schedule and (for the November and December
statements) the Ministry of Health's default.
Accordingly, by announcing that he expected the first prepayment
installment by the end of the year, without qualification or
elaboration, Hawkins made an omission of present fact.
Kennedy's Representation Regarding Currency Exchange Risk
During the October 21, 2015 conference call, Defendant Kennedy
allegedly asserted that the Supply Contract presented a minimal
currency exchange risk because the Supply Contract's payments
were denominated in dollars, and our payment is a dollar-
denominated payment.
Plaintiff asserts this was misleading to investors because the
Supply Contract, in fact, required that payments be made in
Argentinian Pesos at the current exchange rate for the effective
date of payment.
The precise payments are then defined in American dollars. For
example, the entire prepayment is defined as a payment of
$69,752,602. Under the terms of the Supply Contract, the number
of Argentinian pesos needed to satisfy the $69,752,602 amount
would depend on the exchange rate at the time of payment, but the
underlying dollar value of the payment would not change. In light
of these facts, Plaintiff has failed to allege facts showing that
Kennedy's representations regarding the currency exchange risk
were false or misleading.
Representations Regarding Medix's Prior Ministry of Health
Contract.
Plaintiff alleges that Defendants improperly sought to bolster
investors' perception of the Supply Contract by misrepresenting
Medix's prior agreement with the Ministry of Health.
Plaintiff, however, fails to provide sufficient detail to support
an inference that Defendants' account was materially misleading.
As to CW1, he is alleged to have been the Ministry of Health's
Purchasing Coordinator starting in February 2016. The prior
contract, however, was entered into in 2010. Plaintiff does not
allege facts explaining how CW1 has personal knowledge about the
details of a contract which was allegedly executed and performed
years before she assumed his role with the Ministry of Health.
Instead, Plaintiff simply alleges CW1 learned of this fact from
an undisclosed source at an undisclosed time. This is
insufficient.
Plaintiff Has Failed to Raise a Strong Inference of Scienter
The Court has found that Plaintiff's FAC sufficiently alleges
that certain statements made by Defendant Hawkins in November and
December 2015 were false or misleading. The PSLRA requires that
Plaintiff state with "particularity facts giving rise to a strong
inference that the defendant acted with the required state of
mind" in making those statements.
Plaintiff contends that the fourth quarter 2015 sales are still
suspicious because the gross proceeds realized from the sale far
exceeded those of prior sales. Plaintiff, however, does not cite
any case for the authority that courts should look to the
realized proceeds of a sale, and the Court has located none.
Instead, the relevant authority directs the Court to examine the
amount and percentage of shares sold.
The number of shares sold by these Defendants during the fourth
quarter of 2015 does not appear suspicious in light of
Defendants' trading history. Further, Plaintiff has not plead any
facts regarding the percentage of their holdings Hawkins and
Kennedy sold during the fourth quarter 2015, so the Court cannot
compare this to the Defendants' prior sales. On this record, the
Court finds that the evidence of Defendants' prior trading
history undermines any inference of scienter that may otherwise
have arisen from Defendants' fourth quarter 2015 stock sales.
The Court finds that Plaintiff has failed to plead facts giving
rise to a strong inference of scienter.
Defendant's motion to dismiss is granted.
A full-text copy of the District Court's February 26, 2018 Order
is available at https://tinyurl.com/ycbsvloo from Leagle.com.
John Costabile, Lead Plaintiff, Individually and on Behalf of All
Others Similarly Situated, Plaintiff, represented by Kara M.
Wolke -- kwolke@glancylaw.com -- Glancy Prongay & Murray LLP,
Lesley F. Portnoy -- lportnoy@glancylaw.com -- Glancy Prongay &
Murray LLP, Robert Vincent Prongay -rprongay@glancylaw.com. --
Glancy Prongay & Murray LLP & Alexa Jean Mullarky --
amullarky@glancylaw.com -- Glancy Prongay and Murray LLP.
Natus Medical Incorporated, James B. Hawkins & Jonathan A.
Kennedy, Defendants, represented by Kevin Peter Muck --
kmuck@fenwick.com -- Fenwick & West LLP, Jennifer Ann Ebling --
jebling@fenwick.com -- Fenwick and West & Marie Caroline Bafus --
mbafus@fenwick.com -- Fenwick and West LLP.
PET SUPERMARKET: Eleventh Circuit Appeal Filed in "Kirchein" Suit
-----------------------------------------------------------------
Plaintiff Eric Kirchein filed an appeal from a court ruling in
the lawsuit titled Eric Kirchein v. Pet Supermarket, Inc., Case
No. 0:16-cv-60090-RNS, in the U.S. District Court for the
Southern District of Florida.
As previously reported in the Class Action Reporter, the lawsuit
is brought against the Defendant for alleged violation of the
Fair Credit Reporting Act.
Pet Supermarket, Inc. operates a chain of pet care supply retail
stores in the United States.
The appellate case is captioned as Eric Kirchein v. Pet
Supermarket, Inc., Case No. 18-10921, in the United States Court
of Appeals for the Eleventh Circuit.
The briefing schedule in the Appellate Case states that the
Appellee's Certificate of Interested Persons is due on or before
April 5, 2018, as to Appellee Pet Supermarket, Inc.[BN]
Plaintiff-Appellant ERIC KIRCHEIN, individually and on behalf of
all others similarly situated, is represented by:
Keith J. Keogh, Esq.
KEOGH LAW, LTD
55 W Monroe Street, Suite 3390
Chicago, IL 60603
Telephone: (312) 726-1092
E-mail: Keith@Keoghlaw.com
- and -
Bret Leon Lusskin, Jr., Esq.
BRET LUSSKIN, PA
20803 Biscayne Blvd., Suite 302
Aventura, FL 33180
Telephone: (954) 454-5841
Facsimile: (954) 454-5844
E-mail: blusskin@lusskinlaw.com
- and -
Scott D. Owens, Esq.
SCOTT D. OWENS, PA
3800 S Ocean Drive, Suite 235
Hollywood, FL 33019
Telephone: (954) 589-0588
E-mail: scott@scottdowens.com
Defendant-Appellee PET SUPERMARKET, INC., a Florida corporation,
is represented by:
Melissa A. Campbell, Esq.
JONES WALKER, LLP
201 S Biscayne Blvd., Suite 2600
Miami, FL 33131
Telephone: (305) 679-5700
E-mail: mcampbell@joneswalker.com
- and -
Barry Goheen, Esq.
John Anthony Love, Esq.
KING & SPALDING, LLP
1180 Peachtree St. NE, Suite 1700
Atlanta, GA 30309
Telephone: (404) 572-4600
E-mail: bgoheen@kslaw.com
tlove@kslaw.com
PJ OPS: Court Consolidates on Delivery Drivers' Wage & Hour Suit
----------------------------------------------------------------
The United States District Court for the District of Idaho issued
a Memorandum Decision and Order granting a Consent Motion for
Consolidation in the case captioned CORY EDWARDS, On behalf of
himself and those similarly situated, Plaintiff, v. PJ OPS IDAHO,
LLC, et al, Defendants, Case No. 1:17-cv-00283-DCN (D. Idaho).
Plaintiff filed the case on behalf of himself and those similarly
situated against PJ Ops Idaho, LLC, and other PJ Ops defendants
alleging unpaid minimum wages and unpaid overtime wages for
delivery drivers, such as himself. Since the initial filing,
numerous plaintiffs have opted into this suit.
As this Motion is uncontested, the Court will not undertake an
in-depth analysis of the various factors relied upon when
weighing consolidation but will simply note that these cases
clearly share common questions of law and fact and consolidation
will not cause any prejudice, inconvenience, or undue delay.
The joint Motion to Consolidate Cases is granted. Case No. 1:18-
cv-00037-DCN, Hollingsworth v. PJ Holdings KY, LLC et al., is
consolidated with the Case No. 1:17-cv-00283-DCN.
A full-text copy of the District Court's February 26, 2018
Memorandum Decision and Order is available at
https://tinyurl.com/ydbnzjzh from Leagle.com.
James Hollingsworth, Plaintiff, represented by Richard M. Paul,
III, Paul LLP, 601 Walnut, Suite 300, KCMO 64106.
PJ Holdings KY, LLC, PJ Operations LLC, PJ Ops Colorado, LLC, PJ
Ops Idaho, LLC, PJ Ops Kansas, LLC, PJ Ops Louisiana, LLC, PJ
Operation Minnesota, LLC, PJ Ops New York, LLC, PJ West Fargo,
LLC & PJ Acquisitions, LLC, Defendants, represented by Emily
Mueller -- emilymueller@givenspursley.com -- Givens Pursley LLP,
Melodie Annalise McQuade -- melodiemcquade@givenspursley.com --
Givens Pursley LLP & Robert Blaine White -- rbw@givenspursley.com
-- GIVENS PURSLEY.
PLANET FITNESS: Faces "Sullivan" Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Planet Fitness
Holdings, LLC. The case is styled as Phillip Sullivan, Jr., on
behalf of himself and all others similarly situated, Plaintiff v.
Planet Fitness Holdings, LLC, Defendant, Case No. 1:18-cv-02736
(S.D. N.Y., March 28, 2018).
Planet Fitness is an American franchisor and operator of fitness
centers based in Hampton, New Hampshire.[BN]
The Plaintiff is represented by:
C.K. Lee, Esq.
Lee Litigation Group, PLLC
30 East 39th Street
2nd Floor
New York, NY 10016
Tel: (212) 465-1188
Fax: (212) 465-1181
Email: cklee@leelitigation.com
PLY GEM: "Miller" Suit Alleges Breach of Fiduciary Duties
---------------------------------------------------------
Michelle Miller, individually and on behalf of all others
similarly situated v. Ply Gem Holdings, Inc., Gary E. Robinette,
Frederick J. Iseman, Michael Haley, Jeffrey T. Barber, Timothy T.
Hall, Mary K. Rhinehart, Janice E. Stipp, John Forbes, and Joost
F. Thesseling, Case No. 2018-0151 (Del. Ch., March 6, 2018), is
brought against the Defendants for breaches of fiduciary duties
arising out of their attempt to sell the Company to Pisces Midco,
Inc.
Plaintiff seeks to enjoin the Proposed Transaction unless and
until Defendants cure their breaches of fiduciary duty, and
recover damages resulting from Defendants' violations of their
fiduciary duties.
Plaintiff Michelle Miller is a stockholder of Ply Gem.
Defendant Ply Gem is a corporation organized and existing under
the laws of the State of Delaware. It maintains its principal
executive offices at 5020 Weston Parkway, Suite 400, Cary, North
Carolina, 27513. Common stock in Ply Gem is publicly traded on
the New York Stock Exchange under the ticker symbol "PGEM."
The Individual Defendants are members of of Ply Gem's Board of
Directors. [BN]
The Plaintiff is represented by:
Ryan M. Ernst, Esq.
Daniel P. Murray, Esq.
O'KELLY ERNST & JOYCE, LLC
Street Suite 1000
Wilmington, DE 19801
Tel: (302) 778-4000
Fax: (302) 295-2873
E-mail: rernst@oelegal.com
dmurray@oelegal.com
PNC BANK: Court Narrows Claims in "Dan-Harry"
---------------------------------------------
The United States District Court for the District of Rhode Island
issued an Order granting in part and denying in part Defendant's
Motion to Dismiss the case captioned DAWARI DAN-HARRY, on behalf
of himself and all others so similarly situated, Plaintiff, v.
PNC BANK, N.A., Defendant, C.A. No. 17-136 WES. (D.R.I.).
Plaintiff's principal claim is that PNC Bank failed to comply
with its contractual and regulatory duty as mortgagee to hold a
face-to-face meeting with the mortgagor before foreclosing as
required by 24 C.F.R. Section 203.604(b), a regulation
promulgated by the United States Department for Housing and Urban
Development (HUD regulations). The HUD regulations are applicable
to Plaintiff's mortgage because it is insured by the Federal
Housing Authority (FHA). Plaintiff also claimed that the
foreclosure was tainted both because the mortgagee lacked a power
of attorney from the note holder and because of PNC Bank's
alleged deceptive practices in violation of the Rhode Island
Deceptive Trade Practices Act, R.I. Gen. Laws Section 6-13.1-2.
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face. A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. The plausibility
standard is not akin to a probability requirement, but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.
Count II is based on breach of a free-floating duty of good faith
and reasonable diligence. According to the complaint, this duty
arises because PNC Bank is the entity responsible for servicing
Plaintiff's' mortgage loans. Plaintiff alleges that this duty
allegedly was breached when PNC Bank foreclosed without
conducting the face-to-face meeting in violation of 24 C.F.R.
Section 203.604(b) and in breach of paragraph 9(d) of the
mortgage.
The Superior Court recently reaffirmed this principle in Miller
v. Wells Fargo Bank, N.A., which holds that there is no state-law
cause of action for breach of a duty of good faith based on a
mortgagee's failure to comply with federal regulations. 11-00060,
2015 WL 1515942, at10 (R.I. Super. Mar. 30, 2015), dismissing
claim based on breach of duty of good faith arising from
mortgagee's failure to consider loss mitigation).
To the extent that Count II purports to assert a state-law claim
for breach of the covenant of good faith and fair dealing
implicit in Plaintiff's mortgage contract, it should be stricken
as redundant of the same claim in Count III, pursuant to Fed. R.
Civ. P. 12(f). And to the extent that Count II purports to assert
a federal law claim arising directly from the breach of 24 C.F.R.
Section 203.604(b), it fails because it is well settled that the
HUD regulations do not support a private right of action in favor
of the mortgagor.
The Court recommends that Count II be dismissed.
Count III asserts a state-law claim for breach of contract.
Plaintiff alleges that the foreclosure on his property was in
breach of paragraph 9(d), which expressly provides that
compliance with the HUD regulations is a condition precedent to
foreclosure, because PNC Bank failed to afford him the mandatory
pre-foreclosure face-to-face meeting in violation of the
requirement in 24 C.F.R. Section 203.604(b).
Based on this, and with appropriate deference to this Court's
recent rulings in Ferreira, Peralta and Gonzalez,8 I find that
Rhode Island would follow the third approach consistent the
Eleventh Circuit's well-reasoned decision in Bates, 768 F.3d at
1132, and with the guidance from Massachusetts, as articulated in
Jose, 54 N.E.3d at 1132, and Cook, 31 N.E.3d at 1131, and
recognize that the mortgagor may bring a breach of contract claim
for damages and other remedies against a mortgagee that breaches
its express contractual duty under paragraph 9(d) to conduct the
pre-foreclosure face-to-face meeting as required by 24 C.F.R.
Section 203.604(b).
The Court further find that Plaintiff's allegations regarding his
claims for contract-based damages and other remedies, including
the potential voiding of the foreclosure sale, are sufficient to
conform to the plausibility standard set forth in Iqbal/Twombly
whether they will survive the factual scrutiny that summary
judgment will bring to bear is an issue for another day.
Consequently, the Court recommends that Defendant's motion to
dismiss Count III of the complaint be denied.
The recommends that Defendant's Motion to Dismiss be granted as
to Count II of Plaintiff's complaint but denied as to Count III.
A full-text copy of the District Court's February 26, 2018 Order
is available at https://tinyurl.com/yazusaov from Leagle.com.
Dawari Dan-Harry, on behalf of himself and all others similarly
situated, Plaintiff, represented by Todd S. Dion, Law Office of
Todd S. Dion Esq., 1599 Smith St., North Providence, RI 02911
PNC Bank, National Association, Defendant, represented by Arthur
F. Radke -aradke@manatt.com -- Manatt, Phelps & Phillips, pro hac
vice, Brett J. Natarelli -- bnatarelli@manatt.com -- Manatt,
Phelps & Phillips, LLP, pro hac vice & Harris K. Weiner --
hweiner@smsllaw.com -- Salter McGowan Sylvia & Leonard, Inc.
PUBLIC STORAGE: Court Stays "Martinez-Santiago"
-----------------------------------------------
The United States District Court for the District of New Jersey
issued a Memorandum Opinion and Order for Temporary Stay Pending
Judgment of the Third Circuit in the case captioned JACKELINE
MARTINEZ-SANTIAGO, on behalf of herself and other persons
similarly situated, Plaintiff, v. PUBLIC STORAGE, Defendant,
Civil No. 14-302 (JBS-AMD) (D.N.J.).
This case centers on contracts for the leasing of private storage
spaces, offered by Defendant Public Storage, that allegedly
contained provisions which violated the New Jersey Truth-in-
Consumer Contract, Warranty and Notice Act (TCCWNA). The Court
previously issued an Opinion and Order denying a Motion to
Dismiss on the grounds that the contracts at issue did not
contain provisions that violated clearly established legal rights
of consumers in violation of TCCWNA.
This matter is before the Court upon Defendant's Motion for
Summary Judgment and Motion to Decertify the Class as well as
Plaintiff's Motion for Partial Summary Judgment and Motion to
Preclude the Testimony of Ronald Schaible.
With recognition that a decision to stay a case is one made by a
District Court in the exercise of its discretion as part of its
inherent power to control its own docket the Court will stay the
current proceedings and administratively terminate the instant
motions, pending the decision of the New Jersey Supreme Court in
Spade/Wenger and the adoption of the same (vel non) by the Third
Circuit. It is most prudent to await the answers to the certified
questions, and the application of those answers by the Court of
Appeals, before addressing the present motions further.
Therefore, in exercise of the Court's discretion to stay or to
deny a stay of further proceedings pending the decisions of the
New Jersey Supreme Court and the Third Circuit, and for good
cause shown.
A full-text copy of the District Court's February 26, 2018
Memorandum Opinion and Order is available at
https://tinyurl.com/y88ofqmg from Leagle.com.
JACKELINE MARTINEZ-SANTIAGO, on behalf of herself and other
persons similarly situated, Plaintiff, represented by ANDREW P.
BELL, LOCKS LAW FIRM LLC, 457 Haddonfield Road, Ste. 500. Cherry
Hill, NJ 08002, CHARLES N. RILEY, RILEY & SHAINE, JAMES A. BARRY,
LOCKS LAW FIRM LLC & MICHAEL A. GALPERN, LOCKS LAW FIRM, LLC, 457
Haddonfield Road, Ste. 500. Cherry Hill, NJ 08002
PUBLIC STORAGE, Defendant, represented by ROBERTO A. RIVERA-SOTO
-- riverasotor@ballardspahr.com -- BALLARD SPAHR & CASEY GENE
WATKINS -- watkinsc@ballardspahr.com -- BALLARD SPAHR LLP.
PURDUE PHARMA: City of Rome, et al. Allege False Marketing
----------------------------------------------------------
City of Rome, Georgia, Floyd County, Georgia, Chattooga County,
Georgia, Whitfield County, Georgia, and City of Cartersville,
Georgia, on behalf of themselves and all others similarly
situated v. Purdue Pharma L.P. et al., Case No. 4:18-cv-00052
(N.D. Ga., March 2, 2018), is brought against the Defendants for
false, deceptive and unfair marketing and unlawful diversion of
prescription opioids.
The Plaintiffs are municipal and county governments throughout
the State of Georgia, all of which have been ravaged by the
opioid crisis. This area is referred to as "Plaintiffs'
Communities."
The Defendant is primarily engaged in the manufacture, promotion,
and distribution of opioids nationally and in Plaintiffs'
Communities. [BN]
The Plaintiffs are represented by:
J. Anderson Davis, Esq.
Samuel L. Lucas, Esq.
Lee B. Carter, Esq.
RICHARDSON & DAVIS, LLP
P.O. Box 5007
Rome, GA 30162-5007
Tel: (706) 291-8853
Fax: (706) 234-3574
E-mail: adavis@brinson-askew.com
slucas@brinson-askew.com
lcarter@brinson-askew.com
- and -
Robert H. Smalley, Esq.
MCCAMY, PHILLIPS,
TUGGLE & FORDHAM, LLP
P.O. Box 1105
Dalton, GA 30720-1105
Tel: (706) 508-4292
Fax: (706) 278-5002
E-mail: rsmalley@mccamylaw.com
REGO FURNITURE: Faces "Santana" Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Rego Furniture Inc.
The case is styled as Emeterio Garcia Santana, individually and
on behalf of others similarly situated, Plaintiff v. Rego
Furniture Inc. doing business as: Easy Shopping, Fortune
Distributor of Third Avenue, Inc. doing business as: Easy
Shopping, Z & G Distributors, Inc. doing business as: Easy
Shopping, Sami Zeitoune, Eli YahuGrego and Sami Zee also known
as: Sammy, Defendants, Case No. 1:18-cv-02799 (S.D. N.Y., March
29, 2018).
The Defendants operate in the furniture industry.[BN]
The Plaintiff appears PRO SE.
REWALK ROBOTICS: Ct. Denies Bid to Dismiss "Yan" Securities Suit
----------------------------------------------------------------
Judge F. Dennis Saylor, IV, of the U.S. District Court for the
District of Massachusetts denied the Defendants' motion to
dismiss the case, WANG YAN, individually and on behalf of all
other similarly situated parties, Plaintiff, v. REWALK ROBOTICS
LTD., LARRY JASINSKI, KEVIN HERSHBERGER, AMI KRAFT, AMIT GOFFER,
JEFF DYKAN, HADAR RON, ASAF SHINAR, WAYNE B. WEISMAN, YASUSHI
ICHIKI, ARYEH DAN, GLENN MUIR, BARCLAYS CAPITAL INC., JEFFERIES
LLC, and CANACCORD GENUITY INC., Defendants, Civil Action No. 17-
10169-FDS (D. Mass.).
The putative class action alleges violations of the Securities
Act of 1933 and Exchange Act of 1934. The Plaintiffs purchased
common stock of ReWalk between Sept. 12, 2014 (the date of its
initial public offering) and Feb. 29, 2016. The consolidated
amended complaint alleges that ReWalk, its officers and
directors, and the IPO underwriters concealed material
information leading up to the IPO about ReWalk's failure to
comply with FDA regulations. It also alleges that after the IPO,
ReWalk and certain officers continued to make material false
statements.
The lawsuit was filed on Jan. 31, 2017. The original plaintiffs
were Qian Dian, David Hershlikovitz, Jackie888, Inc., Michael
Kemmerling, Narbeh Nathan, and Paul Sislin ("Investor Group").
The initial complaint only alleged violations of the Securities
Act, 15 U.S.C. Section 77a et seq.
On Feb. 6, 2017, the counsel filed the statutory notice pursuant
to the PSLRA announcing the filing of a securities class action
and advising investors that they had until March 27, 2017, to
file a motion to be appointed as the Lead Plaintiff.
On March 27, 2017, Wang Yan moved to be appointed as the Lead
Plaintiff. In his memorandum in support, Yan contended that he
had the largest financial interest of any prospective Lead
Plaintiff.
Also on March 27, the Investor Group moved to be appointed as the
Lead Plaintiff. In its memorandum in support, the Investor Group
indicated that it was unaware of any other applicant or applicant
group that has sustained greater financial losses. On April 10,
2017, upon learning that Yan had a larger financial interest, the
Investor Group withdrew its motion to be appointed the Lead
Plaintiff.
On May 1, 2017, the 90-day period under Fed. R. Civ. P. 4(m) for
service of the complaint expired.
On May 10, 2017, the counsel for Yan filed affidavits of service
of process. The affidavits stated that on May 5, 2017, ReWalk
and the underwriter Defendants were served with the summons and
original complaint. The service on the corporate entities was
four days late. The affidavits stated that the individual
Defendants (both domestic and foreign) were served by simply
mailing the summons and complaint to ReWalk's corporate offices.
The purported service on the individual Defendants was
ineffective, regardless of the timing, because mailing to a
person's place of work is not one of the proper methods of
service under Rule 4.3
On June 9, 2017, the Court entered an order appointing Yan as the
Lead Plaintiff, finding that he appeared to satisfy the
requirements for lead plaintiff designation under Section
21D(a)(3)(B)(iii) of the Securities Exchange Act of 1934.
At some point after June 9 ("within days"), an attorney for the
Lead Plaintiff, Leigh Smollar, called the Defendants' lead
counsel, Douglas Baumstein, to ask whether he would accept
service of process on the individual Defendants' behalf.
Smollar's declaration states that Baumstein orally responded that
he would accept service of process for certain individual
domestic Defendants, but not the individual foreign Defendants.
Although there is no contemporaneous evidence supporting that
claim, there is also no affidavit from Baumstein denying the
claim. In any event, no actual service was effected at that
time.
The Lead Plaintiff filed a consolidated amended complaint on Aug.
9, 2017. That amended complaint added a new domestic individual
defendant, Kevin Hershberger, and claims under the Exchange Act,
15 U.S.C. Section 78a et seq. It appears that the individual
domestic Defendants (Hershberger, Jasinski, Weisman, and Muir)
ultimately consented to service by e-mail on Aug. 22, 2017.
Service of the individual domestic Defendants was finally
accomplished that day, 203 days after the filing of the
complaint.
The individual foreign Defendants (Kraft, Goffer, Dykan, Ron,
Shniar, Dan, and Ichiki) had to be served pursuant to the Hague
Convention on the Service Abroad of Judicial and Extrajudicial
Documents. Under the Hague Convention, countries are required to
establish a Central Authority to receive requests for service of
documents from other countries and to serve those documents. The
relevant Central Authority is responsible for completing service
of process. Affidavits of service were filed by the counsel for
the Lead Plaintiff on Nov. 6, 2017, indicating that the Israeli
individual Defendants (that is, all foreign Defendants other than
Ichiki) were served pursuant to Hague Convention protocol in
October 2017. The counsel has represented that Defendant Ichiki
has not yet been served because the Japanese Central Authority
takes a significant amount of time to complete service of
process.
The Defendants have moved to dismiss the complaint under Fed. R.
Civ. P. 12(b)(5) for failure to complete service of process
within 90 days as required by Fed. R. Civ. P. 4(m), and Fed. R.
Civ. P. 12(b)(6) for failure to state a claim.
Judge Saylor finds that the Court did not appoint Yan as the Lead
Plaintiff until June 9, 2017, 129 days after the original
complaint was filed, and 39 days after the expiration of the Rule
4(m) period. Service on all domestic Defendants was finally
accomplished on Aug. 22, 2017, 203 days after filing. The
question presented is whether the Plaintiff has shown good cause
for the failure to effect service within 90 days, as required by
Rule 4(m).
There are three categories of Defendants in this case: domestic
corporations, domestic individuals, and foreign individuals.
Because the requirements of Rule 4(m) do not apply to the foreign
Defendants, dismissal as to those individuals is inappropriate.
The corporate Defendants were served four days late, and at a
time when the current Lead Plaintiff was powerless to effect
service. Under the circumstances, given the relatively trivial
level of delay and the fact that (due to the operation of the
PSLRA) the Lead Plaintiff had not yet been selected, the Judge
will excuse the delay and not dismiss the complaint as to those
Defendants.
That leaves the service on the domestic individuals. As he
noted, there is no dispute as to the service on Defendant
Hershberger, who was named for the first time in the amended
complaint on Aug. 9, 2017, and served 13 days later. As to
Defendants Jasinski, Weisman, and Muir, the question of whether
the late service should be excused for good cause is a close
call, but will be resolved in favor of the Plaintiff. Under the
peculiar circumstances presented, albeit with some misgivings,
the Judge concludes that the Plaintiff has shown good cause for
his failure to serve Defendants Jasinski, Weisman, and Muir
within 90 days, as required by Rule 4(m).
In summary, to the extent that Lead Plaintiff Yan did not comply
with the 90-day requirement of Rule 4(m), he has shown good cause
why an extension of time for service is warranted. For the
foregoing reasons, Judge Saylor denied the Defendants' motion to
dismiss pursuant to Fed. R. Civ. P. 12(b)(5) for insufficient
service of process.
A full-text copy of the Court's Feb. 23, 2018 Memorandum and
Order is available at https://is.gd/chfhJd from Leagle.com.
Qian Deng, individually and on behalf of all others similarly
situated & Narbeh Nathan, individually and on behalf of all
others similarly situated, Plaintiffs, represented by Jeffrey C.
Block -- jeff@blockesq.com -- Block & Leviton LLP.
David Hershlikovitz, individually and on behalf of all others
similarly situated, Jackie888, Inc., individually and on behalf
of all others similarly situated, Michael C. Kemmerling,
individually and on behalf of all others similarly situated &
Paul Sislin, individually and on behalf of all others similarly
situated, Plaintiffs, represented by Jason M. Leviton --
jason@blockesq.com -- Block & Leviton LLP & Jeffrey C. Block,
Block & Leviton LLP.
Wang Yan, individually and on behalf of all other similarly
situated parties, Plaintiff, represented by Edward F. Haber --
ehaber@shulaw.com -- Shapiro Haber & Urmy LLP, Jeremy A.
Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP, pro hac
vice, Joseph Alexander Hood, II -- ahood@pomlaw.com -- Pomerantz
LLP, pro hac vice, Leigh Handelman Smollar -- lsmollar@pomlaw.com
-- Pomerantz LLP, pro hac vice, Omar Jafri -- ojafri@pomlaw.com -
- Pomerantz LLP, pro hac vice, Patrick V. Dahlstrom --
pdahlstrom@pomlaw.com -- Pomerantz LLP, pro hac vice & Adam M.
Stewart -- astewart@shulaw.com -- Shapiro Haber & Urmy LLP.
ReWalk Robotics Ltd., Larry Jasinski, Wayne B. Weisman & Glenn
Muir, Defendants, represented by Douglas P. Baumstein --
dbaumstein@whitecase.com -- White & Case, LLP, pro hac vice,
Susan L. Grace -- susan.grace@whitecase.com -- White & Case LLP,
pro hac vice & Samuel R. Feldman -- samuel.feldman@whitecase.com
-- White & Case, LLP.
Ami Kraft, Amit Goffer, Jeff Dykan, Hadar Ron, Asaf Shinar,
Yasushi Ichiki, Aryeh Dan & Kevin Hershberger, Defendants,
represented by Susan L. Grace, White & Case LLP, pro hac vice,
Douglas P. Baumstein, White & Case, LLP & Samuel R. Feldman,
White & Case, LLP.
Barclays Capital Inc., Jeffries LLC & Canaccord Genuity Inc.,
Defendants, represented by Anthony Antonelli --
anthonyantonelli@paulhastings.com -- Paul Hastings LLP, Douglas
H. Flaum -- douglasflaum@paulhastings.com -- Paul Hastings LLP,
pro hac vice, David S. Godkin -- godkin@birnbaumgodkin.com --
Birnbaum & Godkin, LLP, Douglas P. Baumstein, White & Case, LLP &
James E. Kruzer -- kruzer@birnbaumgodkin.com -- Birnbaum &
Godkin, LLP.
RH INC: Court Denies Bid to Dismiss Securities Fraud Suit
---------------------------------------------------------
The United States District Court for the Northern District of
California issued an Order denying Defendant's Motion to Dismiss
the case captioned CITY OF MIAMI GENERAL EMPLOYEES' & SANITATION
EMPLOYEES' RETIREMENT TRUST, ET AL., Plaintiffs, v. RH, INC., ET
AL., Defendants, Case No. 17-cv-00554-YGR (N.D. Cal.).
Plaintiffs bring this securities class action litigation alleging
fraudulent and misleading statements and omissions. RH is a
retailer of luxury home furnishings such as couches, chairs,
tables, lamps, and rugs.
Plaintiffs assert that when defendants launched the RH Modern
website and published the 540-page RH Modern Source Book in
September 2015, there was essentially no RH Modern furniture in
stock. Plaintiffs claim that Friedman knew that the Source Book
featured Photon shopped images of products that did not exist,
and the videos through which he promoted RH Modern also showcased
unavailable, unfinished products. Customers therefore faced
lengthy delays and many became upset and cancelled their orders.
Finally, defendants disclosed RH Modern production delays and
revealed that RH had issued $18 million in customer
accommodations. RH also stated that other product lines were
suffering from extra inventory which was bloating the balance
sheet and leading to clearance events. The next day, RH's share
price plunged over 21% on the highest trading volume in history
since its IPO.
COUNT 1: SECTION 10(B) OF THE EXCHANGE ACT AND RULE 10B-5
LEGAL FRAMEWORK
Under the PSLRA's heightened pleading requirement, to state a
Section 10(b) claim, plaintiffs must allege facts sufficient to
establish: (i) that the defendant made a material
misrepresentation or omission of fact; (ii) that the
misrepresentation was made with scienter; (iii) a connection
between the misrepresentation or omission and the purchase or
sale of a security; (iv) reliance on the misrepresentation or
omission; (v) loss causation; and (vi) economic loss.
First Element: Material Misrepresentation or Omission
Legal Standard
Materially misleading statements or omissions by a defendant
constitute the primary element of a section 10(b) and rule 10b-5
cause of action.
To plead falsity, a complaint must specify each statement alleged
to have been misleading, and the reason or reasons why the
statement is misleading.
Material Misrepresentations or Omissions Requirement Met
First, plaintiffs allege that statements regarding RH Modern
inventory were false and misleading. Second, plaintiffs challenge
statements which allegedly misrepresented RH Modern's market
performance. Finally, plaintiffs aver that RH's partial
disclosures were themselves misleading because such disclosures
attributed poor financial performance in part to macroeconomic
conditions.
Inventory
In support of plaintiffs' allegations regarding material falsity,
plaintiffs rely on several confidential witnesses ("CWs") as
attesting that (i) defendants had not made inventory investments
in RH Modern prior to the launch in 2Q15, and (ii) RH inventory
growth in 3Q15 reflected an accumulation of excess non-Modern
inventory rather than RH Modern inventory growth leading up to
and immediately following the launch. With regard to RH Modern
inventory investments in 2Q15, CW2, a Buyer employed at RH who
worked at corporate headquarters from 2014 through 2016 and is
knowledgeable about product selection, inventory levels, and
purchasing of hard goods and furniture for RH Modern, stated that
when RH Modern was launched in September 2015 no inventory
existed because RH Modern product designs had not even been
finalized.
Based on this outline of the allegations, the Court finds that
plaintiffs have sufficiently alleged falsity, particularly with
respect to present-tense statements of fact7 regarding (i) the
inventory investments RH had made in RH Modern inventory as of
2Q15, and (ii) specific attribution of 3Q15 inventory growth to
RH Modern on December 10, 2015.
Market Performance
The Court finds that plaintiffs have sufficiently alleged
material falsity with regard to the challenged market performance
statements because Friedman's rosy representations concealed that
RH Modern was suffering from a severe lack inventory and
defendants were receiving customer complaints and cancelled
orders regarding the same. As noted, less than eight weeks after
Friedman stated that defendants were extremely encouraged by the
RH Modern results and represented that RH Modern was performing
ahead of expectations, Friedman wrote a memo to all RH employees
which specifically referenced RH Modern and stated that RH's
customers were on fire and that RH had let customers die.
Plaintiffs have adequately alleged falsity.
Second Element: Scienter
Legal Standard
Scienter is defined as a mental state embracing intent to
deceive, manipulate, or defraud.
The PSLRA demands particular allegations which strongly imply
Defendants' contemporaneous knowledge that the statement was
false when made.
Scienter Requirement Met
The Court finds that plaintiffs have adequately alleged scienter
for three reasons: First, Friedman was highly involved in the RH
Modern launch. Second, plaintiffs proffer testimony of CWs who
indicate that Friedman and Boone had access to and reviewed
reports which described the RH Modern inventory shortage and
customer complaints. Third, the record reflects CW testimony
alleging that RH was struggling with an accumulation of non-
Modern excess inventory totalling over $200 million and that
Friedman took an active role in conversations regarding this
issue. Finally, the Court highlights the importance of the RH
Modern launch to defendants' business and growth strategy. In so
finding, the Court views the CCAC as a whole and takes note of
the context in which the statements above were made.
Fifth Element: Loss Causation
Legal Standard
To establish loss causation, plaintiffs must show that the
statements at issue caused the loss for which the plaintiff seeks
to recover damages. Plaintiffs must establish some causal
connection between the fraud and the securities transaction in
question.
Loss Causation Requirement Met
The Court finds plaintiffs' allegations regarding loss causation
sufficient to establish a causal connection between the fraud and
the securities transaction in question. Specifically, these
disclosures relate[] to the same subject matter as the alleged
misrepresentations, namely that (i) defendants had made inventory
investments in RH Modern in 2Q15 sufficient to support a
successful launch, (ii) RH Modern was performing well in the
market as of 3Q2015, and (iii) inventory growth in 3Q2015 was
driven by RH Modern rather than the accumulation of non-Modern
inventory which customers had returned due to quality issues.
Further, the three disclosures and corresponding declines in
stock price discussed above indicate that the misrepresented or
omitted facts were a substantial factor in causing the
plaintiff's economic loss. Defendants' argument that the
respective stock declines were due to other macroeconomic factors
does not persuade. Whether the stock drop was due to other
factors is a factual inquiry better suited for determination on
summary judgment or trial, rather than at the pleading stage.
Thus, defendants' final argument on the sufficiency of the claims
fails and the motion on that ground is denied.
Defendant's Motion to Dismiss is denied.
A full-text copy of the District Court's February 26, 2018
Memorandum and Order is available at https://tinyurl.com/y7oq3yqw
from Leagle.com.
City of Miami General Employees' & Sanitation Employees'
Retirement Trust, Plaintiff, represented by Blair Allen Nicholas
-- blairn@blbglaw.com -- Bernstein Litowitz Berger & Grossmann.
Public School Teachers Pension & Retirement Fund of Chicago, Lead
Plaintiff & Arkansas Teacher Retirement System, Lead Plaintiff,
Plaintiffs, represented by Blair Allen Nicholas, Bernstein
Litowitz Berger & Grossmann, Brandon Marsh --
brandon.marsh@blbglaw.com -- Bernstein Litowitz Berger &
Grossman, David Ronald Stickney -- davids@blbglaw.com --
Bernstein, Litowitz, Berger & Grossmann & Jenny E. Barbosa --
jenny.barbosa@blbglaw.com -- Bernstein Litowitz Berger and
Grossmann.
RH, Inc., Defendant, represented by Erik J. Olson --
EJOlson@mofo.com -- Morrison & Foerster LLP, Amanda Treleaven --
atreleaven@mofo.com -- Morrison Foerster LLP, Jordan Eth --
JEth@mofo.com -- Morrison & Foerster LLP & Su-Han Wang --
SWang@mofo.com -- Morrison and Foerster LLP.
Gary Friedman & Karen Boone, Defendants, represented by Erik J.
Olson, Morrison & Foerster LLP, Amanda Treleaven, Morrison
Foerster LLP & Jordan Eth, Morrison & Foerster LLP.
ROCKEFELLER GROUP: Faces "Burbon" Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Rockefeller Group,
Inc. The case is styled as Luc Burbon and on behalf of all other
persons similarly situated, Plaintiff v. Rockefeller Group, Inc.
and Tishman Speyer Properties, L.P., Defendants, Case No. 1:18-
cv-02805 (S.D. N.Y., March 29, 2018).
The Rockefeller Group is an American private company based in New
York City, primarily involved in real estate operations in the
United States.[BN]
The Plaintiff appears PRO SE.
SAN FRANCISCO, CA: Court Certifies Modified Class in "Buffin"
-------------------------------------------------------------
The United States District Court for the Northern District of
California issued an Order granting Plaintiffs' Motion for Class
Certification in the case captioned RIANA BUFFIN, ET AL.,
Plaintiffs, v. CITY AND COUNTY OF SAN FRANCISCO, ET AL.,
Defendants, Case No. 15-cv-04959-YGR (N.D. Calif.).
In light of the oral arguments on the motion, the Court proposed
for comment the following modified class definition:
All pre-arraignment arrestees (i) who are, or will be, in the
custody of the City and County of San Francisco; (ii) whose bail
amount is determined by the Felony and Misdemeanor Bail Schedule
as established by the Superior Court of California, County of San
Francisco; (iii) whose arrest has not been reviewed by a judicial
officer; and (iv) who remain in custody for any amount of time
because they cannot afford to pay their set bail amount.
Numerosity
Rule 23(a) requires that the proposed class be so numerous that
joinder of all members is impracticable. As indicated at oral
argument, neither CBAA nor the Sheriff contests that the
numerosity requirement is met in the instant case. The Court
concurs that the numerosity requirement is satisfied.
Commonality
Commonality requires that the class members' claims depend upon a
common contention such that determination of its truth or falsity
will resolve an issue that is central to the validity of each
claim in one stroke.
The Court finds that plaintiffs have demonstrated sufficient
commonality to satisfy Rule 23(a)(2) because the resolution of
one question, that is, whether the Sheriff's use of the Bail
Schedule prior to arraignment violates the Equal Protection or
Due Process clauses of the Fourteenth Amendment, will resolve in
one stroke all class members' claims.
Further, in keeping with the purpose of class action litigation,
settling this common question would render management of proposed
members' claims more efficient for the court and would also
benefit many of the putative class members by obviating the
severe practical concerns that would likely attend them were they
forced to proceed alone.
Typicality
The typicality requirement looks to whether the claims of the
class representatives [are] typical of those of the class, and is
satisfied when each class member's claim arises from the same
course of events, and each class member makes similar legal
arguments to prove the defendant's liability.
The Court finds the typicality requirement satisfied.
The Court finds that plaintiffs' claims are typical of those of
the certified class members, as both plaintiffs' claims and those
of the class members arise from the Sheriff's use of the Bail
Schedule. The injury alleged is the same injury suffered by all
of the certified class members, that is, the violation of the
class members' Due Process and Equal Protection rights through
the Sheriff's use of the Bail Schedule. Similarly, all class
members share the remedy sought, namely, an order declaring
unconstitutional and enjoining the Sheriff's use of the Bail
Schedule.
Adequacy of Representation
Rule 23(a)(4) permits the certification of a class only if "the
representative parties will fairly and adequately protect the
interests of the class.
Here, CBAA has not raised any potential conflicts of interest,
and the Court cannot discern any in this case. While the Court
previously harbored concerns regarding plaintiffs' counsel's
adequacy to represent the proposed class, the Court is now
satisfied in light of his recent filing that plaintiffs' counsel,
now joined by and Robert E. Sims and Steven M. Bauer of Latham &
Watkins LLP as co-counsel, will prosecute this action vigorously
moving forward and adequately represent the interests of the
class members.
Ascertainability
CBAA argues that the proposed class is not ascertainable because
the phrase cannot afford is ambiguous. Accordingly, the Court
finds that plaintiffs' inclusion of the phrase cannot afford in
its proposed class definition does not preclude certification.
Accordingly, Plaintiffs' Motion is granted as modified by the
court. The Court certifies the following class:
All pre-arraignment arrestees (i) who are, or will be, in
the custody of the San Francisco Sheriff; (ii) whose bail amount
is determined by the Felony and Misdemeanor Bail Schedule as
established by the Superior Court of California, County of San
Francisco; (iii) whose terms of pre-trial release have not
received an individualized determination by a judicial officer;
and (iv) who remain in custody for any amount of time because
they cannot afford to pay their set bail amount.
A full-text copy of the District Court's February 26, 2018 Order
is available at https://tinyurl.com/yctn4hcm from Leagle.com.
Riana Buffin & Crystal Patterson, Plaintiffs, represented by Phil
Telfeyan -- ptelfeyan@equaljusticeunderlaw.org -- Equal Justice
Under Law, Catherine Bentley Sevcenko --
catherine@equaljusticeunderlaw.org -- Equal Justice Under Law,
pro hac vice, Robert E. Sims -- bob.sims@lw.com -- Latham &
Watkins LLP, Steven Mark Bauer -- steven.bauer@lw.com -- Latham &
Watkins LLP & Tyler Paul Young -- tyler.young@lw.com -- Latham
and Watkins LLP.
City and County of San Francisco, Defendant, represented by
Jeremy Michael Goldman, San Francisco City Attorney's Office &
Harmeet K. Dhillon -- harmeet@dhillonlaw.com -- Dhillon Law Group
Inc.
Sheriff Vicki Hennessy, Defendant, represented by Jeremy Michael
Goldman, San Francisco City Attorney's Office.
Attorney General Kamala Harris, Defendant, represented by Jose A.
Zelidon-Zepeda, California State Attorney General's Office
Department of Justice.
SCHAUMBURG TOYOTA: "Abedi" Suit Seeks Damages Under TCPA
--------------------------------------------------------
Deeba Abedi, individually and on behalf of all others similarly
situated v. Schaumburg Toyota, Inc., and Does 1-10 inclusive,
Case No. 1:18-at-00151 (E.D. Calif., March 5, 2018), seeks
damages and injunctive relief pursuant to the Telephone Consumer
Protection Act.
Plaintiff Deeba Abedi was a citizen of the County of Merced,
State of California.
Defendants provide dental restoring and enhancing services.
Plaintiff alleges that at all times relevant herein, Defendants
conducted business in the State of California and in the County
of Los Angeles, and within this judicial district. [BN]
The Plaintiff is represented by:
Todd M. Friedman, Esq.
Adrian R. Bacon, Esq.
Meghan E. George, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard St., Suite 780
Woodland Hills, CA 91367
Tel: (877) 206-4741
Fax: (866) 633-0228
E-mail: tfriedman@toddflaw.com
abacon@toddflaw.com
mgeorge@toddflaw.com
SCO SILVER: Court Denies Bid to Dismiss "Matson" FLSA/NJWHL Suit
----------------------------------------------------------------
Judge Noel L. Hillman of the U.S. District Court for the District
of New Jersey denied the Defendants' Motion to Dismiss the case,
LISA MATSON, on behalf of herself and those similarly situated,
Plaintiff, v. SCO, SILVER CARE OPERATIONS, LLC d/b/a/ALARIS
HEALTH AT CHERRY HILL, SOUTH CENTER STREET NURSING LLC d/b/a
ALARIS HEALTH AT ST. MARY'S, and AVERY EISENREICH, Defendants,
Case No. 1:17-cv-1918 (NLH/KMW) (D. N.J.).
The case is a Fair Labor Standards Act ("FLSA") and New Jersey
Wage and Hour Law ("NJWHL") matter. The Plaintiff argues she,
and those similarly situated, were not paid proper overtime
compensation in violation of the FLSA and NJWHL.
The Plaintiff was employed by Defendants as a Registered
Respiratory Therapist from October 2013 to Dec. 7, 2016. She
earned $33 per hour as a Registered Respiratory Therapist. The
payrolls for employees at Cherry Hill, St. Mary's, and other
Alaris facilities are processed centrally by the Defendants'
payroll administrator Joanne Rocco.
Until April 2015, the Plaintiff worked exclusively at the Cherry
Hill location. In April 2015, she also began working at the St.
Mary's location. After that point, during at least nine two-week
pay periods, she worked at both the Cherry and St. Mary's
locations during the same workweeks. This resulted in the
Plaintiff typically working over 40 total hours per workweek.
According to her, these hours were not aggregated for the purpose
of paying the Plaintiff overtime wages.
The Plaintiff argues the Defendants failed to aggregate the total
hours worked by her at the Defendants' facilities for the purpose
of paying overtime when she worked at more than one of the
facilities. She alleges the Defendants consequently failed to
pay at least one and a half times her regular rates for all hours
worked in excess of 40 hours a week during the weeks she worked
at multiple locations.
The Plaintiff's Amended Complaint asserts three counts: (1)
violations of the FLSA, (2) violations of the NJWHL, and (3)
civil conspiracy. The Plaintiff brings her NJWHL claim both
individually and on behalf of those similarly situated.
The Defendants filed their Motion to Dismiss on July 5, 2017.
They seek only to dismiss the Plaintiff's collective action and
class action claims, alleging they were not sufficiently pleaded.
Judge Hillman finds that the Plaintiff's complaint has
sufficiently pleaded the requirements of Rule 23(a) to survive
the Motion to Dismiss. The Plaintiff's Complaint also contains
sufficient allegations to satisfy Rule 23(b)(3), stating that
questions of law and fact that are common to the members of the
class predominate over questions that affect only individual
members of the class. The Judge finds the Plaintiff has pled
sufficient allegations to survive a motion to dismiss her class
action claim at this stage of the litigation.
The Judge also finds that Plaintiff pleads that the Named
Plaintiff and the Collective Plaintiffs are similarly situated,
have substantially similar pay provisions and are all subject to
the Defendants' unlawful policies and practices. For
substantially the same reasons he found the Rule 23(a) and (b)
requirements were met, the Judge similarly finds the Plaintiff
sufficiently pleaded the FLSA collective action requirements to
survive the motion to dismiss.
Finding the Defendants' Motion to Dismiss Plaintiff's class
action and collective action claims to be premature, Judge
Hillman denied the Defendants' Motion to Dismiss. An appropriate
Order will follow.
A full-text copy of the Court's Feb. 23, 2018 Opinion is
available at https://is.gd/F7kafh from Leagle.com.
LISA MATSON, on behalf of herself and those similarly situated,
Plaintiff, represented by DANIEL ARI HOROWITZ --
dhorowitz@swartz-legal.com. -- SWARTZ SWIDLER LLC & MATTHEW D.
MILLER -- mmiller@swartz-legal.com -- SWARTZ SWIDLER, LLC.
SCO, SILVER CARE OPERATIONS, LLC, doing business as ALARIS HEALTH
AT CHERRY HILL, SOUTH CENTER STREET NURSING LLC, doing business
as ALARIS HEALTH AT ST. MARY'S & AVERY EISENREICH, Defendants,
represented by STUART WEINBERGER, GOLDBERG & WEINBERGER LLP.
SCOTTRADE INC: Lewis May File Sup. Ct. Petition for Writ by May 9
-----------------------------------------------------------------
Justice Neil M. Gorsuch extended until May 9, 2018, the time to
file a petition for a writ of certiorari in the lawsuit titled
NICHOLAS LEWIS, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY
SITUATED v. SCOTTRADE, INC., Case No. 17A1008, in the Supreme
Court of United States.
Pursuant to Supreme Court Rules 13.5, 21, 22, and 30.3,
Plaintiff-Applicant Nicholas Lewis asked an extension of the time
to file a petition for writ of certiorari from April 9, 2018, up
to and including June 8, 2018.
As reported in the Class Action Reporter on Feb. 5, 2018, Judge
James B. Loken of the U.S. Court of Appeals for the Eighth
Circuit affirmed the District Court's dismissal of the case.
In the case underlying this appeal, Lewis alleged that Scottrade,
Inc. -- a discount brokerage firm that provides investment
services, online trading platforms and market research tools --
breached its fiduciary obligations of "best execution" to its
clients by automatically sending clients' limit orders to venues
that pay Scottrade rebates, rather than using reasonable
diligence to ascertain the trading venue that will offer the
client the best venue for executing the trade.
The U.S. District Court for the Eastern District of Missouri
dismissed the action as precluded by the Securities Litigation
Uniform Standards Act ("SLUSA"), which precludes state law causes
of action, including those for breach of fiduciary duty, if the
complaint alleges fraudulent conduct that was "in connection"
with the purchase or sale of covered securities.
Lewis appealed the District Court's dismissal (8th Circuit,
Appeal No. 16-3808), arguing that the District Court erred by:
(1) ruling that Lewis's claims were "in connection with" the
purchase or sale of a covered security and, thus, precluded by
SLUSA; and (2) finding that Lewis's claims for breach of
fiduciary duty of "best execution" were predicated on fraudulent
conduct and, thus, also precluded by SLUSA.
On January 9, 2018, the Eighth Circuit issued its decision
affirming the District Court's dismissal.[BN]
Applicant-Plaintiff Nicholas Lewis is represented by:
Timothy G. Blood, Esq.
Leslie E. Hurst, Esq.
Thomas J. O'Reardon II, Esq.
Paula R. Brown, Esq.
BLOOD HURST & O'REARDON, LLP
501 West Broadway, Suite 1490
San Diego, CA 92101
Telephone: (619) 338-1100
Facsimile: (619) 338-1101
E-mail: tblood@bholaw.com
lhurst@bholaw.com
toreardon@bholaw.com
pbrown@bholaw.com
- and -
Brian J. Robbins, Esq.
Kevin A. Seely, Esq.
Ashley R. Rifkin, Esq.
Steven M. McKany, Esq.
ROBBINS ARROYO LLP
600 B Street, Suite 1900
San Diego, CA 92101
Telephone: (619) 525-3990
Facsimile: (619) 525-3991
E-mail: brobbins@robbinsarroyo.com
kseely@robbinsarroyo.com
arifkin@robbinsarroyo.com
smckany@robbinsarroyo.com
Respondent-Defendant Scottrade Inc. is represented by:
Thomas E. Douglass, Esq.
Christopher M. Hohn, Esq.
Brandi L. Burke, Esq.
David M. Mangian, Esq.
THOMPSON COBURN, LLP
One US Bank Plaza
St. Louis, MO 63101
Telephone: (314) 552-6029
E-mail: tdouglass@thompsoncobum.com
chohn@thompsoncobum.com
bburke@thompsoncobum.com
dmangian@thompsoncoburn.com
SHELL OIL: $4.48MM Settlement in "Parko" Suit Has Final Approval
----------------------------------------------------------------
In the case, JEANA PARKO, on behalf of herself and all others
similarly situated, Plaintiffs, v. SHELL OIL COMPANY, EQUILON
ENTERPRISES, LLC d/b/a SHELL OIL PRODUCTS US, CONOCOPHILLIPS
COMPANY, WRB REFINING LP, CONOCOPHILLIPS WRB PARTNER LLC, and
CENOVUS GPCO LLC, Defendants, Case No. 12-CV-336-NJR-RJD (S.D.
Ill.), Judge Nancy J. Rosenstengel of the U.S. District Court for
the Southern District of Illinois granted the Plaintiffs' Motion
for Final Approval of Class Settlement, the Class Counsel's
Motion for Award of Attorneys' Fees and Expenses from the Common
Fund, and the Ford Plaintiffs' Counsel's Motion for Award of
Expenses from the Common Fund.
Judge Rosenstengel has considered the Parties' submissions with
regard to the certification of a Settlement Class and has
analyzed the proposed Settlement Class pursuant to Rules 23(a)
and 23(b)(3) of the Federal Rules of Civil Procedure, and has
held two hearings concerning the same. Based on her evaluation
of the submissions presented by the Parties and the matters
presented at the hearings, the Judge granted final approval of
the Class Settlement, as set forth in the Agreements.
She certified the action as a class action for settlement
purposes only on behalf of the class of claimants defined as all
persons who own or owned or occupy or occupied real property in
the Village of Roxana, Illinois, within the Settlement Class
Area, during the Settlement Time Period, regardless of whether or
not they file a Claim Form in accordance with the procedures set
forth in the Agreements, the Claim Form and the Class Notice, who
do not timely and effectively opt out following the procedures
set forth in the Agreements.
Moreover, the Settlement Class Area is defined as those
privately-owned real property parcels located in the portion of
Roxana, Illinois referred to by the IEPA as the Study Area, which
is defined, for purposes of the Agreements, to be the area
enclosed by commencing at the southwest corner of South Central
Avenue and Rand Avenue ("Beginning Point"), extending north along
the east side of South Central Avenue to the south side of the
alley between First Street and East Tydeman Avenue, then
extending east along the south side of the alley to South Chaffer
Avenue, then extending south to a point due east of the Beginning
Point, then extending west to the Beginning Point.
The following causes of action and requests for damages are
specifically included in this Settlement Class: negligence,
trespass, nuisance, unjust enrichment, medical monitoring,
diminution in property value, loss of use and enjoyment,
remediation or clean-up costs, and any other related damages.
Further, certification of the Settlement Class is expressly
conditioned on the terms of the settlement reached by the Parties
as set forth fully in the Agreements.
The Judge finalized her designation of Jeana Parko as the
Settlement Class Representative. She also finalized her
designation and approval of the law firm of Simmons Hanly Conroy
to represent the Members of the Settlement Class as the Class
Counsel.
In accordance with the terms of the Agreements, the Shell
Defendants will contribute up to a maximum of $4,480,000 to the
Total Class Settlement Fund and the ConocoPhillips Defendants
will contribute $350,000 to the Total Class Settlement Fund. The
Total Class Settlement Fund will be used to: (a) make settlement
payments to Qualifying Claimants (i.e., Members of the Settlement
Class who have submitted a valid claim form and supporting
documentation to the Claims Administrator); (b) pay the Class
Counsel attorneys' fees of 25% of the Total Class Settlement
Fund; (c) pay the expenses of Class Counsel approved by the
Court; (d) pay the expenses of the Ford Plaintiffs' Counsel
approved by the Court; (e) pay the fees of the Court-appointed
Neutral Arbitrator, if any; and (f) pay other necessary expenses,
if any, as approved by the Court.
The Settlement payments to Qualifying Claimants are being
allocated and calculated based on a number of factors as set
forth in the Agreements, such as: the period and length of
occupancy on the property; the period and length of ownership of
the property; the type of property (residential, commercial,
other); if residential, the assessed value of the property;
whether the property is located within the 1Q2012 Groundwater
Contour as defined in the Agreements; and whether the ownership
or occupancy of the Member of the Settlement Class ended before
March 2007.
The claims administration process began with the mailing and
publication of the Class Notice on Aug. 30, 2017. As of Dec. 1,
2017, the Claims Administrator received a total of 1,197 claim
forms. Of those, the Claims Administrator found that 696 were
filed by non-class members because they were submitted online
from addresses outside of the Roxana, Illinois area (states like
New York and California), and no supporting documentation was
provided. Of the claims that were deemed to have been filed by
the class members, as of Dec. 1, 2017, the Claims Administrator
had processed 301 as valid, 14 remained pending, and 184 as
invalid for several reasons. The Claims Administrator and the
Parties continue working with the Class Members to finalize the
claims administration process.
The Judge granted the Class Counsel's motion for attorneys' fees
and awards the Class Counsel reasonable attorneys' fees in the
amount of 25% of the Total Class Settlement Fund, or $1,207,500.
She also granted the Class Counsel's request for reimbursement of
costs and expenses incurred to date, which presently total
$35,584.49. In addition, she granted the Ford Plaintiffs'
Counsel's request for reimbursement of costs and expenses in the
amount of $68,399.29.
All proceedings in Parko, et al. v. Shell Oil Co., et al., No.
3:12-cv-00336-NJR-PMF (S.D. Ill.) are dismissed with prejudice,
other than such proceedings as may be necessary to carry out the
terms and conditions of the Agreements. The Parties are
instructed by Judge Rosenstengel to advise the Court when the
allocation of the Total Class Settlement Fund has been completed
and all settlement awards have been paid to Qualifying Claimants.
A full-text copy of the Court's Feb. 23, 2018 Order is available
at https://is.gd/po6qRI from Leagle.com.
Patricia Bourbon, Robert Bourbon, Trixie Willeford, Walter
Willeford, Connie Kravanek, Michael Schultz, Tammy Neibel, Marty
Neibel, Rosemary Rhea, Amy Friedel, Objector, Donald K. Burden,
Alberta E. Burden, Patricia Ford, Virginia Clark, Objectors, pro
se.
Jeana Parko, individually and on behalf of all others similarly
situated, Plaintiff, represented by Andrea Bierstein--
ABierstein@simmonsfirm.com -- Simmons Hanly Conroy, LLC, Melissa
Sims, Law Office of Melissa K. Sims -- mksims@melissaksims.com --
Derek Y. Brandt -- dyb@mccunewright.com -- McCune Wright Arevalo
LLP, G. Michael Stewart -- mstewart@simmonsfirm.com -- Simmons
Hanly Conroy, Jayne H. Conroy -- JConroy@simmonsfirm.com --
Simmons Hanly Conroy, LLC & Jo Anna Pollock --
jpollock@simmonsfirm.com -- Simmons Hanly Conroy.
Shell Oil Company, Defendant, represented by Alexander Calfo --
acalfo@kslaw.com -- King & Spalding LLP, Amy Eikel --
aeikel@kslaw.com -- King & Spalding LLP, Bart C. Sullivan --
BSullivan@foxgalvin.com -- Fox Galvin, LLC, Carmen Rosario Toledo
-- ctoledo@kslaw.com -- King & Spalding LLP, Julia Romano --
romano@kslaw.com -- King & Spalding LLP, Richard B. Korn --
rkorn@foxgalvin.com -- Fox Galvin LLC, Ryan E. Mohr --
rmohr@foxgalvin.com -- Fox Galvin LLC & Tracie Renfroe --
trenfroe@kslaw.com -- King & Spalding LLP.
Equilon Enterprises, LLC, doing business as, Defendant,
represented by Bart C. Sullivan, Fox Galvin, LLC, Carmen Rosario
Toledo, King & Spalding LLP, Richard B. Kor, Fox Galvin LLC &
Ryan E. Mohr, Fox Galvin LLC.
ConocoPhillips Company, WRB Refining LP, ConocoPhillips WRB
Partner LLC & Cenovus GPCO LLC, Defendants, represented by Beth
A. Bauer -- bbauer@heplerbroom.com -- HeplerBroom LLC, David M.
Bays -- dbays@heplerbroom.com -- HeplerBroom LLC & Larry E.
Hepler -- larry.hepler@heplerbroom.com -- HeplerBroom LLC.
SKC ENTERPRISES: "Davis" Suit Alleges FLSA and AMWA Violations
--------------------------------------------------------------
Cindy Davis, individually and on behalf of all others similarly
situated v. SKC Enterprises, Inc. dba Rent One, Case No. 3:18-cv-
00036 (E.D. Ark., March 2, 2018), is brought against the
Defendant for violations of the Fair Labor Standards Act and the
Arkansas Minimum Wage Act.
Plaintiff Cindy Davis is a citizen and resident of Sharp County.
Plaintiff was employed by Defendant as an hourly-paid assistant
manager at the furniture rental service store in Pocahontas.
Defendant owns and operates several Rent One furniture rental
service stores throughout Arkansas, as well as other locations in
the United States. [BN]
The Plaintiff is represented by:
Chris Burks, Esq.
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
One Financial Center
650 South Shackleford, Suite 411
Little Rock, AR 72211
Tel: (501) 221-0088
Fax: (888) 787-2040
E-mail: chris@sanfordlawfirm.com
josh@sanfordlawfirm.com
ST. GEORGE HOLDING: Faces "Ramos" Suit in E.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against St. George Holding
Corp. The case is styled as Bonifacio Perez-Ramos and Luciana
Flores, individually and on behalf of others similarly situated,
Plaintiffs v. St. George Holding Corp. doing business as: El
Basurero, Ritmos 60's Inc. doing business as: Ritmos 60's, Jorge
A. Morales and Ramon Badillo, Defendants, Case No. 1:18-cv-01929
(E.D. N.Y., March 29, 2018).
El Basurero is a kitschy, spacious bar & grill serving
traditional Colombian fare & drinks in a quirky dining room.[BN]
The Plaintiffs appear PRO SE.
STERLING INFOSYSTEMS: Sued Over Inaccurate Consumer Reports
-----------------------------------------------------------
Steven D. Gunn, on behalf of himself and all others similarly
situated v. Sterling Infosystems, Inc., Sterling Infosystems,
Inc., E-verifile.com, Inc., BNSF Railway Company, Norfolk
Southern Railway Company, Canadian National Railway Company, and
Railroad Controls, LP, Case No. 1:18-cv-00457 (N.D. Ohio,
February 26, 2018), is an action for damages as a result of the
Defendants' failure to establish or to follow reasonable
procedures to assure maximum possible accuracy in the preparation
of consumer reports and credit files they publish and maintain
concerning consumers.
Sterling Infosystems, Inc., Sterling Infosystems, Inc., and E-
verifile.com, Inc. are engaged in the business of assembling,
evaluating, and disbursing information concerning consumers for
the purpose of furnishing "consumer reports" to third parties.
BNSF Railway Company, Norfolk Southern Railway Company, Canadian
National Railway Company, and Railroad Controls, LP own and
operate a railway company that provides freight transportation
services to industrial and commercial clients, including
transportation of consumer products, coal, industrial products,
and agricultural products. [BN]
The Plaintiff is represented by:
Matthew A. Dooley, Esq.
Stephen M. Bosak, Esq.
5455 Detroit Road
Sheffield Village, OH 44054
Telephone: (440) 930-4001
Facsimile: (440) 934-7208
E-mail: mdooley@omdplaw.com
sbosak@omdplaw.com
- and -
John C. Bazaz, Esq.
LAW OFFICES OF JOHN C. BAZAZ, PLC
4000 Legato Road, Suite 1100
Fairfax, VA 22033
Telephone: (703) 272-8455
Facsimile: (703) 596-4555
E-mail: jbazaz@bazazlaw.com
SUFFOLK COUNTY, NY: Court Consolidates "Miller," "Butler" Suits
---------------------------------------------------------------
Judge Joanna Seybert of the U.S. District Court for the Eastern
District of New York granted the Plaintiff's motion to
consolidate the case, JOHN H. MILLER, Plaintiff, v. SUFFOLK
COUNTY CORRECTIONAL FACILITIES, Defendant, Case No. 18-CV-0797
(JS) (GRB) (E.D. N.Y.) with Butler, et al. v. DeMarco, et al.,
No. 11-CV-2602 (JS)(GRB).
Pursuant to the Court's Jan. 23, 2012 Order of Consolidation in
the Consolidated Action, Judge Seybert has reviewed the instant
Complaint and finds that it relates to the subject matter of the
Consolidated Action. Accordingly, the action will be
consolidated with the Consolidated Action.
This affects the Plaintiff in the following ways: (i) the
Plaintiff in the action will become a member of the certified
classes in Butler (11-CV-2606); (ii) any claims in the instant
Complaint that are not included in the Consolidated Amended
Complaint in Butler will be severed; and (iii) the Plaintiff, as
a member of the class, will be represented by pro bono counsel,
Shearman & Sterling LLP.
A copy of the Order of Consolidation and the operative complaint
in Butler -- the Consolidated Amended Complaint -- are annexed to
the Order.
If Plaintiff does not wish to proceed as a member of the
Consolidated Action, he must so indicate in a letter to the Court
within 30 days of receiving a copy of the Order. Upon receipt of
such a letter, the Court will direct the Clerk of the Court to
sever the Complaint from the Consolidated Amended Complaint and
reopen and reinstate his individual pro se action.
Judge Seybert directed the Clerk of the Court to consolidate the
matter with Butler; to mail a copy of the Order, the Order of
Consolidation, and the Consolidated Amended Complaint to the
Plaintiff at his last known address; and to mark the case closed.
A full-text copy of the Court's Feb. 23, 2018 Order is available
at https://is.gd/3DnuBf from Leagle.com.
TGI FRIDAYS: Ct. Grants Partial Summ. Judgment Bid in "Williams"
----------------------------------------------------------------
In the case, GABRIELLE WILLIAMS and TONYA O'DONOVAN, on behalf of
themselves and all other persons similarly situated, known and
unknown, Plaintiffs, v. TGI FRIDAYS, INC., Defendant, Case No. 16
C 4286 (N.D. Ill.), Judge Matthew F. Kennelly of the U.S.
District Court for the Northern District of Illinois, Eastern
Division, granted TGIF's motion for partial summary judgment, and
terminated as moot both the Plaintiffs' motion to certify a class
action and TGIF's motion to exclude Madansky's expert testimony.
TGIF operated restaurants in Illinois until November 2015.
Between 2008 and 2015, it employed over 9,000 hourly employees
who no longer work for the company. Williams and O'Donovan are
two former employees of TGIF. On behalf of a putative class of
ex-employees, the Plaintiffs allege that TGIF violated the
Illinois Wage Payment Collection Act ("IWPCA") by failing to
compensate them for unused paid vacation benefits they contend
they had accrued.
In 2012, TGIF amended its vacation policy by changing the date on
which it began to measure an employee's annual hours: previously
it was the date the employee was hired; henceforth it would be
the first day of the fiscal year. But, on the substantive
points, the pre-2012 and post-2012 policies otherwise concur: an
employee is entitled to vacation pay in the current year if, at
the end of the previous year, that employee was still employed
and had worked in excess of 1,300 hours in that year.
Williams worked at TGIF from March 18, 2010 to April 14, 2012.
She worked 1,032 hours in her first year of employment and 275
hours in her second year of employment. O'Donovan worked at TGIF
from Jan. 10, 2014 to April 18, 2015. She worked 1,781 hours in
her first year of employment and 466 hours during the second
year. Because O'Donovan worked more than 1,300 hours in her
first year, she was eligible for paid vacation in her second
year. After she left TGIF, she was compensated for the unused
portion of that vacation time but not for vacation time that she
contends accrued during her second year of work for TGIF.
Williams contends that TGIF violated the IWPCA by failing to
compensate her for vacation time she claims to have earned during
her tenure at TGIF. O'Donovan contends TGIF violated the IWPCA
by failing to pay her for paid vacation she contends she accrued
during her second year at TGIF. O'Donovan also alleges that TGIF
improperly delayed in paying her the vacation compensation she
was owed, but that claim is not at issue in the present motion
for partial summary judgment.
The Plaintiffs have moved to certify a class of similarly
situated Plaintiffs. TGIF has moved for summary judgment on
Williams and O'Donovan's claim. TGIF has also asked the Court to
exclude the Plaintiffs' expert witness.
Judge Kennelly holds that TGIF is entitled to summary judgment.
Neither Williams, who never worked more than 1,300 hours in one
year, nor O'Donovan, who worked less than 1,300 hours in her
second year, met TGIF's criteria for eligibility to participate
in the company's paid vacation program for the years in question.
Thus TGIF has no obligation to pay either Williams or O'Donovan
for unused paid vacation time, as neither was eligible to receive
that benefit under the terms of the company's program.
For the foregoing reasons, the Judge granted TGIF's motion for
partial summary judgment. He both terminated as moot the
plaintiffs' motion to certify a class action and TGIF's motion to
exclude Madansky's expert testimony. The Court must still
resolve O'Donovan's pending IWPCA claim arising from TGIF's
alleged failure to promptly pay her the vacation compensation she
was owed. The case is set for a status hearing on Feb. 28, 2018
at 9:30 a.m. to discuss a schedule for further proceedings.
A full-text copy of the Court's Feb. 23, 2018 Memorandum Opinion
and Order is available at https://is.gd/89YIkm from Leagle.com.
Gabrielle Williams, on behalf of themselves and all other persons
similarly situated & Tonya O'Donovan, on behalf of themselves and
all other persons similarly situated, Plaintiffs, represented by
Douglas M. Werman -- dwerman@flsalaw.com -- Werman Salas P.C.,
Maureen Ann Salas -- msalas@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.
TGI Fridays Inc, Defendant, represented by Gerald L. Maatman, Jr.
-- gmaatman@seyfarth.com -- Seyfarth Shaw LLP, Alex W. Karasik --
akarasik@seyfarth.com -- Seyfarth Shaw Llp, Jennifer Ann Riley --
jriley@seyfarth.com -- Seyfarth Shaw LLP, Kevin Andrew Fritz --
kfritz@seyfarth.com -- Seyfarth Shaw LLP, Matthew James Gagnon --
mgagnon@seyfarth.com -- Seyfarth Shaw LLP & Thomas E. Ahlering --
tahlering@seyfarth.com -- Seyfarth Shaw LLP.
ULTA BEAUTY: "Chandler" Suit Alleges Exchange Act Violation
-----------------------------------------------------------
Barbara Chandler, individually and on behalf of others similarly
situated v. Ulta Beauty, Inc., Mary N. Dillon, and Scott M.
Settersten, Case No. 1:18-cv-01577 (N.D. Ill., March 2, 2018),
seeks to recover damages caused by Defendants' violations of the
federal securities laws and to pursue remedies under the
Securities Exchange Act of 1934.
This is a federal securities class action on behalf of a class
consisting of all persons other than Defendants who purchased or
otherwise acquired Ulta securities between March 30, 2016 and
February 23, 2018, both dates inclusive.
Plaintiff Barbara Chandler acquired Ulta securities at
artificially inflated prices during the Class Period and was
damaged upon the revelation of alleged corrective disclosures.
Founded in 1990, the Defendant was formerly known as "Ulta Salon,
Cosmetics & Fragrance, Inc." and changed its name to "Ulta
Beauty, Inc." in January 2017. Ulta is based in Bollingbrook,
Illinois and its stock trades on the NASDAQ Global Select market
under the ticker symbol "ULTA." Ulta Beauty, Inc. operates a
chain of beauty stores. The Company offers cosmetics, fragrance,
skin and hair care products, and salon services, and serves
customers throughout the United States.
Defendant Mary N. Dillon has served at all relevant times as the
Company's Chief Executive Officer and Director.
Defendant Scott M. Settersten has served at all relevant times as
the Company's Chief Financial Officer, Treasurer and Assistant
Secretary. [BN]
The Plaintiff is represented by:
Jeremy A. Lieberman, Esq.
J. Alexander Hood II, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Tel: (212) 661-1100
Fax: (212) 661-8665
E-mail: jalieberman@pomlaw.com
ahood@pomlaw.com
- and -
Peretz Bronstein, Esq.
BRONSTEIN, GEWIRTZ & GROSSMAN, LLC
60 East 42nd Street, Suite 4600
New York, NY 10165
Tel: (212) 697-6484
E-mail: peretz@bgandg.com
UNITED STATES: Ct. Grants Final OK of "Sherman" Class Settlement
----------------------------------------------------------------
The United States District Court for the District of Connecticut
issued an Order granting Final Approval of Class Action
Settlement in the case captioned RUTH SHERMAN, on behalf of
herself and all others similarly situated, Plaintiff, v. ALEX M.
AZAR II, Secretary of Health & Human Services, Defendant, No.
3:15-cv-01468 (JAM) (D. Conn.).
Rule 23 of the Federal Rules of Civil Procedure provides that a
court may approve a class action settlement only if it is fair,
reasonable, and adequate.
The Court concludes that the proposed settlement is fair,
reasonable, and adequate in light of all the circumstances.
Accordingly, the Court grants final approval of the parties'
settlement agreement.
A full-text copy of the District Court's February 26, 2018 Order
is available at https://tinyurl.com/ycun2j9o from Leagle.com.
Ruth Sherman, Executor of the Estate of Bradley Olsen-Ecker,
Plaintiff, represented by Alice Bers abers@medicareadvocacy.org.,
Center for Medicare Advocacy, Gill W. Deford --
gdeford@medicareadvocacy.org -- Center for Medicare Advocacy,
Judith A. Stein -- jstein@medicareadvocacy.org -- Center for
Medicare Advocacy, Inc. & Wey-Wey Kwok, Center for Medicare
Advocacy, P.O. Box 350. Willimantic, CT 06226. (860) 456-7790,
pro hac vice.
Alex M. Azar, II, Secretary of Health and Human Services,
Defendant, represented by Justin M. Sandberg, U.S. Department of
Justice-Civ. Div., Carolyn Aiko Ikari, U.S. Attorney's Office &
Danielle Wolfson Young, Department of Justice.
UNITED STATES: SCOTUS Reverses Permanent Injunction in "Jennings"
-----------------------------------------------------------------
In the case, DAVID JENNINGS, ET AL., Petitioners, v. ALEJANDRO
RODRIGUEZ, ET AL., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED, Case No. 15-1204 (U.S.), Judge Samuel Alito
of the Supreme Court of the United States (i) reversed the
judgment of the Court of Appeals affirming the permanent
injunction in line with the relief sought by the Respondents, and
(ii) remanded the case for further proceedings.
Respondent Rodriguez is a Mexican citizen. Since 1987, he has
also been a lawful permanent resident of the United States. In
April 2004, after Rodriguez was convicted of a drug offense and
theft of a vehicle, the Government detained him under Section
1226 and sought to remove him from the country. At his removal
hearing, Rodriguez argued both that he was not removable and, in
the alternative, that he was eligible for relief from removal.
In July 2004, an Immigration Judge ordered Rodriguez deported to
Mexico. Rodriguez chose to appeal that decision to the Board of
Immigration Appeals, but five months later the Board agreed that
Rodriguez was subject to mandatory removal. Once again,
Rodriguez chose to seek further review, this time petitioning the
Court of Appeals for the Ninth Circuit for review of the Board's
decision.
In May 2007, while Rodriguez was still litigating his removal in
the Court of Appeals, he filed a habeas petition in the District
Court for the Central District of California, alleging that he
was entitled to a bond hearing to determine whether his continued
detention was justified. His case was consolidated with another,
similar case brought by Alejandro Garcia, and together they moved
for class certification. The District Court denied their motion,
but the Court of Appeals for the Ninth Circuit reversed.
On remand, the District Court certified the class of all non-
citizens within the Central District of California who: (1) are
or were detained for longer than six months pursuant to one of
the general immigration detention statutes pending completion of
removal proceedings, including judicial review, (2) are not and
have not been detained pursuant to a national security detention
statute, and (3) have not been afforded a hearing to determine
whether their detention is justified.
The District Court named Rodriguez as the class representative of
the newly certified class, and then organized the class into four
subclasses based on the four "general immigration detention
statutes" under which it understood the class members to be
detained: Sections 1225(b), 1226(a), 1226(c), and 1231(a). Each
of the four subclasses was certified to pursue declaratory and
injunctive relief. On appeal, the Court of Appeals held that the
Section 1231 (a) subclass had been improperly certified, but it
affirmed the certification of the other three subclasses.
In their complaint, Rodriguez and the other respondents argued
that the relevant statutory provisions -- Sections 1225(b),
1226(a), and 1226(c) -- do not authorize "prolonged" detention in
the absence of an individualized bond hearing at which the
Government proves by clear and convincing evidence that the class
member's detention remains justified. Absent such a bond-hearing
requirement, respondents continued, those three provisions would
violate the Due Process Clause of the Fifth Amendment.
In their prayer for relief, the Respondents thus asked the
District Court to require the Government to provide, after giving
notice, individual hearings before an immigration judge for each
member of the class, at which the Government will bear the burden
to prove by clear and convincing evidence that no reasonable
conditions will ensure the detainee's presence in the event of
removal and protect the community from serious danger, despite
the prolonged length of detention at issue. The Respondents also
sought declaratory relief.
As relevant here, the District Court entered a permanent
injunction in line with the relief sought by the Respondents, and
the Court of Appeals affirmed. Relying heavily on the canon of
constitutional avoidance, the Court of Appeals construed Sections
1225(b) and 1226(c) as imposing an implicit 6-month time limit on
an alien's detention under these sections.
After that point, the Court of Appeals held, the Government may
continue to detain the alien only under the authority of Section
1226(a). The Court of Appeals then construed Section 1226(a) to
mean that an alien must be given a bond hearing every six months
and that detention beyond the initial 6-month period is permitted
only if the Government proves by clear and convincing evidence
that further detention is justified.
The Government petitioned the Supreme Court for review of that
decision. It asked the Court to interpret three provisions of
U.S. immigration law that authorizes the Government to detain
aliens in the course of immigration proceedings.
Judge Alito finds that the Court of Appeals misapplied the canon
in the case because its interpretations of the three provisions
at issue are implausible. He holds that, subject only to express
exceptions, Sections 1225(b) and 1226(c) authorize detention
until the end of applicable proceedings. Of course, other
provisions of the immigration statutes do authorize detention
"pending" other proceedings or "until" a certain point. But
there is no canon of interpretation that forbids interpreting
different words used in different parts of the same statute to
mean roughly the same thing. The Judge declines to invent and
apply such a canon in the case.
In addition, the Judge holds that there is no justification for
any of the procedural requirements that the Court of Appeals
layered onto Section 1226(a) without any arguable statutory
foundation. Nothing in Section 1226(a)'s text even remotely
supports the imposition of either of those requirements. Nor
does Section 1226(a)'s text even hint that the length of
detention prior to a bond hearing must specifically be considered
in determining whether the alien should be released.
Judge Alito concludes that under the constitutional-avoidance
canon, when statutory language is susceptible of multiple
interpretations, a court may shun an interpretation that raises
serious constitutional doubts and instead may adopt an
alternative that avoids those problems. But a court relying on
that canon still must interpret the statute, not rewrite it.
Because the Court of Appeals in the case adopted implausible
constructions of the three immigration provisions at issue, the
Judge reversed its judgment.
Because the Court of Appeals erroneously concluded that periodic
bond hearings are required under the immigration provisions at
issue, it had no occasion to consider the Respondents'
constitutional arguments on their merits. Consistent with its
role as a court of review, not of first view, the Supreme Court
does not reach those arguments. Instead, the Judge remanded the
case to the Court of Appeals to consider them in the first
instance.
Before the Court of Appeals addresses those claims, however,
Judge Alito directed the Court of Appeals to reexamine whether
the Respondents can continue litigating their claims as a class.
When the District Court certified the class under Rule 23(b)(2)
of the Federal Rules of Civil Procedure, it had their statutory
challenge primarily in mind. Now that the Supreme Court has
resolved that challenge, however, new questions emerge.
Th Judge says the Court of Appeals should first decide whether it
continues to have jurisdiction despite 8 U. S. C. Section
1252(f)(1). The Court of Appeals should also consider whether a
Rule 23(b)(2) class action continues to be the appropriate
vehicle for the Respondents' claims in light of Wal-Mart Stores,
Inc. v. Duke. Similarly, it should also consider on remand
whether a Rule 23(b)(2) class action litigated on common facts is
an appropriate way to resolve the Respondents' Due Process Clause
claims.
A full-text copy of the Court's Feb. 27, 2018 Opinion is
available at https://is.gd/R9pdyB from Leagle.com.
Noel J. Francisco, Solicitor General, United States Department of
Justice, SupremeCtBriefs@USDOJ.gov, Attorneys for Petitioner,
David Jennings, et al.
Edwin Smiley Kneedler -- Judith.L.Reardon-Bridges@usdoj.gov --
Attorneys for Petitioner, David Jennings, et al.
Malcolm L. Stewart, Department of Justice, Attorneys for
Petitioner, David Jennings, et al.
Ahilan T. Arulanantham, ACLU Foundation of Southern CA --
aarulanantham@aclusocal.org -- Attorneys for Respondents,
Alejandro Rodriguez, et al.
Dennis Auerbach, Covington & Burling LLP -- dauerbach@cov.com --
for Professors of Constitutional, Immigration, and Administrative
Law.
James Joseph Beha, II , Morrison & Foerster -- jbeha@mofo.com --
for Nine Retired Immigration Judges, and Board of Immigration
Appeals Members.
Anjan Choudhury, Munger Tolles & Olson LLP --
anjan.choudhury@mto.com -- for Members of Asian Americans
Advancing Justice.
Kelsi Brown Corkran, Orrick Herrington & Sutcliffe LLP --
kcorkran@orrick.com -- for 43 Social Science Researchers and
Professors.
Alina Das, Washington Square Legal Services, Inc. --
alina.das@nyu.edu -- for Americans for Immigrant Justice, et al.
James J. Farrell, Latham & Watkins LLP -- james.farrell@lw.com --
for National Association of Criminal Defense Lawyers, et al.
Mark C. Fleming, Wilmer Cutler Pickering Hale & Dorr LLP --
mark.fleming@wilmerhale.com -- for American Immigration Council,
and American Immigration Lawyers Association.
Justin G. Florence, Ropes & Gray LLP,
justin.florence@ropesgray.com, for Professors Stephen Legomsky,
and Stephen Yale-Loehr in support of respondents.
David C. Frederick, Kellogg, Hansen, Todd, Figel & Frederick,
P.L.L.C. -- dfrederick@kellogghansen.com -- for National
Immigration Project of the National Lawyers Guild, and the
Immigrant Legal Resource Center.
Eugene Martin Gelernter, Paterson Belknap Webb & Tyler LLP --
emgelernter@pbwt.com -- for Human Rights First in support of
respondent.
Greta Suzanne Hansen, Lead Deputy County Counsel, Office of the
County Counsel -- greta.hansen@cco.sccgov.org -- for County of
Santa Clara California, and 19 Additional Counties.
Steven A. Hirsch, Keker & Van Nest, LLP -- shirsch@kvn.com -- for
National Immigration Project of the National Lawyers Guild, et
al.
Lawrence J. Joseph -- lj@larryjoseph.com -- for Eagle Forum
Education & Legal Defense Fund in support of petitioners Eagle
Forum Education & Legal Defense Fund.
Linda A. Klein, President, American Bar Association --
abapresident@americanbar.org -- for American Bar Association in
support of respondents.
Brian J. Murray, Jones Day -- bjmurray@jonesday.com -- for
Detained Legal Services Providers.
Amy Mason Saharia, Williams & Connolly LLP -- asaharia@wc.com --
for United Nations High Commissioner for Refugees.
Richard A. Samp, Washington Legal Foundation -- rsamp@wlf.org --
for 29 U.S. Representatives; chairman Robert Goodlatte, et al.
Samuel Passchier Siegel, Associate Deputy Solicitor General --
Sam.Siegel@doj.ca.gov -- for State of California, et al.
YOUNG SHING: Court Narrows Claims in "Escamilla" FLSA/NYLL Suit
---------------------------------------------------------------
In the case, FRANCISCO MONTENEGRO ESCAMILLA, individually and on
behalf of others similarly situated, Plaintiff, v. YOUNG SHING
TRADING CO., INC., KI TAI YEUNG, WENDY YEUNG, and PING YEUNG,
Defendants, Case No. 17-CV-652 (MKB) (SJB) (E.D.N.Y.), Judge
Margo K. Brodie of the U.S. District Court for the Eastern
District of New York adopted Magistrate Judge Sanket J. Bulsara's
report and recommendation ("R&R") dated Jan. 8, 2018 recommending
that the Court denies the Defendants' partial motion to dismiss
as to Fair Labor Standards Act ("FLSA") overtime, New York Labor
Law ("NYLL") overtime claim, and wage statement claims.
The Plaintiff was employed as a warehouse worker at Young Shing
from approximately 2007 until August of 2016, and was required to
work in excess of 40 hours per week without being paid the
appropriate minimum wage, overtime and spread-of-hours pay as
required under federal and state law. From approximately
February of 2011 until December of 2012, the Plaintiff worked
from approximately 6:30 a.m. until 6:00 p.m. on Tuesdays,
Wednesdays, Fridays and Saturdays, and from approximately 6:30
a.m. until 11:00 p.m. or 2:00 a.m. on Mondays and Thursdays,
typically 77 to 83 hours per week. From approximately January of
2013 until June of 2016, the Plaintiff worked from approximately
6:30 a.m. until 6:00 p.m. on Monday through Saturday, typically
69 hours per week. From approximately June of 2016 until August
of 2016, he worked from approximately 6:30 a.m. until 4:00 p.m.
on Monday through Saturday, typically 57 hours per week.
The Plaintiff was required at various times to work past his
scheduled departure time, but the Defendants did not compensate
him for the additional hours. He alleges that during his
employment with Young Shing, the Defendants maintained a policy
and practice of requiring him, and all similarly situated
employees, to work in excess of 40 hours a week without paying
them appropriate minimum wage, overtime, and spread of hours pay
as required by federal and state laws.
The Plaintiff also alleges that the Defendants engaged in a
variety of other allegedly illegal practices during his
employment, including failure to post notices of employees'
rights under FLSA and NYLL, and failure to provide him with wage
statements and information related to his pay.
On July 17, 2017, the Defendants filed a partial motion to
dismiss the Complaint pursuant to Rules 12(b)(6) and 12(b)(1) of
the Federal Rules of Civil Procedure. On Oct. 10, 2017, the
Court referred the Defendants' motion to Magistrate Judge Sanket
J. Bulsara for a R&R. By his R&R, the Magistrate Judge found
that the Plaintiff had withdrawn his FLSA minimum wage and NYLL
record-keeping claims. He also found that the Plaintiff had
withdrawn the portions of his NYLL minimum wage and spread-of-
hours claims relating to his employment during the period between
January of 2013 and August of 2016.
Addressing Plaintiff's FLSA overtime, NYLL overtime, and NYLL
wage statement claims, Magistrate Judge Bulsara recommended that
the Court denies the Defendants' motion as to these claims. The
Defendants filed objections to the R&R on Jan. 22, 2018.
Judge Brodie finds that no party objected to Magistrate Judge
Bulsara's recommendation that the Court denies the Defendants'
motion as to the Plaintiff's FLSA and NYLL overtime claims, and
the Plaintiff's NYLL wage statement claim. He has reviewed the
unopposed portions of the R&R and, finding no clear error, he
will adopt those recommendations. Accordingly, the Judge will
deny the Defendants' motion to dismiss the Plaintiff's FLSA and
NYLL overtime claims, and NYLL wage statement claim.
The Defendants also objects to Magistrate Judge Bulsara's
recommendation to deny those parts of the Defendants' motion
aimed at the Plaintiff's first cause of action for minimum wage
claims under the FLSA, the Plaintiff's third and fifth causes of
action for minimum wage and spread-of-hour claims from January
2013 until August 2016 under the NYLL, and the Plaintiff's sixth
cause of action for violations of NYLL Section 195(1).
Judge Brodie holds that the Defendants appear to have misread the
R&R in asserting that Magistrate Judge Bulsara recommended that
the Court denies the Defendants' motion as to the claims the
Plaintiff agreed should be dismissed. The Magistrate Judge the
accepted Plaintiff's withdrawal of his FLSA minimum wage and NYLL
record-keeping claims, as well as his withdrawal of the
challenged portions of his NYLL minimum wage and spread-of-hours
claims. The Defendants' objections are therefore based on a
misunderstanding of the R&R.
For these reasons, Judge Brodie adopted Magistrate Judge
Bulsara's R&R in its entirety, and granted the Defendants' motion
as to the Plaintiff's FLSA minimum wage and NYLL record-keeping
claims, as well as the Plaintiff's NYLL minimum wage and spread-
of-hours claims relating to his employment during the period
between January of 2013 and August of 2016. He denied the
Defendants' motion as to the Plaintiff's FLSA and NYLL overtime
claims, and NYLL wage statement claim.
A full-text copy of the Court's Feb. 23, 2018 Memorandum and
Order is available at https://is.gd/nvBJb7 from Leagle.com.
Francisco Montenegro Escamilla, individually & Francisco
Montenegro Escamilla, on behalf of others similarly situated,
Plaintiffs, represented by Gerrald Ellis, Michael Faillace &
Associates, PC, Marisol Santos -- msantos@faillacelaw.com --
Michael Faillace & Associates PC, Sara Jacqueline Isaacson,
Michael Faiillace & Associates, P.C. & Michael A. Faillace --
Michael@Faillacelaw.com -- Michael Faillace & Associates, P.C.
Young Shing Trading Co., Inc., doing business as, Ki Tai Yeung,
Wendy Yeung & Ping Yeung, Defendants, represented by Alexander T.
Coleman -- tc@employmentlawyernewyork.com -- Borrelli &
Associates PLLC, Michael J. Borrelli --
mjb@employmentlawyernewyork.com -- Borrelli& Associates, P.C. &
Taylor Michelle Ferris -- tmf@employmentlawyernewyork.com --
Borrelli & Associates P.L.L.C.
YOUR ALL AROUND: Green Seeks to Recover Overtime Wages Under FLSA
-----------------------------------------------------------------
JANIKA GREEN, Individually and On Behalf of All Others Similarly
Situated v. MICHAEL MENDIETA d/b/a YOUR ALL AROUND CONSTRUCTION
SERVICES and CAMP ROOFING, LTD. d/b/a CAMP CONSTRUCTION SERVICES,
Case No. 4:18-cv-00737 (S.D. Tex., March 8, 2018), seeks to
recover from the Defendants unpaid overtime wages pursuant to the
Fair Labor Standards Act.
Michael Mendieta, doing business as Your All Around Construction
Services, provides construction services in the Houston
metropolitan area.
Camp Roofing, Ltd., doing business as Camp Construction Services,
is a Texas Limited Partnership. According to its Web site, Camp
Construction offers "a broad range of construction services" and
provides these services throughout the United States.
Camp Construction sub-contracted with Michael Mendieta to provide
constructions services in the Houston metropolitan area following
Hurricane Harvey. The Defendants are entities engaged in related
activities, which provide services through a unified operation,
with a common business purpose, under a common control and
administration. The Defendants share employees, including the
Plaintiff and the other non-exempt employees.[BN]
The Plaintiff is represented by:
Melissa Moore, Esq.
Curt Hesse, Esq.
Bridget Davidson, Esq.
MOORE & ASSOCIATES
Lyric Center
440 Louisiana Street, Suite 675
Houston, TX 77002
Telephone: (713) 222-6775
Facsimile: (713) 222-6739
E-mail: melissa@mooreandassociates.net
curt@mooreandassociates.net
WELLS FARGO: Court Narrows Claims in "Hefler" Securities Suit
-------------------------------------------------------------
In the case, GARY HEFLER, et al., Plaintiffs, v. WELLS FARGO &
COMPANY, et al., Defendants, Case No. 16-cv-05479-JST (N.D.
Cal.), Judge Jon S. Tigar of the U.S. District Court for the
Northern District of California granted in part and denied in
part the Defendants' Motions to Dismiss the Consolidated Class
Action Complaint for Violations of the Federal Securities Laws.
The case is a securities fraud class action brought on behalf of
all persons who purchased Wells Fargo stock between Feb. 26, 2014
and Sept. 20, 2016, against certain current and former Wells
Fargo officers and directors.
In addition to Wells Fargo itself, the Complaint names two groups
of Fefendants: "Officer Defendants" and "Director Defendants."
The Officer Defendants include John Stumpf (Chairman of the Board
and CEO during the entirety of the Class Period); John
Shrewsberry (CFO during part of the Class Period); Carrie
Tolstedt (Senior Executive VP of Community Banking during the
Class Period until her resignation on July 31, 2016); Timothy
Sloan (CFO, COO, and head of Wholesale Banking during different
points of the Class Period); David Carroll (Senior Executive VP
in charge of the Wealth, Brokerage and Retirement Group during
the Class Period); David Julian (Company's Chief Auditor during
the Class Period); Hope Hardison (Senior Executive VP and Human
Resources Director during the Class Period); Michael Loughlin
(Senior Executive VP and Chief Risk Officer during the Class
Period); Avid Modjtabai (Head of Consumer Lending during the
Class Period), and James Strother (Company's General Counsel
during the Class Period). The Director Defendants were members
of the Wells Fargo Board of Directors and various committees
during the Class Period. They include John Baker, John Chen,
Lloyd Dean, Elizabeth Duke, Susan Engel, Enrique Hernandez,
Donald James, Cynthia Milligan, Federico Pe§a, James Quigley,
Judith Runstad, Stephen Sanger, Susan Swenson, and Suzanna
Vautrinot. Wells Fargo is also a Defendant.
The gist of the Complaint is that Wells Fargo made repeated
misrepresentations and omissions about a core element of Wells
Fargo's business: its acclaimed 'cross-selling' business model in
which Wells Fargo emphasized the sale of multiple Wells Fargo
products to existing customers. Throughout the class period,
Wells Fargo allegedly touted its cross-selling model as the
reason for its financial success, when in fact Wells Fargo and
the individual defendants knew that many of the purported "sales"
to existing customers never took place -- because Wells Fargo had
instead secretly opened new deposit and credit card accounts for
those customers without their knowledge or permission.
The Plaintiffs note that the government found -- and Wells Fargo
executives have admitted -- that as the problem persisted and as
investigations mounted, Defendants continued their aggressive
sales and incentive programs, and consistently touted the
successes of cross-sell to investors. The price of Wells Fargo
stock increased in lockstep and, although faced with
investigations and with knowledge that the problem was of a
significant magnitude, certain of the Defendants sold or disposed
of massive amounts of personal holdings of Company stock.
Based on the misconduct described, several related lawsuits were
filed against Wells Fargo. On Jan. 5, 2017, the Court granted
Plaintiff Union Asset Management Holding's motion to consolidate
Hefler v. Wells Fargo & Co., Case No. 16-cv-5479 with Klein v.
Wells Fargo & Co., Case No. 16-cv-5513 and to appoint Union as
the Lead Plaintiff.
The Plaintiffs filed their Consolidated Class Action Complaint
for violations of the Federal Securities Laws on March 6, 2017.
In the Complaint, they assert three causes of action: (1)
Violations of Section 10(b) of the Securities Exchange Act of
1943 ("1934 Act") and SEC Rule 10b-5; (2) Violations of Section
20A of the 1934 Act; and (3) Violations of Section 20(a) of the
1934 Act.
The Defendants filed Motions to Dismiss on June 19, 2017. They
move to dismiss the Plaintiffs' claims under Federal Rule of
Civil Procedure 12(b)(6). Defendants Wells Fargo, Tolstedt,
Loughlin, Carroll, Modjtabai, Stumpf, Shrewsberry, and Sloan move
to dismiss Plaintiffs' claims against them under Section 10(b)
and Rule 10b5, Section 20A, and Section 20(a). Defendants
Strother, Julian, Hardison, and the Independent Directors move to
dismiss the claims against them under Section 20(a).
Before the Court are also the Defendants' four requests for
judicial notice, and a request filed by Plaintiffs. The
Defendants request judicial notice of numerous reports, press
releases, news articles, investor presentations, and other
filings with the SEC, many of which the Plaintiffs reference in
the Complaint; and judicial notice of Wells Fargo's historical
stock prices and trading volume during the class period.
The Plaintiffs request judicial notice of numerous reports, press
releases, news articles, investor presentations, conference call
transcripts and other filings with the SEC, many of which were
incorporated by reference in the Complaint. Judge Tigar granted
these judicial notice requests and does not take notice of any
disputed facts contained within those documents.
The Judge granted in part and denied in part the Defendants'
motion to dismiss. He dismisses without prejudice the
Plaintiffs' claims against Defendants Carroll, Modjtabai, and
Loughlin under Section 10(b) and 20A, and Plaintiffs' claims
against Defendant Tolstedt under Section 20A. In all other
respects, he denied the motions.
The Judge finds, among other things, that (i) the Plaintiffs do
not adequately allege a material false or misleading statement by
Defendants Carroll or Modjtabai; (ii) the Plaintiffs adequately
allege that the Defendants had the power to control and influence
by virtue of their executive and managerial positions; (iii) the
Plaintiffs have failed to plead a Section 10(b) claim; (iv) the
Plaintiffs have not adequately alleged scienter against Loughlin
under Section 10(b); and the Plaintiffs adequately allege that
Tolstedt's statements about the success of Wells Fargo's cross
selling and its commitment to providing value for customers were
both material and false or misleading.
The Plaintiffs may amend their complaint by March 21, 2018 to
cure the deficiencies identified in this Order. If no amended
complaint is filed, the Court will proceed on the remaining
claims.
A full-text copy of the Court's Feb. 27, 2018 Order is available
at https://is.gd/zUk9UK from Leagle.com.
Gary Hefler, Individually and on Behalf of All Others Similarly
Situated, represented by Shawn A. Williams -- shawnw@rgrdlaw.com
-- Robbins Geller Rudman & Dowd LLP, Aelish Marie Baig --
aelishb@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP & Jason
C. Davis -- jdavis@rgrdlaw.com -- Robbins Geller Rudman & Dowd
LLP.
Union Asset Management Holding AG, Plaintiff, represented by
Shawn A. Williams, Robbins Geller Rudman & Dowd LLP, Adam H.
Wierzbowski -- adam@blbglaw.com -- Bernstein Litowitz Berger
Grossmann LLP, pro hac vice, Aelish Marie Baig, Robbins Geller
Rudman & Dowd LLP, Angus Fei Ni -- angus.ni@blbglaw.com --
Bernstein Litowitz Berger Grossmann LLP, pro hac vice, Blair
Allen Nicholas -- blairn@blbglaw.com -- Bernstein Litowitz Berger
& Grossmann, Danielle Suzanne Myers -- danim@rgrdlaw.com --
Robbins Geller Rudman & Dowd LLP, Jason C. Davis, Robbins Geller
Rudman & Dowd LLP, Jeroen Van Kwawegen -- jeroen@blbglaw.com --
Bernstein Litowitz Berger Grossmann LLP, pro hac vice, Rebecca E.
Boon -- Rebecca.Boon@blbglaw.com -- Bernstein Litowitz Berger
Grossmann LLP, pro hac vice & Salvatore J. Graziano --
sgraziano@blbglaw.com -- Bernstein Litowitz Berger Grossmann LLP,
pro hac vice.
Public School Teachers' Pension and Retirement Fund of Chicago,
Plaintiff, represented by Blair Allen Nicholas, Bernstein
Litowitz Berger & Grossmann.
Marcelo Mizuki, Plaintiff, represented by Shawn A. Williams,
Robbins Geller Rudman & Dowd LLP.
Guy Solomonov, Plaintiff, represented by Shawn A. Williams,
Robbins Geller Rudman & Dowd LLP.
Steve Klein, Consol Plaintiff, represented by Jennifer Pafiti,
Pomerantz LLP, J. Alexander Hood, II, Pomerantz LLP & Jeremy A.
Lieberman, Pomerantz LLP.
Wells Fargo & Company, Defendant, represented by Brendan P.
Cullen -- cullenb@sullcrom.com -- Sullivan & Cromwell LLP,
Christopher M. Viapiano -- viapianoc@sullcrom.com -- Sullivan &
Cromwell LLP, pro hac vice, Nicolas Bourtin --
bourtinn@sullcrom.com -- Sullivan & Cromwell LLP, pro hac vice,
Richard H. Klapper -- klapperr@sullcrom.com -- Sullivan and
Cromwell LLP, pro hac vice & Sverker Kristoffer Hogberg --
hogbergs@sullcrom.com -- Sullivan & Cromwell LLP.
John G. Stumpf, Defendant, represented by Grant P. Fondo --
gfondo@goodwinlaw.com -- Goodwin Procter LLP, Lloyd Winawer --
lwinawer@goodwinlaw.com -- Goodwin Procter LLP, Nicholas A.
Reider -- nreider@goodwinlaw.com -- Goodwin Procter LLP & Richard
M. Strassberg -- rstrassberg@goodwinlaw.com -- Goodwin Procter
LLP, pro hac vice.
John R. Shrewsberry, Defendant, represented by Ismail Jomo
Ramsey, Ramsey & Ehrlich LLP -- izzy@ramsey-ehrlich.com --
Katharine Ann Kates -- katharine@ramsey-ehrlich.com -- Ramsey &
Ehrlich LLP & Miles F. Ehrlich -- miles@ramsey-ehrlich.com --
Ramsey & Ehrlich LLP.
Carrie L. Tolstedt, Defendant, represented by Enu A. Mainigi,
Williams & Connolly LLP, pro hac vice, Jeffrey E. Faucette,
Skaggs Faucette LLP & Leslie Cooper Vigen -- lvigen@wc.com --
Williams & Connolly LLP, pro hac vice.
Oregon Public Employees Retirement System, Defendant, represented
by Cadio R. Zirpoli -- cadio@saveri.com -- Saveri & Saveri, Inc..
Timothy J. Sloan, Defendant, represented by Josh Alan Cohen --
jcohen@clarencedyer.com -- Clarence Dyer & Cohen LLP, Adam F.
Shearer -- ashearer@clarencedyer.com -- Clarence Dyer & Cohen LLP
& Nanci L. Clarence -- nclarence@clarencedyer.com -- Clarence
Dyer & Cohen LLP.
David M. Carroll, Defendant, represented by James Neil Kramer --
jkramer@orrick.com -- Orrick, Herrington & Sutcliffe LLP, Lily
Irene Becker -- lbecker@orrick.com -- Orrick Herrington and
Sutcliffe & Walter F. Brown -- wbrown@orrick.com -- Orrick
Herrington & Suutcliffe LLP.
David Julian, Defendant, represented by Timothy Paul Crudo --
tcrudo@coblentzlaw.com -- Coblentz Patch Duffy & Bass LLP & Rees
Ferriter Morgan -- rmorgan@coblentzlaw.com -- Coblentz Patch
Duffy & Bass LLP.
Hope A. Hardison, Defendant, represented by Edward W. Swanson --
ed@smllp.law -- Swanson & McNamara LLP & Mary Geraldine McNamara
-- mary@smllp.law -- Swanson & McNamara LLP.
Michael J. Loughlin, Defendant, represented by Ted W. Cassman --
cassman@achlaw.com -- Arguedas Cassman & Headley, LLP & Laurel L.
Headley -- headley@achlaw.com -- Arguedas Cassman & Headley, LLP.
*********
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