/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/180423.mbx C L A S S A C T I O N R E P O R T E R Monday, April 23, 2018, Vol. 20, No. 81 Headlines ADP TOTALSOURCE: Fails to Pay Wages Timely, Samon et al. Claim ALLSTATE INDEMNITY: "Brasher" Suit Moved to N.D. Alabama AMAZON.COM.DEDC LLC: "King" Suit Moved to S.D. Florida ANDY FRAIN: Smith Sues over Collection of Biometric Information APPLE INC: Webb Sues over Slowing Down Performance of iPhones ASSET RECOVERY: Vaughn Sues over Debt Collection Practices BAHCHE INC: "Settecasi" Suit Seeks Unpaid Wages under Labor Law AUSTRALIA: Castlereagh Freeway Residents Mull Class Action BANK OF HAWAII: Court Narrows Claims in "Smith" Suit BANK OF TOKYO-MITSUBISHI: July 12 Settlement Fairness Hearing Set BARTELL HOTELS: Fails to Pay Overtime Wages, Duran Says BLUE MAX TRUCKING: "Hagan" Suit Moved to Fed. District Court BOEHRINGER INGELHEIM: July 19 Aggrenox(R) Settlement Hearing Set BRF SA: Faces Class Action, May 11 Lead Plaintiff Motion Deadline BROOKS ENVIRONMENTAL: Yates Seeks Unpaid OT Wages under FLSA CALIFORNIA HIGHWAY: Some Claims in "Rogers" Must Be Dismissed CANCER GENETICS: Faces "Zhang" Suit over Plunge in Stock Price CARTER HOLT: Hundreds of Property Owners to Join Class Action CASEY'S RETAIL: Judge Rejects Motion to Dismiss ADA Class Action CHASE BANK: Tucker Seeks to Recoup Charges over Crypto Purchases CHEROKEE, NC: "Hogan" Suit vs Social Services Moved to Fed. Court CHESAPEAKE OPERATING: Bid to Remand "Nichols" to State Ct. Denied CHINA AGRITECH: Shearman & Sterling Discusses Tolling Issue CITIBANK N.A.: Kulauzovic Seeks OT Compensation under FLSA CITIGROUP INC: N.Y. Court Partially Denies Class Certification COMMUNITYONE BANCORP: "Pendleton" Settlement Has Final Approval CONTRA COSTA, FL: "Gonzalez" Suit Seeks to Certify Class CREDIT SUISSE: Seeks Dismissal of Broker's Class Action CREDIT ONE: Denial of Arbitration Bid in "Anderson" Affirmed D.R. HORTON: "Winnie" Suit Moved to South Carolina District Court DAVIDSON SURFACE: Averts Class Action Over Unpaid Overtime Wages DISTRICT OF COLUMBIA: Court Denies Renewed Bid to Amend "Lewis" DOUGHERTY COUNTY, GA: Judgment on Pleadings in "Calhoun" OK'd EMBRAER SA: Ruling Highlights Securities Class Action Challenges EPIC LANDSCAPE: Albelo Seeks to Certify Landscape Laborers Class EQUIFAX INC: Judge Explores Ways to Combine Data Breach Cases FRITO-LAY NORTH: Court Denies Bid to Dismiss "Allred" Suit GALLIANO MARINE: Court Grants Class Certification in "Halle" GC SERVICES: Court Shelves "Beaufrand" Class Certification Bid GLENDALE ADVENTIST: Fails to Pay Wages, Mayorga Says GOOD SON: Ornelas Seeks Unpaid Wages & OT under Labor Code GOOGLE INC: Judge Allows Pay-Equity Class Action to Proceed GOOGLE INC: Court Dismisses "Sweet" AdSense Algorithm Suit GOOGLE LLC: Bid to Seal Exhibit B to Free Range Suit Deal Granted GREGORYS COFFEE: Fails to Pay Uniform Maintenance, Griffin Says HARTFORD, CT: 2d Cir. Affirms Summary Judgment in "Outlaw" Suit HAVERHILL RETIREMENT: Bid to Quash Subpoenas Transferred HUNTINGTON BANCSHARES: Younge Seeks OT Compensation under FLSA ILLINOIS: Yates et al. Sue over Law Enforcement Training ILLINOIS: Judge Certifies Class in Medicaid Delay Lawsuit INSTORE GROUP: "Cherelli" Suit Moved to District of Massachusetts IZEA INC: Rosen Law Firm Investigates Potential Securities Claims JACK IN THE BOX: Fails to Pay Overtime Wages, Cisneros Says JC PENNY: Denial of Arbitration Bid in "Cavlovic" Affirmed KRAFT HEINZ: Faces Another All Natural Labeling Class Action LAND'S END: Blankenship Sues over Defective FCRA Disclosure LOGITECH INC: Court Dismisses "Anderson" Class Suit LONGFIN CORP: Scott+Scott Attorneys Files Securities Class Action MARTIN TRANSPORT: Doesn't Pay Dispatchers Overtime, Wingo Claims MARYLAND MARKETSOURCE: Esparza Sues over Background Checks MASTERCARD INT'L: Averts Merchants' Antitrust Class Action MDL 1264: Securities Suit Deal Audit Must be Complete by June 27 MDL 2586: Court Grants SuperValu's Bid to Dismiss Suit MICRO FOCUS: Cardella Sues over Hewlett Packard Deal MINNESOTA: State Supreme Ct. Partly Affirms Ruling in "Hall" NEW MEXICO: Court Dismisses All Federal Claims in "Martin" Suit NEW MILLENNIUM: Fails to Pay for OT, Camarillo & Sandoval Claim NEW YORK, NY: Housing Authority Sued over Heat and Water Services NMN FOOD: Montenegro Seeks Minimum Wage & Overtime under FLSA NORTEL NETWORKS: Class Action Against Former Execs Dismissed NORTHEAST CREDIT: Court Narrows Claims in "Walbridge" EFTA Suit NORTHWOOD DESIGN: Violates Wage and Hour Laws, Henderson Says ODEBRECHT CONSTRUCTION: "Angel" Suit Seeks OT Wages under FLSA PENNSYLVANIA: Faces Class Action Over Excessive Turnpike Tolls PERLOFF PROVIDENCE: Gym Membership Deceptive, Robertson Alleges PIRON LLC: Court Denies Aero's Bid to Dismiss "Ali" FLSA Suit PLY GEM: June 29 Securities Settlement Fairness Hearing Set PRIVATE MINI: "Young" Suit Seeks Unpaid Overtime under FLSA PROPER HOSPITALITY: Barajas Seeks Unpaid Wages under Labor Law PROTOCALL COMMUNICATIONS: Fails to Pay Wages, Sterne Claims PURDUE PHARMA: Plaintiff Lauds Judge's Move to Block Settlement REMINGTON: Wants to Temporarily Halt Rifle Class Action RENEW FINANCIAL: Ocana et al. Sue over Clean Energy Program RENO, NV: Lemon Valley Residents File Flooding Class Action RETAIL SERVICES: Stores Not Accessible to Disabled, Bell Says RITE AID: Court Stays "Kalajian" Pending "Beardsall" Ruling RJ REYNOLDS: $2.5MM Compensatory Damages in "Burkhart" Affirmed SECURITY INTELLIGENCE: Rushing Sues over Meal & Rest Breaks SWEET BAR: "Sac" Suit Seeks Unpaid Overtime under FLSA SEEK CAPITAL: Fails to Pay Minimum Wages & Overtime, Mosele Says SERVICE OF PROCESS: Jurisdictional Discovery in TCPA Suit Nixed TD AMERITRADE: Bid to Exclude Experts Testimony in "Klein" Denied TD AUTO: Shields Sues over Repossession of Vehicle TEXAS: Steward, et al. Suit Moved to Western District of Texas TEXTILE VISION: "Reyes" Suit Seeks Minimum Wage THREE SONS: Fails to Pay Wages & Overtime, Marquez Says TRANSAM TRUCKING: Averts $100-Million Class Action TRANSDEV SERVICES: Bid to Amend 1st Amended "Berry" Suit Granted TUOLUMNE COUNTY, CA: Further Briefing in "Kerzich" Deal Needed TRUEBLUE INC: Fails to Pay All Wages Due, Gates Says TOMRA METRO: "Lawson" Suit Seeks Overtime Wages under Labor Law TOW INC: Faces "Coleman-House" Wage-and-Hour Suit UA 1270: Shalahin, et al. Sue over Cancellation of Flight UBER TECHNOLOGIES: Bid to Amend "O'Connor" PAGA Claim Denied UNIVERSAL PROTECTION: Fails to Pay OT Wages, Collick et al. Say VISTA PAINT: Parking Lot Not Accessible to Disabled, Pizzaro Says WAL-MART STORES: Bid to Quash Subpoena in "Phipps" OK'd WAL-MART STORES: Must Provide Docs in "Phipps" Suit WILSON SPORTING: Baseball Bat Non-Compliant, Sheeley & WalKer Say YALE UNIVERSITY: Loses Bid to Dismiss ERISA Class Action * New Wisconsin Legislation Expected to Modify Class-Action Rules ********* ADP TOTALSOURCE: Fails to Pay Wages Timely, Samon et al. Claim -------------------------------------------------------------- SANDRA SAMON, RUDY RAMIREZ and LAURA WEISS in their individual and representative capacities, the Plaintiff, v. ADP TOTALSOURCE SERVICES, INC., a Florida Corporation; DOES 1 through 10, inclusive the Defendant, Case No. BC701421 (Cal. Super. Ct., April 10, 2018), seeks to recover unpaid wages under the California Labor Code. The Plaintiffs allege that Defendants failed to reimburse necessary expenses, failed to pay wages timely when due, and failed to pay all wages due upon termination in violation of California Labor Code Sections 201, 202 and 203. ADP TotalSource provides small and medium-size businesses with traditional and Internet-based outsourcing solutions to reduce the complexities and costs related to employment and human resources.[BN] The Plaintiff is represented by: Corbett H. Williams, Esq. LAW OFFICES OF CORBETT H. WILLIAMS 24422 Avenida de la Carlota, Suite 370 Laguna Hills, CA 92653 Telephone: 949 679 9909 Facsimile: 949 535 1031 E-mail: cwilliams@chwilliamslaw.com - and - Matthew A. Berliner, Esq. FORTIS LLP 650 Town Center Dr., Ste. 1530 Costa Mesa, CA 92626 E-mail: mberliner@fortislaw.com ALLSTATE INDEMNITY: "Brasher" Suit Moved to N.D. Alabama -------------------------------------------------------- The class action lawsuit titled Donald Brasher, individually and on behalf of all others similarly situated, the Plaintiff, v. Allstate Indemnity Company, the Defendant, Case No. 75-cv-18- 900053, was removed from the Circuit Court of St. Clair County, to the U.S. District Court for the Northern District of Alabama (Middle) on April 10, 2018. The District Court Clerk assigned Case No. 4:18-cv-00576-SGC to the proceeding. The case is assigned to the Hon. Judge Magistrate Judge Staci G. Cornelius. Allstate Indemnity provides property and casualty insurance services. The company was incorporated in 1960 and is based in Northbrook, Illinois. Allstate Indemnity Company operates as a subsidiary of The Allstate Corporation.[BN] The Plaintiff is represented by: Andrew England Brashier, Esq. Archibald I Grubb, II, Esq. Paul Wesley Evans, Esq. Wilson Daniel Miles, III, Esq. BEASLEY ALLEN CROW METHVIN PORTIS & MILES PC P.O. Box 4160 Montgomery, AL 36104 Telephone: (334) 269 2343 Facsimile: (334) 954 7555 E-mail: Andrew.Brashier@beasleyallen.com archie.grubb@beasleyallen.com paul.evans@beasleyallen.com dee.miles@beasleyallen.com Attorneys for Defendant: Kermit L Kendrick, Esq. BURR & FORMAN LLP 420 North 20th Street, Suite 3400 Birmingham, AL 35203 Telephone: (205) 251 3000 Facsimile: (205) 458 5100 E-mail: kkendric@burr.com - and - Mark Lynn Clark, Esq. THOMPSON COE COUSINS AND IRONS LLP One Riverway, Suite 1400 Houston, TX 77056 Telephone: (713) 403 8286 Facsimile: (713) 403 8299 E-mail: mlclark@thompsoncoe.com - and - Scott T Winstead, Esq. BURLESON, LLP 650 Poydras Street, Suite 2750 New Orleans, LA 70130 Telephone: (504) 526 4350 Facsimile: (504) 526 4310 E-mail: swinstead@thompsoncoe.com AMAZON.COM.DEDC LLC: "King" Suit Moved to S.D. Florida ------------------------------------------------------ The class action lawsuit titled Michael Josiah King and other similarly situated individuals, the Plaintiff, v. Amazon.com.dedc, LLC, a Foreign Limited Liability Company, the Defendant, Case No. 18-04344 CA 01, was removed from the 11th Judicial Circuit of Florida, to the U.S. District Court for the Southern District of Florida (Miami) on April 13, 2018. The District Court Clerk assigned Case No. 1:18-cv-21464-JAL to the proceeding. The case is assigned to the Hon. Judge Joan A. Lenard. Amazon.com.dedc, LLC operates as a subsidiary of Amazon.com Inc.[BN] Attorneys for Michael Josiah King and other similarly situated individuals: Brody Max Shulman, Esq. Jason Saul Remer, Esq. REMER & GEORGES-PIERRE, PLLC Courthouse Tower 44 West Flagler Street, Suite 2200 Miami, FL 33130 Telephone: (305) 416 5000 Facsimile: (305) 416 5005 E-mail: bshulman@rgpattorneys.com jremer@rgpattorneys.com Attorneys for Amazon.com.dedc, LLC: Joseph Daniel Magrisso, Esq. Mark Edward Zelek, Esq. MORGAN, LEWIS AND BOCKIUS, LLP 690 SW 1st Ct., Apt. 2703 Miami, FL 33130 Telephone: (786) 255 8875 E-mail: jmagrisso@morganlewis.com mzelek@morganlewis.com ANDY FRAIN: Smith Sues over Collection of Biometric Information --------------------------------------------------------------- JACQUETTE SMITH, individually and on behalf of a class of similarly situated individuals, the Plaintiff, v. ANDY FRAIN SERVICES, INC., an Illinois corporation, and ANDY FRAIN SECURITY, INC., an Illinois corporation, the Defendant, Case No. 2018CH04719 (Ill. Cir. Ct., Cook County, April 11, 2018), seeks to stop Defendant's unlawful collection, use, storage, and dissemination of individuals' biometric identifiers and/or biometric information in violation of the Illinois Biometric Information Privacy Act and to obtain redress for all persons injured by their conduct. This case concerns the misuse of individuals' biometric identifiers and/or biometric information by professional security services companies which are capturing, converting, using, storing and disseminating their workers' biometric information without lawful consent. Andy Frain does this through the use of biometric scanning devices and associated software technology which capture a person's fingerprint information derived from their fingerprints to authenticate the identity of such persons in the future. New technology now allows consumers to pay their bills, secure financial accounts, and purchase physical goods, all with their biometric information, which is often a fingerprint. Unfortunately, along with the increased utility of biometric technology, so too has come grave privacy risks associated with the dissemination and unregulated collection of biometric information, with the risk of such harms greatly magnified by the unregulated collection of biometric information. Indeed, the permanent and irreplaceable nature of one's biometrics makes the illegal collection of the same a significant public problem with far-reaching consequences, including irreversible identify theft and potential financial ruin. So substantial is the risk from the wide collection of biometric information by private companies that numerous state legislatures, including Alaska, Connecticut, Montana, Michigan, Texas, New Hampshire, and Washington, have introduced legislation to regulate the collection and use of such sensitive information in an effort to stem the unique problems created by the irreplaceable nature and unique identifying characteristics of biometrics. Andy Frain provides integrated solutions to security and events. The company provides security services for political conventions, fairs and trade shows, sports arenas, venues, universities, commercial businesses, and people, and cargo screening and auditing services at domestic airports.[BN] Counsel for Plaintiff and the Putative Class: Myles McGuire, Esq. William P. Kingston, Esq. Jad Sheikali, Esq. MCGUIRE LAW, P.C. 55 W. Wacker Drive, 9th Fl. Chicago, IL 60601 Tel: (312) 893-7002 E-mail: mmewguire@mcgpc.com wkingston@mcgpc.com jsheikali@mcgpc.com APPLE INC: Webb Sues over Slowing Down Performance of iPhones ------------------------------------------------------------- JOHN P. WEBB, Individually and on Behalf of All Others Similarly Situated, the Plaintiffs, v. APPLE, INC., a California Corporation, the Defendant, Case No. 5:18-cv-02167 (N.D. Cal., April 11, 2018), seeks to recover compensation for expenses incurred as a result of Apple's actions in slowing iPhone models, including the cost of unnecessary replacement iPhones purchased by class members. Apple markets the iPhone line of phones as premium phones that are designed to offer fast performance and ease of use for consumers. Apple has been successful in this endeavor, with over a billion units sold worldwide and consumers paying hundreds of dollars for each iPhone. Rather than address a known issue with several iPhone models head-on, Apple released an iOS update that purported to "improve power management." Unknown to consumers, this iOS update slowed the performance of their iPhones, negatively impacting the performance of the iPhones in question and causing some consumers to believe that their iPhones were now obsolete and needed to be replaced. Consumers did not know of or consent to this slowing of their iPhones. Apple Inc. is an American multinational technology company headquartered in Cupertino, California, that designs, develops, and sells consumer electronics, computer software, and online services.[BN] Counsel for Plaintiff: R. Alexander Saveri, Esq. Cadio Zirpoli, Esq. Sarah Van Culin, Esq. SAVERI & SAVERI, INC. 706 Sansome Street San Francisco, CA 94111 Telephone: (415) 217 6810 Facsimile: (415) 217 6813 E-mail: rick@saveri.com cadio@saveri.com sarah@saveri.com - and - Randall Robinson Renick, Esq. HADSELL STORMER RICHARDSON & RENICK, LLP 128 N. Fair Oaks Ave. Pasadena, CA 91103 Telephone: (626) 585 9600 Facsimile: (626) 577 7079 E-mail: rrr@hadsellstormer.com ASSET RECOVERY: Vaughn Sues over Debt Collection Practices ---------------------------------------------------------- Trischa Vaughn aka Trischa H. Johnson, individually and on behalf of all others similarly situated, the Plaintiff, v. Asset Recovery Solutions, LLC and John Does 1-25, the Defendant, Case No. 3:18-cv-00124 (W.D. Tex., April 13, 2018), seeks to recover damages, and declaratory and injunctive relief under the Fair Debt Collections Practices Act. Some time prior to August 10, 2017, an obligation was allegedly incurred to First Premier Bank. The obligation arose out of transactions in which money, property, insurance or services, which are the subject of the transaction, are primarily for personal, family or household purposes. The alleged First Premier Bank obligation is a "debt" as defined by 15 U.S.C. section 1692a(5). First Premier Bank is a "creditor" as defined by 15 U.S.C. section 1692a(4). First Premier Bank or a subsequent owner of the First Premier Bank debt contracted the Defendant to collect the alleged debt. The Defendant collects and attempts to collect debts incurred or alleged to have been incurred for personal, family or household purposes on behalf of creditors using the United States Postal Services, telephone and internet. On or about August 10, 2017, Defendant sent the Plaintiff an initial contact notice regarding the alleged debt owed to First Premier Bank. When a debt collector solicits payment from a consumer, it must, within five days of an initial communication (1) the amount of the debt; (2) the name of the creditor to whom the debt is owed; (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector; (4) a statement that if the consumer notifies the debt collector in writing within the 30-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of the judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and (5) a statement that, upon the consumer's written request within the 30-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. Asset Recovery Solutions, LLC is a full service asset recovery management company that is committed to establishing unmatched standards of performance. ARS is a strategic partner to many of the largest credit issuers in the country.[BN] The Plaintiff is represented by: RC Law Group, PLLC 285 Passaic Street Hackensack, NJ 07601 Telephone: (201) 282 6500 Facsimile: (201) 282 6501 BAHCHE INC: "Settecasi" Suit Seeks Unpaid Wages under Labor Law --------------------------------------------------------------- SILVIYA SETTECASI and AMINATA FADERA, individually and on behalf of other persons similarly situated, the Plaintiffs, v. THE BAHCHE INC. d/b/a BISON & BOURBON; MEHMET VURGUN; ERDAM SAHIN; YEHOSHUA SHAGALOV; ARIEL MANGAMI; MENACHEM WOLF; and/or any other related entities, the Defendants, Case No. 507200/2018 (N.Y. Sup. Ct., April 10, 2018), seeks to recover unpaid wages, minimum wages, overtime compensation, and unlawfully retained gratuities, pursuant to the New York Labor Law. According to the complaint, beginning in approximately April 2016 and continuing through the present, the Defendants have engaged in a policy and practice of failing to provide overtime compensation at the time and one-half rate for the hours worked in excess of 40 hours each week.[BN] Attorneys for Plaintiffs and the Putative Class: Jeffrey K. Brown, Esq. Suzanne Leeds Klein, Esq. LEEDS BROWN LAW, P.C. Michael A. Tompkins, Esq. One Old Country Road, Suite 347 Carle Place, NY 11514 Telephone: (516) 873 9550 E-mail: sleeds@leedsbrownlaw.com AUSTRALIA: Castlereagh Freeway Residents Mull Class Action ---------------------------------------------------------- Daily Telegraph reports that residents living in the path of the proposed freeway from Kurrajong Heights to Colebee claim they are considering a class action against the State Government. The 1951 Castlereagh freeway corridor went through dense bushland to the south of Londonderry before following the new route from Llandilo to the M7. [GN] BANK OF HAWAII: Court Narrows Claims in "Smith" Suit ---------------------------------------------------- In the case, RODNEY SMITH, individually and on behalf of all others similarly situated, Plaintiff, v. BANK OF HAWAII, Defendant, Civ. No. 16-00513 JMS-RLP (D. Haw.), Judge J. Michael Seabright of the U.S. District Court for the District of Hawaii granted in part and denied in part BOH's Motion for Summary Judgment, and denied BOH's Motion to Strike the Demand for Jury Trial. In this putative class action, Smith challenged BOH's imposition of overdraft fees -- specifically its use of an "available- balance method" rather than a "ledger-balance method" for assessing the sufficiency of funds in customer accounts to cover transactions. Smith contends that BOH's practice violates its Agreements with members, including the implied covenant of good faith and fair dealing. And he asserts claims based on "unjust enrichment," "Money Had and Received," and violations of the Electronic Fund Transfers Act ("EFTA") and Hawaii Revised Statutes Chapter 480. Smith filed his original Complaint and Demand for Jury Trial in state court on Sept. 9, 2016, and a First Amended Complaint ("FAC") on Sept. 13, 2016. On Sept. 19, 2016, BOH filed a Notice of Removal. On Nov. 2, 2016, BOH filed a Motion to Dismiss the FAC, arguing that its Agreement and Opt-in form for its overdraft program unambiguously disclose that it uses the available-balance method to determine overdrafts. The Court disagreed and denied the Motion, finding that even construed together, the Agreements' terms are ambiguous as to BOH's choice of balance method. BOH also argued in the Motion to Dismiss that Smith's EFTA claim should be dismissed based on the EFTA's one-year statute of limitations. It contended that the statutory period for the claim began to run at the time of the first overdraft charge, and it asked the Court to take judicial notice of Smith's April 2015 bank statement showing an overdraft fee. The Court declined to take judicial notice of the statement, however, and as a result, found that there was nothing to indicate, even assuming the statute of limitations for all overdraft fees begins with the first overdraft fee, that Smith's first overdraft fee was charged more than a year before the suit was filed. The Court found, therefore, that on the present record, the claims are timely. BOH now asks the Court to determine as a matter of law what it assumed merely for argument's sake on the Motion to Dismiss, that an EFTA claim accrues when the first unauthorized transfer occurs. It contends, therefore, that Smith's EFTA claim is barred in its entirety by the EFTA's limitation period. It also contends that Smith's remaining claims are governed by the contractual limitation period in the Agreement. It therefore requests judgment on all of Smith's claims to the extent they accrued more than one year before this action was filed. BOH filed the Summary Judgment Motion on Dec. 11, 2017. Smith filed his Opposition on Feb. 1, 2018. BOH replied on Feb. 8, 2018. BOH filed the Motion to Strike (based on the contractual Jury Trial Waiver) on Dec. 11, 2017. Smith filed an Opposition on Jan. 30, 2018. And BOH filed its Reply on Feb. 6, 2018. The Oral argument was held on Feb. 20, 2018. As to BOH's Summary Judgment Motion, Judge Seabright finds that because Smith has asserted an improper overdraft fee was charged within one year of the day he filed his Complaint, BOH is not entitled to summary judgment on Smith's EFTA claim. Claims based on overdraft fees imposed outside the one-year limit, however, are barred. Also, construing the Agreement's one-year limitation period as incorporating Hawaii's discovery rule, the provision is not substantively unconscionable. The Agreement's provision limiting actions to within one year from the date a claim accrues is thus applicable to Smith's state-law claims. The record shows that at least one overdraft fee was charged (despite a positive ledger balance) within one year of the filing of the original complaint. Therefore, BOH is not entitled to summary judgment on the FAC in its entirety, and the Judge denied summary judgment as to any overdraft fees charged on or after Sept. 9, 2016. But he granted summary judgment in favor of BOH as to any fees charged before that date. As to BOH's Motion to Strike Demand for Jury Trial, the Judge finds that the Plaintiff did not "knowingly and voluntarily" waive his Seventh Amendment right. The record is clear -- regardless of which side has the burden -- that the waiver or references to it were non-negotiable terms in standard forms (both in the Agreements and in one of the Consumer Signature Cards). As BOH necessarily concedes (in arguing that the Plaintiff could "negotiate" by taking his business elsewhere), the standard jury-waiver term was a take-it-or-leave-it proposition. In this situation, the Judge says a "gross disparity in bargaining power" exists between BOH and its individual customers. In short, considering all the relevant factors applied in caselaw, he concludes that the Plaintiff did not knowingly and voluntarily waive his Seventh Amendment right to a jury trial. Therefore, Judge Seabright denied BOH's Motion to Strike Jury Demand. A full-text copy of the Court's March 7, 2018 Order is available at https://is.gd/IibTPh from Leagle.com. Rodney Smith, individually and on behalf of all others similarly situated, Plaintiff, represented by Margery S. Bronster -- mbronster@bfrhawaii.com -- Bronster Fujichaku Robbins, Melinda M. Weaver -- mweaver@bfrhawaii.com -- Bronster Fujichaku Robbins, Richard D. McCune -- rdm@mccunewright.com -- McCuneWright, LLP, pro hac vice, Robert M. Hatch -- rhatch@bfrhawaii.com -- Bronster Fujichaku Robbins & Taras Kick, The Kick Law Firm, APC, pro hac vice. Bank of Hawaii, Defendant, represented by Andrew J. Demko, Katten Muchin Rosenman LLP, pro hac vice, Kristin L. Holland -- KHolland@ahfi.com -- Alston Hunt Floyd & Ing., Nickolas A. Kacprowski -- NKacprowski@ahfi.com -- Alston Hunt Floyd & Ing., Paul Alston -- PAlston@ahfi.com -- Alston Hunt Floyd & Ing. & Stuart M. Richter -- stuart.richter@kattenlaw.com -- Katten Muchin Rosenman LLP, pro hac vice. BANK OF TOKYO-MITSUBISHI: July 12 Settlement Fairness Hearing Set ----------------------------------------------------------------- Lowey Dannenberg, P.C. announced a settlement for those who have transacted in Euroyen-based derivatives between January 1, 2006 through June 30, 2011. If you transacted in Euroyen-Based Derivatives1 from January 1, 2006 through June 30, 2011, inclusive, then your rights will be affected and you may be entitled to a benefit. This Notice is only a summary of the Settlement and is subject to the terms of the Settlement Agreement2and other relevant documents (available as set forth below). The purpose of this Notice is to inform you of your rights in connection with a proposed settlement with Settling Defendants The Bank of Tokyo-Mitsubishi, UFJ, Ltd. ("BTMU") and Mitsubishi UFJ Trust and Banking Corporation ("MUTB") in the actions titled Laydon v. Mizuho Bank Ltd., et al., 12-cv-3419 (GBD) (S.D.N.Y.) and Sonterra Capital Master Fund, Ltd., et al. v. UBS AG, et al., 15-cv-5844 (GBD) (S.D.N.Y.). The settlement with BTMU and MUTB ("Settlement") is not a settlement with any other Defendant and thus is not dispositive of any of Plaintiffs' claims against the remaining Defendants. The Settlement has been proposed in two class action lawsuits concerning the alleged manipulation of the London Interbank Offered Rate for Japanese Yen ("Yen LIBOR") and the Euroyen Tokyo Interbank Offered Rate ("Euroyen TIBOR") from January 1, 2006 through June 30, 2011, inclusive. The Settlement will provide $30 million to pay claims from persons who transacted in Euroyen- Based Derivatives from January 1, 2006 through June 30, 2011, inclusive. If you qualify, you may send in a Proof of Claim and Release form to potentially get benefits, or you can exclude yourself from the Settlement, or object to it. The United States District Court for the Southern District of New York (500 Pearl St., New York, NY 10007-1312) authorized this Notice. Before any money is paid, the Court will hold a Fairness Hearing to decide whether to approve the Settlement. Who Is Included? You are a member of the "Settlement Class" if you purchased, sold, held, traded, or otherwise had any interest in Euroyen- Based Derivatives at any time from January 1, 2006 through June 30, 2011, inclusive. Excluded from the Settlement Class are (i) the Defendants and any parent, subsidiary, affiliate or agent of any Defendant or any co-conspirator whether or not named as a defendant; and (ii) the United States Government. Contact your brokerage firm to see if you purchased, sold, held, traded, or otherwise had any interest in Euroyen-Based Derivatives. If you are not sure you are included, you can get more information, including the Settlement Agreement, Mailed Notice, Plan of Allocation, Proof of Claim and Release, and other important documents, at www.EuroyenSettlement.com ("Settlement Website") or by calling toll free 1-866-217-4453. What Is This Litigation About? Plaintiffs allege that each Defendant, from January 1, 2006 through June 30, 2011, inclusive, manipulated or aided and abetted the manipulation of Yen LIBOR, Euroyen TIBOR, and the prices of Euroyen-Based Derivatives. Defendants allegedly did so by using several means of manipulation. For example, panel banks that made the daily Yen LIBOR and/or Euroyen TIBOR submissions to the British Bankers' Association and Japanese Bankers' Association respectively (collectively, "Contributor Bank Defendants"), such as BTMU and MUTB, allegedly falsely reported their cost of borrowing in order to financially benefit their Euroyen-Based Derivatives positions. Contributor Bank Defendants also allegedly requested that other Contributor Bank Defendants make false Yen LIBOR and Euroyen TIBOR submissions on their behalf to benefit their Euroyen-Based Derivatives positions. Plaintiffs further allege that inter-dealer brokers, intermediaries between buyers and sellers in the money markets and derivatives markets (the "Broker Defendants"), had knowledge of, and provided substantial assistance to, the Contributor Bank Defendants' foregoing alleged manipulations of Euroyen-Based Derivatives in violation of Section 22(a)(1) of the Commodity Exchange Act, 7 U.S.C. Sec. 25(a)(1). For example, Contributor Bank Defendants allegedly used the Broker Defendants to manipulate Yen LIBOR, Euroyen TIBOR, and the prices of EuroyenBased Derivatives by disseminating false "Suggested LIBORs," publishing false market rates on broker screens, and publishing false bids and offers into the market. Plaintiffs have asserted legal claims under various theories, including federal antitrust law, the Commodity Exchange Act, the Racketeering Influenced and Corrupt Organizations Act, and common law. BTMU and MUTB have consistently and vigorously denied Plaintiffs' allegations. BTMU and MUTB entered into a Settlement Agreement with Plaintiffs, despite each believing that it is not liable for the claims asserted against it, to avoid the further expense, inconvenience, and distraction of burdensome and protracted litigation, thereby putting this controversy to rest and avoiding the risks inherent in complex litigation. What Does the Settlement Provide? Under the Settlement, BTMU and MUTB agreed to pay $30 million into a Settlement Fund. If the Court approves the Settlement, potential members of the Settlement Class who qualify and send in valid Proof of Claim and Release forms may receive a share of the Settlement Fund after they are reduced by the payment of certain expenses. The Settlement Agreement, available at the Settlement Website, describes all of the details about the proposed Settlement. The exact amount each qualifying Settling Class Member will receive from the Settlement Fund cannot be calculated until (1) the Court approves the Settlement; (2) certain amounts identified in the full Settlement Agreement are deducted from the Settlement Fund; and (3) the number of participating Class Members and the amount of their claims are determined. In addition, each Settling Class Member's share of the Settlement Fund will vary depending on the information the Settling Class Member provides on their Proof of Claim and Release form. The number of claimants who send in claims varies widely from case to case. If less than 100% of the Settlement Class sends in a Proof of Claim and Release form, you could get more money. How Do You Ask For a Payment? If you are a member of the Settlement Class, you may seek to participate in the Settlement by submitting a Proof of Claim and Release to the Settlement Administrator at the address provided on the Settlement Website postmarked no later than September 25, 2018. You may obtain a Proof of Claim and Release on the Settlement Website or by calling the toll-free number referenced above. If you are a member of the Settlement Class but do not timely file a Proof of Claim and Release, you will still be bound by the releases set forth in the Settlement Agreement if the Court enters an order approving the Settlement Agreement. If you timely submitted a Proof of Claim and Release pursuant to the class notice dated June 22, 2016 ("2016 Notice") related to the $58 million settlements with Defendants R.P. Martin Holdings Limited, Martin Brokers (UK) Ltd., Citigroup Inc., Citibank, N.A., Citibank Japan Ltd., Citigroup Global Markets Japan Inc., HSBC Holdings plc, and HSBC Bank plc or pursuant to the August 3, 2017 Notice, amended September 14, 2017 (the "2017 Notice") related to the $148 million settlements with Defendants Deutsche Bank AG, DB Group Services (UK) Ltd., JPMorgan Chase & Co., JPMorgan Chase Bank, National Association, and J.P. Morgan Securities plc, you do not have to submit a new Proof of Claim and Release to participate in this Settlement with BTMU and MUTB. Any member of the Settlement Class who previously submitted a Proof of Claim and Release in connection with the 2016 Notice or 2017 Notice will be subject to and bound by the releases set forth in the Settlement Agreement with BTMU and MUTB, unless such member submits a timely and valid request for exclusion, explained below. What Are Your Other Options? All requests to be excluded from the Settlement must be made in accordance with the instructions set forth in the Settlement Notice and must be postmarked to the Settlement Administrator no later than June 7, 2018. The Settlement Notice, available at the Settlement Website, explains how to exclude yourself or object. All requests for exclusion must comply with the requirements set forth in the Settlement Notice to be honored. If you exclude yourself from the Settlement Class, you will not be bound by the Settlement Agreement and can independently pursue claims at your own expense. However, if you exclude yourself, you will not be eligible to share in the Net Settlement Fund or otherwise participate in the Settlement. The Court will hold a Fairness Hearing in these cases on July 12, 2018, to consider whether to approve the Settlement and a request by the lawyers representing all members of the Settlement Class (Lowey Dannenberg, P.C.) for an award of attorneys' fees of no more than twenty-three percent (23%) of the Settlement Fund for investigating the facts, litigating the case, and negotiating the settlement, and for replenishment of the litigation fund created to reimburse their costs and expenses in the amount of no more than $500,000. The lawyers for the Settlement Class may also seek additional reimbursement of fees, costs, and expenses in connection with services provided after the Fairness Hearing. These payments will also be deducted from the Settlement Fund before any distributions are made to the Settlement Class. You may ask to appear at the Fairness Hearing, but you do not have to. For more information, call toll free 1-866-217-4453 or visit the website www.EuroyenSettlement.com. 1 "Euroyen-Based Derivatives" means (i) a Euroyen TIBOR futures contract on the Chicago Mercantile Exchange ("CME"); (ii) a Euroyen TIBOR futures contract on the Tokyo Financial Exchange, Inc. ("TFX"), Singapore Exchange ("SGX"), or London International Financial Futures and Options Exchange ("LIFFE") entered into by a U.S. Person, or by a Person from or through a location within the U.S.; (iii) a Japanese Yen currency futures contract on the CME; (iv) a Yen LIBOR- and/or Euroyen TIBOR-based interest rate swap entered into by a U.S. Person, or by a Person from or through a location within the U.S.; (v) an option on a Yen LIBOR and/or Euroyen TIBOR based interest rate swap ("swaption") entered into by a U.S. Person, or by a Person from or through a location within the U.S.; (vi) a Japanese Yen currency forward agreement entered into by a U.S. Person, or by a Person from or through a location within the U.S.; and/or (vii) a Yen LIBOR and/or Euroyen TIBOR-based forward rate agreement entered into by a U.S. Person, or by a Person from or through a location within the U.S. 2 The "Settlement Agreement" means the Stipulation and Agreement of Settlement with The Bank of TokyoMitsubishi, UFJ, Ltd. ("BTMU") and Mitsubishi UFJ Trust and Banking Corporation ("MUTB") entered into on January 23, 2018. The Court will hold a hearing on July 19, 2018 at 1:00 p.m. BARTELL HOTELS: Fails to Pay Overtime Wages, Duran Says ------------------------------------------------------- JOSE DURAN, an individual, on behalf of himself and on behalf of all persons similarly situated, the Plaintiff, v. BARTELL HOTELS MANAGEMENT COMPANY, a California Corporation; and Does 1 through 50, Inclusive, the Defendant, Case No. 37-2018-00018400-CU-0E-CTL (Cal. Super. Ct., April 13, 2018), seeks to recover overtime pay under the California Labor Code. The Plaintiff brings this Class Action on behalf of himself and a California Class in order to fully compensate the California Class for their losses incurred during the California Class Period caused by Defendant's uniform policy and practice which failed to lawfully compensate these employees for all their overtime worked. Bartell Hotels operates a chain of hotels in the San Diego area.[BN] The Plaintiff is represented by: Norman B. Blumenthal, Esq. Kyle R. Nordrehaug, Esq. Aparajit Bhowmik, Esq. BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP Website: www.bamlawca.com 2255 Calle Clara La Jolla, CA 92037 Telephone: (858) 551 1223 Facsimile: (858) 551 1232 BLUE MAX TRUCKING: "Hagan" Suit Moved to Fed. District Court ------------------------------------------------------------ The class action lawsuit titled Trace Hagan and Michael McCutchen, on behalf of himself and all others similarly situated, the Plaintiffs, v. Blue Max Trucking Inc., now known as Blue Max Transport Inc., the Defendant, Case No. 2018-CP-08- 00388, was removed from the Berkeley County Court of Common Pleas, to the U.S. District Court for the District of South Carolina (Charleston) on April 12, 2018. The District Court Clerk assigned Case No. 2:18-cv-01004-DCN to the proceeding. The case is assigned to the Hon. Judge David C Norton. Blue Max Trucking provides hauling and transportation services.[BN] The Plaintiffs are represented by: Bruce E Miller, Esq. Elisabeth Anne Germain, Esq. BRUCE E MILLER LAW OFFICE 147 Wappoo Creek Drive, Suite 603 Charleston, SC 29412 Telephone: (843) 579 7373 E-mail: bmiller@brucemillerlaw.com bgermain@brucemillerlaw.com Attorneys for Defendant: James Andrew Byars, Esq. Nikole Setzler Mergo, Esq. NEXSEN PRUET PO Drawer 2426 Columbia, SC 29201 Telephone: (803) 540 2051 E-mail: jbyars@nexsenpruet.com nmergo@nexsenpruet.com BOEHRINGER INGELHEIM: July 19 Aggrenox(R) Settlement Hearing Set ---------------------------------------------------------------- If You Purchased Aggrenox(R) or Generic Aggrenox(R) A Class Action Settlement Could Affect You A proposed $54 million settlement has been reached in a class action lawsuit regarding the prescription drug Aggrenox(R) (aspirin/extended-release dipyridamole). The lawsuit claims that Defendants Boehringer Ingelheim and Teva Pharmaceutical hurt competition and violated state laws by delaying the availability of allegedly less-expensive generic versions of Aggrenox(R). Defendants deny any wrongdoing. No one is claiming that Aggrenox(R) or its generic equivalent is unsafe or ineffective. Who is included? You are a Consumer Class Member if you: -- Purchased and/or paid for Aggrenox(R) or generic versions of Aggrenox(R), -- In the Commonwealth of Puerto Rico, Arizona, California, Colorado, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Oregon (2010 or after), Rhode Island (purchases after July 15, 2013), South Dakota, Tennessee, Utah, Vermont, West Virginia, and Wisconsin, -- For consumption by yourself or your family, -- From November 30, 2009 through December 22, 2017. You are NOT a Class Member if you paid a flat co-pay (consumers who paid the same co-payment amount for brand and generic drugs), if you pay a flat co-pay for generic prescriptions and did not purchase Aggrenox(R) before July 1, 2015, or if you purchased or received branded or generic Aggrenox(R) through a Medicaid program only. What do the settlements provide? The Defendants will pay a total of $54 million into a Settlement Fund to settle all claims in the lawsuit brought on behalf of consumer and health insurers known as third-party payors. Class Counsel will ask the Court to award attorneys' fees in an amount not to exceed one-third of the Settlement Fund, plus interest, litigation expenses and incentive payments to the Class Representatives. After these deductions, the remainder of the Settlement Fund will be distributed pro rata to Class Members who file a valid claim form. The amount of money you are eligible to receive will depend on how much you (and other consumers) paid for Aggrenox(R) or generic versions of Aggrenox(R). How do I get a payment? You must submit a Claim Form by September 14, 2018 to be eligible for a payment. See below. What are my other rights? If you do not want to be legally bound by the Settlement, you must exclude yourself. The exclusions deadline is May 11, 2018. If you do not exclude yourself, you will not be able to sue the Defendants for any claim relating to the lawsuit. If you stay in the Settlement, you may object to the Settlement by May 11, 2018. The Court will hold a hearing on July 19, 2018 at 1:00 p.m. Eastern time to consider whether to approve the Settlement, a request for attorneys' fees, expenses and incentive awards. The Court has appointed Miller Law LLC, Hilliard & Shadowen LLP, and Heins Mills & Olson, P.L.C. to represent the Class. You or your own lawyer may ask to appear and speak at the hearing at your own expense. These deadlines may be amended by Court Order, so check the litigation website noted below. For more information and a Claim Form: Visit www.InReAggrenoxAntitrustLitigation.com or call 1-800-494- 2165 BRF SA: Faces Class Action, May 11 Lead Plaintiff Motion Deadline ----------------------------------------------------------------- The law firm of Spector, Roseman & Kodroff, P.C., on April 3 disclosed that a securities class action lawsuit has been filed on behalf of investors who purchased BRF S.A. ("BRF" or the "Company") (NYSE: BRFS) securities between April 4, 2013 and March 2, 2018, inclusive (the "Class Period"). The complaint alleges that throughout the Class Period, defendants made materially false and misleading statements regarding the Company's compliance with anti-corruption laws. As detailed in the complaint, on March 17, 2017, media outlets revealed that Brazilian police had raided BRF facilities and arrested Company employees in a bribery crackdown known as "Operation Weak Flesh." The probe had reportedly found evidence that BRF had been "bribing inspectors and politicians to overlook unsanitary practices such as processing rotten meat and shipping exports with traces of salmonella." On this news, the price of BRF American Depositary Receipts ("ADRs") representing common stock declined $0.99 per ADR, or nearly 8%, to close at $11.81 per ADR on March 17, 2017. Nearly one year later, on February 23, 2018, BRF announced that Operation Weak Flesh had resulted in "very serious problems" for the Company, stating that disruptions in productivity caused by the probe had made it more difficult for BRF to distribute its products in 2017 and contributed to the Company's weak financial performance. On this news, the price of Company ADRs declined $0.76 per ADR, or approximately 8%, to close at $8.73 per ADR on February 23, 2018. Then, on March 5, 2018, Reuters reported that Brazilian police had arrested Pedro Faria, BRF's former Chief Executive Officer, on charges that Faria knew that the Company had used illicit means to pass food inspections. On this news, the price of Company ADRs declined $18.32 per ADR, or more than 19%, to close at $7.59 per ADR on March 5, 2018. If you purchased BRF securities during the Class Period, you may, no later than May 11, 2018, move to be appointed as a Lead Plaintiff in this action. A Lead Plaintiff is a representative chosen by the Court that acts on behalf of other class members in directing the litigation. If you have sustained substantial losses in BRF securities during the Class Period and wish to move to be appointed as Lead Plaintiff, please contact Spector, Roseman & Kodroff, P.C. toll- free at 888-844-5862 or via e-mail at classaction@srkattorneys.com. For more detailed information about the firm please visit http://srkattorneys.com Spector, Roseman & Kodroff, P.C., located in Philadelphia, Pennsylvania, concentrates its practice in complex litigation including actions dealing with securities laws, antitrust, contract, and commercial claims. The firm's reputation for excellence has been recognized by courts which have appointed the firm as lead counsel in numerous major class actions. The firm has recovered hundreds of millions of dollars through judgments and settlements on behalf of thousands of defrauded shareholders and companies. [GN] BROOKS ENVIRONMENTAL: Yates Seeks Unpaid OT Wages under FLSA ------------------------------------------------------------ DENNIS YATES, and all others similarly situated under 29 U.S.C. section 216(b), the Plaintiff, v. BROOKS ENVIRONMENTAL CARE, INC., SHAWN BAIN, and LEAH BAIN, the Defendants, Case No. 3:18- cv-00885-C (N.D. Tex., April 10, 2018), seeks to recover unpaid overtime wages pursuant to the Fair Labor Standards Act. According to the complaint, the action arises under the laws of the United States. This case is brought as a collective action under 29 U.S.C. section 216(b). It is believed that the Defendants have employed multiple other similarly situated employees like the Plaintiff who have not been paid overtime wages for work performed in excess of 40 hours weekly from the filing of this complaint back three years. Brooks Environmental Care, Inc. has been in business since 2002. Its main lines of business include landscape construction.[BN] Counsel for Plaintiff: J.H. Zidell, Esq. Robert L. Manteuffel, Esq. Joshua A. Petersen, Esq. J.H. ZIDELL, P.C. 6310 LBJ Freeway, Ste. 112 Dallas, TX 75240 Telephone: (972) 233 2264 Facsimile: (972) 386 7610 E-mail: zabogado@aol.com rlmanteuffel@sbcglobal.net josh.a.petersen@gmail.com CALIFORNIA HIGHWAY: Some Claims in "Rogers" Must Be Dismissed ------------------------------------------------------------- Magistrate Judge Gregory G. Hollows of the U.S. District Court for the Eastern District of California, has issued his Findings and Recommendations in the case, KIM EDWARD ROGERS, Plaintiff, v. M. RICHARD, CHP Captain Commander, et al., Defendants, Case No. 2:17-cv-00149-JAM-GGH (E.D. Cal.). A hearing was held on the first motion to dismiss on Oct. 5, 2017. The Magistrate Judge advised the parties that Findings and Recommendations would be issued expeditiously, and they were filed four business days later. He recommended that (i) the case proceeds only on the 42 U.S.C. 2000d (Title VI) claims and the 42 U.S.C. section 1983 claims recommended for retention; all other federal and state claims should be dismissed; (ii) the Motion to Dismiss the Section 2000d and Section 1983 claims pertinent to the Sept. 11, 2013 incident, be granted based upon the statute of limitations; (iii) the Defendants' Motion to Dismiss the Section 2000d and Section 1983 claims, as relating to the Nov. 14, 2015 incident, should be denied as brought within the statute of limitations by tolling provisions found in California Government Code 945.3; the same Denial should be applied to the Feb. 5, 2016 claims even without tolling consideration; (iv) the Defendant's Motion to Dismiss the Plaintiff's state law claims, should be granted for failure to file state administrative claims as required by the California Tort Claims Act; (v) the Defendants' Motion to Dismiss the California Highway Patrol from the action as a state agency with Eleventh Amendment sovereign immunity from suit be denied with respect to section 2000d claims, and granted with respect to Section 1983 claims. He further recommended that (i) the Defendants' Motion to Dismiss the individual California Highway Patrol Defendants be denied insofar as they are sued in their individual capacity for section 2000d and 1983 claims whereas insofar as they are sued in their official capacity, only the present Commissioner of the California Highway Patrol should be named for section 1983 purposes; (ii) the Defendants' Motion to Dismiss the entire First Amended Complaint under Federal Rule of Civil Procedure 8 should be granted as the Plaintiff must plead the specific involvement of each individual defendant with respect to the Section 2000d and Section 1983 claims, and the Plaintiff should be granted leave to amend in this respect; and (iii) the class action allegations of First Amended Complaint should be stricken without prejudice due to no attorney representation of the alleged class members. Unfortunately, the Plaintiff did not even await these Findings and Recommendations, much less a district judge adoption order, but on the same day the Findings etc. were issued, the Plaintiff filed his Second Amended Complaint. While the Plaintiff understood from the hearing the gist of what the Findings etc. would encompass, some miscues were repeated in the Second Amended Complaint. On Dec. 20, 2017, the District Judge adopted in full those Findings. Thus, these Findings will repeat the rulings on the Plaintiff's repeated mistakes and the law of the case will be enforced. The Defendants responded with another motion to dismiss filed on Jan. 8, 2018 which it set for hearing on Feb. 15, 2018. On Feb. 7, 2018 the Court vacated the calendar and took the matter under submission. With respect to the statute of limitations, the Defendants have essentially repeated their first Motion to Dismiss with respect to the Second Amended Complaint, except that they have limited it to the Section 2000d claim. However, they have also properly noted that there are insufficient charging allegations brought against most of the individual Defendants. The Magistarte Judge notes that his Findings and Recommendations will hopefully resolve the pleading stage once and for all, and law of the case will play a primary role in this adjudication. If these Findings are adopted, there will be no further amendments to the pleadings permitted, and it will be recommended that an answer be filed. The Plaintiff's Motion for a Preliminary Injunction will be adjudicated separately. Accordingly, Magistrate Judge Hollows recommended that (i) any Omnibus Crime Control and Safe Streets Act claim should be finally dismissed; (ii) any claim based on the alleged 2013 racial profiling stop should be finally dismissed; (iii) Joseph Farrow and Michael Richard, sued only in their official capacity, should be finally dismissed; (iv) Defendants Kent, Thompson, Nichols, Williams, Vasilou investigator), Koon and Bertola should be finally dismissed; (v) deceased Defendant Matthews should be dismissed; (vi) the Motion to Dismiss the 2000d allegations based on the statute of limitations should be denied; and (vii) Defendants Stanley, official capacity, and Fish, individual capacity, should remain as the Defendants in the case. The Magistrate Judge directed that no further amendments should be permitted; an answer to the surviving allegations and claims should be filed by the remaining Defendants. A full-text copy of the Court's March 7, 2018 Findings and Recommendations Order is available at https://is.gd/Xv4uRl from Leagle.com. Kim Edward Rogers, Plaintiff, pro se. M. Richard, CHP Captain Commander, Wesley J. Fish, Sean D. Kent, Justin A. Thompson, Jeffrey A. Nichols, Phillip A. Williams, C. Vasiliou & California Highway Patrol, Defendants, represented by Catherine Woodbridge, Attorney General's Office of the State of California Department of Justice. CANCER GENETICS: Faces "Zhang" Suit over Plunge in Stock Price -------------------------------------------------------------- RUO FEN ZHANG, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, v. CANCER GENETICS, INC., PANNA L. SHARMA, JOHN A. ROBERTS, and IGOR GITELMAN, the Defendants, Case No. 2:18-cv-06353 (D.N.J., April 12, 2018), seeks to recover damages caused by Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. The case is a federal securities class action on behalf of a class consisting of all persons other than Defendants who purchased or otherwise acquired Cancer Genetics securities between March 23, 2017, and April 2, 2018. On October 12, 2015, Cancer Genetics issued a press release entitled, "Cancer Genetics, Inc. Finalizes Purchase of Los Angeles-based Molecular Profiling Laboratory, Response Genetics, Inc., Adding $10-$12M in Annual Revenue and Establishing a National Clinical Sales Footprint|" which announced that Cancer Genetics closed its acquisition of Response Genetics, Inc., a molecular profiling laboratory, on October 9, 2012. Throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) Cancer Genetics had ineffective disclosure controls and internal controls over financial reporting; and (ii) as a result of the foregoing, Cancer Genetics' public statements were materially false and misleading at all relevant times. On April 2, 2018, after the market closed, Cancer Genetics filed its Annual Report on Form 10-K with the SEC, announcing the Company's financial and operating results for the quarter and year ended December 31, 2017. The 2017 10-K discussed the Company's controls over financial reporting. On this news, Cancer Genetics' share price fell $0.55, or over 33.3%, to close at $1.10 per share on April 3, 2018, damaging investors. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, the Plaintiff and other Class members have suffered significant losses and damages. Cancer Genetics is a diagnostics company focused on the development and commercialization of proprietary genomic tests and services to improve the diagnosis, prognosis and response to treatment of cancer. Founded in 1999, the Company is headquartered in Rutherford, New Jersey. Cancer Genetics' securities trade on the NASDAQ Capital Market under the ticker symbol "CGIX."[BN] Attorneys for Plaintiff: Bruce D. Greenberg, Esq. LITE DEPALMA GREENBERG, LLC 570 Broad Street, Suite 1201 Newark, NJ 07102 Telephone: (973) 623 3000 Facsimile: (973) 623 0858 E-mail: bgreenberg@litedepalma.com CARTER HOLT: Hundreds of Property Owners to Join Class Action ------------------------------------------------------------- Litigation Finance Journal reports that hundreds of property owners from around rural and urban New Zealand have already signed up to join the proposed Shadowclad Class Action. Home owners and those with commercial buildings, concerned about failures of the plywood-based Shadowclad should act now if they wish to join the proposed funded class action against the makers of the cladding product, Carter Holt Harvey. The lawyers leading the funded class action, Adina Thorn, of Adina Thorn Lawyers, says the firm has now received registrations of more than $40 million. "Many of those who have registered with us are very grateful for the fact that they can be part of the claim while facing no out of pocket expenses. "That is because the significant cost in legal and other fees it requires to mount an action of this scale will be met by a third party funder in return for them retaining a share of any damages awarded. "In this case the independent funder is a fund managed by Harbour Litigation Funding, based in London. "Harbour work on behalf of sophisticated investors, and use a team of legal experts to evaluate the merits of a particular case before agreeing to provide the level of funding it needs to proceed and be successful. "They know that if a case is unsuccessful, they will get nothing. If it succeeds they take a percentage of recovery typically in the order of 30%. "This means building owners can join the proposed action secure in the knowledge they will not be incurring legal and other fees as the funder will cover these in return for taking a share of any judgment or settlement sum awarded." Adina Thorn says the high level of interest in the claim also reflects the fact that Carter Holt Harvey has been selling the plywood-based cladding product in New Zealand for some 20 odd years and its widespread use in homes, sheds and coastal properties. "Many claimants have been encouraged by knowing that Shadowclad is already subject to court proceedings brought by the Ministry of Education in relation to approximately 880 leaky school buildings. Adina says anyone who has a property with Shadowclad installed should register their interest online at www.adinathorn.co.nz [GN] CASEY'S RETAIL: Judge Rejects Motion to Dismiss ADA Class Action ---------------------------------------------------------------- Amanda Thomas, writing for Madison-St. Clair Record, reports that a federal judge has rejected a bid by a convenience-store chain to dismiss a claim that the company violated the Americans with Disabilities Act (ADA). In a Feb. 21 decision, District Judge Nancy J. Rosenstengel denied Casey's Retail Company's partial motion to dismiss claims the company, which owns a chain of Casey's General Stores, wasn't easily accessible for people with disabilities. The case stems from a January 2018 complaint brought by Daniel Mellenthin, who is confined to a wheelchair, and Access Now, Inc., a civil rights organization whose members have various mobility disabilities. According to the court order, Mr. Mellenthin claims he visited four of the company's facilities in Illinois and "experienced unnecessary difficulty and risk due to excessive slopes in the parking facilities, and a lack of accessible signage." According to the complaint, "investigators" who examined 15 other locations in Idaho and Illinois, noticed the same barriers. The investigators cited excessive slopes in the parking lot and/or "accessible" signs mounted less than 60 inches above the finished surface or parking area, in violation of the ADA. In response, the company argued the case should be dismissed because the claims are based on speculation and the plaintiffs can't meet their burden of establishing that a nationwide class is appropriate. Plaintiffs countered that the motion was premature, saying the appropriateness of their allegations should be determined at the class certification stage. Judge Rosenstengel agreed, saying the court will consider Casey's arguments "on a motion for class certification, once they have been properly developed." The company also argued that the plaintiff's claims are barred by a prior settlement and an amended consent decree that is still in force and must be deemed to include this case. In Mikesic et al. v. Casey's General Stores, the company was accused of violating ADA laws by failing to remove "architectural barriers," which included issues with aisle width, entrance door thresholds, parking spaces, payphone height, restrooms, signage and visual emergency alarms. In a settlement, Casey's agreed to conduct surveys of pre-ADA stores and make modifications to address those issues. But the plaintiffs in the Mellenthin case argued the consent decree "is no longer in effect because the settlement has been fully implemented." In her opinion, Judge Rosenstengel determined that the Mikesic case doesn't include future class members. "Casey's has failed to satisfy its burden of establishing the Plaintiffs are included in such a class," she wrote. [GN] CHASE BANK: Tucker Seeks to Recoup Charges over Crypto Purchases ---------------------------------------------------------------- BRADY TUCKER, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, v. CHASE BANK USA, N.A., the Defendant, Case No. 1:18-cv-03155 (S.D.N.Y., April 10, 2018), seeks complete refund of all cash advance-related charges levied against them by Chase in connection with their recent crypto purchases. In recent years, so-called "cryptocurrencies" such as Bitcoin, Litecoin, and Ethereum have gained public attention for their potential technological applications to the future of business and finance. Many consumers view cryptocurrencies as a technology that could eventually help replace conventional, government- issued money. As of today, however, cryptos are not money at all; they are a technology, mere computer programs stored on computers. Cryptos are not created or issued by the U.S. government or any other government. They are not issued or created by any regulated financial institution, nor are they recognized as legal tender in any foreign or domestic jurisdiction. Nonetheless, many consumers have come to view cryptos as the future of money, or at the very least, the future of financial technology. For that reason, some consumers have come to ascribe tremendous economic value to owning cryptos. When and if cryptos become money in the conventional sense, some consumers want to be found owning them, largely because cryptos differ from conventional currency in one important respect. Every type of cryptocurrency is programmed to be finite in number and ultimately fixed in supply. Bitcoin, the first ever cryptocurrency, was released as open- source software in 2009 by an anonymous person, or group of persons, under the pseudonym "Satoshi Nakamoto." Since 2009, several other cryptocurrencies have been invented by various tech experts seeking to improve upon and/or offer alternatives to the Bitcoin concept. Some of the more popular cryptos available for public purchase include Litecoin, Ethereum, and Ripple. All have grown in notoriety and value over the last several years, as the concept of cryptos has spread from a fringe group of tech experts into the general public consciousness. As the cryptocurrency wave began to propagate from a small segment of computer science gurus, into the media, and then to consumers at large, tech-savvy entrepreneurs saw an opportunity. On a largely ad hoc basis, entrepreneurs began to develop new technological and economic infrastructures to support the buying, selling and exchange of cryptos nationwide. Among such "infrastructure" businesses was a now-prominent website called "Coinbase" (www.coinbase.com). Coinbase today serves as one of the largest cryptocurrency exchanges in the United States. Coinbase.com is owned and operated by San Francisco-based Coinbase, Inc., a privately held company that allows consumers to buy and sell cryptocurrencies using an intuitive, user-friendly online interface. For the last several years, Coinbase has allowed consumers to purchase cryptos online using their personal credit cards. Throughout these years, Defendant Chase Bank USA, N.A., and other major banks, likewise permitted their credit card customers to purchase cryptos online. Whenever Chase's credit cardholders did so, Chase processed their crypto purchases from Coinbase and other merchants as ordinary credit card "Purchases." But beginning in January 2018, Chase decided to do something very different. Chase began treating all its customers' crypto purchases not as ordinary credit card "Purchases" -- as Chase had for years -- but instead as "Cash Advances" from Chase to the credit cardholder. When Chase implemented this change in late January 2018, Chase did so in total silence. Chase provided no prior notice to its cardholders that their crypto "Purchases" would be treated as "Cash Advances" on a going forward basis. All of this occurred unbeknownst to Chase's cardholders. Plaintiff and other Class members began using their Chase-issued credit cards to purchase cryptos in and before early January 2018, when their crypto purchases had always been treated as "Purchases." Plaintiff and other Class members had been using their credit cards to buy cryptos, not because they needed to borrow money in the first place, but instead because it was the only way to acquire cryptos instantly via Coinbase and other merchants. Purchasing cryptos with a bank account number would typically require several days of processing time. Consequently, consumers had long been using their credit cards to purchase cryptos simply to avoid unnecessary delays in delivery. For years, Chase consistently treated cardholders' crypto purchases as ordinary "Purchases" under Chase's card member agreements. As a result, in and after late January 2018, Plaintiff and the Class simply continued to do what they had been doing for years: making routine crypto purchases via Coinbase and other merchants using their Chase credit cards. Unbeknownst to Class members, however, they were now taking out personal cash loans from Chase, complete with new fees and sky-high interest rates (up to 30% annually). Those ultra-high finance charges began accruing immediately on the transaction date, rather than after the end of a billing period, as with an ordinary purchase. Based on Plaintiff's and the Class's longstanding experiences with Chase under their cardholder agreements, Plaintiff and the Class believed they could pay off their crypto purchases before their credit card due-dates without incurring any finance charges. But Plaintiff and the Class were duped. Chase silently smacked them with instant cash advance fees, plus much higher interest rates than normal, and left them without any recourse.[BN] Chase Bank provides financial services, which includes consumer and commercial banking. The company serves consumers and small businesses through bank branches, ATMs, mortgage offices, and online and mobile banking as well as through relationships with auto dealerships and schools and universities. Counsel for Plaintiff and the Putative Class: David J. Harris, Jr., Esq. FINKELSTEIN & KRINSK LLP 550 West C Street, Suite 1760 San Diego, CA 92101-3579 Telephone: (619) 238 1333 Facsimile: (619) 238 5425 E-mail: djh@classactionlaw.com CHEROKEE, NC: "Hogan" Suit vs Social Services Moved to Fed. Court ----------------------------------------------------------------- The class action lawsuit titled Brian Hogan, both on his own behalf and as representative of all unnamed class members who are similarly situated, and as parent and next friend of H.H., both her own behalf and as representative of all unnamed class members who are similarly situated, the Plaintiff, v. Cherokee County, NC; Cherokee County Department of Social Services; and Scott Lindsay, both in his individual capacity and official capacity as attorney for Cherokee County Department of Social Services; Cindy Palmer, in both her individual capacity and her official capacity as Director of Cherokee County Department of Social Services; DSS Supervisor Doe No. 1, et al., the Defendants, Case No. 18 CVS 118, was removed from the Cherokee County, to the U.S. District Court for the Western District of North Carolina (Asheville) on April 13, 2018. The District Court Clerk assigned Case No. 1:18- cv-00096 to the proceeding. Cherokee County is a county located in the US state of Georgia. As of the 2010 census, the population was 214,346. The county seat is Canton. The county Board of Commissioners is the governing body, with members elected to office.[BN] The Plaintiff appears pro se. Attorneys for Defendants: Sean F. Perrin, Esq. WOMBLE BOND DICKINSON (US) LLP 301 South College St., Suite 3500 Charlotte, NC 28202 Telephone: (704) 331 4992 Facsimile: (704) 338 7814 E-mail: sean.perrin@wbd-us.com CHESAPEAKE OPERATING: Bid to Remand "Nichols" to State Ct. Denied ----------------------------------------------------------------- In the case, BILL G. NICHOLS, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. CHESAPEAKE OPERATING, LLC; CHESAPEAKE EXPLORATION, LLC, Defendants-Appellees, Case No. 18-6006 (10th Cir.), Judge Carlos F. Lucero of the U.S. Court of Appeals, Tenth Circuit, affirmed the district court's order denying his motion to abstain, and remand the caseto state court. Nichols is a royalty owner in Oklahoma natural gas wells owned in part or operated by Chesapeake. In August 2016, he sued Chesapeake in Oklahoma state court for underpayment or non- payment of royalties. He sought class certification of certain "Oklahoma Residents," which he defined using a four-part test: Persons to whom, from Jan. 1, 2015 to the date suit was filed, (a) Chesapeake mailed or sent each monthly royalty check on an Oklahoma well to an Oklahoma address (including direct deposit); (b) Chesapeake mailed or sent a 1099 for both 2014 and 2015 to an Oklahoma address; (c) the Settlement Administrator in Fitzgerald Farms, LLC v. Chesapeake Operating, Inc., Case No. CJ-10-38, Beaver County, Oklahoma mailed or sent a distribution check and 1099 to an Oklahoma address; and (d) except for charitable institutions, were not subject to the Oklahoma Withholding Tax for Nonresidents on royalties paid in 2014 to the date suit was filed. Chesapeake removed the case to federal court based on the Class Action Fairness Act ("CAFA"). Nichols soon filed a motion arguing that CAFA's home-state exception required the district court to remand the case to state court. Nichols proffered evidence to show that at least two-thirds of the proposed class members shared Chesapeake's Oklahoma citizenship, including the declaration of statistician Joseph Kadane, Ph.D., who randomly selected 100 royalty owners from a spreadsheet containing 28,929 unique records of royalty owners paid from Oklahoma wells and who have an Oklahoma address. Of the 100 royalty owners comprising Kadane's sample, there were 13 trusts, 7 entities, and 80 individuals. The district court was not persuaded, finding three significant flaws in the evidence. First the district court noted that neither the survey data nor the skip-trace investigation provided information as to the citizenship of trust beneficiaries or trustees -- important components of a trust's citizenship. Second, the district court found that a number of individuals identified as Oklahoma citizens were actually deceased, with no information provided as to heirs' citizenship. Finally, the district court found that Nichols' counsel had an "insufficient basis" for determining that some members of the random sample were Oklahoma citizens. Accordingly, the district court denied Nichols' motion to abstain and remand, finding he had not shown the applicability of CAFA's home-state exception by a preponderance of the evidence. Nichols now appeals. He contends that a rebuttable presumption of citizenship arises from his allegation that the proposed class members are Oklahoma residents. And because Chesapeake did not offer evidence that more than one-third of the proposed class members are not Oklahoma residents, Nichols says, the district court was required to abstain. Judge Lucero finds that the Court's non-precedential decision in Reece, and the other circuits that reject the applicability of a rebuttable presumption of citizenship in the context of a CAFA exception invoked based on the mere allegation of residence. There is a strong preference that interstate class actions should be heard in a federal court if properly removed by any defendant. Further, an individual's residence is not equivalent to his domicile and it is domicile that is relevant for determining citizenship. Congress no doubt meant to incorporate the established meaning of these terms, into the CAFA exceptions premised on "citizenship." He therefore turns to the evidence Nichols submitted to show that two-thirds or more of the proposed Plaintiff class members were Oklahoma citizens. The Judge acknowledges the significant effort Nichols employed to show that at least two-thirds of the class members shared Chesapeake's Oklahoma citizenship. But he notes that the need for this evidence was of Nichols' own making: he chose to define the class in terms of residence rather than citizenship. By defining the class in terms of residence, Nichols saddled himself with an evidentiary burden, one which he sought to meet through admittedly imperfect evidence. In particular, Kadane reached his conclusion that two-thirds or more of the class members are Oklahoma citizens by extrapolating from a flawed sample. Given the clear-error standard of review, the Judge says he must affirm the district court's conclusion that Nichols failed to prove at least two-thirds of the proposed Plaintiff class members were Oklahoma citizens by a preponderance of the evidence. The district court, therefore, properly determined that CAFA's home- state exception to exercising jurisdiction did not apply. Accordingly, Judge Lucero affirmed. A full-text copy of the Court's March 7, 2018 Order and Judgment is available at https://is.gd/PDxWWW from Leagle.com. CHINA AGRITECH: Shearman & Sterling Discusses Tolling Issue ----------------------------------------------------------- Shearman & Sterling LLP, in an article for JDSupra, reports that on March 26, 2018, the United States Supreme Court heard oral argument in an appeal that presents the question whether American Pipe tolling -- which provides that the pendency of a class action generally tolls the statute of limitations for claims of individual members of the putative class -- applies not just to subsequent individual actions but also to subsequent class actions. Transcript, China Agritech, Inc. v. Resh, No. 17-432 (U.S. argued Mar. 26, 2018). Plaintiffs, alleged owners of shares in China Agritech, filed a putative securities fraud class action following the filing of two other similar class actions for which class certification had been denied. There was no dispute that the claims of the individual named plaintiffs were timely under the tolling rule of American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974). The district court, however, dismissed the class claims as time-barred, only to be later reversed by the Ninth Circuit. The Circuit Courts of Appeals have reached varying conclusions regarding whether, or the circumstances in which, the filing of a putative but ultimately not certified class action will operate to toll subsequently- asserted class claims, thereby allowing for the seriatim filing of otherwise time-barred class actions in the hope that a class may eventually be certified. The China Agritech case provides an opportunity for the Supreme Court to resolve the conflict. The questioning from the Justices highlighted some of the competing policy and other concerns at issue. It appeared to be an accepted premise that the underlying rationale for the tolling rule of American Pipe included avoiding the need for absent class members to file a multiplicity of individual actions to avoid having their claims be barred under the statute of limitations, so long as they acted diligently (in other words, within the statute of limitations, as tolled during the pendency of the class action) after denial of class certification to assert their individual claims. A key dispute centered on whether it furthered the objectives of American Pipe to allow absent class members who continued to "sleep" on their rights after the initial denial of class certification -- by failing to file an individual action -- to nevertheless benefit from American Pipe tolling by having their claims asserted on their behalf in a subsequent class action. For example, Justice Gorsuch wondered whether it was appropriate to "stack [class action cases] forever [when assessing the statute of limitations], so that try, try again, and the statute of limitations never really has any force in these cases" and what the Court should "do about the congressional judgment that there should be a statute of limitations." On the other hand, questions were raised suggesting that, especially in cases in which certification was denied for reasons unrelated to the merits of maintaining the case as a class action (e.g., an atypical or inadequate class representative), it would contravene the efficiency and fairness objectives of American Pipe to require absent class members to file individual actions to pursue their claims. Thus, Justice Sotomayor repeatedly challenged counsel for the petitioner as to why the Court should adopt a rule that would encourage the filing of a multitude of individual claims when a class action could be used as an efficient litigation tool. Relatedly, Justice Gorsuch inquired whether it would be appropriate to give an individual plaintiff who timely filed suit after a denial of class certification the benefit of equitable tolling, yet deny him or her the ability to invoke Rule 23. It is always difficult to discern how the Court might rule based on questioning during oral argument. However, a general impression from the transcript is that neither insisting that only individual actions are tolled nor concluding that class action rights are always tolled is likely to satisfy a broad swath of the Court. The Court should have some flexibility given that American Pipe is a judge-made rule emanating not from statute but rather the Federal Rules of Civil Procedure. One can also question how consequential this issue ultimately will be given the Supreme Court's 2017 ruling in the ANZ case that no plaintiff -- whether individually or on behalf of a class -- benefits from American Pipe tolling once the Securities Act's three-year statute of repose has expired. [GN] CITIBANK N.A.: Kulauzovic Seeks OT Compensation under FLSA ---------------------------------------------------------- LATIFA KULAUZOVIC, ZAHED SARWAR, JESSICA CARRIG, LIANA GUKASYAN, and MARGARET BALTAYAN, on behalf of themselves and all others similarly situated, the Plaintiff, v. CITIBANK, N.A., the Defendant, Case No. 507538/2018 (N.Y. Sup. Ct., April 13, 2018), seeks to recover overtime compensation pursuant to the Fair Labor Standards Act of 1938, the New York Labor Law, and the Illinois Minimum Wage Law. To serve its customers and meet its budgetary requirements, Citi utilizes ABMs as essentially "floaters," who spend the vast majority of their time performing the same duties as non-exempt employees. Specifically, ABMs' primary duties that occupy the majority of their time are working on the teller line or selling Citi consumer products. Throughout the relevant period, it has been Citi's nationwide policy to uniformly classify ABMs as exempt from federal and state overtime provisions and not to pay ABMs any overtime wages. In order to serve its customers' needs, Citi regularly requires ABMs to work in excess of 40 hours per week. Citibank, N.A. is a wholly owned subsidiary of Citigroup Inc. that has almost $1.8 trillion in total assets and operates 700 consumer branches throughout the United States.[BN] Attorneys for Plaintiffs and the Putative Classes and Collective: Justin M. Swartz, Esq. JOUTTEN & GOLDEN LLP 685 Third Avenue, 25th Floor New York, NY 10017 Telephone: (212) 245 1000 - and - Gregg I. Shavitz, Esq. SHAVITZ LAW GROUP, P.A. 1515 S. Federal Highway, Suite 404 Boca Raton, FL 33432 Telephone: (561) 447 8888 - and - Joseph A. Fitapelli, Esq. Armando A. Ortiz, Esq. FITAPELLI & SCHAFFER, LLP 28 Liberty Street, 30th Floor New York, NY 10005 Telephone: (212) 300 0375 CITIGROUP INC: N.Y. Court Partially Denies Class Certification -------------------------------------------------------------- Shearman & Sterling LLP, in an article for JDSupra, wrote that on March 22, 2018, Chief Judge Colleen McMahon of the United States District Court for the Southern District of New York granted in part and denied in part class certification in a putative class action alleging breach of contract claims against Citibank, N.A. Merryman et al. v. Citigroup Inc. et al., 15 Civ. 9185 (CM) (S.D.N.Y. Mar. 22, 2018). Plaintiffs, former holders of American Depositary Receipts ("ADRs") in three separate companies, brought this putative class action on behalf of a proposed class who currently or previously held any of 35 separate ADRs for which defendant served as depositary bank. Plaintiffs alleged that defendant breached the contracts governing these ADRs by converting cash distributions received from foreign issuers at one foreign exchange rate and then supposedly using a less favorable rate when remitting the proceeds to ADR holders and retaining the difference (the "spread"). The Court granted class certification with respect to the securities previously owned by plaintiffs, but held that plaintiffs lacked class standing to bring claims on behalf of holders of other securities. The Court noted that the standing issue turned on whether the case was more similar to NECA-IBEW Health & Welfare Fund v. Goldman Sachs & Co., 693 F.3d 145 (2d Cir. 2012) ("NECA"), than to Ret. Bd. of the Policemen's Annuity & Ben. Fund of the City of Chicago v. Bank of N.Y. Mellon, 775 F.3d 154 (2d Cir. 2014) ("Retirement Board"). In NECA, the Second Circuit held the named plaintiff must demonstrate that (1) he "personally has suffered some actual . . . injury as a result of the putatively illegal conduct of the defendant," and (2) "such conduct implicates 'the same set of concerns' as the conduct alleged to have caused injury to other members of the putative class by the same defendants." NECA, 693 F.3d at 162. In Retirement Board, the Second Circuit determined that, applying NECA, the named plaintiff lacked class standing to pursue breach-of-duty claims against a trustee for hundreds of residential mortgage-backed securities trusts in which the named plaintiff did not invest, which the Second Circuit held would have required proof on a loan-by-loan and trust-by-trust basis. The Court concluded that plaintiffs could satisfy the first part of the NECA test for class standing, based on plaintiffs' allegations that they had suffered actual injury as a result of defendant's alleged retention of the "spread." Slip op. at 16. As to the second NECA factor, the Court noted that this case was "somewhere on the spectrum between" NECA and Retirement Board. For instance, it was more similar to NECA in that the agreements for 34 of the ADRs (excluding one with materially different language) provided ADR holders with "largely identical rights" respecting cash distributions. The Court contrasted this situation with the hundreds of trusts with different terms in Retirement Board. Id. at 17-18. The Court also noted that plaintiffs met NECA's second prong in that they alleged that the class members had been injured in exactly the same way, to the extent that, were they to succeed in a trial limited to just the three ADRs they held, the doctrine of offensive collateral estoppel would likely apply in favor of investors in the other 31 ADRs. Id. at 18. However, the Court found that the case differed from NECA in key ways. As in Retirement Board, the claims were based on contracts, and plaintiffs "cannot point to a single document containing a single set of misrepresentations applicable to all thirty-four ADRs." Id. at 18-19. While the burden was likely less than that involved in trying to prove the terms of hundreds of thousands of mortgage loans in Retirement Board, the Court nevertheless noted that this was an additional burden that the named plaintiffs would not have to undertake to prove claims based on their own holdings. More critically, the Court highlighted that plaintiffs alleged that defendant had a spread retention "policy" applicable to all ADRs, requiring plaintiffs to prove that defendant had such a policy and adhered to it on a case-by-case basis -- including by offering evidence of the actual exchange rate used in converting a cash distribution to dollars and the actual exchange rate used in remitting the proceeds to plaintiffs -- which the named plaintiffs had less of an incentive to do for ADRs on which they had no prospect of personal recovery. Id. at 19. While "closer than it appears at first blush," the Court held that this case was closer to Retirement Board than to NECA and that the named plaintiffs' claims failed to implicate the "same set of concerns" as those of class members who owned different ADRs. Id. at 20. This case serves as a reminder that, in addition to the requirements for class certification contained in Rule 23, named plaintiffs seeking class certification may face additional Constitutional obstacles to establishing standing to pursue claims involving securities they did not own. [GN] COMMUNITYONE BANCORP: "Pendleton" Settlement Has Final Approval --------------------------------------------------------------- In the case, CURTIS PENDLETON and FLOYD SCROGHAM, individually and on behalf of all others similarly situated, Plaintiff, v. ROBERT L. REID, SCOTT B. KAUFFMAN, JERRY R. LICARI, J. CHANDLER MARTIN, T. GRAY MCCASKILL, H. RAY MCKENNEY, JR., JOHN C. REDETT, BOYD C. WILSON, JR., COMMUNITYONE BANCORP, and CAPITAL BANK FINANCIAL CORP., Defendants, Case No. 05:16-CV-00037 (W.D. N.C), Judge Robert J. Conrad, Jr. of the U.S. District Court for the Western District of North Carolina, Statesville Division, granted Pendleton's (i) Unopposed Motion for Settlement and (ii) Joint Motion for All Parties for Entry of Final Judgment. Previously, the Court granted the Plaintiff's Unopposed Motion for Preliminary Approval of Class Action Settlement for final approval of the terms of a Stipulation of Settlement dated as of Jan. 31, 2017. The Court held a hearing on July 31, 2017 to consider the proposed settlement as embodied in the Stipulation. Pursuant to Fed. R. Civ. P. 23, Judge Conrad certifies, for settlement purposes only, a non-opt-out class consisting of any and all record holders and beneficial owners of common stock of CommunityOne who held or owned such stock at any time during the period beginning on and including Nov. 23, 2015, through and including the date of consummation of the Merger on Oct. 26, 2016, including any and all of their respective successors-in- interest, successors, predecessors-in-interest, predecessors, representatives, trustees, executors, administrators, estates, heirs, beneficiaries, legatees, devisees, assigns and transferees, immediate and remote, and any other person or entity acting for or on behalf of, or claiming under, any of the foregoing. He approved the Stipulation and the terms of the Settlement as described in the Stipulation in their entirety and incorporated into the Order and Final Judgment. He directed the parties to the Settlement to consummate the Settlement in accordance with the terms and provisions of the Stipulation. The Judge dismissed the Action as against all the Defendants on the merits and with prejudice and without costs to any party as against any other party, except as otherwise agreed to in the Stipulation and as set forth in the Order and Final Judgment. He ordered that CommunityOne or its successor(s) will pay, on behalf of all the Defendants, the sum of $500,000 in attorneys' fees, costs and expenses to the Plaintiffs' Counsel in accordance with, and subject to the terms and conditions of the Stipulation. There being no just reason for delay, Judge Conrad directed that the Order and Final Judgment be entered by the Clerk of the Court. The Clerk of Court is directed to close the case. A full-text copy of the Court's March 7, 2018 Order is available at https://is.gd/MZqIeR from Leagle.com. Curtis Pendleton, Plaintiff, represented by Guri Ademi -- gademi@ademilaw.com -- Ademi & O'Reilly, LLP, pro hac vice, James M. Wilson, Jr. -- jwilson@faruqilaw.co -- Faruqi & Faruqi, LLP, pro hac vice, Shane T. Rowley, Levi & Korsinsky LLP, pro hac vice & Janet Ward Black, Ward Black, P.A. Floyd Scrogham, Consol Plaintiff, represented by Guri Ademi, Ademi & O'Reilly, LLP, pro hac vice, James M. Wilson, Jr., Faruqi & Faruqi, LLP, pro hac vice, Janet Ward Black, Ward Black, P.A. & Shane T. Rowley, Levi & Korsinsky LLP, pro hac vice. Robert L. Reid, Scott B. Kauffman, Jerry R. Licari, J. Chandler Martin, T. Gray McCaskill, H. Ray McKenney, Jr., John C. Redett, Boyd C. Wilson, Jr. & CommunityOne Bancorp, Defendants, represented by Arthur Luk -- arthur.luk@arnoldporter.com -- Arnold & Porter LLP, pro hac vice, H. Landis Wade, Jr. -- lwade@mcguirewoods.com -- McGuireWoods, LLP, John C. Massaro -- john.massaro@arnoldporter.com -- Arnold & Porter LLP, pro hac vice & T. Richmond McPherson, III -- rmcpherson@mcguirewoods.com -- McGuire Woods, LLP. Capital Bank Financial Corp., Defendant, represented by Brent F. Powell -- brent.powell@wbd-us.com -- Womble Bond Dickinson (US) LLP, Ronald Redd Davis -- ronald.davis@wbd-us.com -- Womble Bond Dickinson (US) LLP & S. Christopher Szczerban -- SCS@wlrk.com -- Wachtell, Lipton, Rosen & Katz, pro hac vice. CONTRA COSTA, FL: "Gonzalez" Suit Seeks to Certify Class -------------------------------------------------------- In the lawsuit styled Esteban ALEMAN GONZALEZ; Jose Eduardo GUTIERREZ SANCHEZ, Plaintiffs-Petitioners, v. Jefferson B. SESSIONS, Attorney General, Department of Justice; Kirstjen NIELSEN, Secretary, Department of Homeland Security; James McHENRY, Director, Executive Office for Immigration Review, Department of Justice; MaryBeth KELLER, Chief immigration Judge, Executive Office for Immigration Review, Department of Justice; David W. JENNINGS, Field Office Director for the San Francisco Field Office of U.S. Immigration and Customs Enforcement, Department of Homeland Security; David O. LIVINGSTON, Sheriff, Contra Costa County; Kristi BUTTERFIELD, Facility Commander, West County Detention Facility, Contra Costa County, the Defendants, Case No. 3:18-cv-01869-JSC (N.D. Cal.), the Plaintiffs will ask the Court on May 31, 2018, to certify a class of: "all individuals who are detained pursuant to 8 U.S.C. section 1231(a)(6) in the Ninth Circuit by, or pursuant to the authority of, the U.S. Immigration and Customs Enforcement, and who have reached or will reach six months in detention, and have been or will be denied a prolonged detention bond hearing before an Immigration Judge." The Plaintiffs will also ask the Court to appoint them as class representatives; and Van Der Hout, Brigagliano & Nightingale, LLP, Centro Legal De La Raza, Matthew Green, ACLU Foundation of Southern California, ACLU Foundation of Northern California, and ACLU Foundation of San Diego & Imperial Counties as class counsel. A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=PgXx3O39 Attorneys for Plaintiffs-Petitioners and the Proposed Class: Marc Van Der Hout, Esq. Judah Lakin, Esq. Amalia Wille, Esq. VAN DER HOUT, BRIGAGLIANO & NIGHTINGALE LLP 180 Sutter Street, Suite 500 San Francisco, CA 94104 Telephone: (415) 981 3000 Facsimile: (415) 981 3003 E-mail: ndca@vblaw.com - and - Alison Pennington, Esq. Lisa Knox, Esq. Julia Rabinovich, Esq. Jesse Newmark, Esq. CENTRO LEGAL DE LA RAZA 3400 E. 12th Street Oakland, CA 94601 Telephone: (510) 679 1608 Facsimile: (510) 427 9164 E-mail: apennington@centrolegal.org - and - Matthew H. Green, Esq. LAW OFFICES OF MATTHEW H. GREEN 130 West Cushing Street Tucson, AZ 85701 Telephone: (520) 882 8852 Facsimile: (520) 882 8843 E-mail: matt@arizonaimmigration.net - and - Vasudha Talla, Esq. Julia Mass, Esq. Michael Kaufman, Esq. Bardis Vakili, Esq. AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621 2493 Facsimile: (415) 255 8437 E-mail: jmass@aclunc.org vtalla@aclunc.org mkaufman@aclusocal.org bvakili@aclusandiego.org CREDIT SUISSE: Seeks Dismissal of Broker's Class Action ------------------------------------------------------- Andrew Welsch, writing for On Wall Street, reports that Credit Suisse asked a federal judge to dismiss a broker's class action lawsuit seeking up to $300 million in back pay that is allegedly owed to more than a hundred former Credit Suisse advisors. It's the latest flare-up in a lengthy dispute between Credit Suisse and its former U.S.-based brokers, stemming from the manner in which the Swiss bank exited the U.S. marketplace in 2015. Instead of selling its American wealth management unit to another firm, Credit Suisse announced it was shutting the business and entered into an exclusive recruiting arrangement with Wells Fargo. Credit Suisse advisors were permitted to move to Wells Fargo unhindered and offered recruiting deals by Wells Fargo to do so. Those who opted to join other firms were restricted from receiving deferred compensation they had earned at Credit Suisse. Fewer than half of the bank's roughly 250 brokers ultimately joined Wells Fargo. Christopher Laver, who brought the class action lawsuit against Credit Suisse, went to work for UBS. He had been employed by Credit Suisse for 13 years. In his lawsuit filed in federal court in California's Northern District in February, Mr. Laver says the firm's contracts stipulate that brokers are owed deferred compensation unless they are fired or voluntarily resign. Credit Suisse maintains that advisors such as Mr. Laver who did not join Wells Fargo voluntarily resigned from the firm and thereby gave up their deferred compensation. Mr. Laver contends that he and other brokers did no such thing: By shuttering its U.S. brokerage unit, Credit Suisse forced the advisors to find work elsewhere. Moreover, he claims Credit Suisse benefited from years of revenue produced by its U.S.-based brokers. "The deferred compensation at issue here was earned and is owed. Credit Suisse should not be able to avoid its obligation to compensate the advisors fully and fairly by claiming they 'resigned' when, in fact, Credit Suisse simply ceased operating this business," Mr. Laver says in his lawsuit. Mr. Laver's attorney could not be reached for additional comment. In its request for dismissal of the lawsuit, Credit Suisse argues that Mr. Laver's employment contract mandates any disputes be arbitrated and, furthermore, that he annually waived his right to file a class action lawsuit. "Even if the [firm's Employment Dispute Resolution Program] were deemed to be invalid (which it is not), plaintiff would still be required to arbitrate his claims against [Credit Suisse] under FINRA's rules and regulations," the firm argues. A spokeswoman for Credit Suisse says allegations that the firm is wrongfully withholding deferred pay have no merit and that advisors who decided not to join Wells Fargo and instead went to other firms received recruiting bonuses to do so. "Simply put, the plaintiff here is looking to be paid the same money twice. Credit Suisse will vigorously defend the action," the spokeswoman says in an emailed statement. Credit Suisse is also seeking to change the venue for hearing the dispute from California to New York, arguing that Mr. Laver's employment contract specifies that any dispute arising from his employment at the firm is to be mediated there. Credit Suisse is in fact involved in a number of arbitration disputes as other former brokers attempt to win back deferred compensation the firm is withholding from them. The bank tried to compel these advisors to arbitrate those disputes in a private forum, but FINRA sent a notice to the industry asserting all advisors have a right to take any dispute between themselves and a member firm to FINRA's arbitration forums. Class action claims cannot be arbitrated under FINRA rules, meaning advisors will have to have their cases heard one by one. [GN] CREDIT ONE: Denial of Arbitration Bid in "Anderson" Affirmed ------------------------------------------------------------ Judge Rosemary S. Pooler of the U.S. Court of Appeals for the Second Circuit affirmed the district court's order denying Credit One's motion to compel arbitration in the case, IN RE: ORRIN S. ANDERSON, AKA ORRIN S. ANDERSON, AKA ORINN SCOTT ANDERSON, Debtor. ORRIN S. ANDERSON, on behalf of himself and all others similarly situated, AKA ORINN SCOTT ANDERSON Plaintiff-Appellee, v. CREDIT ONE BANK, N.A., Defendant-Appellant, Docket No. 16-2496 (2d Cir.). In October 2002, Anderson opened a credit card account with First National Bank of Marin, a predecessor in interest to Credit One. Anderson's cardholder agreement contained an arbitration clause. In September 2011, Anderson's Credit One credit card account became delinquent and it remained so until March 2012, when Credit One "charged off" Anderson's account, reclassifying Anderson's debt from a receivable to a loss. In May 2012, Credit One sold Anderson's account to a third-party debt buyer. Credit One then reported the charge-off and the sale of the debt to the three major consumer credit reporting agencies Equifax, Experian, and TransUnion. On Jan. 31, 2014, Anderson filed a voluntary Chapter 7 bankruptcy petition in the U.S. Bankruptcy Court for the Southern District of New York. On May 6, 2014, the bankruptcy court entered an order discharging all of Anderson's dischargeable debts and closing his Chapter 7 case. In September 2014, Anderson contacted Credit One and asked it to remove the charge-off from his credit reports since the Credit One debt had been discharged in his bankruptcy proceeding. Credit One refused to contact the credit reporting agencies to correct the alleged error on Anderson's credit report. In October 2014, Anderson moved the bankruptcy court to reopen his case in order to pursue Credit One's alleged violations of his discharge injunction. In December 2014, the bankruptcy court granted Anderson's motion to reopen. Anderson thereafter filed an amended class action complaint in the bankruptcy court alleging that Credit One violated 11 U.S.C. Section 524(a)(2) by knowingly and willfully failing to update the credit reports of the class members to signify the debts owing to Credit One have been discharged in bankruptcy. In essence, Anderson alleged that Credit One refused to update the credit reporting agencies regarding the discharged debt in an effort to coerce payment on the discharged debt in violation of the Section 524 discharge injunction. In March 2015, Credit One moved to compel arbitration pursuant to the terms of the cardholder agreement and to stay the bankruptcy proceeding. The bankruptcy court held a hearing on May 5 and denied the motion nine days later. Less than a month later, in June 2015, Credit One filed an interlocutory appeal of the bankruptcy court's denial of its motion to compel arbitration. The district court affirmed the decision of the bankruptcy court a year later in June 2016. Credit One timely filed its notice of appeal on July 13, 2016 and amended it on July 26, 2016. Oral argument was held in the case on Oct. 11, 2017, and thereafter the Appellate Court asked the parties to submit supplemental briefs on the issue of mootness, given Credit One's stipulation that it would update the credit reports of Anderson and other consumers. The parties submitted supplemental briefs on Oct. 23, 2017. The Appellate Court agrees with both parties that the stipulation does not moot the appeal because the question presented and the relief sought both remain unsettled, such that it retains jurisdiction under Article III's "case" or "controversy" requirement. It thus proceed to consider the merits of the appeal. Judge Pooler finds that arbitration of a claim based on an alleged violation of Section 524(a)(2) would seriously jeopardize a particular core bankruptcy proceeding. She come to this conclusion because 1) the discharge injunction is integral to the bankruptcy court's ability to provide debtors with the fresh start that is the very purpose of the Code; 2) the claim regards an ongoing bankruptcy matter that requires continuing court supervision; and 3) the equitable powers of the bankruptcy court to enforce its own injunctions are central to the structure of the Code. The fact that Anderson's claim comes in the form of a putative class action does not undermine this conclusion. Because she determines there is an inherent conflict between arbitration of Anderson's claim and the Bankruptcy Code, the Judge must also assess whether the bankruptcy court abused its discretion in declining to enforce the arbitration agreement. She finds that the bankruptcy court properly considered the conflicting policies in accordance with law. Accordingly, she acknowledges its exercise of discretion and show due deference to its determination that arbitration will seriously jeopardize a particular core bankruptcy proceeding. She holds that the bankruptcy court did not abuse its discretion by denying Credit One's motion to compel arbitration in the case. For these reasons, Judge Pooler affirmed the order of the district court and remanded for further proceedings consistent with her Opinion. A full-text copy of the Court's March 7, 2018 Opinion is available at https://is.gd/CtJ7xE from Leagle.com. GEORGE F. CARPINELLO -- gcarpinello@bsfllp.com -- Boies, Schiller & Flexner LLP, (Adam R. Shaw -- ashaw@bsfllp.com -- Anne M. Nardacci -- anardacci@bsfllp.com -- and Jenna C. Smith -- jsmith@bsfllp.com --on the brief), Albany, NY, for Plaintiff- Appellee. Charles Juntikka, New York, NY, for Plaintiff-Appellee (on the brief). NOAH A. LEVINE -- noah.levine@wilmerhale.com -- Wilmer Cutler Pickering Hale and Dorr, LLP (Alan E. Schoenfeld -- alan.schoenfeld@wilmerhale.com -- on the brief), New York, NY, for Defendant-Appellant. Michael David Slodov, Chagrin Falls, OH, for Defendant-Appellant. Evan M. Tager -- etager@mayerbrown.com -- Charles E. Harris, II - - charris@mayerbrown.com -- Mayer Brown LLP, Washington, D.C. and Kate Comerford Todd, Warren Postman, U.S. Chamber Litigation Center, for amicus curiae Chamber of Commerce of the United States of America in support of Defendant-Appellant Credit One Bank, N.A. Tara Twomey, National Consumer Bankruptcy Rights Center, San Jose, CA for amici curiae Professors Ralph Brubaker, Robert M. Lawless, and Bruce A. Markell in support of Plaintiff-Appellee Orrin S. Anderson. D.R. HORTON: "Winnie" Suit Moved to South Carolina District Court ----------------------------------------------------------------- The class action lawsuit titled Hyland Winnie, Jr., on behalf of himself and others similarly situated, the Plaintiff, v. D.R. Horton Inc., the Defendant, Case No. 2018-CP-26- 01728, was removed from the Horry County Court of Common Pleas, to the U.S. District Court for the District of South Carolina (Florence) on April 13, 2018. The District Court Clerk assigned Case No. 4:18- cv-01023-RBH to the proceeding. The case is assigned to the Hon. R. Bryan Harwell. D. R. Horton, Inc. is a home construction company incorporated in Delaware and headquartered in Arlington, Texas. In 2017, the company was the largest home builder in the United States based on the number of homes closed.[BN] The Plaintiff is represented by: Charles Harry McDonald, Esq. BELSER AND BELSER PO Box 96 Columbia, SC 29202 Telephone: (803) 929 0096 Facsimile: (803) 929 0196 E-mail: chuck@belserpa.com Attorneys for Defendant: James E. Weatherholtz, Esq. Kathryn Susan Mansfield, Esq. WOMBLE BOND DICKINSON US LLP 5 Exchange Street, PO Box 999 Charleston, SC 29402 Telephone: (843) 722 3400 Facsimile: (843) 723 7398 E-mail: james.weatherholtz@wbd-us.com kathryn.mansfield@wbd-us.com DAVIDSON SURFACE: Averts Class Action Over Unpaid Overtime Wages ---------------------------------------------------------------- Kristin Emery, writing for Madison - St. Clair Record, reports that the Fifth District Appellate Court has dismissed a class action lawsuit filed in Jefferson County Circuit Court against a Missouri company over overtime pay, holding that the company does business primarily in Missouri, not in Illinois. Represented by Wood River attorney Tom Maag, plaintiff Romeo Torio filed the original lawsuit in 2013 when he worked for Davidson Surface/Air Inc. making pickups and deliveries in Illinois. Mr. Torio, a Missouri resident, claimed Davidson did substantial business in Illinois even though its offices are in Missouri and that he worked more than 40 hours per week at various times from 2011-13, according to background information in the ruling. His suit claimed the defendant owed him 185.05 hours of overtime and that under "applicable law" was required to pay him time and a half for each hour totaling $5,551.50 plus interest and attorney fees, according to the ruling. Mr. Torio's lawsuit went on to allege that Davidson employs yet fails to pay numerous employees for legally required overtime and that the court should grant class status to the case. The original suit was dismissed in 2015, with the trial court finding the plaintiff had failed to show the defendant was doing business in Illinois and that it lacked personal jurisdiction. Last year, the plaintiff filed a notice of appeal and argued that the company used Illinois roads and highways enough to subject it to Illinois jurisdiction and that this constituted an "exceptional circumstance." The defendant argued its contacts are too sporadic to prove that it does business as an Illinois company. In its ruling, the appellate court held that the only contact Davidson has with Illinois is the sporadic pickup and delivery of goods and that it does not maintain offices in the state. The court ruled that this falls below the standards of an exceptional circumstance and that Davidson's principal place of business is Missouri. Judge Thomas M. Welch delivered the judgment of the court. Presiding Judge John B. Barberis, Jr. and Judge James R. Moore concurred in the judgment. [GN] DISTRICT OF COLUMBIA: Court Denies Renewed Bid to Amend "Lewis" --------------------------------------------------------------- In the case captioned KAYLA DIONNE LEWIS, et al., Plaintiffs, v. GOVERNMENT OF THE DISTRICT OF COLUMBIA, Defendant, Civil Action No. 15-352 (RBW) (DC), Judge Reggie B. Walton denied the Plaintiffs' (i) Motion for Reconsideration pursuant to Federal Rule of Civil Procedure 54, (ii) Motion for Leave to Amend the Second Amended Complaint and to File Third Amended Complaint pursuant to Federal Rule of Civil Procedure 15, and (iii) Motion to Sever Claims Two and Three into Two Separate Actions pursuant to Federal Rule of Civil Procedure 21. The Name Plaintiffs in the civil suit, bring the putative class action against the District of Columbia under 42 U.S.C. Section 1983 (2012), alleging constitutional violations arising from their arrests and subsequent detentions by the District in 2014. In their Second Amended Complaint, the Plaintiffs asserted three claims under 42 U.S.C. Section 1983: (1) Fourth Amendment violations resulting from the District's policy of holding individuals after their presentments and after the administrative steps incident to their arrests had been completed without an affirmative finding of probable cause so that the District could perfect the Gerstein affidavits required to legally authorize their detentions; (2) Fourth Amendment violations resulting from the District's practice of holding individuals for more than 48 hours after their arrest without a finding of probable cause by a judicial officer" ("Riverside claim"); and (3) Fourth and Fifth Amendment violations resulting from the District's policy of subjecting individuals to blanket strip-searches at the District of Columbia Jail after presentment without an affirmative finding of probable cause so that the District could perfect the Gerstein affidavits ("strip search claim"). The Plaintiffs sought through their Second Amended Complaint, which they now seek to amend, both declaratory relief and money damages. In its May 15, 2017 Order, the Court held that the United States Attorney for the District of Columbia is a required party to the litigation under Federal Rule of Civil Procedure 19(a)(1) for two reasons. First, the Court concluded that the U.S. Attorney is a required party under Rule 19(a)(1)(B)(i) because Assistant U.S. Attorneys are supposed to review the Gerstein statements prepared by police officers to ensure that they satisfy the probable cause requirement necessary to merit the filing of charges against arrestees, and any ruling the Court makes in this case will necessarily impact the operations of the U.S. Attorney's office because it will impact the papering, i.e., processing, of arrestees charged with offenses prosecuted by that office. Second, the Court concluded that the U.S. Attorney is also a required party under Rule 19 (a)(1)(A) because the Court could not `accord complete relief among existing parties' without the inclusion of the U.S. Attorney given that any relief it may grant on behalf of the Plaintiffs could not bind the U.S. Attorney if she is not a party in the case. The Court, however, declined to dismiss the case pursuant to Rule 12(b)(7) at that time because (1) dismissal pursuant to Rule 12(b)(7) is warranted only when the defect is serious and cannot be cured; (2) Rule 19 requires the Court to join a required party that has not been joined; and (3) the District had made no argument that the U.S. Attorney's absence cannot be cured. Accordingly, the Court ordered the Plaintiffs to file a third amended complaint including the U.S. Attorney as a Defendant. Instead of including the U.S. Attorney as a party as directed by the Court, the Plaintiffs filed their motion for leave to file a third amended complaint that omits their Gerstein claim and amends the allegations and proposed class definitions in order to obviate the need to join the U.S. Attorney. After their motion for leave to file their third amended complaint was fully briefed, the Plaintiffs filed their motion to sever their strip search claim, proposing that the Court grants their motion for leave to amend, grant their motion to sever, and then, if the Court concludes that the U.S. Attorney is a required party, orders Lewis to file a Fourth Amended Complaint naming the U.S. Attorney as a party to the Riverside claim but not the severed strip search claim. Thereafter, the Plaintiffs filed their motion for reconsideration, requesting that the Court reconsiders its ruling in the May 15, 2017 Order that the U.S. Attorney is a required party to the case pursuant to Fed. R. Civ. P. 19(a)(1)(A) and (a)(1)(B)(i). As to the Plaintiffs' Motion for Reconsideration, Judge Walton finds that their argument that the Court should reconsider its May 15, 2017 Order because they lacked an opportunity to respond to the Court's sua sponte holding that the U.S. Attorney is a required party lacks merit because its premise is simply false. And because the U.S. Attorney prosecutes nearly all local crimes committed by adults within the District, it is inconceivable to think that a determination that the Superior Court Gerstein probable cause procedures are unconstitutional would not, as a practical matter, impair or impede the U.S. Attorney's ability to protect her interest in regards to those procedures. For all of these reasons, he will deny the Plaintiffs' motion to reconsider its holding that the U.S. Attorney is a required party to the case under Rule 19(a)(1)(B)(i). With respect to the Plaintiffs' Motion for Leave to Amend their Complaint, the Judge finds that because the basis for seeking to file the proposed third amended complaint is to exclude the U.S. Attorney as a required party, and because he concludes that the U.S. Attorney would remain a required party in the case under Rule 19(a)(1)(B)(i) even if the Court granted the Plaintiffs leave to file their proposed third amended complaint, the Judge concludes that he must deny the motion for leave to further amend the complaint because the proposed third amended complaint's attempt to exclude the U.S. Attorney as a required party is futile. Finally, as to the Plaintiffs' Motion to Sever, Judge Walton finds that given the current procedural posture of the case, as well as the fact that the Rules encourage courts to join claims, parties and remedies in order to entertain the broadest possible scope of action consistent with fairness to the parties, he will deny without prejudice the Plaintiffs' motion to sever at this time. He concludes that severance was premature because the parties had not yet engaged in discovery, which could reveal whether the claims involved common legal or factual issues. For these reasons, the Court concludes that it must deny the Plaintiffs' motions for reconsideration and for leave to amend their complaint, and deny without prejudice their motion to sever. The Court reiterates its prior determination that the United States Attorney for the District of Columbia is a required party under Rule 19(a)(1)(B)(i), and therefore, in order to proceed with their claims, the Plaintiffs must file a third amended complaint joining her as a Defendant. A full-text copy of the Court's March 7, 2018 Memorandum Opinion is available at https://is.gd/ocKuQ2 from Leagle.com. KAYLA DIONNE LEWIS, On behalf of themselves and all others similarly situated, Plaintiff, represented by Michael P. Bruckheim -- bruckhei@american.edu -- BRUCKHEIM & PATEL, LLC & William Charles Cole Claiborne, III, CLAIBORNELAW. FELTON HILL, On behalf of themselves and all others similarly situated, Plaintiff, represented by William Charles Cole Claiborne, III, CLAIBORNELAW. GOVERNMENT OF THE DISTRICT OF COLUMBIA, Defendant, represented by Fernando Amarillas, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA & Michael A. Tilghman, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA. DOUGHERTY COUNTY, GA: Judgment on Pleadings in "Calhoun" OK'd ------------------------------------------------------------- Judge Leslie J. Abrams of the U.S. District Court for the Middle District of Georgia, Albany Division, granted the Defendants' Motions for Judgment on the Pleadings in the case, APRIL D. CALHOUN, Plaintiff, v. WILLIE E. LOCKETTE, et al., Defendants, Case No. 1:17-CV-153(LJA) (M.D. Ga.). The action was originally filed against the Defendants in their official and individual capacities in the Superior Court of Dougherty County and was removed to the Court by the Defendants. The Plaintiff alleges that on April 22, 2017, she was incarcerated as a pretrial detainee in the custody of Defendant Sheriff Sproul, the Sheriff of Dougherty County. On Nov. 28, 2017, the Court denied the Plaintiff's Motion for Preliminary Certification of Class Action, and the Plaintiff's Motion for Preliminary Injunction, and stayed the case pending the Court's ruling on the Defendants' Motions for Judgment on the Pleadings. The Plaintiff's Complaint, pursuant to 42 U.S.C. Sections 1983 and 1988 and Georgia law, alleges that her Fourth and Sixth Amendment and due process rights under the federal Constitution and her rights under the Georgia Constitution were violated because: (1) from the date of her arrest through the date of filing the action, she had no bond set nor was she afforded a bond hearing; (2) other than a first appearance before a magistrate judge, the Plaintiff has had no court appearance since the date of her arrest, including any court of inquiry (also referred to as a 'preliminary hearing' or a 'probably cause hearing') pursuant to O.C.G.A. Sections 17-7-20, et seq.; (3) the Plaintiff applied for appointed counsel but has not had any visits from or communications from any attorney; (4) the Plaintiff requested a bond hearing or other court hearing since her arrest by asking employees of Defendant Sproul, but was informed that they cannot do so, but that any request for a bond hearing or other hearing must come from an attorney; (5) the magistrates of Dougherty County follow the policy of Defendant State Court Judge Darrisaw in regards to setting bonds and setting hearings for a court of inquiry (committal hearings); (6) Defendant Darrisaw has a policy of refusing to set bonds for pretrial detainees on warrants which charge certain felonies, as in the case, even though they are authorized by law, O.C.G.A. Section 17-6-1, to do so (7) Defendant Darrisaw has a policy of refusing to set dates for courts of inquiry, also known as committal hearings or probable cause hearings, pursuant to O.C.G.A. Section 17-7-20, et seq., unless requested to do so by an attorney at law, resulting in the jailing for weeks and sometimes months of persons who are wholly innocent of the offense, or against him there is no evidence sufficient to establish probable cause to detain them pending a grand jury presentment; and (8) there is no procedure to obtain a hearing for either setting a bond, reducing a bond, or setting a court of inquiry without an attorney request. The Plaintiff seeks a "writ of prohibition," a "writ of mandamus," an "order supervising inferior court," declaratory relief, attorney's fees, and her release from jail. Before the Court are Defendants' Motions for Judgment on the Pleadings. As to the Plaintiff's federal claims, Judge Abrams finds that the Plaintiff does not state what specific relief is sought or why Lockette and Sherriff Sproul are necessary to obtain it. As the Plaintiff has not stated a federal claim against Lockette and Sproul, either in their individual or official capacities, those Defendants will be dismissed from the action. The Plaintiff has not also stated a claim for injunctive relief against Darrisaw in her official capacity. Thus, the Complaint fails to state a claim upon which relief may be granted under federal law. As the Plaintiff has failed to state a claim upon which relief may be granted against the Defendants under federal law, the Judge declines to exercise jurisdiction over her state law claims. She says the Plaintiff is not without a remedy, however. She may re-file her state claims or pursue available legal remedies in state court where appropriate. Furthermore, federal courts are precluded from enjoining state officials for violations of state law. Thus, the Plaintiff is not entitled to the relief she seeks for these claims in this forum. Accordingly, Judge Abrams granted the Defendants' Motions for Judgment on the Pleadings, and dismissed the Plaintiff's Complaint. A full-text copy of the Court's March 7, 2018 Order is available at https://is.gd/OSIMID from Leagle.com. APRIL D CALHOUN, individually and on behalf of all others similarly situated, present and future, Plaintiff, represented by JAMES NORMAN FINKELSTEIN. WILLIE E LOCKETTE, individually and in his official capacity as Chief Judge of the Superior Court, Dougherty Judicial Circuit, Defendant, represented by MICHELLE J. HIRSCH -- mhirsch@law.ga.gov. VICTORIA S DARRISAW, individually and in her official capacity as Judge of the Dougherty County State Court & KEVIN SPROUL, individually and in his official capacity as Sheriff of Dougherty County, Defendants, represented by MARY M. KATZ. EMBRAER SA: Ruling Highlights Securities Class Action Challenges ---------------------------------------------------------------- Colby Hamilton, writing for Law.com, reports that a recent win by Skadden, Arps, Slate, Meagher & Flom in defeating a class action suit against Brazilian aerospace conglomerate Embraer, which acknowledged global bribery allegations as part of a deferred prosecution agreement with U.S. investigators in October 2016, served as a good snapshot of the recently evolved set of challenges faced by those seeking to bring a federal class securities action in the Southern District of New York. In Employees Retirement System of the City of Providence v. Embraer, 16-cv-06277, the plaintiffs, represented by Pomerantz, alleged the company and its top officers violated a number of securities laws and rules. The source of the violations during the class period from early January 2012 to late November 2016 centered on Embraer's violation of the Foreign Corrupt Practices Act. The company would admit in October 2016 that, between 2007 and 2011, several high-level executives helped bribe government officials in the Dominican Republic, Saudi Arabia, Mozambique and India to the tune of $11.5 million. In exchange, the company received contracts worth more than $83 million in profits, according to court papers. In their complaint, the plaintiffs alleged a number of ways in which Embraer failed to adhere to securities rules. In each, U.S. District Judge Richard Berman of the Southern District of New York pointed to the state of securities pleadings to nullify the arguments. To begin with, the plaintiffs argued that the company was "duty bound" of the "certainty of the fraud" once the government's investigations began -- a premise, as the defendants called it, that the company admit to wrongdoing "before it had even been charged and before the investigations were even complete." Judge Berman agreed, pointing to two recent cases. In the U.S. Court of Appeals for the Second Circuit's 2014 decision in City of Pontiac Policemen's System v. UBS, the court held that "disclosure is not a rite of confession, and companies do not have a duty to disclose uncharged, unadjudicated wrongdoing." Likewise, in a suit as part of the long-standing securities litigation tied to the Petrobras public corruption scandal, the district court in September 2017 found in In re Banco Bradesco S.A. Securities Litigation that the bank had disclosed enough when it acknowledged that investigations were happening and a negative outcome could happen -- just as Embraer had. The plaintiffs' argument that the company was obligated to disclose that some of its money was received because of bribes was also unavailing. In In re Sanofi Securities Litigation, the pharmaceutical company was sued for not flagging the financial benefits of its illegal marketing and kickback scheme. Citing the district court's September 2016 decision, Judge Berman found that, absent an allegation that the financial statements were actually false, it's not a securities violation. An attempt to hold Embraer liable for its own internal codes of ethics similarly failed. Another district case tied to the Petrobras scandal, In re Braskem SA Securities Litigation, involved a company that had rules that forbade bribery, yet it was accused of doing just that. Quoting from the Ninth Circuit's January 2017 decision in Retail Wholesale v. Hewlett-Packard, the district court held that "a code of ethics is inherently aspirational," adding that, absent more than an "undisclosed breach of this standard of conduct," breaking your own rules is "not actionable under securities laws." The plaintiffs also challenged Embraer's stated belief that it didn't need to estimate reserves for the investigation into its conduct -- even as the company ended up paying $945.3 million in fines and disgorgement. Judge Berman turned to the U.S. Supreme Court's landmark 2015 decision in Omnicare v. Laborers District Council Construction Industry Pension Fund. A claim cannot be stated simply because an opinion is wrong, Judge Berman noted, and here Embraer's opinion about reserves was based on advice from outside counsel. "Plaintiff does not plead that this statement was (insincerely) not truthful or that management (and its outside counsel) did not believe what they were stating publicly," the judge wrote. Lastly, Embraer was accused of not maintaining adequate internal controls, namely because even after the DPA went into effect, at least one senior executive with oversight responsibility for the employees engaged in illegal activity remained employed and undisciplined. Two relevant district decisions from 2015 were noted -- In re Petrobras Securities Litigation, which found less particularized claims sufficient to proceed, and In re PetroChina Securities Litigation, in which the lack of particularity doomed the claim. Berman found that the PetroChina case was the more similar of the two. "Plaintiff, in the instant case, relies exclusively upon general assertions about Embraer's internal controls -- and tortuously (and unpersuasively) tries to relate them to the fact that some current Embraer employees knew about or participated in (publicly disclosed) pre-class period bribery at various points between 2004 to 2011," he wrote. Judge Berman granted, then, the defendant's motion to dismiss with prejudice. Pomerantz partner Jeremy Lieberman, who led the plaintiffs' legal team, agreed that "the courts are struggling" with many of these securities-related issues. But from his perspective, there's just as much good law that sides with his clients as not. He pointed to the recent revival of the lawsuit against Alibaba Group Holding Ltd. by the Second Circuit last year, and the 2014 dismissal by the same circuit of the securities suit against JinkoSolar, as offering different views on company's liabilities when it comes to disclosing wrongdoing. "Yet somehow the district courts, and even sometimes the court of appeals, are coming up with divergent points of view," he said, adding that he respectfully disagreed with Berman's decision and is considering appeal with his client. Embraer's defense team from Skadden included partners Jay Kasner -- jay.kasner@skadden.com -- Christopher Malloy -- christopher.malloy@skadden.com -- and Scott Musoff -- scott.musoff@skadden.com The firm did not return a request for comment. [GN] EPIC LANDSCAPE: Albelo Seeks to Certify Landscape Laborers Class ---------------------------------------------------------------- In the lawsuit styled RADAMES MOLINA ALBELO, On behalf of himself and all other persons similarly situated, the Plaintiff, v. EPIC LANDSCAPE PRODUCTIONS, L.C. the Defendant, Case No. 4:17-cv- 00454-ODS (W.D. Mo.), the Plaintiff asks the Court to certify a class of: "all current and former Landscape Laborers who worked for the Defendants at any time from March 25, 2013 to the Present." A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=7kqPqSvi The Plaintiff is represented by: Michael Hodgson, Esq. THE HODGSON LAW FIRM, L.L.C. 6 NW Main St. Lee's Summit, MO 64063 Telephone: (913) 890 3529 E-mail: mike@thehodgsonlawfirm.com - and - Paul H. Mose, Esq. MOSE LAW LLC 3111 Strong Avenue Kansas City, KS 66106 Telephone: (913) 432 4484 Facsimile: (913) 432 4464 E-mail: Pablo@moselaw.com EQUIFAX INC: Judge Explores Ways to Combine Data Breach Cases ------------------------------------------------------------- Tasnim Shamma, writing for WABE, reports that a federal judge considered how best to combine hundreds of lawsuits against Atlanta-based credit agency Equifax in the first hearing about class-action complaints against the company on April 3. Banks, consumers and small businesses are suing the credit agency after a massive data breach exposed personal information like social security numbers and birthdates of 147.9 million people in 2017. A federal courtroom in Atlanta was packed on April 3 with more than two dozen attorneys. Chief United States District Judge of the United States District Court for the Northern District of Georgia Thomas W. Thrash assigned a leadership team of 26 attorneys earlier this year to represent more than 371 class- action complaints across the U.S. that have been filed against Equifax. Status Conferences At the hearing, Judge Thrash asked if attorneys had any issues working with attorneys on similar class-action complaints in Fulton County Superior Court being heard by Judge Melvin Westmoreland. Equifax filed a motion to dismiss those cases. "My inclination is to pick up the phone and call Judge Westmoreland," Judge Thrash said. "I'll go attend his status conferences or he'll come to mine." Judge Thrash is also the judge presiding over the SEC complaints against former Equifax chief information officer Jun Ying. Mr. Ying was charged with insider trading. Professor Elizabeth Burch specializes in class-action lawsuits at the University of Georgia. "Essentially what he's doing is trying to coordinate between different governments and different state lawsuits," Ms. Burch said. Judge Thrash said he would confer with the judge in the Fulton County court cases, but would keep status conference meetings in the civil case against Jun Ying separate. Settlement Option Ms. Burch said that class-action allegations can take five to six years before they are decided or settled. "It depends on how Equifax responds to this. If they respond by saying you know we're sorry it's our fault, let's just sort of focus on damages and getting this put behind us, then it might not take nearly as long," Ms. Burch said. "If Equifax takes the tack that we want to fight this tooth and nail, then they can really drag the proceedings on." However, Ms. Burch said most clients consider settlements seriously. "I would imagine that they're thinking pretty seriously about settlement because lawyers aren't cheap and one would hope that they would want that money to go to consumers or financial institutions who are harmed rather than their own attorneys," Ms. Burch said. A document filed by plaintiff's attorneys on April 2 states settlement after discovery is a possibility. Incorrect Notification Letters On April 3, Atlanta-based credit agency Equifax also said it recently sent out notification letters to incorrect mailing addresses. The letters were to notify additional consumers that some of their information may have been exposed. A spokesperson for Equifax said in a statement, it was "a very small percentage" and that no credit data or sensitive information were in those letters. [GN] FRITO-LAY NORTH: Court Denies Bid to Dismiss "Allred" Suit ---------------------------------------------------------- Judge Janis L. Sammartino of the U.S. District Court for the Southern District of California denied the Defendants' Motion to Dismiss the case, BARRY ALLRED and MANDY C. ALLRED, on behalf of themselves, all others similarly situated, and the general public, Plaintiffs, v. FRITO-LAY NORTH AMERICA, INC. and FRITO- LAY, INC., Defendants, Case No. 17-CV-1345 JLS (BGS) (S.D. Cal.). The Plaintiffs filed a class action complaint in state court. The Defendants removed the case to federal court. The Plaintiffs bring causes of action under: (1) the Consumer Legal Remedies Act; (2) Unfair Competition Law (unlawful prong); (3) Unfair Competition Law (unfair prong); (4) False Advertising Law; (5) Breach of Express Warranties; and (6) Breach of Implied Warranties. In broad summary, the Plaintiffs allege the Defendants manufacture and sell "Salt and Vinegar Flavored Potato Chips." They seek to litigate on behalf of all consumers who purchased the Product in California during the period six years prior to the filing of the Complaint and continuing until the class is certified. They allege the label of the Product violates California law in various ways. They argue the Product is labeled as only containing natural ingredients, but is in fact flavored with a chemical called malic acid. Presently before the Court is the Defendants' Motion to Dismiss. They argue the Plaintiffs' claims (i) are preempted by the federal Food Drug, and Cosmetic Act ("FDCA") because the Product's labels are in compliance with FDCA regulations; (ii) should be dismissed for failure to state a claim; and (iii) are in part barred by the statute of limitations. Also before the Court is Plaintiffs Barry Allred and Mandy C. Allred's Opposition to the Motion, and the Defendants' Reply in Support of the Motion. Judge Sammartino cannot find at this stage that the Plaintiffs' claims that (i) the Defendant must refer to "malic acid" by its specific name and (ii) the Product must be labeled as "artificially flavored," are preempted. He says the factual determinations of whether the ingredients are used as a sweetener and/or a flavoring agent in a particular product, and whether a reasonable consumer would have thus been misled by the 'no artificial sweeteners or preservatives' label, are inappropriate for determination on a motion to dismiss. Hence, he will deny the Motion to Dismiss as to these claims. As to the Motion to Dismiss Pursuant to Rule 12(b)(6), the Judge cannot also determine at this stage whether the Product's advertising was false or misleading. And if it is determined that the Product should have disclosed an "artificial flavor," then a reasonable consumer would be deceived by the Product's packaging, which clearly states "No artificial flavors." He cannot conclude as a matter of law that a reasonable consumer would not be deceived by the packaging and ingredient list. Because he has found it is plausible that malic acid is an artificial ingredient, the Judge finds that there is plausible consumer injury that would have not have been avoided by reading the Product label. He will deny the Defendants' Motion to Dismiss the "unfair" claim under the UCL. And because he finds that the Plaintiffs have pled a violation of FDA flavor regulations, he will deny the Defendants' Motion to Dismiss the "unlawful" claim under the UCL. Since the Plaintiffs have pled the elements of their claim for breach of express warranty because they have alleged the statements made on the Product packaging promised there were "no artificial flavors;" they have alleged they reasonably relied on these statements; and they have alleged that the Product did not provide what was promised, the Judge will deny the Defendants' Motion to Dismiss the claim of express warranty. As to breach of implied warranty claim, the Defendants have not shown that the Plaintiffs' claim fails, so he will deny the Motion to Dismiss it. Finally, as to the Defendant's argument that the Plaintiffs claims are in part barred by the statute of limitations, Judge Sammartino finds among other things, that the Plaintiffs have not adequately pled fraudulent concealment to toll the statute of limitation, and the Plaintiffs have provided no allegations detailing how they discovered the alleged unlawful labeling. Assuming the allegation of misbranding to be true, it would be inequitable to allow Defendants to "obtain immunity" from this violation even for recent and ongoing malfeasance. Thus, because this exception applies to the statute of limitations, he will deny the Defendants' Motion to Dismiss the claims on this ground. For these reasons, Judge Sammartino denied the Defendants' Motion to Dismiss. A full-text copy of the Court's March 7, 2018 Order is available at https://is.gd/0STaYa from Leagle.com. Barry Allred, on behalf of themselves, and all other similarly situated, and the general public & Mandy C Allred, on behalf of themselves, and all others similarly situated, and the general public, Plaintiffs, represented by David Elliot -- davidelliot@elliotlawfirm.com -- The Elliott Law Firm, Ronald Marron -- ron@consumersadvocates.com -- Law Office of Ronald Marron & Michael Houchin, Law Offices of Ronald A. Marron. Frito-Lay North America, Inc., a Delaware corporation & Frito- Lay, Inc., a Delaware corporation, Defendants, represented by Andrew S. Tulumello -- atulumello@gibsondunn.com -- Gibson Dunn & Crutcher LLP & Christopher Chorba -- cchorba@gibsondunn.com -- Gibson Dunn & Crutcher. GALLIANO MARINE: Court Grants Class Certification in "Halle" ------------------------------------------------------------ In the lawsuit styled KYLE HALLE, the Plaintiff, v. GALLIANO MARINE SERVICE, LLC and C-INNOVATION, LLC, Case No. 2:15-cv- 05648-EEF-MBN (E.D. La.), the Court entered an order: 1. granting Plaintiff's motion to certify class; and 2. granting Plaintiff's motion for Equitable Tolling, and giving Plaintiff equitable tolling from February 25, 2016 to October 17, 2017. The Court, in exercising its discretion, finds that it is fair to provide some equitable tolling to Plaintiff. During the time that Defendants' summary judgment motion was on appeal, the case was effectively stayed and Plaintiff had no opportunity to move forward with the case, including filing a motion for certification of a class. During that period, Plaintiff was prevented from doing so because this Court did not have jurisdiction. It would be inequitable for Plaintiff to be punished and Defendant to be rewarded for the time spent on this motion, particularly given the outcome. Additionally, Defendants will not be prejudiced by this tolling because Defendants have been on notice of Plaintiff's claims regarding employees paid using a day rate since the time Plaintiff filed his complaint. Therefore, the Court grants Plaintiff equitable tolling from the time the Court decided Defendant's Motion for Summary Judgment, February 25, 2016, to the time the Fifth Circuit remanded the case, October 17, 2017. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=KeuM3X4L GC SERVICES: Court Shelves "Beaufrand" Class Certification Bid -------------------------------------------------------------- In the lawsuit styled CARLOS BEAUFRAND, the Plaintiff, v. GC SERVICES LIMITED PARTNERSHIP, the Defendant, Case No. 2:18-cv- 00242-LA (E.D. Wisc.), the Hon. Judge Lynn Adelman entered an order: 1. granting Plaintiff's motions to stay class certification motion and for relief from the local rules; and 2. staying Plaintiff's motion for class certification. The Plaintiff brings this putative class action, alleging violations of the Fair Debt Collection Practices Act. To prevent defendant from mooting the action, plaintiff moves for class certification and to stay that motion. See Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds by Chapman v. First Index, Inc., 796 F.3d 783 (7th Cir. 2015); see also Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). The Plaintiff also moves for relief from local rules requiring every motion to be accompanied by a supporting memorandum and imposing a briefing schedule. Civil L. R. 7 (E.D. Wis.). I will grant the requested relief. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=fQj6ZNg9 GLENDALE ADVENTIST: Fails to Pay Wages, Mayorga Says ---------------------------------------------------- MARJOURIE MAYORGA and MOHAMAD ALINEJAD, on behalf of themselves and all others similarly situated, the Plaintiff, v. GLENDALE ADVENTIST MEDICAL CENTER d/b/a ADVENTIST HEALTH GLENDALE, a California nonprofit corporation; and DOES 1 through 10, inclusive, the Defendant, Case No. (S.D. Fla., April 13, 2018), seeks to recover unpaid wages under the California Labor Code and declaratory, injunctive, and equitable monetary relief from California Fair Employment and Housing Act violations, compensatory and punitive damages; equitable remedies of accounting, restitution and disgorgement; and an award of costs, expenses, and attorneys' fees. This action alleges that Defendant failed to pay Plaintiffs and those similarly situated, wages for all time worked; and failed to provide accurate wage statements to Plaintiffs, and those similarly situated, as required by California Labor Code Section 226, in that the wage statements did not include all wages earned. This is also an employment discrimination case brought pursuant to the provisions of the California Fair Employment and Housing Act. The Plaintiffs allege that GAMC has engaged in, and continues to engage in, a companywide pattern and practice of employment discrimination, both intentional and systemic, on the basis of sexual orientation, against themselves and a class of similarly situated lesbian and gay employees and former employees as alleged in this Complaint. GAMC's discriminatory practices include, but are not limited to, discrimination in compensation on a class-wide basis.[BN] Glendale Adventist Medical Center is a non-profit organization located in the Los Angeles suburb of Glendale, California, USA. GAMC is one of the city's oldest businesses, founded in 1905, a year before Glendale was incorporated as a city. The Plaintiffs are represented by: Justin P. Karczag, Esq. Muhammed T. Hussain, Esq. ENCORE LAW GROUP LLP 1100 Wilshire Boulevard, Suite 3305 Los Angeles, CA 90017 Telephone: (213) 559 7395 Facsimile: (213) 559 7396 - and - Robert A. Hennig, Esq. Sereena J. Singh, Esq. HENNIG RUIZ & SINGH 3600 Wilshire Boulevard, Suite 1908 Los Angeles, CA 90010 Telephone: (213) 310 8301 Facsimile: (213) 310 8302 GOOD SON: Ornelas Seeks Unpaid Wages & OT under Labor Code ---------------------------------------------------------- YMELDA ORNELAS, individually, and on behalf of others similarly situated, the Plaintiff, v. GOOD SON SM, LLC, dba SUBARU SANTA MONICA, a Delaware limited liability company; GOOD SON, LLC, a Delaware limited liability company; MICHAEL D. SULLIVAN, an individual; and DOES 1-50, the Defendants, Case No. BC701420 (Cal. Super. Ct., April 10, 2018), seeks to recover unpaid overtime, unpaid meal period premiums, unpaid rest period premiums, and unpaid minimum wages under the California Labor Code. According to the complaint, the Plaintiff and the other class members worked more than eight hours in a day, and/or 40 hours in a week during their employment with Defendants. The Plaintiff alleges that Defendants engaged in a uniform policy and systematic scheme of wage abuse against their hourly-paid of non- exempt employees. This scheme involved, inter alia, requiring them to work off the clock and failing to pay them at the required minimum wage, straight time rate or overtime rate, thereby failing to pay them for all hours worked, missed meal periods and rest breaks in violation of California law. In addition, Defendants did not permit Plaintiff and other class members to take their required rest breaks or meal breaks in violation of California law.[BN] The Plaintiff is represented by: Heather Davis, Esq. Amirnayebdadash, Esq. Cody Payne, Esq. Kim N. Nguyen, Esq. Priscilla Gamino, Esq. PROTECTION LAW GROUP, LLP 136 Main Street, Suite A El Segundo, CA 90245 Telephone: (424) 290 3095 Facsimile: (866) 264 7880 GOOGLE INC: Judge Allows Pay-Equity Class Action to Proceed ----------------------------------------------------------- Max Mitchell, writing for Law.com's Critical Mass, reports that Google received some bad news recently as a California judge determined that a pay-equity class action can move forward against the tech giant. And the first case to go to trial over allegedly defective Bard IVC blood filters ended with a $4 million verdict for the plaintiffs in Arizona. Could a Pay Equity Class Action Against Google Be a Road Map for Change? A class action over gender pay equity at Google has cleared a hurdle. And according to Law.com's Erin Mulvaney, the ruling could reverberate throughout Silicon Valley and the tech world. A San Francisco Superior Court judge ruled that as many as 5,000 female Google employees may sue the company over a policy that considers new hires' previous salaries to determine a starting salary level. According to some attorneys, the ruling could serve as a road map for suits targeting pay inequality in big tech companies. Issues about whether salary history can be used in the hiring process has been a sticking point in equal pay litigation. The U.S. Court of Appeals for the Ninth Circuit recently took up the issue in a case where the U.S. Equal Employment Opportunity Commission has argued policies allowing prospective employers to base salaries on previous earnings institutionalize pay disparities. Altshuler Berzon and Lieff Cabraser Heimann & Berstein filed the suit against Google. Altshuler Berzon attorney James Fineberg -- jfinberg@altshulerberzon.com -- said the March 30 ruling "lays out a road map for how to certify a gender pay equity case." Meanwhile, management-side law firm Seyfarth Shaw said in a client advisory that the ruling was "a worrying development for employers." The decision "could provide a 'blueprint' for how other plaintiffs may attempt to cobble together broad classes that encompass widely disparate job positions, seemingly without regard for the individual job duties or qualifications associated with those positions." Plaintiffs Draw First Blood in Trial Over Filter Defect The first case to go to trial over Bard IVC blood filters has ended with a verdict for the plaintiffs. A jury in Arizona federal court awarded plaintiff Sherr-Una Booker $4 million, finding she was entitled to $2 million in compensatory damages and $2 million in punitive damages. The verdict, however, was reduced to $3.6 million after finding that a non-party doctor was liable for 20 percent of the compensatory damages. The case alleged that a filter meant to prevent blood clots -- which was implanted in a large artery leading to the heart -- broke apart, sending one fragment into the plaintiffs heart and leaving another piece lodged in a vein. The plaintiffs contended that the manufacturer knew the devices were defective, but continued to make them. The case is one of more than 3,000 involving similar complaints that have been consolidated before Judge David Campbell in Arizona. The next trial is slated for May. A member of the trial team told Law.com's Greg Land that the jury's decision to award punitive damages showcases the litigation's potential. "Arizona's a very conservative jurisdiction, so punitives are very rare out here," Atlanta attorney Robin Lourie said. Ms. Lourie helped try the case along with Robert Roll of Watkins, Lourie, Roll & Chance; Mark O'Connor of Phoenix's Gallagher & Kennedy; Ramon Lopez of Newport Beach, California's Lopez McHugh, and Julia Reed Zaic of Heaviside Reed Zaic. Bard has already announced it would challenge the verdict as being inconsistent. Who Got the Work? A political data firm that worked for President Donald Trump's campaign in the 2016 election is facing a new lawsuit in New York federal court over claims that it improperly harvested Facebook user information. Law.com's Colby Hamilton reports that the latest suit against Cambridge Analytica was filed on April 2 in the U.S. District Court for the Southern District of New York. It joins four other class action suits that have been brought in California and New Jersey, and also marks Manhattan law firm Gardy & Notis' entry into the growing litigation. Meagan Farmer is lead counsel for the plaintiffs, who say their data was used to unwillingly target them with political messages during the 2016 presidential campaign. Here's what else you need to know: Drywall MDL Crumbles: The federal judge overseeing thousands of cases claiming that Chinese drywall damages homes has announced he plans to return cases back to the courts where they were originally filed. The Associated Press reported that U.S. District Judge Eldon Fallon of the Eastern District of Louisiana, who in 2009 was tasked with handling the consolidated caseload, told the U.S. Judicial Panel on Multidistrict Litigation that he wants to transfer all remaining Chinese drywall cases that were sent to him. The panel said it would return the first 1,700 cases to Florida's federal courts if no objections were filed by March 29. At least three objection notices, however, have been filed by attorney representing 750 clients. "We're sort of confused as to why only these particular claims are being transferred back for trial," said Ann Saucer of Baron & Budd, which joined others in an objection for 418 clients. Round Two Over Xarelto: The second state court trial over claims that Johnson & Johnson's blood thinner Xarelto cases uncontrollable bleeding began begin April 5, in Pennsylvania state court. After three losses in federal court, a Philadelphia jury late last year awarded a nearly $28 million verdict in the first case to be tried in state court. That verdict was later reversed by Philadelphia Judge Michael Erdos, who is set to preside over the upcoming trial. Federal Pharma Filings Fall: Medical device and pharmaceutical liability lawsuits may be the leading category of product liability complaints in federal court, but according to a new report, the filings have been decreasing over the past few years. Read my colleague Andrew Denney's review of the report issued on April 2 by legal analytics firm Lex Machina. PACER Fees Misused?: A D.C. judge ruled on March 31 that the federal judiciary misused millions of dollars in fees derived from the public web portal known as PACER. [GN] GOOGLE INC: Court Dismisses "Sweet" AdSense Algorithm Suit ---------------------------------------------------------- Judge Edward M. Chen of the U.S. District Court for the Northern district of California granted the Defendant's motion to dismiss the case, JAMES SWEET, et al., Plaintiffs, v. GOOGLE INC., et al., Defendants, Case No. 17-cv-03953-EMC (N.D. Cal.). Mr. Sweet and Chuck Mere Mere are the owners of Zombie Go Boom, LLC, which operates a channel -- Zombiegoboom -- on YouTube. Zombie has been able to "monetize" the content it displays on its YouTube channel because Defendants Google, LLC and/or YouTube, LLC have a program under which content providers can get a cut of the revenue that YouTube makes from third-party advertisements. YouTube uses a program called AdSense to control placement of advertisements, depending on content provided and audience. In or about March 2017, YouTube changed the algorithm used in AdSense. The change to the AdSense algorithm was an attempt to automatically weed out inappropriate content, without the use of human oversight. As it turns out, the algorithm was not effective: (1) It under-inclusively failed to capture and demonetize content that was sexually explicit, racist or otherwise not in compliance with the spirit of YouTube's guidelines"; and (2) it over-inclusively demonetized content that did not violate the spirit of the guidelines and was not objectionable to advertisers. Zombie fell into the latter category. It claims that there are thousands of other examples although it identifies only one other example in its FAC. Zombie and other content providers have dubbed the date that the algorithm was changed "Adpocalypse." As a result of the algorithm change, Zombie's advertising revenue fell. Zombie has filed a class action lawsuit against YouTube, asserting that its revenues and the revenues of other content providers have significantly fallen after YouTube put restrictions on the placement of advertisements that did not meet YouTube guidelines. From approximately 2011, when the Zombiegoboom channel was founded, until the time of the alleged YouTube misconduct, Zombie made approximately $10,000 to $15,000 per month. YouTube now challenges Zombie's FAC in a 12(b)(6) motion to dismiss. Although YouTube's motion is a 12(b)(6) motion, it has filed a declaration in support of the motion and attached to the declaration are several pieces of evidence. Judge Chen agrees with YouTube that all of Zombie's claims (the Section 17200 claim; the claims for breach of contract, the implied covenant, and quasi-contract; and the claim for tortious interference) are subject to dismissal given the explicit terms of the agreement. Moreover, the dismissal is with prejudice. YouTube challenged Zombie's original complaint on the same ground, which led to Zombie filing an amended complaint. Because Zombie's amended complaint failed to cure the deficiency, and because the terms of the agreement are clear, any further amendment to the complaint would be futile. For these reasons, Judge Chen granted YouTube's motion to dismiss. The dismissal is with prejudice. Accordingly, the Clerk of the Court will enter judgment in accordance with the Opinion and close the file in the case. A full-text copy of the Court's March 7, 2018 Order is available at https://is.gd/oYHQvg from Leagle.com. James Sweet, Chuck Mere & Zombie Go Boom, LLC dba ZombieGoBoom, Plaintiffs, represented by Todd Michael Friedman, Law Offices of Todd M. Friedman, P.C. & Adrian Bacon, Law Offices of Todd M. Friedman, P.C. Google Inc., doing business as, Defendant, represented by Anthony J. Weibell -- aweibell@wsgr.com -- Wilson Sonsini Goodrich & Rosati, Lena Ting Yi Wong -- lwong@wsgr.com -- Wilson Sonsini Goodrich and Rosati, Maura Lea Rees -- MRees@wsgr.com -- Wilson Sonsini Goodrich & Rosati & Eli Bard Richlin -- erichlin@wsgr.com -- Wilson Sonsini Goodrich and Rosati PC, pro hac vice. YouTube, LLC & Google LLC, Defendants, represented by Anthony J. Weibell, Wilson Sonsini Goodrich & Rosati A Professional Corporation. GOOGLE LLC: Bid to Seal Exhibit B to Free Range Suit Deal Granted ----------------------------------------------------------------- In the case, FREE RANGE CONTENT, INC., ET AL., Plaintiffs, v. GOOGLE, LLC, Defendant, Case No. 14-cv-02329-BLF (N.D. Cal.), Judge Beth Labson Freeman of the U.S. District Court for the Northern District of California, San Jose Division, granted the Plaintiffs' motion to seal Exhibit B to the Declaration of Robert F. Lopez. Before the Court is the Plaintiffs' administrative motion to file under seal an Exhibit attached to their motion for preliminary approval of settlement. The sealing motion is unopposed. Exhibit B contains confidential settlement information regarding the conditions triggering the Defendant's right to terminate and withdraw from the Settlement Agreement. The Plaintiffs are not clear as to which standard applies to their administrative motion, arguing that the Courts frequently find good cause to seal confidential settlement information. However, the Plaintiffs also cite to relevant authority from the District where the court found compelling reasons to seal similar confidential information in a settlement agreement to discourage manipulation of the settlement. Judge Freeman finds that in Thomas v. Magnachip Semiconductor Corp., Judge Tigar granted the parties' motion to file under seal the conditions under which the defendant may terminate the settlement, finding that compelling reasons existed to keep the information confidential in order to prevent third parties from utilizing it for the improper purpose of obstructing the settlement and obtaining higher payouts. Judge Freeman has reviewed Exhibit B to the Lopez Declaration in the case, and agrees with the reasoning in Thomas that compelling reasons exist to seal this information. He also finds that the Plaintiffs' proposed redactions are narrowly tailored. For these reasons, Judge Freeman granted the Plaintiffs' motion to seal. The redacted version of Exhibit B filed into the public record by the Plaintiffs in connection with their motion for preliminary approval of settlement is consistent with the Order, so no further documents need to be filed. A full-text copy of the Court's March 7, 2018 Order is available at https://is.gd/LMK7jl from Leagle.com. Free Range Content, Inc., Coconut Island Software, Inc., a Hawaii corporation, on behalf of themselves and all others similarly situated, Taylor Chose, a Minnesota resident, on behalf of themselves and all others similarly situated & Matthew Simpson, a British Columbia, Canada resident, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Craig Ripley Spiegel -- craigs@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Patrick Howard -- phoward@smbb.com -- Saltz Mongeluzzi Barrett & Bendesky, pro hac vice, Robert F. Lopez -- robl@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Simon Bahne Paris -- sparis@smbb.com -- Saltz Mongeluzzi Barrett and Bendesky, Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice & Jeff D. Friedman -- jefff@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP. Google, LLC, Defendant, represented by Abigail E. Pringle, Cooley LLP, Jeffrey Gutkin, Cooley LLP, Kyle Christopher Wong -- kwong@cooley.com -- Cooley LLP & Michael Graham Rhodes -- rhodesmg@cooley.com -- Cooley LLP. Super Cray Inc., Interested Party, represented by Randolph Gaw -- rgaw@gawpoe.com -- Gaw & Poe LLP. GREGORYS COFFEE: Fails to Pay Uniform Maintenance, Griffin Says --------------------------------------------------------------- NICOLE GRIFFIN, on behalf of herself and all others similarly situated, the Plaintiff, v. GREGORYS COFFEE MANAGEMEN LLC, f/k/a GREGORYS COFFEE MANAGEMENT INC., f/k/a GREGORYS COFFEE INC., d/b/a GREGORYS COFFEE, and GREGORY ZAMFOTIS, individually, the Defendant, Case No. 153397/2018 (N.Y. Sup. Ct., April 13, 2018), seeks to recover damages and other legal and equitable relief against Defendants under the New York State Labor Law. The Plaintiff brings this action on behalf of herself and all other similarly situated nonexempt hourly paid employees of Defendants in the State of New York at any time during the period commencing six years prior to the filing of this action and continuing until such further date as the practices complained of are discontinued. According to the complaint, the Plaintiff's duties were to perform labor in furtherance of Defendants' business. The Plaintiff had no authority to hire employees, fire employees, suspend employees, discipline employees, and/or discretion or independent judgment regarding matters of significance. At her time of hire, the Plaintiff was given only one uniform despite working 4-6 days per week. The uniform consisted of a one shirt, one apron, and one hat, each emblazoned with Defendants' logo. At no time was Plaintiff ever given additional articles of the uniform. The Plaintiff was required by Defendants to wear this uniform every shift. This uniform does not fall under the wash and wear exception. The Defendants failed to supply sufficient articles of uniform clothing consistent with the average number of days per week worked by Plaintiff. The Defendants did not launder Plaintiff's required uniforms, nor did Defendants offer to launder the required uniforms. The Plaintiff's uniform was issued by Defendants to her for the express benefit of Defendants and it was a condition of her employment to wear them in a clean condition during each shift. The Plaintiff's uniform required daily washing. The Defendants never paid any uniform maintenance pay or reimbursement for the cost of maintaining uniforms. The Plaintiff routinely spent time off-the-clock and money to clean and maintain her uniform consistent with the uniform appearance standards Defendants require. The Plaintiff was entitled to reimbursement or additional pay for time spent off the clock and money spent in laundering and maintained Defendants' uniform. In the event that an article of the uniform became unwearable, the Plaintiff had to purchase a replacement from the Defendants at her own expense. Defendants never reimbursed the Plaintiff any amount for additional uniforms. Defendants' unlawful conduct has been widespread, repeated, and consistent. Defendants operate restaurants that prepare and offer food and beverage for customer consumption.[BN] The Plaintiff is represented by: Mark Gaylord, Esq. BOUKLAS GAYLORD LLP 400 Jericho Turnpike Suite 226 Jericho, NY 11753 Telephone: (516) 742 4949 Facsimile: (516) 742 1977 HARTFORD, CT: 2d Cir. Affirms Summary Judgment in "Outlaw" Suit --------------------------------------------------------------- In the case, TYLON C. OUTLAW, Plaintiff-Appellant-Cross-Appellee, v. CITY OF HARTFORD, Defendant-Appellee, OFFICER MICHAEL ALLEN, in his individual capacity, Defendant-Cross-Appellant, DETECTIVE TROY GORDON, in his individual capacity, Defendant, Docket No. 16-480(L), 16-635(XAP)(2d Cir.), Judge Amalya Lyle Kearse of the U.S. Court of Appeals for the Second Circuit affirmed the district court's judgment (i) summarily dismissing Outlaw's against, and (ii) ordering Allen to pay Outlaw $454,197 in damages. On the night of Dec. 17, 2004, Allen and HPD Detective Gordon confronted and arrested 30-year-old Outlaw on a downtown street in Hartford, Connecticut. Outlaw was charged with breach of peace, being intoxicated in the roadway, threatening a police officer, and assault on a police officer. The charges were resolved in 2005 by Outlaw's entry of an Alford plea to the offense of creating a public disturbance. The arrest occurred after Allen had repeatedly struck Outlaw with a police baton, bloodying his head in several places and breaking his knee. Outlaw brought the present Section 1983 action in 2007 against Allen, Gordon, and the City, alleging principally that Allen and Gordon had caused his injuries by using excessive force in violation of the Fourth Amendment, and that the City was liable for their conduct because it had a policy or custom of deliberate indifference in failing to train and supervise its police officers as to appropriate use of force during an arrest. Outlaw also asserted claims under the Connecticut Constitution and Connecticut common law. Following years of discovery, the Defendants moved for summary judgment dismissing the complaint. The district court granted the motion to dismiss the Fourth Amendment claim and similar state-law claims against the City, ruling, to the extent pertinent to Outlaw's appeal, that the evidence Outlaw proffered was insufficient to establish that the City had a policy or custom of indifference that caused Outlaw's injuries. The district court denied the individual Defendants' motions for summary judgment dismissing the Fourth Amendment and Connecticut constitutional claims of excessive force and the state-law claims of intentional infliction of emotional distress, ruling that there were genuine issues of material fact to be tried. The court granted the motions to dismiss Outlaw's other constitutional and state-law claims; however, following a motion by Outlaw for reconsideration, it reinstated the state-law claims against Gordon and Allen for assault and battery. In 2016, Outlaw's surviving constitutional and common-law tort claims against Allen and Gordon were tried to a jury, which heard two versions of the December 2004 incident: one from Outlaw and several bystanders, the other from Allen and Gordon. The jury found that Outlaw had not proven any of his claims against Gordon. As to Allen, the jury found that Outlaw had proven that Allen used excessive force, had done so intentionally or recklessly, and had thereby caused Outlaw injury. Having found against Allen on the excessive force claims, the jury awarded Outlaw $408,197 for pain, suffering, emotional distress, and loss of enjoyment of life. Although the jury awarded Outlaw $111,803 for past and future medical expenses, the parties stipulated that that sum should be reduced to $46,000. Outlaw appeals from so much of a judgment of the district court's judgement granting summary judgment to the City, dismissing his claims on the ground that Outlaw proffered insufficient evidence to permit an inference that the City had a policy or custom of failing to supervise its police officers in the use of force or that the City's customs or policies caused Outlaw's injuries. Outlaw contends that summary judgment was inappropriate, given the evidence he proffered to show that the City had exhibited deliberate indifference to numerous civilian complaints of excessive force by its police officers. Allen cross-appeals from so much of the district court's judgment as orders him to pay Outlaw $454,197 in damages following express jury findings that Allen injured Outlaw by intentionally or recklessly using excessive force, in violation of the United States and Connecticut Constitutions. Allen contends that he is entitled to qualified immunity on those claims in light of the jury's verdict against Outlaw on Outlaw's claim for assault and battery in violation of state law, and that post-trial factual findings by the district court, made in ruling that Allen is not entitled to qualified immunity for the constitutional violations, should be set aside as inconsistent with findings that Allen imputes to the jury. On appeal, Judge Kearse concludes that the district court did not err in ruling that the evidence proffered by Outlaw in support of his municipal liability claims was insufficient to permit an inference of deliberate indifference on the part of the City to the use of excessive force by HPD officers. On the cross-appeal, the Judge concludes that Allen's contentions are without merit given that, as qualified immunity is an affirmative defense, the burden was on Allen to prove by a preponderance of the evidence any factual predicates necessary to establish that defense; that in order to avoid having the court instruct the jury that he had that burden, Allen chose not to have submitted to the jury the fact questions as to which he now wants favorable answers presumed; that the jury's answers to the interrogatories accompanying its verdict did not imply the factual findings that Allen imputes to the jury; and that the pertinent factual findings by the district court are not inconsistent with the jury's answers to questions that were posed. Judge Kearse has considered all of the arguments by the parties in support of their respective appeals and, for the reasons she stated, she found them to be without merit. Accordingly, she affirmed the judgment of the district court. A full-text copy of the Court's March 7, 2018 Order is available at https://is.gd/jHqGT5 from Leagle.com. RAYMOND J. RIGAT -- Raymondjrigat@gmail.com -- Clinton, Connecticut, for Plaintiff-Appellant-Cross-Appellee. NATHALIE FEOLA-GUERRIERI, Senior Assistant Corporation Counsel, Hartford, Connecticut, for Defendant-Appellee. WILLIAM J. MELLEY III, Hartford, Connecticut, for Defendant- Cross-Appellant. HAVERHILL RETIREMENT: Bid to Quash Subpoenas Transferred -------------------------------------------------------- In the case, KORNELL, et al., Plaintiffs, vs. HAVERHILL RETIREMENT SYSTEM, Defendant, Case No. 1:18-MC-25 (N.D. Ohio), Judge Dan Aaron Polster of the U.S. District Court for the Northern District of Ohio, Eastern Division, transferred the Plaintiffs' Motion to Quash Deposition Subpoenas to the Southern District of New York for Judge Lorna G. Schofield's consideration. On March 5, 2018, Plaintiffs Kornell and Galan initiated the instant action by filing a Motion to Quash Deposition Subpoenas. The underlying litigation is a class action currently pending in the Southern District of New York before Judge Schofield. The Plaintiffs are unnamed class members in that litigation. Judge Schofield preliminarily approved a settlement in the underlying class action on Sept. 29, 2017, and set a fairness hearing for May 23, 2018. The Class filed a Motion for Attorneys Fees and Reimbursement of Litigation Expenses on Jan. 12, 2018. The Plaintiffs filed an Opposition to the Motion on Feb. 6, 2018. The Class issued subpoenas on Feb. 20, 2018, requiring depositions and discovery production from the Plaintiffs. The depositions are to take place on March 30, 2018 in Cleveland, Ohio. Judge Polster explains that under Federal Rule of Civil Procedure 45(f), a court may transfer a subpoena-related motion, such as the instant motion, back to the issuing court. In this case, he says, the Southern District of New York is both the issuing court and the court that will conduct the fairness hearing. The court conducting the final approval hearing is best situated to determine what pre-fairness hearing discovery of unnamed plaintiffs is appropriate. Accordingly, Judge Polster transferred the Plaintiffs' Motion to Quash for Judge Schofield's consideration. A full-text copy of the Court's March 7, 2018 Opinion and Order is available at https://is.gd/m0e223 from Leagle.com. Keith Kornell & Gregory Galan, Plaintiffs, represented by Edward W. Cochran -- edwardcochran@wowway.com. Haverhill Retirement System, Defendant, represented by Walter W. Noss -- WNOSS@SCOTT-SCOTT.COM -- Scott & Scott. HUNTINGTON BANCSHARES: Younge Seeks OT Compensation under FLSA -------------------------------------------------------------- ROBERT YOUNGE, on behalf of himself and others similarly situated, the Plaintiff, v. HUNTINGTON BANCSHARES INCORPORATED, d/b/a The Huntington National Bank, the Defendant, Case No. 2:18- cv-00314-MHW-CMV (S.D. Ohio, April 10, 2018), seeks to recover overtime compensation under the Fair Labor Standards Act. The case is a collective action instituted by Plaintiff as a result of Defendant's practices and policies of not paying its hourly, non-exempt employees, including Plaintiff and other similarly-situated employees, for all hours worked, in violation of the FLSA. The Plaintiff and other similarly-situated employees were required by Defendant to perform unpaid work before clocking in each day, including, but not limited to, starting, booting up, and logging into Defendant's computer systems, numerous software applications, and phone systems. Booting up and logging into the computer systems and numerous software applications required entering unique and frequently changing passwords for each of the numerous programs. By common policy and practice, Plaintiff and other similarly- situated employees were required to have their computers booted up and have several applications running before the start of their shifts so that they could take their first call promptly upon commencing work at their scheduled start times. The Defendant arbitrarily failed to count this work performed by the Plaintiff and other similarly-situated employees as "hours worked." The Plaintiff and other similarly-situated employees performed this unpaid work every workday, and it constituted a part of their fixed and regular working time. The Defendant knowingly and willfully failed to pay Plaintiff and other similarly-situated inbound call-center representatives for starting and logging into Defendant's computer systems, numerous software applications, and phone systems, during which they performed work that managers and/or other agents and/or representatives observed. As a result of Plaintiff and other similarly-situated employees not being paid for all hours worked, Plaintiff and other similarly-situated employees were not paid overtime compensation for all of the hours they worked over 40 each workweek. Huntington Bancshares, Inc. is an American bank holding company headquartered in Columbus, Ohio. As of June 2016, the company had $74 billion in assets, making it the 32nd largest bank holding company in the country.[BN] The Plaintiff is represented by: Shannon M. Draher, Esq. Hans A. Nilges, Esq. NILGES DRAHER LLC 7266 Portage Street, N.W., Suite D Massillon, OH 44646 Telephone: (330) 470 4428 Facsimile: (330) 754 1430 E-mail: sdraher@ohlaborlaw.com hans@ohlaborlaw.com ILLINOIS: Yates et al. Sue over Law Enforcement Training -------------------------------------------------------- KEIA YATES, LEONARDO RODRIQUEZ, and JOHNNY JIMMERSON, as representatives of that class of individuals working as AVIATION SECURITY OFFICERS OF THE CITY OF CHICAGO, DEPARTMENT OF AVIATION, the Plaintiffs, v. STATE OF ILLINOIS, BRENT FISCHER, as Executive Direction of the Illinois Law Enforcement Training and Standards Board; the CITY OF CHICAGO; and GINGER EVANS, as Commissioner of the City of Chicago Department of Aviation, the Defendants, case No. 1:18-cv-02613 (N.D. Ill., April 11, 2018), seeks to recover actual and compensatory damages for injuries Plaintiffs have suffered as a consequence of Defendants' unlawful conduct. For nearly three decades, the City of Chicago's Department of Aviation and the Illinois Law Enforcement Training and Standards Board have recognized the members of the Chicago Aviation Police as bona fide law enforcement officers. As the CDA has publicly stated for decades, these men and women -- sworn graduates of the Chicago Police Academy and Cook County Sherriff's Training Academy -- are necessary to, among other things: (1) "patrol airport grounds, terminals, and facilities," (2) "provide a law enforcement presence," (3) "deter criminal activity," (4) "prevent unauthorized airport access," and (5) "enforce security rules." Until recent events, Plaintiffs were required to annually qualify with firearms. Indeed, as far back as 1993 the ILETSB elected to formally recognize the CDA as a law enforcement agency and, as such, Plaintiffs qualified as "law enforcement officers" under Illinois law. To discharge their duties, the Plaintiffs were historically equipped with police vehicles, non-lethal weapons, and handcuffs that allowed them to patrol and protect airport property, terminals, and facilities. Although Plaintiffs are not authorized to carry firearms while working, much like LEOs working in prisons or on other assignments where agencies have determined that the regular presence of firearms poses too great a risk, Chicago Aviation Police were permitted to possess and register their weapons and carry them concealed off-duty like other LEOs. In the course of discharging their duties, Plaintiffs have issued tens of thousands of citations for myriad violations of state statutes and city and county ordinances, and they are routinely sworn in and testify in open court on behalf of the City of Chicago in those cases where citations issued by the Chicago Aviation Police are disputed. Many of the Plaintiffs work part- time as police officers in other jurisdictions. Moreover, many former members of the Chicago Aviation Police have leveraged their years credited as law enforcement officers to lateral into other police departments and law enforcement positions within the State of Illinois and elsewhere. Nonetheless, in the face of, and in response to, intense political pressure following the April 9, 2017 incident on United Airlines Flight 3411, the City of Chicago and the ILETSB, in an arbitrary and capricious decision, elected to retroactively strip Plaintiffs of all time served as LEOs, unilaterally altering their employment history, rendering them ineligible for lateral employment by other police departments and law enforcement organizations, and damaging their employment prospects in the process. The damages these officers have suffered are both real and catastrophic. For Plaintiffs, decades of otherwise legitimate law enforcement experience have been effectively erased from their work history, severely curtailing their job prospects and significantly impacting their future earning potential. By and through their conduct, the State of Illinois and the City of Chicago have wrongfully and improperly taken and deprived Plaintiffs -- the members of the Chicago Aviation Police -- of their rights and property without due process of law in violation of the Fifth and Fourteenth Amendments to the United States Constitution.[BN] Counsel for Plaintiffs: Robert D. Sweeney, Esq. John J. Scharkey, Esq. SWEENEY & SCHARKEY LLC 111 West Washington Street Burnham Center, Suite 1160 Chicago, IL 60602-2734 Telephone: (312) 384 1200 ILLINOIS: Judge Certifies Class in Medicaid Delay Lawsuit --------------------------------------------------------- Kimberly Marselas, writing for McKnight's, reports that seniors in Illinois who have faced considerable delays in receiving their Medicaid coverage -- including one woman who claims she went blind waiting for eye care -- can sue the state, a judge ruled. U.S. District Judge Joan B. Gottschall certified the class to include all individuals who applied for Medicaid since February 1, 2015, and had been determined eligible for long-term care benefits by Illinois but had not yet received a final eligibility determination or a hearing notice within 45 days in non-disability cases or 90 days in disability cases. "The declarations of (nursing facility) operators here show that each has had several applicants who died or were discharged while awaiting decisions on their applications," the judge noted, adding that those involved in the case should be presumed eligible because of the state's alleged failure to comply with the Medicaid Act's time requirements. The case originated with four women ages 68 to 90, all residents of nursing homes and supportive living facilities, who sought Medicaid coverage through the state in 2015 and 2016. After submitting additional paperwork as requested and, in at least one case, applying repeatedly, the women argued that they were not receiving benefits after the required period. Part of the case revolves around a technical oversight or backlog by the state, which must both deem the applicants eligible and enter that eligibility into a computer system to initiate coverage and payments. The women claimed they were unable to pay for certain types of care without coverage, including their nursing home bills, optometrists' costs and prescriptions. One has withdrawn from the case, and another has since died. But in a decision rendered on March 29, Judge Gottschall said others could join in the remaining plaintiffs' case. [GN] INSTORE GROUP: "Cherelli" Suit Moved to District of Massachusetts ----------------------------------------------------------------- The class action lawsuit titled Karen Cherelli, on behalf of herself and all others similarly situated, the Plaintiff, v. The InStore Group, LLC, the Defendant, Case No. 1881cv0556, was removed from the Middlesex Superior Court, to the U.S. District Court for the District of Massachusetts (Boston) on April 13, 2018. The District Court Clerk assigned Case No. 1:18-cv-10717- DPW to the proceeding. The case is assigned to the Hon. Judge Douglas P. Woodlock. The InStore Group was born out of an acquisition of a small regional retail merchandising company in 2013. Since that date, the company has been on an epic growth ride. Today, The InStore Group under the leadership of its' founder Tom Palombo, is a full service nationwide retail merchandising organization.[BN] Attorneys for Plaintiff: Brook S. Lane, Esq. Hillary A. Schwab, Esq. FAIR WORK P.C. 192 South Street, Suite 450 Boston, MA 02111 Telephone: (617) 607 3260 Facsimile: (617) 488 2261 E-mail: brook@fairworklaw.com hillary@fairworklaw.com - and - Christopher B Kaczmarek, Esq. LITTLER MENDELSON One International Place, Suite 2700 Boston, MA 02110 Telephone: (617) 378 6016 Facsimile: (617) 507 8046 E-mail: ckaczmarek@littler.com IZEA INC: Rosen Law Firm Investigates Potential Securities Claims ----------------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on April 3 disclosed that it is investigating potential securities claims on behalf of shareholders of IZEA, Inc. (NASDAQ:IZEA) resulting from allegations that IZEA may have issued materially misleading business information to the investing public. On April 2, 2018, IZEA announced it would reschedule its fourth quarter and full year 2017 earnings release and conference call after its Audit Committee determined there was an error in accounting for revenue and cost of sales related to the self- service Content Workflow portion of the Company's revenue. According to IZEA, the amount it previously reported as gross profit on Content Workflow should be reported as revenue. On this news, shares of IZEA fell $0.66 per share or over 18% to close at $3.00 per share on April 2, 2018. Then, in a Form 8-K filed with the SEC, IZEA announced that its previously issued financial statements included in its annual reports for the years ended December 31, 2015 and 2016, and quarterly reports for each quarter for the years ended December 31, 2015 and 2016 and the first three quarters for the year ended December 31, 2017 should no longer be relied upon. On this news, shares of IZEA have fallen sharply during intraday trading on April 3, 2018. Rosen Law Firm is preparing a class action lawsuit to recover losses suffered by IZEA investors. If you purchased shares of IZEA please visit the firm's website at http://www.rosenlegal.com/cases-1313.htmlto join the class action. You may also contact Phillip Kim or Zachary Halper of Rosen Law Firm toll free at 866-767-3653 or via email at pkim@rosenlegal.com or zhalper@rosenlegal.com. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Since 2014, Rosen Law Firm has been ranked #2 in the nation by Institutional Shareholder Services for the number of securities class action settlements annually obtained for investors. [GN] JACK IN THE BOX: Fails to Pay Overtime Wages, Cisneros Says ----------------------------------------------------------- MARIA C. CISNEROS on behalf of herself and others similarly situated, the Plaintiff, v. JACK IN THE BOX, INC.; and DOES 1 to 100, Inclusive, the Defendant, Case No. BC702018 (Cal. Super. Ct., April 12, 2018), seeks to recover unpaid overtime for all overtime worked, wages for workdays Defendants failed to provide all legally required and legally compliant meal periods; wages for workdays Defendants failed to provide all legally required and legally compliant rest periods; unpaid vacation pay; statutory penalties for failure to provide accurate and complete wage statements; waiting time penalties in the form of continuation wages for failure to timely pay former employees all earned and unpaid wages; applicable civil penalties; injunctive relief and other equitable relief, reasonable attorney's fees pursuant to the California Labor Code. The case is a wage and hour class action lawsuit on behalf of Plaintiff and other current and former non-exempt employees of Defendants in California. As a result of Defendants unlawful conduct, the Plaintiff and members of the Class have suffered injury in that the wage statements inaccurately stated and/or failed to state the aforementioned items of information and the Plaintiff and the members of the class could not promptly and easily determine from the wage statement alone an accurate statement of: the gross wages earned and the net wages earned. Jack in the Box is an American fast-food restaurant chain founded February 21, 1951, by Robert O. Peterson in San Diego, California, where it is headquartered.[BN] The Plaintiff is represented by: Joseph Lavi, Esq. Jordan D. Bello, Esq. LAVI & EBRAHIMIAN, LLP 8889 W. Olympic Blvd., Suite 200 Beverly Hills, CA 90211 Telephone: (310) 432 0000 Facsimile: (310) 432 0001 E-mail: jlavi@lelawfirm.com jbello@lelawfirm.com JC PENNY: Denial of Arbitration Bid in "Cavlovic" Affirmed ---------------------------------------------------------- Judge Mary Beck Briscoe of the Court of Appeals for the Tenth Circuit affirmed the Magistrate Judge's order denying J.C. Penney's motion to compel arbitration in the case, ANN CAVLOVIC, Plaintiff-Appellee, v. J.C. PENNEY CORPORATION, INC., Defendant- Appellant, Case No. 17-3174 (10th Cir.). On Dec. 16, 2016, Cavlovic filed a class action complaint in Kansas state court, alleging J.C. Penney used a "False Former Price Advertising Scheme." Penney allegedly would mark up its private-branded and exclusive-branded apparel and accessories by a significant margin and then immediately offer those products at what it represented to be steep discounts. She sought to represent a group of more than 100 people who, between December 2013 and December 2016, purchased from J.C. Penney in Kansas one or more private and/or exclusive branded items at a discount of at least 30% off of the stated 'original' or 'regular' price, and who have not received a refund or credit for their purchase(s). Cavlovic alleged she was part of the class because of a purchase she made on Sept. 23, 2014. On that date, Cavlovic visited a J.C. Penney store in Kansas and purchased 14-carat gold hoop earrings for $171.66. The tag on the earrings advertised that the previous price was $524.98, but that J.C. Penney was now selling the earrings for $209.99. J.C. Penney had an additional sale that day, so Cavlovic received an extra 25% off the already marked-down price. Cavlovic paid for the earrings with a credit card that had J.C. Penney's logo on it. In a separate contract - - the 2014 Rewards Program agreement -- J.C. Penney promised Cavlovic it would issue J.C. Penney Rewards Points for purchases at J.C. Penney using the J.C. Penney-branded card. After Cavlovic returned home from the store, she inspected the earrings. For the first time, she noticed the original price tag of $225 on her earrings had been blacked out. After researching the matter, she believed she should have been charged $73.58, instead of $171.66 because her discount should have been pegged to the original price of $225, and not to the advertised inflated price of $524.98. And she believed the price discrepancy was the result of J.C. Penney's False Former Price Advertising Scheme to fraudulently inflate prices. In her complaint, she alleges J.C. Penney's purported scheme caused her "emotional distress," and the scheme "continues" to the present day. Given these factual allegations, Cavlovic -- as the lead Plaintiff of the class -- set out three remedies: (1) a finding that J.C. Penney violated the Kansas Consumer Protection Act; (2) injunctive and declaratory relief pursuant to the Kansas Consumer Protection Act; and (3) a finding of unjust enrichment. J.C. Penney removed the case to the U.S. District Court for the District of Kansas. It then moved to dismiss the case under Federal Rule of Civil Procedure 12(b)(6). A month later, though, J.C. Penney moved to stay the proceedings and compel arbitration based on two documents: (1) the 2008 credit card agreement between Cavlovic and GE Money Bank for the J.C. Penney-branded credit card; and (2) the 2014 Rewards Program agreement between Cavlovic and J.C. Penney. After the Magistrate judge stayed the proceedings, Cavlovic responded to the motion to compel. The magistrate judge then ruled on the motion to compel arbitration. She first concluded the 2012 credit card agreement controls the litigation, and that it is "identical in all respects relevant" to the 2016 credit card agreement. On the merits of the claims regarding the 2012 credit card agreement, the magistrate judge concluded: (1) the 2012 credit card agreement was narrower in scope than the 2008 credit card agreement; (2) the allegations in Cavlovic's complaint fell outside the scope of the 2012 credit card agreement; and (3) the 2012 credit card agreement did not provide J.C. Penney with the ability to enforce its arbitration provision. The Defendant appeals the denial of its motion to compel arbitration. The district court denied review of the Magistrate Judge's order denying J.C. Penney's motion to compel arbitration, agreeing that J.C. Penney was not a party to one of the two contracts at issue, and that Cavlovic's allegations fall outside the scope of the other contract. Judge Briscoe finds that the agreement between Cavlovic and GE Capital Money Bank does not evidence a clear intent to provide J.C. Penney -- a third party -- with the right to demand arbitration under the 2012 credit card agreement. Rather, the intent of the parties is clear from their agreement -- only "you" (Cavlovic) or "we" (GE Capital Retail Bank) can demand arbitration of the other. Since there is no indication the parties intended to give J.C. Penney or any other third party the right to demand arbitration, J.C. Penney cannot invoke the arbitration clause of the 2012 credit card agreement. The district court did not err in coming to the same conclusion. She also finds that unlike the credit card agreement, there is no dispute that J.C. Penney was a party to the 2014 Rewards Program agreement, and has the power to enforce all of its provisions. There is, however, a dispute regarding venue, and whether Cavlovic's allegations are within the scope of the 2014 Rewards Program agreement's arbitration clause. The Judge concludes that J.C. Penney waived any argument regarding venue, and that Cavlovic's allegations are outside the scope of the 2014 Rewards Program agreement. Finally, she holds that the mere existence of the Rewards Program agreement is not itself sufficient to conclude that Cavlovic's allegations of deceptive advertising arise from or relate to that contract. She concludes the district court did not err. For the reasons she stated, Judge Briscoe affirmed. A full-text copy of the Court's March 7, 2018 Order and Judgment is available at https://is.gd/3eDtEZ from Leagle.com. KRAFT HEINZ: Faces Another All Natural Labeling Class Action ------------------------------------------------------------ Lhalie Castillo, writing for Madison - St. Clair Record, reports that Belleville attorney David C. Nelson filed another lawsuit in the St. Clair County Circuit Court alleging false all natural labeling in Kraft Heinz marinades and sauces. In the most recent proposed class action against Kraft Heinz Foods Co., plaintiff Sara Morgan Francis alleges the all natural bold steak sauce under the defendant's Lea & Perrins brand contains synthetic ingredients. According to the complaint, Ms. Francis alleges she purchased the steak sauce on several occasions in 2017 for $3.99 at the Dierbergs in Shiloh. The sauce was labeled as all natural. Francis claims she was damaged for paying a premium price for a product that allegedly contains xantham gum, a synthetic substance. The suit also includes the All Natural Original Marinade, All Natural Garlic & Herb Marinade and the All Natural Teriyaki Marinade. The plaintiff alleges the defendants violated the Illinois Consumer Fraud and Deceptive Business Practices Act. The plaintiff seeks an order certifying this case as a class action, disgorgement of profits, plus interest, litigations costs and further relief as the court deems just and proper. She is represented by David C. Nelson of Nelson & Nelson, Attorneys at Law in Belleville. St. Clair County Circuit Court case number 18-L-159 [GN] LAND'S END: Blankenship Sues over Defective FCRA Disclosure ----------------------------------------------------------- ASHLEY BLANKENSHIP, individually and/or behalf of all others similarly situated, the Plaintiff, v. LAND's END DIRECT MERCHANTS, INC., d/b/a LAND's END INC., a foreign Wisconsin corporation, the Defendants, Case No. 8:18-cv-00865-SDM-TGW (Fla. 13th Cir. Ct in an for Hillsborough County, April 11, 2018), seeks to recover damages for Defendants' violation of the Fair Credit Reporting Act. The FCRA imposes several requirements onto employers that use a background check, which are designed to protect consumers like the Plaintiff and putative Class Members. According to the complaint, the Plaintiff brings this class claim against Defendant under 15 U.S.C. section 1681b(b)2 because the disclosure from it provided Plaintiff and Class Members was defective in that it contained additional, extraneous information and therefore does not consist "solely of the disclosure". Lands' End is a classic American lifestyle brand with a passion for quality, legendary service & real value.[BN] The Plaintiff is represented by: Brandon J. Hill, Esq. WENZEL, FENTON, CABASSA, P.A. 1110 N. Florida Avenue, Suite 300 Tampa, FL 33602 Telephone: (813) 224 0431 Facsimile: (813) 229 8712 E-mail: bhill@fclaw.com twells@fclaw.com LOGITECH INC: Court Dismisses "Anderson" Class Suit --------------------------------------------------- In the case, JAMES ANDERSON, Individually and on Behalf of all Others Similarly Situated, Plaintiff, v. LOGITECH, INC., Defendant, Case No. 17 C 6104 (N.D. Ill.), Judge Harry D. Leinenweber of the U.S. District Court for the Northern District of Illinois, Eastern Division, (i) dismissed with prejudice the Alleged Nationwide Class excluding California claim; (ii) dismissed without prejudice the Unfair Competition and Consumer remedies claim under California law; (ii) denied the Breach of Express Warranty claim; (iv) denied the Breach of Implied Warranty claim; (v) dismissed without prejudice the Unjust Enrichment claim; and (vi) dismissed without prejudice the Illinois Consumer Fraud Act claim. The Plaintiff has filed the nationwide class action (excluding California) with an Illinois subclass, alleging consumer fraud, breach of warranty, and unjust enrichment arising from his purchase of a digital home video surveillance system known as the "Alert" system manufactured and sold by the Defendant. Apparently, there is another lawsuit currently pending in the District Court for the District of New Jersey, which was filed prior to the case. The Defendant attempts to invoke the first filing rule and asks the Court to stay the proceeding until the District Court of New Jersey has a chance to rule on a pending Motion to Dismiss. The Plaintiff, as expected, strongly opposes a stay. Judge Leinenweber denied the stay for the reason that will become he is dismissing the nationwide class allegations. The Defendant has also moved to dismiss the nationwide class action aspect of the case on the basis of Bristol-Myers Squibb v. Superior Court. The Plaintiff disputes the applicability of Bristol-Myers because that case was not a class action but a series of individual claims filed together in state court. He cites a number of California district court cases in which his argument prevailed. However, the Court is not writing on a clean slate. It has already applied Bristol-Myers to a nationwide class action in DeBernardis v. NBTY, Inc., which followed McDonnell v. Nature's Way Products, which also applied Bristol- Myers to a nationwide class action. In sum it still appears to the Court that a nationwide class action is not significantly different from a mass tort suit involving a multitude of individual claims. Judge Leinenweber struck the putative nationwide class action claims. The Defendant also seeks dismissal of the Illinois sub-class based on an unpublished decision of a California State trial court. It has not supplied the Court with any of the documentation as to the why and wherefore that moved that court to deny class status. It seems to the Judge that it is too premature for him to decide class status based on such a flimsy record. He therefore denied the Motion to Dismiss the claim of the Plaintiff and that of the Illinois sub-class. The Defendant also argues that California law applies to the case rather than Illinois. However, the fact that his case will proceed on the allegations of an Illinois only sub-class, it appears to be, as the Plaintiff argues, premature to make the decision as to what law applies to the case. Next, the Defendant takes aim at the claim under the Illinois Consumer Fraud Act ("ICFA") for failure to meet Rule 9(b)'s standard of specificity. The Judge finds that while the Plaintiff does not present a failure rate, he does allege the high cost of repairs and the inability to repair. The most credible allegation of fraud however is that Logitech concealed its decision to discontinue the specific alert system due to product failure, and its decision not to disclose this to the purchasers. The one problem the Plaintiff presents is that he does not disclose the date he purchased his system. The Judge says this is a significant failure when considering Rule 9(b). If the Plaintiff purchased his system prior to the 2012 decision to discontinue, the decision itself could not be an act of fraud. The Judge will dismiss the ICFA claim with leave to amend. Next, the Defendant seeks dismissal of the Plaintiff's breach of warranty claims implied and express. Judge Leinenweber finds that the Plaintiff has clearly alleged that the system he purchased from the Defendant did not perform as it was supposed to. He therefore has alleged that the product was not merchantable at the time of sale, he suffered damages, and he gave Logitech notice. This is enough as it was in the Sears case to withstand a motion to dismiss. The Defendant also seeks to dismiss the Express Warranty claim. Since the warranty is not set forth in haec verba it was difficult for the Judge to determine the extent of its coverage. The Complaint does allege that the warranty was "illusory" because the product was so problem ridden and defective that the product would not work. He says this is sufficient to withstand a motion to dismiss at this stage of the litigation. Finally, the Defendant moves for dismissal of the unjust enrichment claim and the claim for declaratory judgment. The unjust enrichment claim, says the Defendant, is duplicative of the underlying fraud claim. They are both based on Logitech's deceptive advertising. Therefore disposition of the fraud claim will dispose of the unjust enrichment claim. The Judge dismissed this count without prejudice. The claim for declaratory judgment is likewise duplicative. This count is dismissed without prejudice. For the reasons he stated, Judge Leinenweber (i) dismissed with prejudice the Alleged Nationwide Class excluding California claim; (ii) dismissed without prejudice the Unfair Competition and Consumer remedies claim under California law; (ii) denied the Breach of Express Warranty claim; (iv) denied the Breach of Implied Warranty claim; (v) dismissed without prejudice the Unjust Enrichment claim; and (vi) dismissed without prejudice the Illinois Consumer Fraud Act claim. A full-text copy of the Court's March 7, 2018 Memorandum Opinion and Order is available at https://is.gd/pSJEbz from Leagle.com. James Anderson, Plaintiff, represented by Laurence D. King -- lking@kaplanfox.com -- Kaplan Fox & Kilsheimer LLP, Linda M. Fong -- lfong@kaplanfox.com -- Kaplan Fox & Kilsheimer LLP, Matthew B. George -- mgeorge@kaplanfox.com -- Kaplan Fox & Kilsheimer LLP, pro hac vice & Gary L. Specks -- gspecks@kaplanfox.com -- Kaplan Fox & Kilsheimer LLP. Logitech Inc., Defendant, represented by David M. Holmes -- david.holmes@wilsonelser.com -- Wilson, Elser, Moskowitz, Edelman & Dicker, Alexander Lee Reich -- alexander.reich@wilsonelser.com -- Wilson Elser Moskowitz Edelman & Dicker LLP, Bret David Franco -- bret.franco@wilsonelser.com -- Wilson Elser Moskowitz Edelman & Dicker LLP, David Michael Goldhaber -- david.goldhaber@wilsonelser.com -- Wilson, Elser, Moskowitz, Edelman & Dicker LLP & Patrick M. Kelly -- patrick.kelly@wilsonelser.com -- Wilson Elser Moskowitz Edelman & Dicker LLP, pro hac vice. LONGFIN CORP: Scott+Scott Attorneys Files Securities Class Action ----------------------------------------------------------------- Scott+Scott Attorneys at Law LLP ("Scott+Scott"), a national securities and consumer rights litigation firm, on April 3 disclosed that it has filed a class action lawsuit against Longfin Corp. ("Longfin" or the "Company") (NASDAQ: LFIN) and its Chief Executive Officer, Venkat Meenavalli (collectively, "Defendants"). The action, which was filed on April 3 in the U.S. District Court for the Southern District of New York, asserts claims under Sections 10(b) and 20 of the Securities Exchange Act of 1934 (the "Exchange Act"), 15 U.S.C. Secs. 78j(b) and 78t(a), and SEC Rule 10b-5 promulgated thereunder, 17 C.F.R. Sec. 240.10b-5, on behalf of investors who purchased or otherwise acquired Longfin common stock between December 15, 2017 and April 2, 2018, inclusive (the "Class Period"). Longfin is a finance and technology company that provides trade and physical commodities solutions for finance businesses and trading platforms. Longfin recently began using blockchain technology to enable global trade finance solutions. The complaint alleges that Defendants violated provisions of the Exchange Act by issuing false and misleading statements to investors, including in filings with the U.S. Securities and Exchange Commission ("SEC"). Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) Longfin had material weaknesses in its operations and internal controls that hindered the Company's profitability; (ii) Longfin did not meet the requirements for inclusion in the Russell 2000 and 3000 indices; and (iii) as a result of the foregoing, the Defendants' public statements were materially false and misleading at all relevant times. On March 26, 2018, Citron Research ("Citron") posted a tweet on Twitter.com questioning the veracity of Longfin's operations. The same day, Russell issued a statement announcing Longfin would be removed from its indices after market close on March 28, 2018, only approximately 12 days after being added. These events caused the price of the Company's stock to decline from $71.10 per share on March 23, 2018, to close at $14.31 per share on April 2, 2018, a decline of 79.9%, damaging investors. On April 2, 2018, after the market closed, Longfin filed its 2017 annual report with the SEC. The annual report confirmed that Longfin had material weakness in its internal control over financial reporting, was not profitable, and was the subject of an SEC investigation. If you wish to serve as lead plaintiff, you must move the Court no later 60 days from the date of this notice. Any member of the proposed class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain a member of the proposed class. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Rhiana Swartz of Scott+Scott at (844) 818-6980, or via email at rswartz@scott-scott.com About Scott+Scott Attorneys at Law LLP Scott+Scott has significant experience in prosecuting major securities, antitrust, and employee retirement plan actions throughout the United States. The firm represents pension funds, foundations, individuals, and other entities worldwide with offices in New York, London, Connecticut, California, and Ohio. [GN] MARTIN TRANSPORT: Doesn't Pay Dispatchers Overtime, Wingo Claims ---------------------------------------------------------------- William Wingo, individually and on behalf of other similarly situated, the Plaintiff, v. Martin Transport, Inc., Defendant, Case No. 2:18-cv-00141-JRG (E.D. Tex., April 11, 2018), seeks to recover overtime wages pursuant to the Fair Labor Standards Act. According to the complaint, the Plaintiff worked for Defendant as a Dispatcher. The Plaintiff and a group of similarly situated former and current employees of Defendant routinely worked in excess of 40 hours per week, but were not paid for all overtime hours worked. Pursuant to a decision, policy, or plan/practice, the Defendant unlawfully classified the Plaintiff and other similarly situated individuals as exempt from laws requiring overtime pay, although they actually were and are non-exempt and entitled to overtime pay. Defendant's actions were and are willful and had the effect of denying the Plaintiff and other similarly situated individuals their overtime wages. Martin Transport operates a fleet of tank trucks providing transportation of petroleum products, LP gas, molten sulfur, sulfuric acid, paper mill liquids, chemicals, dry bulk, and numerous other bulk liquid commodities.[BN] Attorneys for Plaintiff: J. Derek Braziel, Esq. Travis Gasper, Esq. LEE & BRAZIEL, L.L.P. 1801 N. Lamar Street, Suite 325 Dallas, TX 75202 Telephone: (214) 749 1400 Facsimile: (214) 749 1010 E-mail: jdbraziel@l-b-law.com gasper@l-b-law.com - and - Gregory S. Porter, Esq. PORTER LAW FIRM, P.C. 3311 Woods Blvd. Tyler, TX 75707 Telephone: (903) 561 5144 Facsimile: (903) 705 6253 E-mail: greg@gregporterlaw.com MARYLAND MARKETSOURCE: Esparza Sues over Background Checks ---------------------------------------------------------- JOHNNY ESPARZA, on behalf of himself and a11 others similarly situated, the Plaintiff, v. MARYLAND MARKETSOURCE, INC., a Ma1yland corporation; ALLEGIS GROUP, INC., a Maryland corporation, ALLEGIS GROUP HOLDINGS INC., Maryland corporation; and DOES 1 through 50, inclusive, Case No. 18CIV01821 (Cal. Super. Ct., April 12, 2018), seeks compensatory and punitive damages due to Defendants' systematic and willful violations of the Fair Credit Reporting Act, the California Investigative Consumer Reporting Agencies Act, and the California Consumer Credit Reporting Agencies Act. The Plaintiff alleges that the Defendants routinely acquire consumer, investigative consumer and/or consumer credit reports to conduct background checks on Plaintiff and other prospective, current and former employees and use information from credit and background reports in Connection with their hiring process without providing proper disclosures and obtaining proper authorization in compliance with the law. The Plaintiff, individually and on behalf of all others similarly situated current, former and prospective employees. The Plaintiff also brings this class action against Defendants for alleged violations of the Labor Code and Business and Professions Code. The Plaintiff alleges that Defendants have: failed to provide him and all other similarly situated individuals with meal periods; failed to provide them with rest periods; failed to pay them premium wages for missed meal and/or rest periods; failed to pay them premium wages for missed meal and/or rest periods at the regular rate of pay; failed to pay them at least minimum wage for all hours worked; failed to pay them overtime wages at the correct rate; failed to pay them double time wages at the correct rate; failed to pay them overtime and/or double time wages by failing to include all applicable remuneration in "calculating the regular rate of pay; failed to provide them with accurate written wage statements; and failed to pay them all of their final wages following separation employment.[BN] The Plaintiff is represented by: Shaun Setareh, Esq. H. Scott Leviant, Esq. SETAREH LAW GROUP 9454 WilShire Boulevard, Suite 907 Telephone (310) 888 7771 Facsimile (310) 888 0109 E-mail: Shaun@setarel1law.com scott@setarel1law.com MASTERCARD INT'L: Averts Merchants' Antitrust Class Action ---------------------------------------------------------- D. Matthew Allen, Esq. -- mallen@carltonfields.com -- and Thaddeus Ewald, Esq. -- tewald@carltonfields.com -- of Carlton Fields, in an article for JDSupra, wrote that the Eastern District of New York recently declined to certify a putative class action filed by merchants against the four major credit card providers alleging antitrust violations. The complaint alleges that MasterCard, Visa, Discover, and American Express ("Amex") conspired by adopting the same liability policy for fraudulent charges with chip-enabled credit cards by shifting liability from banks to merchants and implementing the policy on the same day to reduce competition. Plaintiffs moved to certify a damages class of merchants subjected to the liability shift beginning with the policies' effective date and continuing "until the anticompetitive conduct ceases." The court denied the motion, but based its decision on a technicality that can be corrected on a new motion. The court's analysis focused on two challenges to class certification: one raised by Amex regarding adequacy of class representation and another by all defendants regarding ascertainability. First, Amex argued that plaintiffs' attempt to hold all defendants jointly and severally liable failed because there were two groups of plaintiffs: (1) those merchants who accept Amex cards asserting joint and several liability against MasterCard, Visa, and Discover (but whose claims against Amex were severed and transferred to another court); and (2) those merchants who do not accept Amex cards asserting joint and several liability against all four credit card companies. Amex contended the first group was overbroad by encompassing claims that could not be heard in the Eastern District of New York because of a forum selection clause. The court swiftly rejected this argument because Amex failed to cite any provision of its agreement (or legal authority) that prevented bringing claims based on joint and several liability against non-parties to the agreement outside of the selected forum. Amex also argued the second group's representative merchant did not accept Amex and therefore could not adequately represent merchants that do. The court rejected this argument as well, holding that there was no "fundamental" conflict of interest between the two groups. The relevant claims depended on the "same finding of liability" against all defendants. Second, all defendants contested certification on ascertainability grounds because the class definition identified the class period as continuing "until the anticompetitive conduct ceases." The court compared plaintiffs' liability theory -- but- for the conspiracy, each defendant would have set its own effective date for the liability shift -- with the potential dates on which plaintiffs proposed to cap the class period. While "[a]ny" of the dates "could be acceptable to make the class ascertainable," at this point in the litigation the plaintiffs "lack[ed] the necessary information" to satisfy the ascertainability requirement. Therefore, the court denied plaintiffs' motion for class certification but noted its authority to revisit or entertain a renewed motion. B & R Supermarket, Inc. v. MasterCard Int'l Inc., Case No. 17- 2738 (E.D.N.Y. Mar. 14, 2018). [GN] MDL 1264: Securities Suit Deal Audit Must be Complete by June 27 ---------------------------------------------------------------- In the case, IN RE BANK OF AMERICA CORP. SECURITIES LITIGATION, Case No. 4:99 MD 1264 CDP (E.D. Mo.), Judge Catherine D. Perry of the U.S. District Court for the Eastern District of Missouri, Eastern Division, denied Oetting's Motion for Turnover Order of NationsBank Settlement Funds, and ordered that the audit in the case be complete by June 27, 2018. The litigation began as a class action under the Private Securities Litigation Reform Act of 1995 ("PSLRA"). The Plaintiffs alleged losses from misrepresentations in the prospectus and proxy materials provided to shareholders during the 1998 merger of NationsBank and BankAmerica. The cases were transferred by the Judicial Panel on Multidistrict Litigation to the Eastern District of Missouri. Four plaintiff classes were certified: two classes of NationsBank shareholders and two classes of BankAmerica shareholders. The cases were resolved with a global settlement agreement for $490 million which was approved by the district court in 2002 and affirmed by the court of appeals in 2003. Two settlement funds were established -- one for each of the two sets of classes -- with the NationsBank Classes receiving approximately $333.2 million ("Settlement Fund"). As part of the settlement, Bank of America disclaimed any interest in the Settlement Fund such that any remaining money after distribution to class members would not revert back to it. In 2008, the government discovered that an employee of the claims administrator in the case, Heffler, Radetich, & Saitta, LLP, had stolen more than $5 million dollars from the Settlement Fund. The resulting fraud proceedings delayed distribution of further funds in this matter; however, two rounds of distributions to the class members were finally completed. After those distributions, this court ordered a cy pres distribution of the remaining Settlement Fund in 2013. The cy pres distribution was vacated on appeal by the Eighth Circuit in 2015, and the cy pres recipient returned the money by depositing it into the Court Registry. When the Eighth Circuit overturned the cy pres distribution, it also vacated an award by the district court of more than $98,000 in attorneys' fees to class counsel, Green Jacobson. Between the district court's award of fees and the appellate court reversal, Green Jacobson filed bankruptcy. The appointed bankruptcy trustee, David Sosne, currently controls Green Jacobson's trust account, where the attorneys' award monies were deposited following the Eighth Circuit's ruling. Green Jacobson has since been replaced as class counsel by Frank H. Tomlinson. Following the cy pres reversal in 2015, the Court approved the hiring of Anders Minkler Huber & Helm LLP to conduct an audit of the NationsBank class settlement fund. It was determined that an audit was necessary due to the lack of current status reports and the evidence of missing funds. This audit is currently ongoing. When the Court initially ordered the audit in 2015, it also ordered that on the first business day of each month following retention of the auditors, the counsel for the NationsBank classes will submit to the Court a report describing the work performed and the costs incurred in connection with the audit. It appears from the record that these monthly status reports were filed for a couple of months following the order; however, they were discontinued in June of 2016. The Court again ordered a report on the audit in July 2017, specifically requesting a proposal detailing the remaining audit work to be performed and the number of hours reasonably expected to be expended. The August 2017 response to the Court order estimated that the total fee for the remaining scope of work will not exceed $125,000, or 416 hours. The case was transferred to Judge Perry in August of 2017. Class representative Oetting now requests an order from the Court directing the partners-members-shareholders of previous class counsel (Green Jacobson, P.C., Debtor in Bankruptcy Case No. 15- 41404, E.D. Mo.), Martin M. Green, Joe D. Jacobson, and Jonathan F. Andres, to turnover funds belonging to the NationsBank Settlement Classes, presently being held in their names. Oetting provided an account statement from a US Bank Account Number ending 1500, entitled "NationsBank Notice & Administration Fund Settlement Distribution Account, Advisory Agency Martin M. Green, Joe D. Jacobson and Jonathan F. Andres Co-Actors," showing a balance of $34,067.30 as of Aug. 31, 2017. No responses or objections to the motion have been filed. Judge Perry explains that the purpose of the ongoing audit is to locate and account for all the remaining NationsBank settlement funds. As previous reports to the Court have indicated, the US Bank Account 1500 is known by the auditors. Rather than granting the motion for turnover of funds during the pendency of the audit and creating the possibility of piecemeal collection of all NationsBank settlement funds, she would rather have the audit concluded and then issue any orders necessary to consolidate funds. Based on the auditors' Aug. 29, 2017, report to the Court estimating the need for approximately 416 more hours of audit work, she will order that the audit in the case be complete by June 27, 2018. The Judge also finds that Oetting's motion also raises an issue that needs resolution in order for the case to proceed. On July 31, 2017, the Court ordered that Heffler reissue three distribution checks to Oetting. According to Oetting, there is presently no mechanism for Heffler to issue the checks to Mr. Oetting, presumably because the Clerk of Court holds the majority of the settlement funds in the Court Registry. Heffler has not filed anything with the Court indicating an inability to proceed as ordered by the Court; however, the Court is concerned about this potential discrepancy. Therefore, Heffler will file a report updating the Court on its compliance with the July 31, 2017, Order. If Heffler has not been able to reissue the distribution checks because of lack of access to settlement funds or for any other reason, Heffler will calculate the total amount needed to reissue these checks and file a motion with the Court requesting that amount from the settlement funds held in the Court Registry. Accordingly, Judge Perry denied the Motion for Turnover Order of NationsBank Settlement Funds at this time, but a motion seeking similar relief may be filed, if appropriate, after the completion of the audit. She directed that the audit in the case will be completed by June 27, 2018, and a final report from the auditors will be filed by June 27, 2018. Any motions based on the final audit report will be filed by July 13, 2018. She further directed that Heffler will file a report with the court by April 13, 2018, updating the Court on its progress in complying with the July 31, 2017. Any motions for funds from the Court Registry required to comply with that Order will be filed by April 13, 2018. A full-text copy of the Court's March 7, 2018 Memorandum and Order is available at https://is.gd/554Eit 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, Richard M. Donaldson, GRANT AND EISENHOFER, P.A. & Stuart M. Grant -- sgrant@gelaw.com -- GRANT AND EISENHOFER, P.A. Joseph Hempen, Plaintiff, represented by Aaron L. Brody -- abrody@ssbny.com -- STULL AND STULL, Andrew J. Entwistle -- aentwistle@entwistle-law.com -- ENTWISTLE AND CAPPUCCI, Donald H. Clooney, CLOONEY AND ANDERSON, Harold F. McGuire, Jr., ENTWISTLE AND CAPPUCCI, Joe D. Jacobson -- Jacobson@ArchCityLawyers.com -- JACOBSON PRESS, P.C., Jonathan F. Andres, JONATHAN F. ANDRES, P.C., Jules Brody -- jbrody@ssbny.com -- STULL AND STULL, Martin D. Chitwood, CHITWOOD AND HARLEY, Martin M. Green, LAW OFFICES OF MARTIN GREEN P.C., Robert Abrams -- abrams@whafh.com -- WOLF AND HALDENSTEIN & Vincent R. Cappucci -- vcappucci@entwistle-law.com -- ENTWISTLE AND CAPPUCCI. John M. Koehler, Plaintiff, represented by Aaron L. Brody, STULL AND STULL, Andrew J. Entwistle, ENTWISTLE AND CAPPUCCI, Daniel W. Krasner, WOLF AND HALDENSTEIN LLC, Donald H. Clooney, CLOONEY AND ANDERSON, Joe D. Jacobson, JACOBSON PRESS, P.C., Jonathan F. Andres, JONATHAN F. ANDRES, P.C., Jules Brody, STULL AND STULL, Martin D. Chitwood, CHITWOOD AND HARLEY, Martin M. Green, LAW OFFICES OF MARTIN GREEN P.C., Mitchell A. Margo, CURTIS AND HEINZ, P.C., Nicole Tuman, MURTHA CULLINA, LLP, Robert Abrams, WOLF AND HALDENSTEIN, Vincent R. Cappucci, ENTWISTLE AND CAPPUCCI, James R. Mendillo, FREEARK AND HARVEY & W. Jeffrey Muskopf, SMITHAMUNDSEN LLC. David P. Oetting, Plaintiff, represented by Aaron L. Brody -- abrody@ssbny.com -- STULL AND STULL, Andrew J. Entwistle -- aentwistle@entwistle-law.com -- ENTWISTLE AND CAPPUCCI, Donald H. Clooney, CLOONEY AND ANDERSON, Harold F. McGuire, Jr., ENTWISTLE AND CAPPUCCI, Joe D. Jacobson -- Jacobson@ArchCityLawyers.com -- JACOBSON PRESS, P.C., Jonathan F. Andres, JONATHAN F. ANDRES, P.C., Jules Brody -- jbrody@ssbny.com -- STULL AND STULL, Martin D. Chitwood, CHITWOOD AND HARLEY, Martin M. Green, LAW OFFICES OF MARTIN GREEN P.C., Robert Abrams -- abrams@whafh.com -- WOLF AND HALDENSTEIN & Vincent R. Cappucci -- vcappucci@entwistle-law.com -- ENTWISTLE AND CAPPUCCI. David P. Oetting, Plaintiff, pro se. Selma Kaiser, Plaintiff, represented by Arthur N. Abbey -- aabbey@abbeyspanier.com -- ABBEY AND GARDY, Clinton A. Krislov -- clint@krislovlaw.com -- KRISLOV AND ASSOCIATES, LTD., Daniel W. Krasner, WOLF AND HALDENSTEIN LLC, James S. Notis -- jnotis@gardylaw.com -- ABBEY AND GARDY, Michael R. Karnuth, KRISLOV AND ASSOCIATES, LTD. & Stephen T. Rodd -- srodd@abbeyspanier.com -- ABBEY AND GARDY. Brian Markee & Walter E. Ryan, Jr., Plaintiffs, represented by Arthur N. Abbey, ABBEY AND GARDY, Clinton A. Krislov, KRISLOV AND ASSOCIATES, LTD., James S. Notis, ABBEY AND GARDY, Michael R. Karnuth, KRISLOV AND ASSOCIATES, LTD. & Stephen T. Rodd, ABBEY AND GARDY. Kevin Kloster, Plaintiff, represented by Aaron L. Brody -- abrody@ssbny.com -- STULL AND STULL, Andrew J. Entwistle -- aentwistle@entwistle-law.com -- ENTWISTLE AND CAPPUCCI, Donald H. Clooney, CLOONEY AND ANDERSON, Harold F. McGuire, Jr., ENTWISTLE AND CAPPUCCI, Joe D. Jacobson -- Jacobson@ArchCityLawyers.com -- JACOBSON PRESS, P.C., Jonathan F. Andres, JONATHAN F. ANDRES, P.C., Jules Brody -- jbrody@ssbny.com -- STULL AND STULL, Martin D. Chitwood, CHITWOOD AND HARLEY, Martin M. Green, LAW OFFICES OF MARTIN GREEN P.C., Robert Abrams -- abrams@whafh.com -- WOLF AND HALDENSTEIN & Vincent R. Cappucci -- vcappucci@entwistle-law.com -- ENTWISTLE AND CAPPUCCI. Heffler Radetich & Saitta, LLP, Plaintiff, represented by Howard D. Scher -- howard.scher@bipc.com -- BUCHANAN INGERSOLL, P.C., Scott J. Dickenson -- sdickenson@spencerfane.com -- SPENCER FANE LLP & Thomas P. Manning -- thomas.manning@bipc.com -- BUCHANAN INGERSOLL, P.C. NationsBank Classes, Consolidated Filer Plaintiff, represented by David P. Oetting, DAVID P. OETTING, Frank H. Tomlinson, FRANK H. TOMLINSON, ATTORNEY AT LAW, pro hac vice, Joe D. Jacobson, JACOBSON PRESS, P.C., Martin M. Green, LAW OFFICES OF MARTIN GREEN P.C. & Jonathan F. Andres, JONATHAN F. ANDRES, P.C. BankAmerica Classes, Consolidated Filer Plaintiff, represented by Joe D. Jacobson, JACOBSON PRESS, P.C., Stephen T. Rodd, ABBEY AND GARDY & Andrew J. Entwistle, ENTWISTLE AND CAPPUCCI. Hugh L. McColl, Jr., James H. Hance, Jr., Marc D. Oken & Bank of America, Defendants, represented by Jeffrey S. Russell -- jsrussell@bryancave.com -- BRYAN CAVE LLP, John Michael Clear -- jmclear@bryancave.com -- BRYAN CAVE LLP, Jonathan M. Moses -- JMMoses@wlrk.com -- WACHTELL AND LIPTON, Robert B. Mazur -- RBMazur@wlrk.com -- WACHTELL AND LIPTON & Warren R. Stern -- WRStern@wlrk.com -- WACHTELL AND LIPTON. David A. Coulter, Michael E. O'Neill & John J. Higgins, Defendants, represented by Barry A. Short -- bshort@lewisrice.com -- LEWIS RICE, LLC, David H. Fry -- David.Fry@mto.com-- MUNGER AND TOLLES, LLP, Jeffrey S. Russell, BRYAN CAVE LLP, John Michael Clear, BRYAN CAVE LLP, Jonathan M. Moses, WACHTELL AND LIPTON, Mark H. Epstein, MUNGER AND TOLLES, Robert B. Mazur, WACHTELL AND LIPTON, Ronald L. Olson, -- Ron.Olson@mto.com -- MUNGER AND TOLLES & Warren R. Stern, WACHTELL AND LIPTON. Ernesto Gumapas, Sydney Sorkin & Herman Shyken, Intervenors, represented by Christopher P. Seefer -- chriss@rgrdlaw.com -- MILBERG AND WEISS. Carol Mackay, Executrix of the estate of, Intervenor, represented by Jeffrey S. Kessinger. Joe D. Jacobson, Intervenor, pro se. David A. Sosne, Intervenor, represented by Daniel J. Welsh -- dwelsh@summerscomptonwells.com -- SUMMERS AND COMPTON, LLC, Jill R. Rembusch -- jrembusch@summerscomptonwells.com -- SUMMERS AND COMPTON, LLC & Stephen C. Hiotis -- shiotis@summerscomptonwells.com -- SUMMERS AND COMPTON, LLC. JAS Securities, LLC, Movant, represented by Andrew J. Entwistle, ENTWISTLE AND CAPPUCCI & Vincent R. Cappucci, ENTWISTLE AND CAPPUCCI. Milberg, Weiss, Bershad, Hynes & Lerach, LLP, Movant, represented by Christopher P. Seefer, MILBERG AND WEISS. Wachovia Bank, N. A., Movant, represented by Mark H. Levison -- mlevison@lashlybaer.com -- LASHLY AND BAER, P.C. Donald H. Clooney, Movant, represented by Timothy R. Anderson, CLOONEY AND ANDERSON. Chitwood and Harley, LLC, Movant, represented by Martin D. Chitwood, CHITWOOD AND HARLEY. MDL 2586: Court Grants SuperValu's Bid to Dismiss Suit ------------------------------------------------------ In the case, IN RE: SuperValu, Inc., Customer Data Security Breach Litigation This Document Relates to All Actions, Court File No. 14-MD-2586 ADM/TNL (D. Minn.), Judge Ann D. Montgomery of the U.S. District Court for the District of Minnesota granted SuperValu and Albertson's Renewed Motion to Dismiss Plaintiffs' Consolidated Amended Class Action, and denied the Plaintiffs' Motion for Leave to Amend Their Amended Complaint. In this multi-district litigation case, 16 named Plaintiffs alleged they were harmed after computer hackers breached the payment-processing network owned by SuperValu. Both SuperValu and Albertson's used the network to process payment card transactions at more than 1,000 of their retail grocery stores. The hackers gained access to and installed malicious software on the payment-processing network in June 2014 and again in late July or early September 2014. The malicious software released and disclosed the Personal Identifying Information ("PII") of the Plaintiffs and Class Members who used their payment cards at the affected stores. The PII included cardholder names, account numbers, expiration dates, card verification value codes, and personal identification numbers. The Plaintiffs alleged the malware allowed hackers to harvest customers' PII from cash registers and other payment processing terminals at the time customers swiped their cards. Hackers were also able to access customers' PII that had been improperly stored on the Defendants' network after customers made purchases at the Defendants' stores. Of the 16 named Plaintiffs whose data was allegedly stolen in the breach, only one Plaintiff, David Holmes ("Holmes"), alleged that his PII was misused. The other 15 named Plaintiffs did not allege that their PII was misused. Rather, they alleged that the theft of their PII subjects them to an imminent risk that they will suffer identity theft in the future. Following the breach, four putative class actions were filed in federal courts in Illinois, Minnesota, and Idaho. In December 2014, the Judicial Panel on Multidistrict Litigation centralized the four complaints to the Court for coordinated pre-trial proceedings. On June 26, 2015, pursuant to the Court's first Pretrial Order, the Plaintiffs filed the Amended Complaint with 16 named Plaintiffs bringing claims on behalf of a putative class of persons affected by the data breach. On Aug. 10, 2015, the Defendants moved to dismiss the Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). On Jan. 7, 2016, the Court granted the motion pursuant to Rule 12(b)(1), finding that none of the Plaintiffs had alleged facts sufficient to establish Article III standing. Finding that the Plaintiffs lacked standing under Article III, the Court concluded that it was without subject matter jurisdiction to address the Defendants' Rule 12(b)(6) argument that the Amended Complaint failed to state a claim for which relief can be granted. The Amended Complaint was dismissed without prejudice and final judgment was entered. On Feb. 4, 2016, the Plaintiffs filed a post-judgment motion under Rule 59(e), seeking to vacate the judgment and dismissal of the Amended Complaint. Alternatively, they requested leave to amend the Amended Complaint but did not submit a proposed Second Amended Complaint. The Court denied the Rule 59(e) motion. The Plaintiffs then appealed the Court's Dismissal Order to the Eighth Circuit, but did not appeal the denial of the Rule 59(e) motion. On Aug. 30, 2017, the Eighth Circuit reversed the district court's dismissal of Plaintiff Holmes for lack of Article III standing, affirmd the dismissal as to the remaining Plaintiffs, and remanded for further proceedings. The Court of Appeals expressly declined to consider the Defendants' Rule 12(b)(6) arguments on appeal and remanded them to the Court. Following the Eighth Circuit's remand for consideration of the Defendants' Rule 12(b)(6) motion, SuperValu filed a renewed motion to dismiss under Rule 12(b)(6) for failure to state a claim. SuperValu argues that the Amended Complaint must be dismissed under Rule 12(b)(6) because the only remaining Plaintiff, Holmes, fails to state a claim for relief under any of the Amended Complaint's six causes of action. Albertson's also filed a renewed motion to dismiss, arguing that Holmes' claims against Albertson's should be dismissed under 12(b)(1) for failure to allege Article III standing. Approximately one week after the Defendants filed their renewed motions to dismiss, the Plaintiffs moved for leave to amend the Amended Complaint. They contend that the Proposed Second Amended Complaint adds allegations related to the increased risk of harm for their previously dismissed for lack of standing, in addition to including additional allegations related to liability for Defendants. Judge Montgomery holds that it is futile for the Plaintiffs to amend their complaint to allege Article III standing based on facts that the Court has already ruled are not sufficient to confer standing. The new allegations drawn from the three research reports are similarly futile because the reports do not plausibly demonstrate a substantial risk that the Plaintiffs will suffer from future identity theft or credit card fraud. Because the Plaintiffs' proposed new allegations do not cure the Article III standing deficiencies identified by the Eighth Circuit, the Proposed Second Amended Complaint is futile. The Proposed Second Amended Complaint is futile for the additional reason that it cannot withstand Defendants' renewed motions under Rule 12(b)(6). The Judge says that the Amended Complaint fails to state a claim upon which relief can be granted, and the new allegations in the Proposed Second Amended Complaint do not alter this result. Therefore, the Proposed Second Amended Complaint is futile and the Plaintiffs' motion for leave to amend the Amended Complaint will be denied on this basis. As to SuperValu's Renewed Motion to Dismiss, the Judge finds that whether Holmes suffered monetary loss as a result of the fraudulent charge is entirely within his knowledge and requires no discovery from the Defendants, yet Holmes has failed to allege this fact in the Amended Complaint and does not attempt to include it in the Proposed Second Amended Complaint. In the absence of this allegation, he fails to plead a cognizable injury. Because the Amended Complaint does not include sufficient factual allegations to state a plausible claim for relief on any of the counts asserted, SuperValu's motion to dismiss the action with prejudice will be granted. With respect to Albertson's Motion to Dismiss, the Judge finds that Holmes does not allege he had any interaction with an Albertson's store. Thus, he does not allege any injury that can be causally connected to Albertson's. Holmes does not allege he had any interaction with an Albertson's store. Thus, he does not allege any injury that can be causally connected to Albertson's. Even if Holmes had standing to bring a claim against Albertson's, he has failed to state a plausible claim against Albertson's because his allegations and claims do not relate to Albertson's. Holmes' claims also fail for the reasons set forth in Section II.B.1.. Thus, dismissal is also warranted under Rule 12(b)(6). Based upon the foregoing, Judge Montgomery granted the Defendants' Renewed Motions to Dismiss Plaintiffs' Consolidated Amended Class Action Complaint; denied the Class Plaintiffs' Motion for Leave to Amend Their Amended Complaint Pursuant to Fed. R. Civ. P. 15(a)(2); and dismissed with prejudice the Consolidated Amended Class Action Complaint. A full-text copy of the Court's March 7, 2018 Memorandum Opinion and Order is available at https://is.gd/ymsC4D from Leagle.com. Plaintiffs' Interim Co-Lead Counsel, Plaintiff, represented by Ben Barnow -- b.barnow@barnowlaw.com -- Barnow & Associates PC, pro hac vice & Edwin J. Kilpela, Jr. -- ekilpela@carlsonlynch.com -- Carlson Lynch Sweet & Kilpela, LLP, pro hac vice. Plaintiffs' Interim Executive Committee, Plaintiff, represented by Aron D. Robinson, Law Office of Aron D. Robinson, John J. Driscoll, The Driscoll Firm, John S. Steward -- Glaw123@aol.com - - Steward Law Firm, LLC, Karen Hanson Riebel -- khriebel@locklaw.com -- Lockridge Grindal Nauen PLLP & Richard L. Coffman, The Coffman Law Firm. Plaintiffs' Interim Liaison Counsel, Plaintiff, represented by David M. Langevin -- dave@WeStrikeBack.com -- McSweeney / Langevin & Rhett A. McSweeney -- ram@westrikeback.com -- McSweeney / Langevin LLC. Supervalu, Inc., Defendant, represented by David T. Cohen -- David.Cohen@ropesgray.com -- Ropes and Gray LLP, Douglas Harlan Meal, Ropes & Gray LLP, Katherine S. Barrett Wiik -- KBarrettWiik@RobinsKaplan.com -- Robins Kaplan LLP, Kathryn E. Wilhelm -- Kathryn.Wilhelm@ropesgray.com -- Ropes and Gray LLP, Stephen P. Safranski -- SSafranski@RobinsKaplan.com -- Robins Kaplan LLP & Sunil Shenoi -- Sunil.Shenoi@ropesgray.com -- Ropes & Gray LLP. AB Acquisition, LLC & New Albertsons Inc, Defendants, represented by Christopher L. Ingram -- clingram@vorys.com -- Vorys, Sater, Seymour and Pease LLP, John L. Landolfi -- jllandolfi@vorys.com - - Vorys, Sater, Seymour and Pease LLP & Marc A. Al, Stoel Rives LLP. MICRO FOCUS: Cardella Sues over Hewlett Packard Deal ---------------------------------------------------- AUGUST CARDELLA, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. MICRO FOCUS INTERNATIONAL PLC, CHRISTOPHER HSU, STEPHEN MURDOCH, MIKE PHILLIPS, KEVIN LOOSEMORE, NIL'S BRAUCKMANN, KAREN SLATFORD, RICHARD ATKINS, AMANDA BROWN, SILKE SCHEIBER, DARREN ROOS, and JOHN SCHULTZ, the Defendants, Case No. 18CIV01827 (Cal. Super. Ct., April 12, 2018), seeks to recover damages that the Plaintiff and the Class have suffered as a result of Defendants' violations of the Securities Act of 1933. The Plaintiff brings this action under the Securities Act, against Micro Focus and certain of the Company's directors, senior executives, and authorized representatives, on behalf of Plaintiff and all other persons or entities, except for Defendants, who purchased or otherwise acquired American Depositary Shares of Micro Focus, pursuant and/or traceable to the Company's Registration Statement and Prospectus issued in connection with the merger of Micro Focus with Hewlett Packard Enterprise Company and their subsidiaries, pursuant to which Micro Focus combined with the software business segment of HPE. Micro Focus is a multinational software and information technology business based in Newbury, Berkshire, England. The firm provides software and consultancy.[BN] The Plaintiff is represented by: John T. Jasnoch, Esq. Joseph Pettigrew, Esq. Thomas L. Laughlin, Esq. Rhiana Swartz, Esq. SCOTT + SCOTT ATTORNEYS AT LAW LLP 600 W. Broadway, Suite 3300 San Diego, CA 92101 Telephone: (619) 233 4565 Facsimile: (619) 233 0508 E-mail: jjasnoch@scott--scott.com jpettigrew@scott--scott.com tlaughlin@scott--scott.com rswartz@scott--scott.com MINNESOTA: State Supreme Ct. Partly Affirms Ruling in "Hall" ------------------------------------------------------------ In the case, Timothy Hall, Jr., et al., Appellants, v. State of Minnesota et al., Respondents, Case No. A16-0874 (Minn.), Judge Lorie Skjerven Gildea of the Supreme Court of Minnesota affirmed in part and reversed in part the court of appeals' decision denying the Appellants' motion to dismiss the complaint, and certifying the Takings and Due Process Clause questions, and remanded to the district court for further proceedings consistent with her opinion. The case involves the constitutionality of the Minnesota Unclaimed Property Act, which provides that unclaimed property is presumed abandoned and remitted to and held by the State in its general fund until the owners seek to reclaim the property. The Appellants are four property owners whose property was presumed abandoned under the Act and transferred to the State. The Appellants allege that their unclaimed property was transferred to the Commissioner of Commerce and held by the State under the Act, and they contend that the State's failure to pay interest accrued on the property while it was in the State's custody violates the Takings Clauses of the Fifth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and the Minnesota Constitution. They also assert that the State fails to provide adequate notice to property owners that it takes custody of their presumably abandoned property, in violation of the Due Process Clauses of the Fourteenth Amendment to the United States Constitution and the Minnesota Constitution. The Respondents moved to dismiss under Minn. R. Civ. P. 12.02(a), (e), for lack of subject-matter jurisdiction and failure to state a claim upon which relief may be granted. The district court denied the motion to dismiss the due process and unconstitutional taking claims. It determined that the Appellants sufficiently alleged a due process claim because they asserted that the notice provided under the Act is not reasonably certain to inform those affected that their property is being remitted to the State. The court determined that they also sufficiently alleged a takings claim because the Respondents took the Appellants' property and put it in a fund for public use, for which the Appellants are entitled to just compensation. The Respondents then made a motion, which the district court granted in part, to certify the constitutional questions to the court of appeals as important and doubtful. The court of appeals answered the certified questions. Regarding the takings question, the court determined that no taking occurs when the Act specifies the disposition of unclaimed property. With respect to the due process issue, the court determined that no process was due under the Act because it does not deprive unclaimed property owners of a protected property interest. In the alternative, the court determined that, even if the Act does deprive property owners of a protected interest, the notice required under the statute is sufficient. The Appellants challenge the constitutionality of the Act. They contend that the Act violates the Takings Clauses and the Due Process Clauses of the United States and Minnesota Constitutions. They specifically contend that the Act effects a taking because the State does not compensate the property owner for the loss of use of the property during the time that the State holds the property and for the actual or constructive interest that the property may have earned. Regarding their due process claim, they argue that the Act does not provide notice sufficient to satisfy their procedural due process rights. Judge Gildea concludes that Hall, Undlin, and Herron were not deprived of a property interest protected by the Fifth Amendment when the State refused to pay them interest on their presumably abandoned, previously non-interest-bearing property. For them, whose property was not interest bearing when it was transferred to the State, and who (so far as the complaint alleges) were not even aware of the existence of that property, much less able to use it for their own purposes, the Judge is unable to conclude that the failure of the State to pay interest on the property is a loss for which these Appellants must be compensated. Thus, even if they had a property interest, they would not have suffered a taking. Appellant Wingfield, however, has a different type of property than the other Appellants. The Judge finds that Wingfield's property was in an interest-bearing bank account before it was transferred to the State. The transfer of the principal in Wingfield's bank account to the State cut off the accrual of interest. The right to earn interest was part of Wingfield's unclaimed property, and she therefore has the right to receive that interest from the State if she is to be made whole. In other words, Wingfield, unlike Hall, Undlin, and Herron, has suffered an actual loss of interest that she reasonably expected her principal to earn. And she suffered that loss because of the transfer of her property into the custody of the State, as the Act required. The Judge also concludes that although the Appellants contend that their property right has been adversely affected and they are therefore entitled to due process, the Supreme Court has clarified that no deprivation occurs in this context. In Anderson, the Supreme Court held that the law did not violate procedural due process by simply placing funds in the state's custody, because the statute deprives the owners of none of their rights as creditors, preserving their right to demand from the state payment of the funds, and their right to resort to the courts if payment is refused. But as she discussed, Wingfield has demonstrated that she has suffered a deprivation of a protected property interest -- namely, the monetary interest her interest-bearing account would otherwise have earned had the bank continued to hold her unclaimed property. She therefore is entitled to due process protection. The notice provided under the Act provides not only what is constitutionally required by due process, but it also provided actual notice because Wingfield did in fact learn that her property was held by the State. The Judge therefore holds that the notice provided under the Act meets the requirements of procedural due process. Because she concludes that owners of interest-bearing bank accounts -- but not the owners of the other property at issue in the case -- have a constitutionally protected property right that is taken when the State does not compensate the owners for the lost interest, and that the notice provided under the Act to owners of such property valued over $100 is sufficient to satisfy the requirements of due process, Judge Gildea affirmed the court of appeals' decision in part, reversed in part, and remanded to the district court for further proceedings consistent with her opinion. A full-text copy of the Court's March 7, 2018 Opinion is available at https://is.gd/bpG9C4 from Leagle.com. Daniel E. Gustafson -- dgustafson@gustafsongluek.com -- Daniel C. Hedlund -- dhedlund@gustafsongluek.com -- Joseph C. Bourne -- jbourne@gustafsongluek.com -- Gustafson Gluek PLLC, Minneapolis, Minnesota; and Vildan A. Teske -- teske@tkkrlaw.com -- Marisa C. Katz -- katz@tkkrlaw.com -- Teske, Micko, Katz, Kizter, & Rochel, PLLP, Minneapolis, Minnesota; and J. Gordon Rudd, Jr. -- gordon.rudd@zimmreed.com -- David Cialkowski -- david.cialkowski@zimmreed.com -- Zimmerman Reed, PLLP, Minneapolis, Minnesota; and Patrick W. Michenfelder, Throndset Michenfelder, LLC, Saint Michael, Minnesota; and Garret D. Blanchfield -- g.blanchfield@rwblawfirm.com -- Brant D. Penney -- b.penney@rwblawfirm.com -- Reinhardt, Wendorf & Blanchfield, Saint Paul, Minnesota, for appellants. Lori Swanson, Attorney General, Sarah L. Krans, Angela Behrens, Assistant Attorneys General, Saint Paul, Minnesota, for respondents. Todd Murray -- tmurray@tamurraylaw.com -- Friedman Iverson, Minneapolis, Minnesota; and Daniel M. Eaton -- dan@clawoffice.com --Christensen Law Office PLLC, Minneapolis, Minnesota, for amicus curiae National Association of Consumer Advocates. Julie Nepveu -- jnepveu@aarp.org. -- AARP Foundation Litigation, Washington, D.C.; and Janet C. Evans -- jan.evans@gpmlaw.com -- Neil S. Goldsmith -- neil.goldsmith@gpmlaw.com -- Gray, Plant, Mooty, Mooty & Bennett, P.A., Minneapolis, Minnesota; and Mahesha P. Subbaraman, Subbaraman PLLC, Minneapolis, Minnesota, for amici curiae AARP and AARP Foundation. Jarod Bona -- jarod.bona@bonalawpc.com -- Aaron R. Gott -- aaron.gott@bonalawpc.com -- Bona Law PC, La Jolla, California; and Luke A. Wake, NFIB Small Business Legal Center, Sacramento, California, for amicus curiae National Federation of Independent Business, Small Business Legal Center. NEW MEXICO: Court Dismisses All Federal Claims in "Martin" Suit --------------------------------------------------------------- In the case, JAMES S. MARTIN, Plaintiff, v. NEW MEXICO CORRECTIONS DEPARTMENT (N.M.C.D.), CENTURION INCORPORATED, and OTERO COUNTY PRISON FACILITY (O.C.P.F.) MEDICAL SCHEDULING COORDINATOR-NURSE HERNANDEZ, Defendants, Case No. CV 17-00771 MCA/SMV (D. N.M.), Judge M. Christina Armijo of the U.S. District Court for the District of New Mexico (i) granted in part and denied in part Centurion's Motion to Dismiss for Failure to State a Claim on Which Relief Can Be Granted; (i) denied Martin's Motion to Certify Cause as a Class Action; and (iii) denied as moot the Plaintiffs' Motion to Sever and Remand, and the Defendants' Motion to Amend and Correct Plaintiff's Address. At the time he filed his Complaint, Martin was an inmate incarcerated at the Otero County Prison Facility ("OCPF") in Chaparral, New Mexico. He filed his Complaint (Tort) in the State of New Mexico, County of Santa Fe, First Judicial District Court on May 24, 2017. In his Complaint, Martin states that it is a tort suit authorized by the New Mexico Tort Claims Act, and asserts jurisdiction under the New Mexico Tort Claims Act. Martin's Complaint alleges violation of his rights under the Eighth Amendment of the United States Constitution and Article Two Section Thirteen and Article Eight of the New Mexico Constitution. He also sets out a claim that he is being denied hygiene items that the New Mexico Corrections Department ("NMCD") is contractually obligated to provide. Martin names, as the Defendants, NMCD, Centurion, and OCPF Medical Scheduling Coordinator, Nurse Hernandez. Defendant Centurion removed the case to the Court on July 26, 2017, asserting federal question jurisdiction based on Martin's allegations of violation of his Eighth and Fourteenth Amendment rights. Centurion then filed a Motion to Dismiss under Fed. R. Civ. P. 12(b)(6) on Aug. 2, 2017. It seeks dismissal on the grounds that the Complaint fails to state an Eighth or Fourteenth Amendment claim against it. Although Plaintiff Martin received an extension of time to file a response to the Motion to Dismiss, Martin did not file any response to the Motion. Instead, Plaintiff Martin filed two motions. First, he filed a Motion to Certify Cause as a Class Action Case. The Defendant Centurion responded in opposition to the Motion to Certify on Aug. 22, 2017. Defendant Hernandez joined in Centurion's Response on Aug. 25, 2017. Second, Martin filed a Motion to Sever and Remand. In his Motion to Sever and Remand, Martin argues that he is asserting claims under the New Mexico Constitution and laws, and that his New Mexico state law claims should be severed and remanded back to the First Judicial District Court. Defendant Centurion opposes the Motion to Sever and Remand, and Defendant Hernandez joins in that opposition. Defendant New Mexico Corrections Department has also filed a Motion seeking to correct the Plaintiff's address of record to reflect that Martin is currently incarcerated at the Roswell Correctional Center in Hagerman, New Mexico. On Dec. 29, 2017, Plaintiff Martin filed a Notice of Change of Address, changing his address of record to the Roswell Correctional Center in Hagerman, mooting the Defendant's Motion. Judge Armijo finds that Plaintiff Martin has filed a pro se Motion to Certify Cause as a Class Action Case. A plaintiff may not, acting pro se, maintain claims on behalf of a class. She will deny Martin's Motion to Certify Cause as a Class Action Case. The Judge also finds that the Complaint fails to state any federal claim for relief against the New Mexico Corrections Department, Nurse Hernandez, or Centurion. The Complaint also does not allege a factually plausible Section 1983 claim against Defendant Hernandez. The Complaint does not allege any individualized conduct by Defendant Martinez in violation of Plaintiff's Eighth Amendment rights. Lastly, the allegations of the Complaint fail to show the requisite affirmative link between Centurion and the alleged Eighth Amendment violation. Although Martin asserts that Centurion has a custom of delaying community medical care, he does not allege any facts to support this assertion. Nor does he specify any policy of Centurion that he claims caused an Eighth Amendment violation. She concludes that the Complaint does not state a plausible Section 1983 claim for relief against the New Mexico Corrections Department, Nurse Hernandez, or Centurion. The Judge will therefore grant Defendant Centurion's Motion to Dismiss, to the extent it seeks dismissal of the Eighth and Fourteenth Amendment claims in the case, and will dismiss all federal claims. Finally, Judge Armijo is dismissing all federal claims in the case. She declines to exercise supplemental jurisdiction over Plaintiff Martin's remaining state law claims, and will remand the proceeding to state court for adjudication of those state law claims. For these reasons, Judge Armijo (i) granted in part and denied in part Centurion's Motion to Dismiss for Failure to State a Claim on Which Relief Can Be Granted; (i) denied Martin's Motion to Certify Cause as a Class Action; and (iii) denied as moot the Plaintiffs' Motion to Sever and Remand, and the Defendants' Motion to Amend and Correct Plaintiff's Address. She dismissed all federal claims in Martin's Complaint for failure to state a claim for relief under Fed. R. Civ. P. 12(b)(6) and declined to exercise supplemental jurisdiction over any state law claims. She remanded the case to the State of New Mexico, County of Santa Fe, First Judicial District Court for adjudication of Plaintiff Martin's state law claims. A full-text copy of the Court's March 7, 2018 Memorandum Opinion and Order is available at https://is.gd/sVg4Ch from Leagle.com. James S. Martin, Plaintiff, pro se. New Mexico Corrections Department, (N.M.C.D.), Defendant, represented by Paula E. Ganz, New Mexico Corrections Office. Centurion Incorporated, Defendant, represented by Lawrence M. Marcus, Park & Associates, LLC, Alfred A. Park, Park & Associates, LLC & Geoffrey D. White, Park & Associates, LLC. FNU Hernandez, Nurse, Medical Scheduling Coordinator, Otero County Prison Facility, Defendant, represented by Kurt Wihl -- kw@keleher-law.com -- Keleher & McLeod PA & Zachary R. Cormier -- rc@keleher-law.com -- Keleher and McLeod P.A. NEW MILLENNIUM: Fails to Pay for OT, Camarillo & Sandoval Claim --------------------------------------------------------------- MARLENE E. CAMARILLO and SAUL AMARO SANDOVAL, individually and on behalf of all others similarly situated and the California general public, the Plaintiffs, v. NEW MILLENNIUM PRIVATE LIMITED, a California corporation; SUMER SURI; ARCHANA SURI; DOES 1 through 100, inclusive, the Defendants, Case No. BC702002 (Cal. Super. Ct., April 12, 2018), seeks to recover unpaid warned wages and overtime pay under the California Labor Code and Industrial Welfare Commission Order. The Plaintiffs were employed by Defendants as employees paid by the hour to work at Subway sandwich franchise. Marlene E. Camarillo was employed as a sandwich artist. Saul Amaro Sandoval was employed as a manager. At all times relevant, the Defendants failed to pay Plaintiffs and the Class the overtime rate required by Industrial Welfare Commission Order No. 5-2001 and Labor Code section 510 by, among other things, only paying the Plaintiffs and the Class their regular hourly rate (straight time) for the overtime hours Plaintiffs and the Class worked- Defendants only paid overtime pay for hours worked in excess of 80 hours during a 2-week pay period; the Defendants failed to have a meal and rest period policy and/or had an illegal meal and rest period policy, failed to provide Plaintiffs and the Class with meal and rest periods required by law, and failed to pay Plaintiffs and the Class the additional hour of wages (premium wages) they are owed under Labor Code section 226.7 for each meal and rest period that was not provided; Defendants failed to pay the Plaintiffs and the CLASS all overtime and premium wages after their separation from their employment with Defendants; and Defendants failed to provide Plaintiffs and the Class with accurate wage statements. New Millennium engages in the mining and exploration of diamond properties in Angola, in southern Africa.[BN] The Plaintiff is represented by: Stephen Glick, Esq. M. Anthony Jenkins, Esq. LAW OFFICES OF STEPHEN GLICK 1055 Wilshire Boulevard, Suite 1480 Los Angeles, CA 90017 Telephone: (213) 387 3400 Facsimile: (213) 387 7872 NEW YORK, NY: Housing Authority Sued over Heat and Water Services ----------------------------------------------------------------- A'SEELAH DIAMOND and RUTH BRITT, on behalf of themselves and a class of those similarly situated, the Plaintiff, v. NEW YORK CITY HOUSING AUTHORITY and OYESHOLA OLATOYE, in her official capacity as Chairperson of the New York City Housing Authority, the Defendants, Case No. 153312/2018 (N.Y. Sup. Ct., April 12, 2018), seeks full rent abatement for heat and/or hot water outages, reflecting the diminution in the value of Plaintiffs' homes in an amount to be determined at trial, along with consequential and punitive damages. According to the complaint, the Defendants have failed to maintain Plaintiffs' residences in accordance with the uses reasonably intended by the Plaintiffs. The Defendants had notice of heat and/or hot water outages, but either failed to correct them, or allowed them to remain uncorrected for days or even weeks at a time. By reason of their failure to make timely repairs and maintain heat and/or hot water services, the Defendants have breached the warranty of habitability under New York Real Property. As a result of this breach, Defendants have caused the value of the Plaintiffs' apartments to be diminished. The New York City Housing Authority provides housing for low and moderate income residents throughout the five boroughs of New York City. NYCHA also administers a citywide Section 8 Leased Housing Program in rental apartments.[BN] The Plaintiff is represented by: Wesley Powell, Esq. Martin Seidel, Esq. Mary Eaton, Esq. WILLKIE FARR & GALLAGHER LLP 787 Seventh Avenue New York, NY 10019 Telephone: (212) 728 8000 - and - Judith Goldiner, Esq. Lucy Newman, Esq. Jennifer Levy, Esq. THE LEGAL AID SOCIETY 199 Water Street, 3rd Floor New York, NY 10038 Telephone: (212) 577 3300 NMN FOOD: Montenegro Seeks Minimum Wage & Overtime under FLSA ------------------------------------------------------------- NEIL SANCHEZ MONTENEGRO, individually and on behalf of others similarly situated, the Plaintiff, v. NMN FOOD LLC (D/B/A HUMMUS KITCHEN), SHARON HOOTA, PFER COHEN, ODET DOE and ASHLEY DOE, the Defendants, Case No. 1:18-cv-03153 (S.D.N.Y., April 10, 2018), seeks to recover minimum wage and overtime pay under the New York Labor Law and the Fair Labor Standards Act. The Plaintiff is a former employee of Defendants. The Defendants own, operate, or control a Mediterranean Restaurant, located at 768 9th Ave, New York, New York 10019 under the name "Hummus Kitchen". The Plaintiff was ostensibly employed as a delivery worker. However, he was required to spend a considerable part of his work day performing non-tipped duties, including but not limited to cleaning the basement, taking out the trash, bringing products from the basement to the restaurant, folding card boxes and stocking deliveries ("non-tipped duties"). The Plaintiff worked for Defendants in excess of 40 hours per week, without appropriate minimum wage, overtime, and spread of hours compensation for the hours that he worked. Rather, the Defendants failed to maintain accurate recordkeeping of the hours worked, failed to pay Plaintiff Sanchez appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium. Further, Defendants failed to pay Plaintiff Sanchez the required "spread of hours" pay for any day in which he had to work over 10 hours a day. Furthermore, Defendants repeatedly failed to pay Plaintiff Sanchez wages on a timely basis.[BN] The Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, New York 10165 Telephone: (212) 317 1200 Facsimile: (212) 317 1620 E-mail: Faillace@employmentcompliance.com NORTEL NETWORKS: Class Action Against Former Execs Dismissed ------------------------------------------------------------ Almost ten years after former top executives of bankrupt telecom giant Nortel were hit with a proposed shareholder class action, the case recently concluded -- with the dismissal of all claims against the defendants. Global law firm Morrison & Foerster represented the defendants, former Nortel CEO Mike Zafirovski and CFO Pavi Binning, in the significant securities case in the Southern District of New York. Joel Haims, Esq. -- jhaims@mofo.com -- the co-chair of MoFo's Securities Litigation, Enforcement, and White-Collar Defense Group, was a member of the MoFo team on the case. The ruling by US District Judge Denise Cote dismissed all claims against the defendants, finding no material misstatements or omissions and no intent to defraud. The proposed class action had been filed in 2009 against Mr. Zafirovski and Binning shortly after Nortel's bankruptcy during the financial crisis; the complaint alleged claims relating to financial projections and goodwill impairment under federal securities law. (Nortel was not a defendant in the case.) With Nortel headquartered in Canada, the case involved cross- border issues related to the Canadian and U.S. bankruptcy proceedings of the company, formerly a well-known name in the technology industry. The case had been stayed due to Nortel's bankruptcy proceedings, but the Canadian bankruptcy court recently issued an order to lift the stay, permitting litigation to continue in the Southern District of New York, and its dismissal. The MoFo team on the matter included Joel C. Haims, Jamie A. Levitt, Esq. -- jlevitt@mofo.com -- James J. Beha II, Esq. -- jbeha@mofo.com -- Steven T. Rappoport, Esq. -- srappoport@mofo.com -- Christina L. Golden, Esq. -- cgolden@mofo.com -- and Lauren M. Gambier, Esq. -- lgambier@mofo.com A full-text copy of Judge Cote's Decision is available at https://tinyurl.com/ydawpgcn from Leagle.com. NORTHEAST CREDIT: Court Narrows Claims in "Walbridge" EFTA Suit --------------------------------------------------------------- Judge Joseph A. DiClerico, Jr. of the U.S. District Court for the District of New Hampshire granted in part and denied in part the Defendant's motion to dismiss the case, Joseph Walbridge, Individually and on Behalf of All Others Similarly Situated, v. Northeast Credit Union and Does 1 through 100, Civil No. 17-cv- 434-JD (D. N.H.). Walbridge brings a putative class action to challenge the practices of Northeast Credit Union to charge overdraft fees when customers' accounts held funds to cover the transactions. He alleges claims for breach of contract, breach of the implied duty of good faith and fair dealing, unjust enrichment, money had and received, and violation of Regulation E, 12 C.F.R. Section 1005.17, of the Electronic Fund Transfers Act ("EFTA"). Walbridge had a checking account and a debit card with Northeast Credit Union that was originated by the Share Account Agreement. He also completed the Opt In Form for overdraft transactions. His claims in the case arise from overdraft fees charged by Northeast based on the "available balance" in his account rather than the balance shown on the account, called the "ledger balance" or "actual balance." The difference between the available balance and the actual balance results from the way Northeast credits deposits made to an account and reduces the balance by debits that are pending but not yet paid. As a result, the available balance can be less, and even considerably less, than the actual balance, depending on the delay in crediting deposits and the anticipatory deductions of pending debits. Northeast then assesses an overdraft fee when the available balance is insufficient to cover a transaction, even though the actual balance shows enough money to cover the transaction. Walbridge alleges that on March 15, 2016, he had an actual balance in his Northeast checking account of $111.09. He made a debit card payment of $32.43, which left a balance of $78.66. Northeast, however, determined that he had insufficient funds and charged an overdraft fee of $32. Northeast then assessed additional overdraft fees of $320 on March 29 and March 30, 2016. Walbridge believes that subsequent improper overdraft fees were charged but provides no allegations in support. Walbridge alleges that Northeast breached the Account and Opt In Agreements and the implied duty of good faith and fair dealing by charging him overdraft fees when the actual balance showed there was money in his account to cover the transactions. He also brings equitable claims for unjust enrichment and money had and received. In addition, Walbridge alleges that Northeast violated Regulation E of EFTA by failing to disclose its overdraft policy. Northeast moves to dismiss all claims. It moves to dismiss Walbridge's breach of contract claims and EFTA claim on the grounds that it did not promise to use the actual balance for its overdraft service and instead properly explained its overdraft policy based on the available balance. It moves to dismiss the EFTA claim on the merits and asserts that the claim is barred by the statute of limitations and the "safe harbor" provision. Northeast moves to dismiss the equitable claims because valid contracts control the issues raised. Walbridge objects to the motion to dismiss. Judge DiClerico granted in part and denied in part the Defendant's motion to dismiss. It is granted as to Claim 4 (unjust enrichment and restitution), Claim 5 (money had and received), and Claim 6 (violation of EFTA). The motion is otherwise denied. The Judge, finds among other things, that Northeast has not shown that the only reasonable meaning of "enough money," "insufficient funds," and "nonsufficient funds" is the available balance. The Account Agreement and the Opt In Agreement could be reasonably understood to promise that overdraft fees would be charged only if a customer overdrew the actual balance in the account. Therefore, Walbridge states claims for breach of the Opt In and the Account Agreements. He also finds that Northeast has not shown that the Agreements promised to charge overdrafts based on the available balance. For that reason, Northeast has also not shown that Walbridge fails to state a claim for breach of the implied duty. He further finds that the safe harbor provided by Section 1693m(d)(2) does not apply to Walbridge's claim that Northeast violated EFTA by inaccurately describing its overdraft service. The reasoning in Tims v. LGE Community Credit Union is strained at best and, therefore, not persuasive. The safe harbor does not apply to Walbridge's claim in the case. A full-text copy of the Court's March 7, 2018 Order is available at https://is.gd/AAgUus from Leagle.com. Joseph Walbridge, Plaintiff, represented by Sean T. O'Connell, Shaheen & Gordon PA, Jae K. Kim -- jkk@mccunewright.com -- McCune Wright Arevalo LLP, pro hac vice, Richard D. McCune -- rdm@mccunewright.com -- McCune Wright Arevalo LLP, pro hac vice, Taras Kick, Kick Law Firm APC, pro hac vice & Christine M. Craig, Shaheen & Gordon PA. Northeast Credit Union, Defendant, represented by Andrew J. Demko, Katten Muchin Rosenman LLP, pro hac vice, Russell F. Hilliard, Upton & Hatfield LLP, Stuart M. Richter -- stuart.richter@kattenlaw.com -- Katten Muchin Rosenman LLP, pro hac vice & Brooke Lois Lovett Shilo, Upton & Hatfield LLP. NORTHWOOD DESIGN: Violates Wage and Hour Laws, Henderson Says ------------------------------------------------------------- DE' ANTE L. HENDERSON, an individual, on behalf of himself and others similarly situated, the Plaintiff, v. NORTHWOOD DESIGN PARTNERS, INC.; and DOES 1 thru 50, inclusive, the Defendants, Case No. RG18900287 (Cal. Super. Ct., April 10, 2018), seeks to recover damages and penalties as a result of Defendant's failure to provide meal breaks pursuant to the California Labor Code. According to the complaint, the Defendant has had a consistent policy of failing to inform Proposed Class Members of their right to take meal periods by way of a lawful policy and requiring Proposed Class Members within the State of California, including Plaintiff, to work at least five hours without a timely meal period and failing to pay such employees one hour of pay at the employees' regular rate of compensation for each workday that the meal period is not provided or provided after five hours, as required by California state wage and hour laws. Northwood Design, founded in 1980, is a custom furniture manufacturer that specializes in designing and manufacturing finely crafted wood furniture and architectural case work for business and institutional communities.[BN] The Plaintiff is represented by: Eric B. Kingsley, Esq. Kelsey M. Szamet, Esq. KINGSLEY & KINGSLEY, APC 16133 Ventura Blvd., Suite 1200 Encino, CA 91436 Telephone: (818) 990 8300 Facsimile: (818) 990 2903 E-mail: eric@kingsleykingsley.com kelsey@kingsleykingsley.com ODEBRECHT CONSTRUCTION: "Angel" Suit Seeks OT Wages under FLSA -------------------------------------------------------------- FEDERICO VILLEGAS-RIVAS, RYAN EHRLICHER, FERNANDO ANGEL, LUIS GALVAN, DANIEL CARDENAS, AND GERARDO HERNANDEZ, individually and on behalf of all others similarly situated, the Plaintiffs, v. ODEBRECHT CONSTRUCTION, INC., AND ZACHRY CONSTRUCTION CORPORATION, the Defendants, Case No. 4:18-cv-01181 (S.D. Tex., April 13, 2018), seeks to recover unpaid overtime wages under the Fair Labor Standards Act. The Defendants, individually and jointly, employed Plaintiffs and other similarly situated employees at all relevant times within the meaning of the FLSA. The Plaintiffs and other similarly situated employees were employed as working Foreman. Their primarily duties included, but were not limited to, working side- by-side with other laborers while performing manual tasks -- for example, laying concrete foundation, driving concrete trucks and performing all task as instructed and necessary for the construction of the freeway project, known as "SH99 Grand Parkway" segments F-1, F-2 and G. The Plaintiffs and other similarly situated employees did not have any formal training, did not interview employees, were not in charge of the hiring and firing of employees, did not set or adjust employees' rate of pay and were not engaged in office and/or non-manual work. The Plaintiffs regularly worked many hours in excess of 40 hours per week for Defendants. In performing their duties, the Plaintiffs routinely worked up to, and in excess of, 12-16 hours per day, six days per week. Other similarly situated employees also customarily and regularly worked many hours in excess of 40 hours per week and were paid in a fashion similar to Plaintiffs. The work performed by Plaintiffs and other similarly situated employees was within Defendants' knowledge and control. The Defendants set Plaintiffs and similarly situated employee's schedules, assigned work, and supervised their work. The Defendants required Plaintiffs and similarly situated employees to manually record their time daily, then would pay them a "fixed salary" for the first 40 hours of work. To "incentivize" Plaintiffs and similarly situated employees to work over 50 hours a week, Plaintiffs received no pay for hours worked between forty 40 hours and 50 hours. Zachry Construction is a Texas-based corporation providing construction and transportation services from highway and runway construction to maintenance of bridges and tunnels. Its annual revenues far exceeded $500,000 in each of the last five years.[BN] The Plaintiff is represented by: Alfonso Kennard, Jr., Esq. Keenya Harrold, Esq. KENNARD RICHARD PC 2603 Augusta Drive, Suite 1450 Houston, TX 77057 Telephone No.: (713) 742 0900 Facsimile No.: (713) 742 0951 E-mail: Alfonso.Kennard@kennardlaw.com PENNSYLVANIA: Faces Class Action Over Excessive Turnpike Tolls -------------------------------------------------------------- Peter Hall, writing for The Morning Call, reports that groups representing truckers and other motorists asked a federal judge on April 2 to halt the Pennsylvania Turnpike Commission's payments to PennDOT for transportation projects around the state while the court decides their claims that turnpike tolls are unconstitutionally excessive. The organizations sued in March, alleging the commission collects in tolls more than twice what it costs to operate the 550-mile highway system. Because the tolls bear little relationship to the use of the Turnpike or the benefit they receive, they violate the U.S. Constitution's protection of the right to travel and limitation on state laws that affect interstate commerce, the proposed class action lawsuit claims. In the 2017 fiscal year, the Turnpike's toll revenue of more than $1.1 billion was more than double its operating expenses of $517 million, according to the commission's annual financial report. The commission has increased tolls for the last 10 years and has projected additional increases until 2044 to pay for obligations to pay for transportation elsewhere in the state. Under a 2007 transportation funding plan, the Turnpike commission pays PennDOT for aviation, freight and passenger rail and marine transportation projects across Pennsylvania to the tune of $450 million a year. Under a 2013 amendment, the Turnpike's payments will drop to $50 million a year, but not until 2023. The programs, which include projects such as a transportation facility with bicycle parking and kayak storage, and the restoration of stone bridges on a Philadelphia-area commuter rail line, should not be paid for with Turnpike tolls, the suit says. Truckers sue Pennsylvania Turnpike over "excessive" tolls "The excess money is being spent on things that provide no benefit to you as Turnpike users," said Washington, D.C., attorney Paul D. Cullen Sr., whose firm represents the truckers and other motorists. Turnpike spokesman Carl DeFebo did not return a call. A spokesman for Gov. Tom Wolf, who is also named as a defendant, declined comment. In its filing on April 2, the Owner Operator Independent Drivers Association, which represents truckers, and the National Motorists Association, which advocates for drivers' rights, argued the court must ensure the Turnpike commission will be able to repay Turnpike users if the suit is successful. To do that, the court must halt its payments to PennDOT. The commission's next quarterly payment to PennDOT is due April 30, the filing notes, arguing that the need for an injunction is immediate. The filing also argues that the Turnpike commission has issued $5.8 billion in bonds on which it pays principal and interest to private bondholders. Once the commission uses toll revenue to repay its debt, the plaintiffs will not have a realistic chance of recovering the money, the filing says. The plaintiffs would also be unable to recover the toll money if the Turnpike commission uses it to issue additional bonds or PennDOT uses it to fund projects unrelated to the Turnpike, the filing states. Arguing that the plaintiffs are likely to prevail in their claims that the tolls are unconstitutionally excessive, the filing highlights a similar case in New York, where truckers challenged the use of New York Thruway tolls to pay for the restoration and upkeep of the state's historic canal system. The court found that the 9 to 14 percent of thruway users' tolls that supported the canal system made them unconstitutionally excessive. "The truckers may wish to enjoy bike paths, hiking trails, and museums while on vacation, but they are irrelevant when sitting in the cab of an eighteen wheeler," the court said. The decision was later overturned when an appeals court found that Congress explicitly authorized the use of excess tolls to fund the canal system. The same conclusions apply to Pennsylvania Turnpike tolls, the truckers and motorists associations argue. Tolls are being diverted to projects unrelated to the Turnpike, a fact which officials touted in 2008 after the passage of the funding plan and just before a 25 percent increase in tolls took effect, the suit notes. "Turnpike tolls should be spent on operations, maintenance, reconstruction, and improvements on the Turnpike itself, including rest stops and service plazas, law enforcement to patrol the Turnpike, and other costs that are functionally related to and benefit Turnpike travelers," the filing says. [GN] PERLOFF PROVIDENCE: Gym Membership Deceptive, Robertson Alleges --------------------------------------------------------------- STUART ROBERTSON, on behalf of himself and a class of similarly situated individuals, the Plaintiff, v. PERLOFF PROVIDENCE STUDIO 2, LLC, D/B/A ORANGETHEORY FITNESS CHICAGO LAKEVIEW, IL and ULTIMATE FITNESS GROUP, LLC, D/B/A ORANGETHEORY FITNESS, the Defendants, Case No. 2018CH04753 (Ill. Cir. Ct., Cook Cty., April 12, 2018), seeks to recover compensatory damages, costs of suit, and such other or further relief as the Court deems proper under the Illinois Physical Fitness Services Act, the Illinois Consumer Fraud and Deceptive Business Practices Act, and common law. According to the complaint, on March 14, 2018, the Plaintiff visited Orangetheory Fitness-Lakeview, IL in response to an offer to attend a free session. After attending the free session, the Plaintiff signed up for an Elite Membership. Orangetheory Fitness charged plaintiff the $129 monthly membership amount on March 15, 2018, after initially overcharging him for a higher priced plan. The Plaintiff was not provided a written copy of the contract he signed on that date. Prior to visiting Orangetheory Fitness, the Plaintiff had seen promotional materials from Orangetheory Fitness which indicated that their policy was to allow cancellation of their contracts with 30 days notice. The Orangetheory Fitness web page associated with the offer of one free class contains an icon which suggests there is a "Money Back 30 Day Guarantee". On March 16, 2018, after attending the one free class, and two classes under his contract, the Plaintiff contacted the Lakeview studio manager at Orangetheory Fitness by email and indicated he might want to look for another gym due to issues with the workouts. The studio manager responded on March 19, with an email stating that it he did chose to cancel, he would be billed one more time in April -- on April 15 -- and that he would need to fill out documents in order to do so. The Plaintiff responded by asking: "Do I understand correctly that there is a 2 month minimum signup. As in the day I signed up I was charged, and I would have had to cancel that day to avoid the next month's payment?" The studio manager responded by emailing: "When you sign up for your membership it is essentially a 2 month min agreement if you were to sign up for a membership and cancel on the same day. You would still have to be billed for April if you canceled on the same day as you signed up." After receiving that email, on March 19, the plaintiff notified the studio manager by email that he was canceling his membership, and that he would request that his credit card company block the next Orangetheory Fitness charge.[BN] The Plaintiff is represented by: Daniel A. Edelman Tara L. Goodwin EDELMAN, COMBS, LATTURNER & GOODWIN, LLC 20 S. Clar St. Suite 1500 Chicago, IL: 60603 Telephone: (312) 739 4200 Facsimile: (312) 419 0379 PIRON LLC: Court Denies Aero's Bid to Dismiss "Ali" FLSA Suit ------------------------------------------------------------- Judge Linda V. Parker of the U.S. District Court for the Eastern District of Michigan, Southern Division, denied Aero's Motion to Dismiss the case, SUHAIL ALI, SHALAN ALMANSOOB, QASEM SALEH, and KASSEM DUBAISHI, on behalf of themselves and all other persons similarly situated, Plaintiffs, v. PIRON, LLC, STEVE HANNAH, CRAIG MONROE, REYNOLDS QUALITY INSTALLATIONS, LLC, RODERICK REYNOLDS JR., AERO COMMUNICATIONS, INC. and COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC, Defendants, Civil Case No. 17-cv- 11012 (E.D. Mich.). The Plaintiffs filed the putative class action lawsuit against the Defendants on March 30, 2017, alleging minimum wage and overtime wage violations of the Fair Labor Standards Act ("FLSA"). The Plaintiffs allege that the Defendants are joint employers who misclassified them as independent contractors in order to circumvent the protections of FLSA. Comcast is a global media and technology provider of video, high- speed Internet, and phone services. To expand its services and enlarge its Michigan customer base, it subcontracted its cable installation and repair services to Aero. To meet Comcast's business demands, Aero contracted with Piron, owned and operated by Hannah, and Reynolds Quality, which is owned and operated by Reynolds, who provided cable technicians for Comcast's repair and installation services. The Plaintiffs learned of the cable technician positions from Monroe, one of Piron's corporate officers, and submitted applications for employment. According to them, both Piron and Reynold's Quality paid them. They allege the pay was inconsistent and varied in the form of cash, personal checks and money orders. They stated that they never received time records and were charged for unsatisfactory services, including charges for faulty equipment and unhappy customers. They allege they worked 12-hour shifts six days a week but were not paid minimum wage and did not receive overtime wages. The Plaintiffs eventually ended their employment with the Defendants and initiated the putative class action lawsuit on March 30, 2017. They allege the Defendants are joint employers who misclassified Plaintiffs as independent contractors. According to them, the Defendants owe them minimum wage and overtime wage benefits for willfully violating FLSA. In response to the Plaintiffs' Complaint, on May 26, 2017, Aero filed a motion to dismiss, alleging the Plaintiffs failed to allege sufficient facts establishing that Aero was a joint employer pursuant to FLSA. The Plaintiff filed a response on June 15, 2017, and Aero filed a reply on June 29, 2017. On May 9, 2017, the Plaintiffs filed a motion for conditional class certification, which remains pending before the Court. On Sept. 28, 2017 and Oct. 9, 2017, the summons for Reynolds Installations and Reynolds was returned unexecuted. On Oct. 12, 2017, the clerk entered default against Monroe for failing to respond to the Complaint. On Oct. 27, 2017, the Plaintiffs requested the Court reserve on default judgment against Monroe until damages are proven. Judge Parker finds that the Plaintiffs have pleaded sufficient factual allegations for the Court to draw reasonable inferences that Aero was a joint employer. Contrary to Aero's position, the Plaintiffs do not need to plead detailed factual allegations about the Defendants' employment arrangements. She says the Plaintiffs have sufficiently alleged that Aero contracted with Reynolds Quality Installations and Piron for the cable installation and repair work. The Judge can make a reasonable inference that through this arrangement, Aero indirectly controlled or supervised the Plaintiffs. It is reasonable that Aero had the ability to control the terms and conditions of employment, especially in light of the requirement that the Plaintiffs reported to Aero's warehouse at 7a.m. each workday and wore badges that contained Aero's logo. Also, Aero provided the tools the Plaintiffs needed to perform their work. Although it is unclear as to the degree of Aero's control, the Judge finds that the Complaint allows the Court to make reasonable inferences that Aero was involved in the employment relationship with the Plaintiffs and the Defendants. The parties have not had the benefit of discovery to review documents, such as internal communications, disciplinary records, payroll and other documents that could shed light on the employment relationship between Aero and the other the Defendants. Simply put, she finds the motion to dismiss premature. Because the Plaintiffs have alleged sufficient facts to survive Aero's motion to dismiss, Judge Parker denied Aero's motion to dismiss. She directed Aero to file an Answer to the Plaintiffs' Complaint, no later than 14-days from the date of the Order. A full-text copy of the Court's March 7, 2018 Opinion and Order is available at https://is.gd/NFw9cJ from Leagle.com. Suhail Ali, Shalan Almansoob, Qasem Saleh, Kassem Dubaishi & Larry Davis, Plaintiffs, represented by Bryan Yaldou -- bryan@yaldoulaw.com -- Yaldou Law. Comcast Cable Communications Management, LLC, Defendant, represented by Eric J. Pelton -- epelton@kohp.com -- Kienbaum, Opperwall & Julia T. Baumhart -- jbaumhart@kohp.com -- Kienbaum, Opperwall. Piron, LLC, Defendant, Pro Se. Aero Communications, Inc., Defendant, represented by Daniel J. Bretz, Clark Hill & Ellen E. Hoeppner, Clark Hill PLC. Steve Hannah, Defendant, Pro Se. PLY GEM: June 29 Securities Settlement Fairness Hearing Set ----------------------------------------------------------- The following statement is being issued by Robbins Geller Rudman & Dowd LLP regarding the In re PLY GEM Holdings, Inc., Securities Litigation UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK In re PLY GEM HOLDINGS, INC., SECURITIES LITIGATION This Document Relates To: ALL ACTIONS. Civil Action No. 1:14-cv-03577-JPO CLASS ACTION SUMMARY NOTICE TO: ALL PERSONS WHO PURCHASED OR ACQUIRED THE COMMON STOCK OF PLY GEM HOLDINGS, INC. ("PLY GEM") DURING THE PERIOD FROM MAY 23, 2013 TO DECEMBER 15, 2014, INCLUSIVE YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States District Court for the Southern District of New York, that a hearing will be held on June 29, 2018, at 10:30 a.m., before the Honorable J. Paul Oetken, United States District Judge, at the United States District Court for the Southern District of New York, Thurgood Marshall United States Courthouse, 40 Foley Square, New York, NY 10007, for the purpose of determining: (1) whether the proposed Settlement of the above-captioned Action, as set forth in the settlement agreement reached between the parties, consisting of Twenty-Five Million, Nine Hundred Fifty Thousand Dollars ($25,950,000.00) in cash, should be approved as fair, reasonable, and adequate to the Members of the Class; (2) whether the release by Class Members of claims as set forth in the settlement agreement should be authorized; (3) whether the proposed plan to distribute the settlement proceeds (the "Plan of Allocation") is fair, reasonable, and adequate; (4) whether the application by Lead Plaintiff's counsel for an award of attorneys' fees and expenses and the expenses of Lead Plaintiff should be approved; and (5) whether the Judgment, in the form attached to the settlement agreement, should be entered. Please note that the date, time and location of the settlement hearing are subject to change without further notice. If you plan to attend the hearing, you should check the docket or contact Lead Counsel (identified below) to be sure that no change to the date, time or location of the hearing has been made. IF YOU PURCHASED OR ACQUIRED ANY OF THE COMMON STOCK OF PLY GEM DURING THE PERIOD FROM MAY 23, 2013 THROUGH DECEMBER 15, 2014, INCLUSIVE, YOUR RIGHTS WILL BE AFFECTED BY THE SETTLEMENT OF THIS LITIGATION. If you have not received a detailed Notice of Pendency and Proposed Settlement of Class Action ("Notice") and a copy of the Proof of Claim and Release form ("Proof of Claim"), you may obtain copies by writing to Ply Gem Securities Litigation, Claims Administrator, c/o GCG, P.O. Box 10552, Dublin, OH 43017-7252, or on the internet at www.plygemsecuritiessettlement.com. If you are a Class Member, in order to share in the distribution of the Net Settlement Fund, you must submit a Proof of Claim by mail (postmarked no later than June 29, 2018) or submitted electronically no later than June 29, 2018, establishing that you are entitled to recovery. Unless the deadline is extended, your failure to submit your Proof of Claim by the above deadlines will preclude you from receiving any payment from the Settlement. If you are a Class Member and you desire to be excluded from the Class, you must submit a request for exclusion such that it is received no later than June 8, 2018, in the manner and form explained in the detailed Notice, referred to above. All Members of the Class who do not timely and validly request exclusion from the Class will be bound by any judgment entered in the Action pursuant to the Stipulation and Agreement of Settlement. Any objection to the Settlement, the Plan of Allocation of settlement proceeds, or the fee and expense application must be mailed to each of the following recipients, postmarked no later than June 8, 2018: CLERK OF THE COURT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DANIEL PATRICK MOYNIHAN UNITED STATES COURTHOUSE 500 Pearl Street New York, NY 10007 Lead Counsel: ROBBINS GELLER RUDMAN & DOWD LLP ROBERT M. ROTHMAN 58 South Service Road, Suite 200 Melville, NY 11747 Counsel for Certain Defendants: PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP GREGORY F. LAUFER 1285 Avenue of the Americas New York, NY 10019-6064 PLEASE DO NOT CONTACT THE COURT, THE CLERK'S OFFICE OR DEFENDANTS REGARDING THIS NOTICE. If you have any questions about the Settlement, you may contact Lead Counsel at the address listed above. DATED: March 20, 2018 BY ORDER OF THE COURT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK PRIVATE MINI: "Young" Suit Seeks Unpaid Overtime under FLSA ----------------------------------------------------------- SHERI YOUNG, the Plaintiff, v. PRIVATE MINI STORAGE MANAGER, INC., the Defendant, Case No. 4:18-cv-01193 (S.D. Tex., April 13, 2018), seeks to recover unpaid overtime from past pay periods, additional equal amount as liquidated damages under section the Fair Labor Standards Act, attorneys' fees, post-judgment interest, and all costs of court. According to the complaint, PMSM paid Ms. Young $125.00 per day. PMSM purported to pay her overtime when she worked more than five days per week, but in fact PMSM used a formula that no one could explain and that did not give Ms. Young time and a half for her overtime. PMSM violated the FLSA by failing to pay Ms. Young overtime in accordance with the FLSA. Ms. Young, seeks compensation individually and on behalf of other persons similarly situated. Private Mini is in the warehousing, self-storage business.[BN] The Plaintiff is represented by: David C. Holmes. Esq. 13201 Northwest Freeway, Suite 800 Houston, TX 77040 Telephone: (713) 586 8862 Facsimile: (713) 586 8863 PROPER HOSPITALITY: Barajas Seeks Unpaid Wages under Labor Law -------------------------------------------------------------- MANUEL ALEJANDRO BARAJAS, an individual, on behalf of the State of CA and all aggrieved employ Attorney General, the Plaintiff, v. PROPER HOSPITALITY, LLC, AVALON PS HM, LLC dba AVALON PALM SPRINGS, and DOES 1-50, inclusive, the Defendants, Case No. BC702238 (Cal. Super. Ct., April 13, 2018), seeks unpaid wages, injunctive relief and restitution under the California Labor Code. The Plaintiff alleges that Defendant failed to provide all required 30-minute minimum meal breaks, failure to provide all required rest breaks, failed to furnish and maintain accurate wage statements and payroll records, and failed to pay all wages owed and other violations of the California Labor Code and Business and Professions Code.[BN] The Plaintiff is represented by: Nazo Koulloukian, Esq. UL LAW FIRM 3435 Wilshire Blvd., Suite 1710 Los Angeles, CA 90010 Telephone: (213) 761 5484 E-mail: nazo@koullaw.com - and - Sahag Majarian, II, Esq. LAW OFFICES OF SAHAG MAJARIAN II 18250 Ventura Blvd. Tarzana, CA 91356 Telephone: (818) 609 0807 Facsimile: (818) 609 0892 PROTOCALL COMMUNICATIONS: Fails to Pay Wages, Sterne Claims ----------------------------------------------------------- ANDREW STERNE c/o 519 H Street NW Washington, DC 20001 (Out of State); ERIN CALLEN c/o 519 H Street NW Washington, DC 20001 (Prince George's County); NICOLE DAVIS c/o 519 H Street NW Washington, DC 20001 (Baltimore County); and SHERMIA JACKSON c/o 519 H Street NW Washington, DC 20001 (Prince George's), the Plaintiffs, v. PROTOCALL COMMUNICATIONS, INC. d/b/a PROTOCALL 204 Main Street Laurel, MD 20707 (Prince George's County); CONSTELLATION NEWENERGY, INC. 1310 Point Street, 8th Floor Baltimore, MD 21231 (Baltimore City); and DEBORAH LIEBEL 2821 Grier Nursery Road Forest Hill, MD 21050 (Harford County), the Defendants, Case No. 8:18-cv-01083-PX (D. Md., April 13, 2018), seeks to recover damages for Defendants willful failure to pay all wages due, in violation of the Maryland Wage Payment and Collection Law. The Plaintiffs worked at Defendants' call center in Maryland selling utility contracts to customers across the United States. The Defendants did not pay Plaintiffs and similarly situated employees all the commissions they had earned. The Plaintiffs and similarly situated employees typically and customarily sold contracts up and through the last day of their employment. However, Defendants typically and customarily did not "book" the sales employees made during their final days of employment until after Plaintiffs had stopped working. The Defendants never paid commissions for these sales to Plaintiffs and similarly situated individuals. In some cases, Defendants did not pay employees commissions on any sales made during their final month of employment. Additionally, without prior authorization, the Defendants made an unlawful automatic deduction for a "seat cost" from the commissions paid to Plaintiffs and similarly situated employees. The Plaintiffs bring their claims as a class action pursuant to Rule 23 on behalf of all individuals who worked as telephone sales representatives for Protocall Communications, Inc. at any point since March 15, 2015, and who were not paid all the commissions that they were due. Protocall Communications operates as a provider of outbound business-to-business telesales for Fortune 1000 companies. Outbound applications include sales and lead generation for high- speed Internet access providers, local and long distance telecom, wireless and video conferencing.[BN] The Plaintiff is represented by: Justin Zelikovitz, Esq. DCWAGELAW 519 H Street NW Washington, DC 20001 Telephone: (202) 803 6083 Facsimile: (202) 683 6102 E-mail: justin@dcwagelaw.com PURDUE PHARMA: Plaintiff Lauds Judge's Move to Block Settlement --------------------------------------------------------------- CBC Radio reports that a judge's decision to block a $20 million lawsuit settlement has been applauded -- by one of the plaintiffs in line for the payout. Stephen MacGillivray is one of hundreds of Canadian patients who took the class action lawsuit against the drugmaker Purdue Pharma (Canada), over how the company marketed the painkiller Oxycontin. "Purdue Pharma knew this drug was addictive, and they blatantly told people that it was not," he told The Current's Anna Maria Tremonti. "They were basically lying to the doctors." Mr. MacGillivray was prescribed the painkiller after a workplace accident in 1997. He said he became addicted within two months, and over the next decade of dependence he lost his job, his family, and ended up with a criminal record. The $20 million settlement had already been signed off by judges in three provinces. But Justice Brian Barrington-Foote of Regina's Court of Queen's Bench rejected the offer on March 15. Part of the judge's reasoning was that "the proposed settlement was not fair, reasonable or in the best interests of the class as a whole," according to Matthew Herder, director of the Health Law Institute at Dalhousie University. Once $2 million of the $20 million sum had been set aside for the provinces, plaintiffs would have received $11,000 to $13,000 each. "Purdue Pharma (Canada) has always marketed its products in line with the Health Canada-approved product monograph and in compliance with all relevant rules, regulations and codes, including the Food and Drugs Act," the company told The Current in a statement. Purdue Pharma have never made an admission of liability in the case. The rejection now creates an opportunity to review the options available to both patients and provincial governments, said Herder. "I think part of the real value of this moment in the middle of this class action is to have a more public conversation about the different legal mechanisms that might be available." He added that if provincial governments decide to follow Justice Barrington-Foote's move away from supporting the class action, they could "try and recover a greater measure of money to deal with the public health crisis." For Mr. MacGillivray, there's more at stake than a cash settlement. "It was really never about the money for me . . . . I would like to see them say that they did wrong," he said. "That's the big thing, and I don't think we're ever going to see that or hear that." [GN] REMINGTON: Wants to Temporarily Halt Rifle Class Action ------------------------------------------------------- Scott Cohn, writing for CNBC, reports that the Chapter 11 bankruptcy of gun manufacturer Remington filed late last month has thrown yet another wrench into a landmark class-action settlement involving allegedly defective rifles that were the subject of a 2010 CNBC investigation. A federal appeals panel in Kansas City is considering the settlement, in which Remington agreed to replace the triggers on millions of guns, including the iconic Model 700 rifle and a dozen other firearms with similar designs. While Remington continues to maintain the guns are safe, class-action plaintiffs claimed the guns are prone to firing without the trigger being pulled. With the case bogged down in court, the trigger replacement program, first announced in 2014, has been on hold. Now, Remington is seeking to halt the class-action case entirely, at least temporarily, under a provision in federal bankruptcy law that automatically stays outside litigation while a bankruptcy case is pending. "As a result of the bankruptcy filing, this appeal is subject to the automatic stay," wrote Remington attorney John Sherk in a filing with the 8th U.S. Circuit Court of Appeals in Kansas City. The court has given the parties two weeks to weigh in on the issue. A federal judge in Kansas City approved the class-action settlement last year, but a pair of Remington rifle owners immediately appealed the ruling. Richard Denney and Lewis Frost accused the company of deliberately downplaying the risks from the guns and failing to properly notify the public of the settlement in order to keep the number of claims low. Remington has denied the allegations, and plaintiffs' attorneys -- who stand to collect $12.5 million in fees -- have defended the settlement as fair. An attorney for Denney and Frost, J. Robert Ates, told CNBC in an e-mail that the Court of Appeals should reject the stay, so that it can reject what he calls a "bogus" settlement and send it back to the District Judge who approved it, Ortrie Smith. "In the final analysis, the best outcome for the class, for the legitimacy of class action settlements, and for the legitimacy of proper notice guaranteed under due process would be for the 8th Circuit to maintain jurisdiction by denying the stay in order to reject the settlement and remand it back to District Judge Smith," Mr. Ates said. Attorneys for Remington and the class action plaintiffs did not respond to multiple requests by CNBC for a comment. Even if the company is successful in its efforts at the Court of Appeals, the stay might not last long. Remington's Chapter 11 bankruptcy, filed on March 25, is "pre-packaged." That means the company has already reached agreement with its major creditors on a restructuring plan. In court filings with the U.S. Bankruptcy Court in Delaware, Remington has said that if creditors and the court approve, it could emerge from bankruptcy protection by this summer. Under the restructuring plan, which allows the company to eliminate more than $600 million in debt, Remington's primary lenders would assume control of the company, while the equity interest of Remington's current owner, Cerberus Capital Management, would be wiped out. Most creditors, including class- action plaintiffs if the settlement is approved, would be paid in full. Creditors have until April 26 to vote on the restructuring plan. [GN] RENEW FINANCIAL: Ocana et al. Sue over Clean Energy Program ----------------------------------------------------------- ZENIA OCANA, an individual; JUAN OCANA LAU, an individual; VIOLETA SENAC, an individual; MARIA ALVAREZ, an individual; and NEPTALI SICAL, an individual, as TRUSTEE OF THE SICAL FAMILYTRUST, the Plaintiffs, v. RENEW FINANCIAL HOLDINGS, INC., a Delaware corporation; RENEW FINANCIAL CORP. II, a Pennsylvania corporation; the COUNTY OF LOS ANGELES; and DOES 1 through 10, the Defendants, Case No. BC701809 (Cal. Super. Ct., April 12, 2018), seeks to enjoin Renew Financial from continuing to engage in deceptive acts and practices, and to recover all monies paid to Defendants in connection with the Property Assessed Clean Energy program, including PACE program and loan fees and all assessments Plaintiffs have paid. According to the complaint, for the last three years, Renew Financial and the County of Los Angeles have spread a plague on thousands of low-income, elderly, and non-native English-speaking homeowners throughout the County. They have done so through a program known as Property Assessed Clean Energy that the California Legislature authorized local governments to implement. The County enacted the program in 2012 and delegated administrative responsibility to Renew Financial and Renovate America in 2015. The conduct of Renovate America is addressed in a separate complaint. Although the County's stated goal was laudable -- to enable homeowners to install energy efficiency, renewable energy, and water-saving improvements to their properties without putting any money down. Incompetent and unscrupulous contractors have mauled their homes, after having sold them unnecessary, overpriced, and defective goods and services. Homeowners have taken on debt beyond their means to repay. The PACE program has depressed the value of their homes, made the homes more difficult to sell, and put them on the edge of foreclosure. Many PACE participants are living hand-to- mouth to hold onto their homes, fearful of what is yet to come. The County's PACE program has many serious flaws. First, Renew Financial approves PACE loans based on the equity in the homeowner's property, not on his or her ability to repay the loan. But no matter how much equity an owner may have in the home, he or she can still lack the income to repay a loan of even a small fraction of that equity. Second, by classifying PACE financing as a tax assessment rather than a loan, the County and Renew Financial have attempted to sidestep traditional regulations and consumer protections that govern loans secured. As a result of Renew Financial's business acts and practices, Plaintiffs and the Class Members have incurred actual financial losses and injuries including first-priority PACE Liens on their homes that require payment and may trigger foreclosure by the County or by preexisting conventional and reverse mortgage lenders. Renew Financial, a clean energy finance company, provides financing products for home improvements in California, Florida, and New York.[BN] The Plaintiffs are represented by: Robert M. Schwartz, Esq. Jason D. Linder, Esq. Grace E. Chuchla, Esq. Todd J. Densen, Esq. IRELL & MANELLA LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, CA 90067-4276 Telephone: (310) 277 1010 Facsimile: (310) 203 7199 E-mail: rschwartz@irell.com jlinder@irell.com gchuchla@irell.com tdensen@irell.com - and - Anne Richardson, Esq. Charles Evans, Esq. Adelaide Anderson, Esq. 610 South Ardmore Avenue Los Angeles, CA 90005 Telephone: (213) 385 2977 Facsimile: (213) 201 4722 E-mail: arichardson@publiccounsel.org cevans@publiccounsel.org aanderson@publiccounsel.org - and - Jenna L. Miara, Esq. Jennifer H. Sperling, Esq. Nicholas A. Levenhagen, Esq. BET TZEDEK LEGAL SERVICES 3250 Wilshire Blvd., 13th Floor Los Angeles, CA 90010-1509 Telephone: (323) 549 5867 Facsimile: (213) 471 4569 E-mail: jmiara@bettzedek.org jsperling@bettzedek.org nlevenhagen@bettzedek.org RENO, NV: Lemon Valley Residents File Flooding Class Action ----------------------------------------------------------- Bridget Chavez, writing for kolotv.com, reports that people affected by the flooding that took place in Lemmon Valley in 2017 have filed a class action law suit against the city of Reno. Now, more residents have the option to opt in by May 1, 2018. "We want to include as many people as possible so that people really get the opportunity to stand up for what is right and what the city should have done in this case," Kerry Doyle, one of the attorneys representing the plaintiffs, says. About 100 people attended the informational meeting at a local church in Lemmon Valley on April 3. Ms. Doyle says those who choose to opt in are not responsible for paying any legal fees. As for damages sought, the plaintiffs are "seeking damages for just compensation for the substantial interference and impact to use of the potential class members' real and personal property." Don Ross has lived in the area since 2004 and says he is now opting in to the suit because of damages to his property. "My concrete is raising and I have cracks in my walls," Mr. Ross says. Ms. Doyle says they will go trial for liability in February 2019 and try to prove that the city did not take all steps to mitigate the flooding. "Our goal is to recover money for the people who have been injured and we're hoping to exert pressure on the city and the county and on developers to make sure proper steps are followed in the future," Ms. Doyle says. Anyone who has been affected by the flooding or who is wanting to opt in should contact the Doyle Law Office at (775)-525-0889. [GN] RETAIL SERVICES: Stores Not Accessible to Disabled, Bell Says ------------------------------------------------------------- RICHARD BELL, on behalf of himself and all others similarly situated, the Plaintiff, v. RETAIL SERVICES & SYSTEMS, INC., the Defendants, Case No. RG18900192 (Cal. Super. Ct., April 10, 2018), seeks to recover statutory damages and reasonable attorneys' fees and costs as a result of Defendant's violation of California's anti-discrimination state statutes, the Unruh Civil Rights Act, California Code, and the California Disabled Persons Act. The Plaintiff alleges that Defendant has violated California state law by violating the ADA and Title 24 by failing to make its stores accessible to individuals with disabilities and by excluding the Plaintiff, and other similarly situated persons, from full and equal enjoyment of the goods, services, programs, facilities, privileges, advantages and/or accommodations of Defendant's stores, and subjecting Plaintiff to discrimination by failing to provide its facilities and other goods, services, programs, facilities, privileges, advantages and/or accommodations to Plaintiff, as well as other similarly situated persons. Retail Services & Systems, Inc., doing business as Total Wine & More, owns and operates wine, beer, and spirit retail stores in Maryland and internationally. The company also offers wine accessories, mixers, soda, and water, as well as cigars and its accessories. It serves customers through its stores, as well as online.[BN] The Plaintiff is represented by: Evan J. Smith, Esq. BRODSKY & SMITH, LLC 119595 Wilshire Blvd. Ste. 900 Beverly Hills, CA 90212 Telephone: (877) 534 2590 Facsimile: (310) 2470160 RITE AID: Court Stays "Kalajian" Pending "Beardsall" Ruling ----------------------------------------------------------- Judge Otis D. Wright, II, of the U.S. District Court for the Central District of California granted the parties' Joint Motion to Stay the case, TINA KALAJIAN, individually and on behalf of a class of similarly situated individuals, Plaintiff, v. RITE AID CORPORATION, a Delaware Corporation, and DOES 1 through 100, inclusive, Defendants, Case No. 2:17-cv-06777-ODW-AGR (C.D. Cal.). The Plaintiff, on behalf of herself and all others similarly situated, filed a suit against the Defendant on Sept. 14, 2017, for improperly advertising, marketing, and selling an "aloe vera gel" without a detectable level of aloe vera. The Plaintiff alleges that Rite Aid Renewal After Sun Gel purports and advertises itself as containing aloe vera, but independent laboratory tests show the Defendant's product contains no actual aloe vera. The Plaintiff alleges claims for Breach of Express Warranty; Violations of the Consumers Legal Remedies Act; Violations of the False Advertising Act; and Unlawful, Unfair and Fraudulent Business Acts and Practices. Another case is currently pending in the Northern District of Illinois and involves similar issues. Beardsall is a class action against CVS Pharmacy, Inc., Walgreen Co., Target Corp., Wal-Mart Stores, Inc., and Fruit of the Earth, Inc. Like Rite Aid, the retailer Defendants in the Beardsall action are also alleged to have sold aloe vera products that do not have a detectable amount of aloe vera. In both actions, the Plaintiffs rely on independent laboratory testing that revealed an absence of acemannan, the key compound in aloe vera. The parties here contend that the discovery conducted in Beardsall, especially the expert opinions gathered, will affect the outcome of the litigation, which they maintain involves complex scientific issues. The Beardsall court has ordered that class certification, Daubert, and dispositive motions be filed with the court by May 11, 2018. In contrast the Defendant has not yet filed a response to the initial complaint in the case. Recognizing that the Beardsall action is further progressed and addresses many of the same "complex scientific issues present in the instant action," the parties jointly move the Court to stay the action for six months in order to allow the Beardsall court to rule class certification and the Beardsall parties to complete fact and expert discovery. Judge Wright explains that to determine whether a stay should be granted, the Court considers (1) the possible damage resulting from a stay; (2) the hardship or inequity which a party may suffer if required to go forward; and (3) the orderly course of justice, as measured by whether the stay will simplify or complicate issues, proof, and questions of law. In the case, he finds the balance of interests supports staying the proceeding since all three of these factors weigh in favor of granting a stay. Accordingly, Judge Wright granted the parties' Motion, and stayed the case in its entirety until Sept. 7, 2018. He ordered the parties to file joint status reports as to the progress of Beardsall, explaining to the Court the need to maintain the stay in the action every 60 days, until such time as the Beardsall matter concludes, or a stay no longer serves the interests of justice. A full-text copy of the Court's March 7, 2018 Order is available at https://is.gd/QveCGe from Leagle.com. Tina Kalajian, individually and on behalf of a class of similarly situated individuals, Plaintiff, represented by Gerald Bennett Malanga -- gmalanga@lmllaw.com -- Lattie Malanga Libertino LLP. Rite Aid Corporation, a Delaware Corporation, Defendant, represented by Andrew John Peterson -- apeterson@hunton.com -- Hunton and Williams LLP. RJ REYNOLDS: $2.5MM Compensatory Damages in "Burkhart" Affirmed --------------------------------------------------------------- In the case, PAULINE BURKHART, Plaintiff-Appellee, v. R.J. REYNOLDS TOBACCO COMPANY, individually and as successor by merger to the Brown and Williamson Tobacco Corporation and the American Tobacco Company, PHILIP MORRIS USA, INC., Defendants-Appellants, Case No. 14-14708 (11 Cir.), Judge Gerald Bard Tjoflat of the U.S. Court of Appeals for the Eleventh Circuit affirmed the District Court's judgment against the Appellants and in favor of Burkhart for compensatory and punitive damages. The case, which is one of thousands of Engle progeny lawsuits initiated by smokers in the state of Florida against the country's major tobacco companies, has remained pending on appeal for several years while awaiting resolution of other appeals in the Court and the Florida Supreme Court. In the instant case, Burkhart sued R.J. Reynolds, Philip Morris, and Lorillard for negligence, strict products liability, fraudulent concealment, and conspiracy to fraudulently conceal. Burkhart, who began smoking in the 1950s and continued to do so until the 1990s, alleged that smoking caused her chronic obstructive pulmonary disease (COPD). She sought compensatory and punitive damages. After extensive discovery and pretrial motions, the trial began on May 5, 2014. The District Court divided the trial into two phases. In the first phase, the Court asked the jury to consider whether the Appellants were liable to Burkhart for compensatory and punitive damages, to determine whether Burkhart was contributorily negligent, and, if so, to apportion fault among Burkhart and the three tobacco companies. The Court also instructed the jury to establish a compensatory damages award if it did find the Appellants were liable to Burkhart, and that the Court would thereafter apportion and reduce the award based on the jury's comparative-fault finding. The Court instructed the jury to give preclusive effect to the Engle jury's findings as to Appellants' conduct for purposes of establishing the conduct elements of Burkhart's negligence, strict-liability, and intentional-tort claims. In the second phase, the existence of which depended upon the jury's finding of liability for punitive damages in the first phase, the Court instructed the jury to determine the proper punitive damages award. Two days into the trial's first phase, Burkhart suffered a medical incident in the presence of the jury and was taken to the hospital. Burkhart recovered, and the trial continued after the District Court questioned the jurors individually about the incident's effects on their impartiality and thereafter denied Appellants' motion for a mistrial. The first phase of the trial lasted eight days. The District Court then sent the jury to deliberate on the question of the Appellants' liability to Burkhart. The jury instructions stated that the jury must treat as established that the Appellants were negligent in bringing their products to the market, that the products were unreasonably dangerous, that they concealed information about the risks of smoking that was not otherwise available to the public, and that they conspired amongst themselves to do so. The instructions did, however, explain to the jury that it must determine whether (1) Burkhart was a member of the Engle class; (2) whether she filed her claim within the applicable limitations period; (3) for purposes of her negligence and strict-liability claims, whether her smoking addiction caused her COPD; (4) for purposes of her fraudulent concealment and conspiracy claims, whether she relied on the Appellants' concealment in continuing to smoke; and (5) for purposes of establishing the Appellants' liability for punitive damages, whether Burkhart proved by clear and convincing evidence that the Appellants' concealed information about the risks of smoking with knowledge of the wrongfulness of their conduct and the risks such concealment presented to the public. The jury returned its verdict in favor of Burkhart on all of her claims. It found the Appellants liable to Burkhart for compensatory damages and that the Appellants' intentional conduct met the statutory standard to justify an award of punitive damages. The jury assessed Burkhart's compensatory damages at $5 million, and found that R.J. Reynolds' conduct caused 25% of the damages, Philip Morris' 14%, and Lorillard's 10%. Next, the trial proceeded to its second phase, which was conducted solely for the purpose of fixing a punitive damages amount. After less than two hours of deliberating, the jury sent the Court a note saying that it could not "come to a unanimous decision." The Appellants asked the Court to deliver an Allen charge to the jury, but the Court refused to do so at that point and instead delivered a written response instructing the jurors to continue deliberating and encouraging them to "re-examine" their positions if they were to "become convinced" their positions were wrong. About 40 minutes later, the jury sent a second note saying that it still could not reach a unanimous decision "without giving up honest beliefs." The Court then summoned the jury, delivered this Circuit's pattern Allen charge, and sent the jury back to deliberations. Fifty minutes later, the jury returned a unanimous verdict awarding punitive damages as follows: $1,250,000 against R.J. Reynolds, $750,000 against Philip Morris, and $500,000 against Lorillard. After trial concluded and the District Court issued its judgment, the Appellants moved for judgment as a matter of law and a new trial. The District Court denied those motions. The Appellants timely appealed. The Appellants argue that Burkhart's medical event in the courtroom infected the jury with prejudice. They also challenge two aspects of the District Court's handling of the punitive damages phase of the trial. He also argues that the trial court erred in refusing to reduce the compensatory award against them to reflect the jury's allocation of comparative fault. Finally, the Appellants argue that the District Court erred in denying Appellants' motion for judgment as matter of law, which was raised on the basis of federal law. Judge Tjoflat concludes that the District Court did not abuse its discretion in denying the Appellants' motion for a mistrial. He acknowledges that some events could be so incurably prejudicial that no instruction by the District Court could possibly remedy them. But based upon the jurors' unanimous and unequivocal responses and our deference to the District Court's sound discretion as a first-hand witness to the events in question, he is not persuaded that Burkhart's brief, isolated medical incident was such an event. He thus find no abuse of discretion. The Judge finds no abuse of discretion in the District Court's careful explanation to the jury of the various legal standards in response to the Appellants' ambiguous comments during closing argument, and abuse of discretion with respect to the Court's instructions to the jury during Phase II deliberations. He also concludes that the District Court did not abuse its discretion in concluding that Burkhart did not waive her right to avoid apportionment on account of the jury's intentional tort findings. He says, although the counsel made remarks during closing argument that compared her negligent conduct with the Appellants' intentional conduct, the Judge finds that these comments did not amount to a waiver of her right to avoid apportionment, given that her counsel and the District Court made clear to the jury at numerous times that comparative fault should only be considered as to Burkhart's negligence and strict- liability claims. Finally, Judge Tjoflat he concludes the Court's shared rationale in Graham and Walker controls the issue. Both of those cases make clear that treating as preclusive the Engle jury's findings as to the conduct elements of Engle progeny plaintiffs' fraudulent concealment and conspiracy claims does not violate due process. For these reasons, the Judge affirmed the judgment of the District Court in all respects. A full-text copy of the Court's March 7, 2018 Order is available at https://is.gd/RT2mMI from Leagle.com. Dana G. Bradford, II -- dgbradford@sgrlaw.com -- for Defendant- Appellant. Lorence Jon Bielby -- bielbyl@gtlaw.com -- for Defendant- Appellant. Emily C. Baker -- ecbaker@jonesday.com -- for Defendant- Appellant. Mark Jurgen Heise -- mheise@bsfllp.com -- for Defendant- Appellant. Stephen N. Zack -- szack@bsfllp.com -- for Defendant-Appellant. James B. Murphy, Jr., for Defendant-Appellant. William R. Stein -- william.stein@hugheshubbard.com -- for Defendant-Appellant. Charles Richard Allan Morse -- cramorse@jonesday.com -- for Defendant-Appellant. Lance V. Oliver -- loliver@motleyrice.com -- for Plaintiff- Appellee. Joseph W. Prichard, Jr., for Defendant-Appellant. Robert B. Parrish -- bparrish@mppkj.com -- for Defendant- Appellant. Norwood Wilner -- nwilner@wilnerfirm.com -- for Plaintiff- Appellee. Stephanie J. Hartley, for Plaintiff-Appellee. Vincent I. Parrett -- vparrett@be-law.com -- for Plaintiff- Appellee. Robert Turner Haefele -- rhaefele@motleyrice.com -- for Plaintiff-Appellee. Elizabeth Joan Cabraser -- ecabraser@lchb.com -- for Plaintiff- Appellee. Richard Lantinberg, for Plaintiff-Appellee. Charles Easa Farah, Jr., for Plaintiff-Appellee. Kathryn E. Barnett, for Plaintiff-Appellee. Kenneth S. Byrd -- kbyrd@lchb.com -- for Plaintiff-Appellee. SECURITY INTELLIGENCE: Rushing Sues over Meal & Rest Breaks ----------------------------------------------------------- JAMES RUSHING, individually and on behalf of all others similarly situated, the Plaintiff, v. SECURITY INTELLIGENCE SPECIALIST CORPORATION and DOES 1 to 100, the Defendant, Case No. 18CIV01808 (Cal. Super. Ct., April 11, 2018), seeks to recover damages resulting from Defendant's failure to provide meal breaks and rest breaks. The Plaintiff and the class members worked for Defendants as security guards. The Defendants failed to provide Plaintiff and the class members with accurate itemized wage statements as required by Labor Code section 226. The Defendants required Plaintiff and the class members to work in excess of four hours in each day without being provided statutorily prescribed rest breaks, and in excess of five hours per day without being provided a statutorily prescribed 30-minute meal period. The Defendants did not timely pay Plaintiff's final wages, in violation of Labor Code sections 201 and 202.[BN] The Plaintiff is represented by: Emanuel Starr, Esq. Adam M. Rose, Esq. Theodore R. Tang, Esq. FRONTIER LAW CENTER 23901 Calabasas Road, STE 2074 Calabasas, CA 91302 Telephone: (818) 914 3433 Facsimile: (818) 914 3433 E-mail: mannv@frontierlawcenter.com adam@frontierlawcenter.com theodore@frontierlawoenter.com SWEET BAR: "Sac" Suit Seeks Unpaid Overtime under FLSA ------------------------------------------------------ MANUEL GUACHIAC SAC, Individually and On Behalf of All Similarly Situated Persons, the Plaintiff, v. SWEET BAR, INC., TOUT SUITE, LLC, TOUT SUITE MEMORIAL, LLC, and TOUT SUITE EADO, LLC, the Defendants, Case No. 4:18-cv-01161 (S.D. Tex., April 12, 2018), seeks to recover unpaid overtime compensation, liquidated damages, and attorney's fees under the Fair Labor Standards Act of 1938. According to the complaint, the Plaintiff was paid on an hourly basis and was not paid an overtime premium for hours worked over 40 hours per workweek. The Defendants knew of, approved of, and benefited from Plaintiff's regular and overtime work. The Plaintiff is entitled to be paid his regular wages and to be paid an overtime premium for all work performed during the hours worked over 40 hours in each workweek. The Defendants failed to pay the Plaintiff the required overtime premium in many such workweeks that the Plaintiff was employed by Defendants, as the Plaintiff worked in excess of 40 hours in most weeks. No exemption excuses the Defendants from paying Plaintiff for all time spent and work performed during the hours they worked, and the Defendants have not made a good faith effort to comply with the FLSA.[BN] The Plaintiff is represented by: Josef F. Buenker, Esq. Vijay Pattisapu, Esq. THE BUENKER LAW FIRM 2060 North Loop West, Suite 215 Houston, TX 77018 Telephone: (713) 868 3388 Facsimile: (713) 683 9940 E-mail: jbuenker@buenkerlaw.com vijay@buenkerlaw.com SEEK CAPITAL: Fails to Pay Minimum Wages & Overtime, Mosele Says ---------------------------------------------------------------- CAROLINE MOSELE and AARON FISHER, individually, on behalf of others similarly situated, and on behalf of other aggrieved employees, the Plaintiff, v. SEEK CAPITAL, LLC, a California LLC; ROY FERMAN, an Individual; and DOES 1 through 25 the Defendant, Case No. BC701113 (Cal. Super. Ct., April 10, 2018), seeks to recover unpaid earned wages, unpaid minimum wages, unpaid overtime premiums, unpaid rest breaks, and unpaid all wages upon Termination pursuant to the Labor Code Private Attorneys General Act of 2004. This lawsuit arises out of Defendants' misclassification of their sales personnel as exempt employees, thereby denying Plaintiffs and all aggrieved employees rightfully earned wages, overtime premiums, paid rest periods, and compliant meal periods. The misclassification also resulted in Defendants' failure to provide compliant wage statements and all wages owing upon separation from employment. Seek Capital, LLC is a principal investment firm and is based in the United States.[BN] The Plaintiffs are represented by: Kenneth A. Goldman, Esq. LAW OFFICE OF KENNETH A. GOLDMAN, PC 15303 Ventura Boulevard, Suite 1650 Sherman Oaks, CA 91403 Telephone: (818) 287 7689 E-mail: ken@kengoldmanlaw.com - and - Jonathan M. Lebe, Esq. LEBE LAW, APLC 5723 Melrose Avenue Los Angeles, CA 90038-3889 Telephone: (310) 921 7056 E-mail: jon@lebelaw.com SERVICE OF PROCESS: Jurisdictional Discovery in TCPA Suit Nixed --------------------------------------------------------------- In the case, SWINTER GROUP, INC., Plaintiff, v. SERVICE OF PROCESS AGENTS, INC., and DOUGLAS SCOTT KAISER, Defendants, Case No. 4: 17-CV-2759 RLW (E.D. Mo.), Judge Ronnie L. White of the U.S. District Court for the Eastern District of Missouri, Eastern Division, denied Swinter's motion for jurisdictional discovery and for stay of a ruling on Kaiser's motion to dismiss. This is a putative class action filed by Swinter, seeking relief under the Telephone Consumer Protection Act ("TCPA"), for an allegedly unsolicited fax it received. Swinter alleges in its amended complaint that Kaiser and Service of Process Agents, Inc. ("SPA") sent an unsolicited advertisement to the Plaintiffs telephone facsimile machine in August 2015. The faxed advertisement does not include a clear and conspicuous opt-out notice, in violation of the TCPA and 47 C.F.R. Section 64.1200(a)(4)(iii). Kaiser has moved to dismiss for lack of jurisdiction. In his motion to dismiss, Kaiser argues that he does not have the requisite minimum contacts with Missouri to satisfy due process. Specifically, he avers that he is a resident of Virginia; has never conducted business in, or travelled to, Missouri; does not own, rent, or have an interest in property in Missouri and has not done so; does not hold a professional license issued by Missouri and has not done so; and is not employed by a company incorporated or doing business in Missouri. Also, he is not an employee, owner, officer, director, manager, supervisor, or team leader for SPA; he is not an investor, creditor, partner, or joint venture with SPA; and he has never drafted or sent any advertising faxes by or on behalf of SPA, nor has he participated in doing so. He is an independent contractor working part-time for SPA. He answers SPA's phone lines. In turn, Swinter has moved for jurisdictional discovery and for a stay of a ruling on the motion to dismiss. It seeks discovery relating to Kaiser's averments and to uncover evidence not addressed in Kaiser's declaration. Judge White finds that Swinter alleges only that Kaiser works for SPA and his first name is given on the complained-of fax as someone to call. The first name of "Nancy" is also given on that fax. And, on the copy of the website attached to the amended complaint, only a phone number is given as a contact if there are any questions. He says the allegations cited in Swinter's supporting memorandum are in its original complaint and simply refer to "Defendants." The "Defendants" then included the 10 "John Does." The allegations are not, as referenced in that memorandum, of "Defendant Doug Kaiser, together with other defendants." For the foregoing reasons, the Judge finds Swinter has failed to present any assertion against Kaiser that supports its request for broad jurisdictional discovery. Judge White dismissed without prejudice the claims against "John Does 1-10". He denied Swinter's motion for jurisdictional discovery and for stay. He granted Swinter up to and including March 21, 2018 to file its response to Kaiser's motion to dismiss for lack of jurisdiction. A full-text copy of the Court's March 7, 2018 Memorandum and Order is available at https://is.gd/WhMxln from Leagle.com. Swinter Group, Inc., Plaintiff, represented by Mary B. Schultz -- mschultz@sl-lawyers.com -- SCHULTZ AND ASSOCIATES, L.L.P. & Ronald J. Eisenberg -- reisenberg@sl-lawyers.com -- SCHULTZ AND ASSOCIATES, L.L.P. Service of Process Agents, Inc. & Douglas Scott Kaiser, Defendants, represented by Don V. Kelly-- dkelly@evans-dixon.com -- EVANS AND DIXON & Brian R. Shank -- bshank@evans-dixon.com -- EVANS AND DIXON. TD AMERITRADE: Bid to Exclude Experts Testimony in "Klein" Denied ----------------------------------------------------------------- In the case, GERALD J. KLEIN, on behalf of himself and all similarly situated; Plaintiff, v. TD AMERITRADE HOLDING CORPORATION, TD AMERITRADE, INC., and FREDRIC TOMCZYK, Defendants, Case No. 8:14CV396 (D. Neb.), Judge Joseph F. Bataillon of the U.S. District Court for the District of Nebraska denied the Defendants' motion in limine to exclude the opinions and testimony of the Plaintiff's experts Haim Bodek and Shane Corwin, without prejudice to reassertion as merits discovery progresses. The case is a purported class action alleging wrongdoing in connection with stock trades. In the action, the Lead Plaintiff alleges violations of federal securities laws in TD Ameritrade's alleged failure to route its clients' equity orders for "best execution." The Defendants seek an order precluding consideration of the opinions of the Plaintiff's experts Bodek, a securities consultant and former trader, and Corwin, a finance professor, in connection with the Defendants' pending motion for class certification, and barring the experts from testifying at the class certification hearing which is presently scheduled for March 27, 2018, before United States Magistrate Judge Susan Bazis. Bodek was retained to perform a data analysis of the trading history of two representative TD Ameritrade clients and to identify issues of economic harm. He will testify to a method of proving economic loss by common proof that does not vary by class member. He has created an algorithm and refined it to provide a method to be applied across the class. Corwin was retained to opine on whether Mr. Bodek's analysis is capable of identifying economic harm arising from a failure of best execution in line with academic and regulatory standards. The Defendants argue that Bodek's methodology is novel and untested and fails to meet the "peer review" and "general acceptance" factors set forth by the Supreme Court in Daubert. They next argue that Professor Corwin's opinions should be excluded because he did not conduct his own analyses, his opinions are duplicative, and he is nothing more than a "mouthpiece" for Bodek. Further, the Defendants attempt to exclude any opinions proffered by the two experts that go to the merits of the Plaintiff's case -- that is, the best execution issue. They also argue that Corwin offers improper legal opinions. In opposition, the Plaintiff argues that Bodek uses industry- standard metrics that have been used by the Securities Exchange Commission to identify economic harm, the metrics are simple equations with discrete data as input, are generally accepted in the industry, and have been used in peer reviewed papers. Further, he argues that Bodek uses an order book analysis to analyze depth of available liquidity and has proposed exclusion of certain categories to avoid any doubt concerning the harm attributable to Defendant TD Ameritrade. The Plaintiff also disputes the defendants' argument that Bodek has "changed" his methodology in his rebuttal report, stating that Bodek employed a limited order book analysis with certain exclusions in his initial report and expanded on the analysis in his rebuttal report. Judge Bataillon finds that the Defendants' motion in limine to exclude the reports and testimony of the Plaintiff's experts Bodek and Corwin should be denied at this time. Both experts appear to be qualified to testify. The testimony and opinions are based on methodology that appears reliable relevant -- similar methods have been used in other securities cases. He says the Defendants have not shown that the experts' methods are so lacking in reliability as to require exclusion at this point in the litigation. Their challenge goes more to the weight of the experts' testimony than to its admissibility. He finds the reports and testimony may be admitted for the limited purpose of determining whether the requirements of Rule 23 have been met. The Court should be allowed to weigh the credibility of the experts on Rule 23 issues. The Judge rejects the Defendants' contention that the evidence should be excluded because Bodek allegedly altered the methods and conclusions in his original report in response to Dr. Kleidon's report. To the extent they wish to respond to any purportedly "new" conclusions, they are free to seek leave to do so. He further rejects their contention that Corwin's testimony should be excluded because he depends, to some extent, on Bodek's finding. An expert may extrapolate from data supplied by other experts. He says their criticisms of the experts' testimony are properly the subject of cross-examination. Accordingly, Judge Bataillon denied the Defendants' motion in limine to exclude the opinions and testimony of the Plaintiff's experts Bodek and Corwin, without prejudice to reassertion as merits discovery progresses. A full-text copy of the Court's March 7, 2018 Memorandum and Order is available at https://is.gd/DMg4Xi from Leagle.com. Gerald J. Klein, on behalf of himself and all similarly situated, Plaintiff, represented by Christopher J. Kupka -- ckupka@zlk.com -- LEVI, KORSINSKY LAW FIRM, pro hac vice, Eduard Korsinsky -- ek@zlk.com -- LEVI, KORSINSKY LAW FIRM, pro hac vice, Gregory C. Scaglione -- Greg.scaglione@koleyjessen.com -- KOLEY, JESSEN LAW FIRM, Joseph J. DePalma -- jdepalma@litedepalma.com -- LITE, DEPALMA LAW FIRM, pro hac vice, Nancy A. Kulesa -- nkulesa@zlk.com -- LEVI, KORSINSKY LAW FIRM, pro hac vice, Nicholas Porritt, LEVI, KORSINSKY LAW FIRM, pro hac vice, Patrice D. Ott -- Patrice.ott@koleyjessen.com -- KOLEY, JESSEN LAW FIRM & Sebastiano Tornatore -- stornatore@zlk.com -- LEVI, KORSINSKY LAW FIRM, pro hac vice. TD Ameritrade Holding Corporation, TD Ameritrade, Inc. & Fredric Tomczyk, Defendants, represented by A. Robert Pietrzak -- rpietrzak@sidley.com -- SIDLEY, AUSTIN LAW FIRM, pro hac vice, Alex J. Kaplan -- ajkaplan@sidley.com -- SIDLEY, AUSTIN LAW FIRM, pro hac vice, Daniel A. McLaughlin, SIDLEY, AUSTIN LAW FIRM, pro hac vice, Jon Muenz, SIDLEY, AUSTIN LAW FIRM, pro hac vice, Thomas H. Dahlk -- tom.dahlk@kutakrock.com -- KUTAK, ROCK LAW FIRM & Victoria H. Buter -- vicki.buter@kutakrock.com -- KUTAK, ROCK LAW FIRM. Roderick Ford, Movant, represented by Christopher J. Kupka, LEVI, KORSINSKY LAW FIRM, pro hac vice, Eduard Korsinsky, LEVI, KORSINSKY LAW FIRM, pro hac vice, Gregory C. Scaglione, KOLEY, JESSEN LAW FIRM, Joseph J. DePalma, LITE, DEPALMA LAW FIRM, pro hac vice, Nancy A. Kulesa, LEVI, KORSINSKY LAW FIRM, pro hac vice & Sebastiano Tornatore, LEVI, KORSINSKY LAW FIRM, pro hac vice. PSLRA Class, Interested Party, represented by Gregory C. Scaglione, KOLEY, JESSEN LAW FIRM. TD AUTO: Shields Sues over Repossession of Vehicle -------------------------------------------------- DEBORAH SHIELDS, 800 Kenilworth Ave. NE, Washington D.C, 20019, on behalf of herself and all others similarly situated, the Plaintiff, v. TD AUTO FINANCIAL LLC, the Defendant, Case No. 2018CA002470B (D.C. Super. Ct., April 13, 2018), alleges violations by Defendant of District of Columbia laws related to the repossession of Plaintiff's TD Bank-financed personal automobile. TD Bank provided Plaintiff with loan for the financing of used automobile, when Plaintiff fell behind on loan payments, the Defendant, or its agents, repossessed her vehicle without providing any pre-repossession notice and failed to comply with notice requirements after repossession, including by failing to communicate where the vehicle has been taken, all in clear violation of District of Columbia law. The Plaintiff alleges that TD Bank violated the District of Columbia Consumer Protection Procedures Act, and the District of Columbia Municipal Regulations regarding the sale and repossession of motor vehicles.[BN] The Plaintiff is represented by: Nicholas A. Migliaccio, Esq. Jason S. Rathod, Esq. Esfand Nafisi, Esq. Migliaccio & RATHOD LLP 412 H St. N.E. 302 Washington, DC 20002 Telephone: (202) 470 3520 TEXAS: Steward, et al. Suit Moved to Western District of Texas -------------------------------------------------------------- The class action lawsuit titled Eric Steward, et al., on behalf of themselves and all others similarly situated; ARC OF TEXAS, INC.; Coalition of Texans with Disabilities, Inc.; Texas Atty. General Greg Abbott, Governor of Texas; Charles Smith, Executive Commissioner of Texas Health and Human Services Commission; Jon Weizenbaum, Commissioner of the Texas Department of Aging and Disability Services; State of Texas, the Plaintiffs, and United States of America, the Intervenor Plaintiff, v. Centers for Medicare & Medicaid Services (CMS), the Movant, Case No. 1:18-mc- 00037, was removed from the District of Columbia, to the U.S. District Court for the Western District of Texas (San Antonio) on April 10, 2018. The District Court Clerk assigned Case No. 5:18- mc-00317 to the proceeding. The Arc of Texas promotes, protects, and advocates for the human rights and self-determination of Texans with intellectual and developmental disabilities.[BN] Attorneys for Centers for Medicare & Medicaid Services (CMS): Daniel Patrick Schaefer, Esq. U.S. ATTORNEY'S OFFICE 555 Fourth Street, NW Washington, DC 20530 Telephone: (202) 252 2531 Facsimile: (202) 252 2599 TEXTILE VISION: "Reyes" Suit Seeks Minimum Wage ----------------------------------------------- HENDRICKS REYES, on behalf of himself and all persons similarly situated, the Plaintiff, v. ALAN MOSKOWITZ and TEXTILE VISION, INC., the Defendant, Case No. 651785/2018 (N.Y. Sup. Ct., April 13, 2018), seeks to recover minimum wage under the New York Labor Law. According to the complaint, approximately in or about September 2016, the Defendants employed Hendricks Reyes to work on every aspect of the company's operations. Mr. Reyes performed a host of duties, including heavy manual labor such as wheeling a laundry cart filled with 80-plus pounds of fabric up and down 8th avenue to transport fabric between the company and its suppliers and customers. Mr. Reyes performed such manual labor in all weather conditions, including rain, snow and extreme cold. Mr. Reyes was a loyal and dedicated employee, working long hours, five days a week, and, on occasion, six days a week for the entire time he was employed by the Defendants. When they hired Mr. Reyes, the Defendants informed him his work schedule was from 9 a.m. to 5 p.m. A few days after he worked that schedule, Defendants began to require him to come in earlier than 9am and stay past 5pm. The Defendants instructed Mr. Reyes that he was required to be in the office for work early or later depending on the delivery schedule for the company's ingoing and outgoing deliveries. In other words, if a delivery or pickup was scheduled outside the 9am-5pm window, Mr. Reyes has to be there. The Defendants also assigned Mr. Reyes several other job responsibilities, including sales and preparing orders for deliveries or processing incoming deliveries. The Defendants would instruct him when each task needed to be completed and required that he work the hours necessary to complete the task within the instructed timeframe. As compensation, Defendants promised Plaintiff a payment of $100 per day and later (after one year) promised an increase to $120. However, Defendants failed to compensate Plaintiff as promised, and in fact actually paid less than promised every week. When Mr. Reyes complained that he was being paid less than promised, Moskowitz said the company did not have enough money to pay the promised wages. A comparison of the wages Defendants paid to the Plaintiff against the wages that were due under federal and state wage-and-hour laws, specifically, the New York State mandated minimum wage; the New York State mandated overtime wage; and the New York State required spread of hours laws, reveals that this Plaintiff has been grossly underpaid. The Defendant is a company in New York City that deals in the resale of fabric and other textile and fashion goods. The company is owned by defendant Alan Moskowitz.[BN] The Plaintiff is represented by: Mohammed Gangat, Esq. LAW OFFICE OF MOHAMMED GANGAT 675 3rd Avenue Suite 1810 New York, NY 10017 Telephone: (718) 669 0714 E-mail: mgangat@gangatpllc.com THREE SONS: Fails to Pay Wages & Overtime, Marquez Says ------------------------------------------------------- EDUARDO MARQUEZ, an individual, on behalf of himself and all others similarly situated, the Plaintiff, v. THREE SONS, INC. DBA AMERICAN MEAT COMPANIES, A professional corporation, and DOES 1- 50, inclusive, the Defendant, Case No. BC701526 (Cal. Super. Ct., April 11, 2018), seeks to recover unpaid wages, including overtime wages and reimbursements, missed meal and rest period, penalty pay, statutory and waiting time penalties, injunctive and other equitable relief, interest, and reasonable attorneys' fees under the California Labor Code. The Plaintiff alleges that Defendants failed to pay overtime, failed to pay wages for required donning and doffing, failed to reimburse for required footwear, unlawfully rounded and altered timecards, failed to authorize and/or permit employees to take all required meal and rest breaks, failed to pay wages timely upon discharge, paystub violations, and unlawful and unfair business practices. Three Sons, Inc. is in the meats, cured or smoked business.[BN] The Plaintiff is represented by: Nazo Koulloukian, Esq. KOUL LAW FIRM A Professional Law Corporation 3435 Wilshire Blvd., Suite 1710 Los Angeles, CA 90010 Telephone: (213) 761 5484 E-mail: nazo@koullaw.com - and - Sahag Majarian, II, Esq. LAW OFFICES OF SAHAG MAJARIAN II 18250 Ventura Blvd., Tarzana, CA 91356 Telephone: (818) 609 0807 Facsimile: (818) 609 0892 TRANSAM TRUCKING: Averts $100-Million Class Action -------------------------------------------------- James Dornbrook, writing for Kansas City Business Journal, reports that attorneys from Kansas City-based Seigfreid Bingham PC earned a big victory in a case filed against client TransAm Trucking Inc. of Olathe when a federal judge ruled that the case did not qualify for class-action status. [GN] TRANSDEV SERVICES: Bid to Amend 1st Amended "Berry" Suit Granted ---------------------------------------------------------------- In the case, HOWARD BERRY and DAVID BERRY, individually and on behalf of all others similarly situated, Plaintiffs, v. TRANSDEV SERVICES, INC. d/b/a VEOLIA TRANSPORTATION SERVICES, INC.; TRANSDEV NORTH AMERICA, INC., f/k/a/VEOLIA SERVICES, INC.; and FIRST TRANSIT, INC., Defendants, Case No. 15-01299-RAJ (W.D. Wash.), Judge Richard A. Jones of the U.S. District Court for the Western District of Washington, Seattle, granted the Plaintiffs' (i) Motion for Leave to File an Amended Class Action Complaint and (ii) Motion to Continue Class Certification Briefing Deadlines. The Plaintiffs filed their original Complaint in the Superior Court of Washington on July 14, 2015. The Defendants removed the case to the Court on Aug. 14, 2015. The Plaintiffs moved for remand on Sept. 10, 2015. Their motion for remand was denied. On July 27, 2016, the Court entered an order pursuant to the parties' stipulation to allow the Plaintiffs to file their First Amended Complaint and to add First Transit, Inc. as a Defendant. Defendant First Transit filed motions to dismiss the Plaintiffs' First Amended Complaint and Transdev Services, Inc.'s cross- claim. On April 14, 2017, the Court denied First Transit's motion to dismiss the Plaintiffs' First Amended Complaint, and granted in part and denied in part the motion to dismiss Transdev Services's cross-claim. The Plaintiffs now request leave to amend their First Amended Complaint to clarify that their state law claims include meal breaks, and argue that such claims have already been a part of the litigation and ongoing discovery. After review of the Plaintiffs' First Amended Complaint, the balance of the record, and the parties' submissions, Judge Jones finds that the Defendants would not be prejudiced by the Plaintiffs' proposed amendments. The Plaintiffs' First Amended Complaint contains numerous references to meal breaks. Although these references refer to contracts between King County and the Defendants, the Plaintiffs allege that these contracts govern the Defendants' joint operations. While the Plaintiffs did not specifically state that they intended to amend their First Amended Complaint to assert meal period violations, this reference is more than sufficient to put the Defendants on notice that meal breaks were at issue. Further, the Judge finds no evidence of bad faith and declines to determine whether the Plaintiffs' assertions are futile at this stage in the litigation. While the Plaintiffs request to amend their First Amended Complaint a full year after filing it, he finds that the Defendants will not be prejudiced by this delay. Because the underlying purpose of Rule 15 is to facilitate a decision on the merits, the Plaintiffs should be permitted an opportunity to allege every relevant fact and argument in support of their claims. For these reasons, Judge Jones granted the Plaintiffs' motion for leave to amend their First Amended Complaint. The Plaintiffs will file their proposed amended complaint, filed as Exhibit A to Docket No. 57, within one week of the date of the Order. Pursuant to the Court's Order on July 27, 2016, case scheduling deadlines will not be set under after the Court rules on the Plaintiffs' motion for class certification. Other than the deadline set for the filing of that Motion, which is the subject of the Plaintiffs' pending motion for an extension of time, no other deadlines have been set. As he is granting the Plaintiffs leave to further amend their complaint, Judge Jones also granted the Plaintiffs' Motion to Continue Class Certification Briefing Deadlines. He ordered the parties to submit proposed deadlines related to class certification briefing within one week. A full-text copy of the Court's March 7, 2018 Order is available at https://is.gd/CWj5kF from Leagle.com. Howard Berry & David Berry, individually and on behalf of all others similarly situated, Plaintiffs, represented by Jeffrey Lowell Needle, Jennifer Rust Murray -- jmurray@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC, Toby James Marshall -- tmarshall@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC & Erika L. Nusser -- enusser@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC. Transdev Services, Inc., formerly known as & Transdev North America, Inc., formerly known as, Defendants, represented by Anthony Todaro -- anthony.todaro@dlapiper.com -- DLA PIPER US LLP, Austin M. Rainwater -- austin.rainwater@dlapiper.com -- DLA PIPER US LLP & Stellman Keehnel -- stellman.keehnel@dlapiper.com -- DLA PIPER US LLP. First Transit, Inc., Defendant, represented by Daniel L. Thieme - - dthieme@littler.com -- LITTLER MENDELSON, Breanne Sheetz Martell -- bsmartell@littler.com -- LITTLER MENDELSON & William J. Kim -- wkim@littler.com -- LITTLER MENDELSON. Transdev Services, Inc. & Transdev North America, Inc., Cross Claimants, represented by Anthony Todaro, DLA PIPER US LLP, Austin M. Rainwater, DLA PIPER US LLP & Stellman Keehnel, DLA PIPER US LLP. First Transit, Inc., Cross Defendant, represented by Daniel L. Thieme, LITTLER MENDELSON, Breanne Sheetz Martell, LITTLER MENDELSON & William J. Kim, LITTLER MENDELSON. First Transit, Inc., Cross Claimant, represented by Daniel L. Thieme, LITTLER MENDELSON, Breanne Sheetz Martell, LITTLER MENDELSON & William J. Kim, LITTLER MENDELSON. Transdev Services, Inc., Cross Defendant, represented by Anthony Todaro, DLA PIPER US LLP, Austin M. Rainwater, DLA PIPER US LLP & Stellman Keehnel, DLA PIPER US LLP. TUOLUMNE COUNTY, CA: Further Briefing in "Kerzich" Deal Needed -------------------------------------------------------------- In the case, MARK KERZICH and TIMOTHY WERTZ, Plaintiffs, v. COUNTY OF TUOLUMNE, Defendant, Case No. 1:16-cv-01116-DAD-SAB (), Judge Dale A. Drozd of the U.S. District Court for the Eastern District of California has issued an order directing further briefing on Plaintiffs' a motion for approval of a settlement. On Feb. 2, 2018, the Plaintiffs filed a motion for approval of a settlement under the Fair Labor Standards Act, requesting that the settlement be approved, the matter be dismissed with prejudice, and that attorneys' fees be awarded in the manner agreed to by the parties. The Court heard argument on the motion on March 6, 2018. During the hearing on the matter, the Plaintiffs requested that they be allowed to supplement their motion, in response to the Court's questions posed at the hearing. The Defendant did not object to this request, and Judge Drozd therefore granted the Plaintiffs 28 days from the date of service of the order to file and serve a supplemental memorandum in support of its motion for approval addressing the following questions as well as any other matters that may aid the Court in resolution of the pending motion: 1. At Docket Number 58-4, the Plaintiffs provided what appear to be calculations concerning the value of their various claims and which were relied upon in reaching the settlement. The Plaintiffs must address: (i) who generated this document and performed the calculations set forth therein; (ii) whether the numbers in columns three and four of the sheet at Docket Number 58-4 depict the maximum value of any unpaid overtime wages for the class member indicated; (iii) whether the numbers in column three and four of the sheet at Docket Number 58-4 include any liquidated damages which might have been available, or if they simply reflect the unpaid wages; (iv) whether the figures in columns three and four of the sheet at Docket Number 58-4 were calculated using a two-year or three-year statute of limitations; and (v) why the cash-in-lieu claim was discounted by 25%, as appears to be reflected in column six of the document. 2. The motion for approval of the settlement indicates that $25,000 of the settlement amount will be allocated to officers who were underpaid overtime wages because payment enhancements for their service as canine officers were not included in their base rate of pay (referred to by the parties as the canine claim). A declaration supplied by the Plaintiff's counsel explains that the damages for this class were calculated by paying a half-hour at the overtime rate for each day in each pay period in which the employee performed canine-related duties and received canine pay, during the two years prior to Jan. 8, 2017, when canine pay began to be included by the County in the base rate of pay. The Plaintiffs must address: (i) why the damages for the canine claim were calculated in this manner, and (ii) whether the figures included at Docket Number 58-5 reflect the full amount of damages calculated for the canine claim, using the metric. 3. The settlement agreement calls for the award of $150,000 in attorneys' fees and costs, as well as an additional 20% of the settlement amount allocated to the Plaintiffs' damages. (i) The settlement agreement indicates that $195,000 of the settlement will be allocated to the Flores claim and that amount will be reduced by 20% due to the additional attorneys' fees. Twenty percent of $195,000 is $39,000. The settlement agreement also indicates that $25,000 of the settlement will be allocated to the canine claim. (Id.) Twenty percent of $25,000 is $5,000. Combining these two, it would seem that the Plaintiffs' counsel seeks an additional award of $44,000 in attorneys' fees from the allocated damages under the settlement agreement. However, other documents provided by counsel indicate they may be seeking $45,000 in additional attorneys' fees to be awarded from the allocated as damages. The Plaintiffs are to clarify which amount of additional attorneys' fees is sought. (ii) The total amount of attorneys' fees the Plaintiffs' counsel seeks in this matter is $195,000, which includes $150,000 designated as attorneys' fees and costs by the settlement agreement, plus approximately 20% of the allocated for damages under the settlement agreement. A $195,000 award of attorneys' fees from a $375,000 settlement would mean that 52% of the total settlement fund will be paid out as attorneys' fees. The Plaintiffs must explain why such an award of attorneys' fees is reasonable, and why the settlement here remains fair and reasonable despite the high percentage of the total settlement to be awarded as attorneys' fees. 4. The motion for attorneys' fees indicates that $2,500 is sought as incentive payments to be awarded to each of the named Plaintiffs in the action. However, no explanation regarding why incentive payments should be awarded in the case has been provided to the court. The Plaintiffs must provide evidence in support of and an explanation as to why $2,500 incentive payments are warranted for each of the named Plaintiffs in the action. A full-text copy of the Court's March 7, 2018 Order is available at https://is.gd/GsohoI from Leagle.com. Mark Kerzich, on behalf of themselves and all similarly situated individuals & Timothy Wertz, on behalf of themselves and all similarly situated individuals, Plaintiffs, represented by Gary Marc Messing -- gary@majlabor.com -- Messing Adam & Jasmine LLP, Jason H. Jasmine -- jason@majlabor.com -- Messing Adam & Jasmine LLP & Donald Paul Bird, II -- Paul@MAJLabor.com -- Messing Adam & Jasmine LLP. County of Tuolumne, Defendant, represented by Arthur A. Hartinger -- ahartinger@publiclawgroup.com -- Renne Sloan Holtzman Sakai, LLC & Kevin P. McLaughlin, Renne Sloan Holtzman Sakai LLP. TRUEBLUE INC: Fails to Pay All Wages Due, Gates Says ---------------------------------------------------- OTIS GATES, On behalf of himself, and all others similarly situated, the Plaintiff, v. TRUBLUE, INC.; and DOES 1-10, inclusive, the Defendant, Case No. RG18900539 (Cal. Super. Ct., April 11, 2018), seeks to recover unpaid Wages under the California Labor Code. The Plaintiff alleges that during the Class Period, Employers employed thousands of Laborers in California whom it classified as non-exempt and paid on an hourly basis. During the Class Period, Employers' Laborers have regularly worked in excess of three and one-half hours in a day without being afforded a rest period of at least ten minutes for every four hours worked, or major fraction thereof. The Plaintiff has been subject to these policies and practices. Employers' policy is not to pay Laborers one additional hour of pay at the employee's regular rate of compensation for each workday that an earned off-duty meal period is not provided. Under this policy, Plaintiff and Class Members have been denied meal period payments required by the California Labor Code. Employers' policy is also not to pay Laborers one additional hour of pay at the employee's regular rate of compensation for each workday that a rest period is not authorized and permitted. Under this policy, the Plaintiff and Class Members have been denied rest break payments required by the California Labor Code. Employers have failed to record the accurate gross wages earned by the Plaintiff and Class Members. As a result, Employers have failed properly to itemize the gross wages earned on wage statements furnished to Plaintiff and Class Members. TrueBlue, Inc., incorporated on March 18, 1985, is a provider of specialized workforce solutions. The Company is engaged in providing staffing, on-site workforce management and recruitment process outsourcing services.[BN] Attorneys for Plaintiff, the putative class and all persons similarly situated: Arthur W. Lazear, Esq. Morgan M. Mack, Esq. LAZEAR MACK LLP 411 435-14TH Street, No. 1117 Oakland, CA 94612 511 Telephone: (510) 735 6316 Facsimile: (510) 545 4226 E-mail: arthur@lazearmack.com morgan@lazearmack.com TOMRA METRO: "Lawson" Suit Seeks Overtime Wages under Labor Law --------------------------------------------------------------- JUMA LAWSON, on behalf of himself and all others similarly situated, the Plaintiff, v. TOMRA METRO, LLC, the Defendant, Case No. 705470/2018 (N.Y. Sup. Ct., April 10, 2018), seeks to recover unpaid overtime wages, attorneys' fees, costs, pre-judgment and post-judgment interest, and liquidated damages under New York Labor Law. According to the complaint, the Defendant has failed to pay Plaintiff and the Class Members overtime wages to which they are entitled under the New York Labor Law and the supporting New York State Department of Labor Regulations. By Defendant's knowing and/or intentional failure to pay Plaintiff and the Class Members overtime wages for all hours worked in excess of forty hours in a week, the Defendant has willfully violated New York Labor Law.[BN] Attorneys for Plaintiff and the putative New York Class: Louis Ginsberg, Esq. THE LAW FIRM OF LOUIS GINSBERG, P.C. 1613 Northern Boulevard Roslyn, N.Y. 11576 Telephone: (516) 625 0105 TOW INC: Faces "Coleman-House" Wage-and-Hour Suit ------------------------------------------------- THEODORE COLEMAN-HOUSE, on behalf of himself and others similarly situated, the Plaintiff, v. AN TOW, INC., a California corporation dba LA TOWING; ALI REZA ARYAN, an individual; and DOES 1 to 100, Inclusive, the Defendant, Case No. BC702029 (Cal. Super. Ct., April 13, 2018), seeks to recover civil penalties permitted by the California Labor Code Section 2699. The Plaintiff seeks only to recover Private Attorneys General Act civil penalties for himself, and on behalf of all aggrieved employees that worked for Defendants. The Plaintiff does not seek to recover anything other than penalties as permitted by California Labor Code Section 2699. To the extent that statutory violations are mentioned for wage violations, Plaintiff does not seek underlying general and/or special damages for those violations, but simply the civil penalties permitted by California Labor Code Section 2699. Penalties sought for the underlying violations are for the following statutory violations: its failure to provide mandated timely meal periods and rest periods; failure to pay all wages due and owing; (ii) failure to issue accurate itemized wage statements to employees; failure to pay waiting time penalties; (v) and failure to pay all minimum/overtime wages, amongst other violations of the California Labor Code, Wage Orders and PAGA. These actions led to a culture of employees not being fully paid for all their work as required under the California Labor Code. The Defendant's time records and policies will confirm these violations, including other numerous violations of various laws including but not necessarily limited to PAGA.[BN] The Plaintiff is represented by: Michael R. Crosner, Esq. Alfredo Nava, Esq. Zachary M. Crosner, Esq. CROSNER LEGAL, PC 433 N. Camden Dr., Ste. 400 Beverly Hills, CA 90210 Telephone: (310) 496 4818 Facsimile: (310) 510 6429 E-mail: mike@crosnerlegal.com zach@crosnerlegal.com alfredo@crosnerlegal.com UA 1270: Shalahin, et al. Sue over Cancellation of Flight --------------------------------------------------------- DMYTRO SHALAHIN, ANNA SHALAHIN-PASECHKO, YAROSLAV BOBILYAK, NATALIIA BOBILIAK, SERGII TYMOFTEI, TETIANA TYMOFTEI, OLEXANDER SHALAHIN, STAS TYMOFTEI 5143 N. East River Rd Unit 160F Chicago, Illinois 60656, the Plaintiffs, v. UNITED AIRLINES INC., 1600 Smith ST HQSTX Houston TX 77002 a foreign corporations, the Defendant, Case No. 1:18-cv-0257 (N.D. Ill., April 10, 2018), seeks to recover actual, general and special damages for cancellation of flight from Tampa to Chicago, as well as under other legal theories incorporated under the doctrine of pendent jurisdiction. According the complaint, on or about September 10, 2017 the Plaintiffs were scheduled to fly from Tampa to Chicago, on the board of defendant's flight UA 1270, which was subsequently cancelled. United Airlines refused to re-book the Plaintiffs to another flight from Tampa to Chicago. United Airlines, commonly referred to as United, is a major U.S. airline headquartered in Chicago, Illinois. It is the world's third-largest airline when measured by revenue, after American Airlines and Delta Air Lines.[BN] The Plaintiffs are represented by: Vladimir M. Gorokhovsky, Esq. GOROKHOVSKY LAW OFFICE, LLC 10919 N. Hedgewood Ln., Mequon, WI 53092 Telephone: (414) 581 1582 E-mail: gorlawoffice@yahoo.com UBER TECHNOLOGIES: Bid to Amend "O'Connor" PAGA Claim Denied ------------------------------------------------------------ In the case, DOUGLAS O'CONNOR, et al., Plaintiffs, v. UBER TECHNOLOGIES, INC., et al., Defendants, Case No. 13-cv-03826-EMC (N.D. Cal.), Judge Edward M. Chen of the U.S. District Court for the Northern District of California denied without prejudice the Plaintiffs' motion amend a claim under California's Private Attorney General Act ("PAGA"). The Plaintiffs have sought to amend a claim under PAGA into the case since March 2015; the Court has deferred resolution of the request on several occasions because, inter alia, an identical PAGA claim was pending in Los Angeles Superior Court in Price v. Uber Technologies, Inc., Case No. BC554512 (Cal. Sup. Ct.). On Jan. 18, 2018, the Superior Court in Price approved a settlement of a PAGA claim covering the period from July 8, 2013 to Jan. 29, 2017, for any individual who consented to a background check as part of the sign-up process to use Uber software application and/or used the Uber software application to generate leads in California" during that period. Upon the Price settlement, the Plaintiffs renewed their request to amend a PAGA claim to be brought by Plaintiff Thomas Colopy covering only the post-Price period after Jan. 29, 2017. After careful consideration of the parties' arguments, Judge Chen will deny the Plaintiffs' request for amendment at this time, without prejudice to their ability to renew the request after the Ninth Circuit has resolved the appeal of the Court's prior orders concerning class certification and the enforceability of Uber's arbitration agreements. As a preliminary matter, because the events supporting the PAGA claim arise after Jan. 29, 2017, they arise after the filing of the original complaint and therefore an amendment would constitute a supplemental pleading under Rule 15. The Plaintiffs' argument for inserting a PAGA claim into the case is premised on the assumption that the Court would bifurcate trial such that the PAGA claim would be adjudicated in an expedited manner while the Ninth Circuit appeal is pending and before the certified Rule 23 claims. Alternatively, the Plaintiffs argue that trial could proceed on Plaintiff Colopy's individual Labor Code Section 2802 claim and the predicate question of employee/independent contractor status, resolution of which would also determine whether Mr. Colopy is an "aggrieved employee" with standing to bring a PAGA claim. Judge Chen would not accept the Plaintiffs' proposed trial plan if amendment were permitted. Though other courts have bifurcated trial of individual Labor Code claims in advance of a representative PAGA claim premised on the same Labor Code violation, no court appears to have followed that procedure in a case where, as here, a Rule 23 class on the same claim has been certified and is pending. That adds a layer of procedural complexity to the present case that does not appear in others. It also introduces a number of potential complications to which Plaintiffs have offered no persuasive response. Moreover, the Judge says, the one-way intervention rule prevents a Court from adjudicating a class claim on the merits before notice has been sent to the class. Although it does not apply directly here because a class has already been certified and noticed, if the class definition is modified in a way that requires a new notice to be issued, that could be problematic under the rule. Although a PAGA trial or resolution of Mr. Colopy's individual claim under Labor Code Section 2802 would not technically constitute class adjudication, it would include factual and legal issues that are so "interwoven" with the Rule 23 class claim that serious questions would be raised. Finally, the Judge finds that the Plaintiffs' proposal raises significant case administration concerns. He says putting aside whether adjudication of PAGA claims may generally take into account the question of manageability, amending in a PAGA claim may complicate manageability and judicial efficiency of this case which includes a Rule 23 class action, factors relevant in considering a request to supplement pleadings under Rule 15. Multiple overlapping trials would likely be required. For those reasons, amendment is unwarranted at this time, particularly because if it were permitted, the PAGA claims would remain stayed with the rest of the case not only to avoid the problems identified above, but also because it is impossible to gauge the resulting impact of PAGA claims when the scope of the Rule 23 class action is not yet known. There thus does not appear to be any compelling reason to permit amendment; there is no looming statute of limitations for the PAGA claim, for example. Notably, the Plaintiffs' counsel identified no reason why Mr. Colopy cannot pursue his PAGA claim in Superior Court where a PAGA case (albeit different in scope as currently framed) is pending. For these reasons, Judge Chen denied without prejudice the Plaintiffs' motion. He advised the parties that, in future filings, they will make only sparing, efficient, and reasonable use of footnotes. A full-text copy of the Court's March 7, 2018 Order is available at https://is.gd/rW4Ww5 from Leagle.com. Douglas O'Connor, Plaintiff, represented by Adelaide Pagano -- apagano@llrlaw.com -- Lichten and Liss-Riordan, P.C., pro hac vice. Douglas O'Connor, Plaintiff, represented by Andrew A. August, Browne George Ross LLP, Ben Weber -- bweber@llrlaw.com -- Lichten and Liss-Riordan, P.C., Benjamin J. Meiselas, Geragos and Geragos, APC, Brian Stephen Kabateck, Kabateck Brown Kellner LLP, Brian C. Tackenberg -- btackenberg@crabtreelaw.com -- pro hac vice, Charles Morris Auslander, Crabtree and Auslander, pro hac vice, George R. Baise, Jr. -- gbaise@crabtreelaw.com -- pro hac vice, Jennifer R. Liakos, Napoli Shkolnik PLLC, John Granville Crabtree, pro hac vice, Mark J. Geragos, Geragos & Geragos, APC, Matthew David Carlson -- mcarlson@llrlaw.com -- Lichten & Liss- Riordan, P.C., Sara Smolik, Lichten and Liss-Riordan, P.C., Shannon Liss-Riordan, Lichten & Liss-Riordan, P.C. & Shant Arthur Karnikian -- sk@kbklawyers.com -- Kabateck Brown Kellner LLP. Thomas Colopy, Plaintiff, represented by Adelaide Pagano, Lichten and Liss-Riordan, P.C., pro hac vice, Andrew A. August, Browne George Ross LLP, Brian C. Tackenberg, pro hac vice, Charles Morris Auslander, Crabtree and Auslander, pro hac vice, George R. Baise, Jr., pro hac vice, John Granville Crabtree, pro hac vice, Matthew David Carlson, Lichten & Liss-Riordan, P.C., Sara Smolik, Lichten and Liss-Riordan, P.C. & Shannon Liss-Riordan, Lichten & Liss-Riordan, P.C.. Matthew Manahan, individually and on behalf of all others similarly situated, Plaintiff, represented by Adelaide Pagano, Lichten and Liss-Riordan, P.C., pro hac vice, Andrew A. August, Browne George Ross LLP, Brian C. Tackenberg, pro hac vice, Charles Morris Auslander, Crabtree and Auslander, pro hac vice, George R. Baise, Jr., pro hac vice, John Granville Crabtree, pro hac vice, Matthew David Carlson, Lichten & Liss-Riordan, P.C. & Shannon Liss-Riordan, Lichten & Liss-Riordan, P.C. Elie Gurfinkel, individually and on behalf of all others similarly situated, Plaintiff, represented by Adelaide Pagano, Lichten and Liss-Riordan, P.C., pro hac vice, Andrew A. August, Browne George Ross LLP, Ben Weber, Lichten and Liss-Riordan, P.C., Brian C. Tackenberg, pro hac vice, Charles Morris Auslander, Crabtree and Auslander, pro hac vice, George R. Baise, Jr., pro hac vice, John Granville Crabtree, pro hac vice, Matthew David Carlson, Lichten & Liss-Riordan, P.C. & Shannon Liss- Riordan, Lichten & Liss-Riordan, P.C. Ronald Gillette, Plaintiff, represented by Shannon Liss-Riordan, Lichten & Liss-Riordan, P.C., Adelaide Pagano, Lichten and Liss- Riordan, P.C., pro hac vice, Andrew A. August, Browne George Ross LLP, Andrew Paul Lee, Goldstein, Borgen, Dardarian & Ho, Brian C. Tackenberg, pro hac vice, Charles Morris Auslander, Crabtree and Auslander, pro hac vice, George R. Baise, Jr., pro hac vice, John Granville Crabtree, pro hac vice, Theodore Walter Maya, Ahdoot & Wolfson, P.C. & William Copley Jhaveri-Weeks, Goldstein, Borgen, Dardarian & Ho. Uber Technologies, Inc., Defendant, represented by Andrew Michael Spurchise -- aspurchise@littler.com -- Littler Mendelson, P.C., Marcellus Antonio McRae -- mmcrae@gibsondunn.com -- Gibson Dunn & Crutcher LLP, Theane D. Evangelis -- tevangelis@gibsondunn.com -- Gibson Dunn & Crutcher LLP, Theodore J. Boutrous, Jr. -- tboutrous@gibsondunn.com -- Attorney at Law, Brandon J. Stoker -- bstoker@gibsondunn.com -- Gibson Dunn and Crutcher LLP, Debra Wong Yang -- dwongyang@gibsondunn.com -- Gibson, Dunn Crutcher LLP, Dhananjay Saikrishna Manthripragada -- dmanthripragada@gibsondunn.com -- Gibson Dunn and Crutcher, John C. Fish, Jr. -- jfish@littler.com -- Littler Mendelson, PC, Joshua Seth Lipshutz -- jlipshutz@gibsondunn.com -- Gibson, Dunn and Crutcher LLP, Kevin Joseph Ring-Dowell -- kringdowell@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, Stephen A. Swedlow -- stephenswedlow@quinnemanuel.com -- Quinn Emanuel Urquhart & Sullivan, LLP, pro hac vice & Theane Evangelis Kapur, Gibson, Dunn & Crutcher LLP. 7x7 Executive Transportation LLC, Defendant, represented by James Parton, III, Parton & Sell PC. Rasier-CA, LLC, Defendant, represented by Andrew Michael Spurchise, Littler Mendelson, P.C.. Caren Ehret, Movant, represented by Myron Milton Cherry -- mcherry@cherry-law.com -- Myron M. Cherry & Associates LLC. Ricardo Del Rio, Movant, represented by Christopher James Hamner -- chamner@hamnerlaw.com -- Hamner Law Offices, APC, Amy Tai Wootton, Hamner Law Offices, APC, Benjamin J. Meiselas, Geragos and Geragos, APC, Brian Stephen Kabateck, Kabateck Brown Kellner LLP, Joshua H. Haffner, Kabateck Kellner LLP, Mark J. Geragos, Geragos & Geragos, APC & Shant Arthur Karnikian, Kabateck Brown Kellner LLP. Greg Fisher, Movant, represented by Christopher James Hamner, Hamner Law Offices, APC. John Doe, Movant, Pro Se. Todd Johnston, Movant, represented by Brian J. Malloy, The Brandi Law Firm. Steven Price, Interested Party, represented by Christopher John Morosoff, Law Office of Christopher J. Morosoff & Douglas Caiafa, Attorney at Law. City of Cleveland, Ohio, Interested Party, represented by Carl E. Meyer, City of Cleveland. Rosario Richardson, Interested Party, represented by Carey A. James -- caj@asmlawyers.com -- Aiman-Smith and Marcy & Shant Arthur Karnikian, Kabateck Brown Kellner LLP. Kathy Robinson, Interested Party, Pro Se. Leticia Alcala, Objector, represented by Hunter J. Shkolnik, Napoli Shkolnik PLLC, Paul Napoli, Napoli Shkolnik PLLC, pro hac vice, Jennifer R. Liakos, Napoli Shkolnik PLLC & Shant Arthur Karnikian, Kabateck Brown Kellner LLP. Marc Borgen, Objector, represented by Hunter J. Shkolnik, Napoli Shkolnik PLLC, Paul Napoli, Napoli Shkolnik PLLC, Jennifer R. Liakos, Napoli Shkolnik PLLC & Shant Arthur Karnikian, Kabateck Brown Kellner LLP. Knapp, Petersen & Clarke, Objector, represented by Andre Emilio Jardini -- aej@kpclegal.com -- Knapp Petersen & Clarke. Uladzimir Tabola, Objector, represented by Alexei Kuchinsky -- alexei@sfbizlaw.com -- Klein Law Group & Shant Arthur Karnikian - sk@kbklawyers.com -- Kabateck Brown Kellner LLP. Alexander Kazakov, Objector, represented by Alexei Kuchinsky, Klein Law Group & Shant Arthur Karnikian, Kabateck Brown Kellner LLP. Yahor Zgurski, Objector, represented by Alexei Kuchinsky, Klein Law Group & Shant Arthur Karnikian, Kabateck Brown Kellner LLP. Maksim Hancharuk, Objector, represented by Alexei Kuchinsky, Klein Law Group. Omar Zine, Objector, represented by Christopher John Gansen, Gansen Law Group & Shant Arthur Karnikian, Kabateck Brown Kellner LLP. Nahabet Narsis, Objector, represented by Kevin Todd Barnes, Law Offices of Kevin T. Barnes. Jorge Zunigas, Objector, represented by Mark Alan Morrison -- markmorrison@paulhastings.com -- Morrison and Associates. Jason Rosenberg, Objector, represented by Mark Alan Morrison, Morrison and Associates. David Lanier, Amicus, represented by Christopher G. Jagard, McCurdy Ku & John Cumming, Department of Industrial Relations. Abdo Ghazi, Intervenor, represented by Alec Llewellyn Segarich, Lohr Ripamonti & Segarich LLP, Conor Daniel Granahan, Law Offices of Conor Granahan, Jason Shelton Lohr, Lohr Ripamonti & Segarich LLP & Shant Arthur Karnikian, Kabateck Brown Kellner LLP. UNIVERSAL PROTECTION: Fails to Pay OT Wages, Collick et al. Say --------------------------------------------------------------- KOREY COLLICK 2009 Darnell Ct. Waldorf, MD 20602 TASHARE KING 2914 Saint Moritz Dr. #302 Temple Hills, MD 20748 ADETOLANBO OLONIYON 5503 Auth Rd. Suitland, MD 20746 individually and on behalf of a class of persons, the Plaintiffs, v. UNIVERSAL PROTECTION SERVICE LLC Eight Tower Bridge 161 Washington Street, Suite 600 Conshohocken, PA 19428 Serve: Registered Agent, CT Corporation System 1015 15th Street NW Suite 1000 Washington, DC 20005; ALLIED BARTON SECURITY SERVICES 1400 I Street, NW Suite 600 Washington, DC 20005 Serve: Registered Agent, CT Corporation System 1015 15th Street NW Suite 1000 Washington, DC 20005; and ALLIED UNIVERSAL SECURITY SERVICES 1400 I Street, NW Suite 600 Washington, DC 20005 Serve: Registered Agent, CT Corporation System 1015 15th Street NW Suite 1000 Washington, DC 20005, the Defendants, Case No. 2018-CA-002462-8 (D.C. Super. Ct., April 13, 2018), seeks to recover unpaid overtime compensation, liquidated damages, attorneys' fees and all other costs and expenses as permitted by the District of Columbia Minimum Wage Revision Act and the District of Columbia Wage Payment and Collection Law. According to the complaint, the Defendants were contracted to provide security services to buildings housing the International Monetary Fund, located in the District of Columbia, until January 1, 2018. The Defendants employed security guards, and, during the course of the guards' employment, defendants required these employees to perform work prior to the scheduled start of their shift and after the scheduled time that their shifts ended. This pre-shift work included activities such as obtaining equipment (including but not limited to firearms, ammunition, speed loaders, radios, pepper spray, and handcuffs); obtaining their daily assignments; and signing in with and speaking to a supervisor about their shifts. After their shift ended, Defendants required the security guards to perform additional work such as turning in their firearms, ammunition, speed loaders, pepper spray, handcuffs, radios, and then turning in their daily activity logs to their supervisors. At all times material herein, these pre-shift and post-shift work activities took approximately 30 minutes or more each day. At some point in 2014 or 2015, the Defendants began providing the security guards with 15 minutes of overtime compensation for their pre-shift work. This amount did not cover all of the pre-shift work performed by Plaintiffs. At no point have Defendants provided overtime compensation for Plaintiffs post-shift work. Universal Protection Service, LLC provides security solutions. The Company specializes in the design, installation, and monitoring of security and fire monitoring systems.[BN] The Plaintiff is represented by: Robert B. Fitzpatrick, Esq. ROBERT B. FITZPATRICK PLLC 1666 Connecticut A venue NW Suite 230 Washington, D.C. 20009 Telephone: (202) 588 5300 Facsimile: (202) 354 5421 E-mail: rfitzpatrick@robertbfitzpatrick.com - and - Gregory K. McGillivary, Esq. Sara L. Faulman, Esq. WOODLEY & McGILLIVARY LLP 1101 Vermont Ave NW No. 1000 Washington, D.C. 20005 Telephone: (202) 833 8855 Facsimile: (202) 452 1090 E-mail: gkm@wmlaborlaw.com slf@wmlaborlaw.com VISTA PAINT: Parking Lot Not Accessible to Disabled, Pizzaro Says ----------------------------------------------------------------- RAMON PIZZARO, on behalf of himself and all others similarly situated, the Plaintiff, v. VISTA PAINT CORPORATION, the Defendant, Case No. BC701090 (Cal. Super. Ct., April 10, 2018), seeks to recover statutory damages and reasonable attorneys' fees and costs as a result of Defendant's violation of California's anti-discrimination state statutes, the Unruh Civil Rights Act, California Code, and the California Disabled Persons Act. According to the complaint, on December 5, 2017, the Plaintiff patronized the Vista Paint store located at 17445 Beach Blvd., Huntington Beach, CA to purchase goods and suffered discrimination as a result of being denied full and equal access to the store's parking lot. The Plaintiff was deterred from parking in a handicap accessible parking space because the parking lot did not have an adequate number of handicap accessible parking spaces. In addition to not having the minimum required amount of handicap accessible parking spaces, the parking lot also lacked handicap accessible parking signage to deter the use of handicap spaces by persons that are not disabled. For example, the parking lot did not have additional signage below the symbol of accessibility stating minimum fine $250.00." As a result, Plaintiff was unable to park in a handicap accessible parking space. On December 29, 2017, the Plaintiff attempted to resolve this dispute without the need for litigation by providing Defendant with written notice and the opportunity to cure by requesting that Defendant make accessible the 17445 Beach Blvd., Huntington Beach, CA location. In his correspondence to the store manager, the Plaintiff informed him or her that the store's parking lot is not accessible to him for the above reasons, and asked that these problems be fixed within 30 days. The Plaintiff did not seek any monies or statutory damages. The Plaintiff received no response to his December 209, 2017 letter. As a result, he is now being deterred from patronizing all of Defendant's locations. Vista Paint Corporation manufactures painting products. It offers paints which includes primer, stain, finish, specialty, acoustic kote, graffiti block, weather master, acribond, eggshell, gloss, and sheen.[BN] The Plaintiff is represented by: Evan J. Smith, Esq. BRODSKY & SMITH, LLC 9595 Wilshire Blvd., Ste. 900 Beverly Hills, CA 90212 Telephone: (877) 534 2590 Facsimile: (310) 247 0160 WAL-MART STORES: Bid to Quash Subpoena in "Phipps" OK'd ------------------------------------------------------- In the case, CHERYL PHIPPS and SHAWN GIBBONS, Plaintiffs, v. WAL- MART STORES, INC., Defendant, Case No. 3:12-cv-01009 (M.D. Tenn.), Magistrate Judge Jeffery S. Frensley of the U.S. District Court for the Middle District of Tennessee, Nashville Division, granted the Defendant's Motion to Quash the Subpoena to Hay Group, Inc. In this employment discrimination class action, the Plaintiffs allege that the Defendant discriminated against them because of their gender. Among other claims, the Plaintiffs claim that the Defendant's compensation policies, including its failure to require managers to base pay decisions for individual employees on job-related criteria, such as experience or documented performance, have had an adverse impact upon its female employees in Region 43. The Hay Group is a third party consultant that worked with the Defendant during the time of the Dukes litigation. The Parties have been involved in a discovery dispute regarding documents related to the Hay Group's work. Those documents have been loosely termed "the Hay Group documents." In addition to moving to compel production of the Hay Group documents from the Defendant, the Plaintiffs also served document requests by subpoena on the Hay Group. The documents requested are: 1. All documents pertaining to the creation and implementation of a new pay classification structure at Defendant's stores, including but not limited to: (a) all questionnaires and surveys conducted by you or anyone acting at your direction or request, including responses to those questionnaires and surveys, and any analyses or summaries of same; (b) all documents related to focus groups, interviews, or site visits conducted by you or anyone acting at your direction or request, including but not limited to dates and locations of those focus groups, interviews and site visits, minutes, transcripts, agendas, notes, attendance records and recordings; (c) all documents reflecting the methods and analyses you used in formulating recommendations about the Defendant's pay classification structure; (d) all documents related to a neutralization adjustment made by the Defendant, to adjust pay rates at the time of implementing the new hourly pay structure in a manner which would reduce gender disparities; and (e) any communications on the above listed topics. 2. All documents related to any recommendations or proposals made by you to the Defendant concerning the Defendant's evaluation of or compensation for hourly or salaried employees working in the Defendant's retail stores, including any communications with Defendant regarding same. 3. All documents related to any recommendations or proposals made by you to the Defendant concerning its policies or procedures for considering and selecting individuals for promotion to any position in its retail stores, including any communications with Defendant regarding same. Before the Court is Wal-Mart Stores's Motion to Quash the Subpoena to Hay Group, Inc. It has also filed a supporting Memorandum of Law. The Plaintiffs have filed a Response in Opposition. As the documents sought are exclusively those related to the Hay Group's work with the Defendant, Magistrate Judge Frensley finds that the Defendant has standing to challenge the subpoena to the Hay Group. On timely motion, Rule 45 of the Federal Rules of Civil Procedure requires the court to quash or modify a subpoena that: (1) does not allow reasonable time to comply; (2) requires a non-party to travel more than 100 miles from his or her residence; (3) requires disclosure of a privileged or protected matter; or (4) subjects a person to an undue burden. The Magistrate Judge finds that the Court has previously found that the documents sought by the subpoena to the Hay Group are protected by the work product doctrine. Because compliance with the subpoena would require the Hay Group to disclose protected matter, for the reasons explained in the Court's prior Order, he granted the Defendant's Motion, and quashed the subpoena to the Hay Group. A full-text copy of the Court's March 7, 2018 Order is available at https://is.gd/OD6jRs from Leagle.com. Cheryl Phipps & Shawn Gibbons, On Behalf of Themselves and all Others Similarly Situated, Plaintiffs, represented by Brian C. Corman, Cohen, Milstein, Sellers & Toll PLLC, Christine Webber -- cwebber@cohenmilstein.com -- Cohen, Milstein, Sellers & Toll PLLC, David W. Garrison -- dgarrison@barretjohnston.com -- Barrett Johnston Martin & Garrison, LLC, Jocelyn D. Larkin, Impact Fund, Joseph M. Sellers -- jsellers@cohenmilstein.com -- Cohen, Milstein, Sellers & Toll, PLLC, Scott P. Tift -- stift@barretjohnston.com -- Barrett Johnston Martin & Garrison, LLC & Seth Marcus Hyatt -- shyatt@barrettjohnston.com -- Barrett Johnston Martin & Garrison, LLC. Wal-Mart Stores, Inc., Defendant, represented by Amanda Machin -- amachin@gibsondunn.com -- Gibson, Dunn & Crutcher, LLP, Aubrey B. Harwell, Jr. -- aharwell@nealharwell.com -- Neal & Harwell, PLC, Catherine Conway, Gibson Dunn & Crutcher LLP, Gerald David Neenan, Neal & Harwell, J. Graham Matherne -- gmatherne@wyattfirm.com -- Wyatt, Tarrant & Combs (Nashville Office), Mark A. Perry -- mperry@gibsondunn.com -- Gibson, Dunn & Crutcher, LLP, Michele L. Maryott -- mmaryott@gibsondunn.com -- Gibson, Dunn & Crutcher, LLP, Olivia Adendorff -- oadendorff@gibsondunn.com -- Gibson, Dunn & Crutcher, LLP (Dallas Office), Rachel S. Brass -- rbrass@gibsondunn.com -- Gibson, Dunn & Crutcher, LLP & Theodore J. Boutrous, Jr. -- tboutrous@gibsondunn.com -- Gibson Dunn & Crutcher LLP. WAL-MART STORES: Must Provide Docs in "Phipps" Suit --------------------------------------------------- In the case, CHERYL PHIPPS and SHAWN GIBBONS, Plaintiffs, v. WAL- MART STORES, INC., Defendant, Case No. 3:12-cv-01009 (M.D. Tenn.), Magistrate Judge Jeffery S. Frensley of the U.S. District Court for the Middle District of Tennessee, Nashville Division, granted in part and denied in part the Plaintiffs' Motion to Compel Production of Documents. In this employment discrimination class action, the Plaintiffs allege that the Defendant discriminated against them because of their gender. Among other claims, the Plaintiffs claim that the Defendant's compensation policies, including its failure to require managers to base pay decisions for individual employees on job-related criteria, such as experience or documented performance, have had an adverse impact upon its female employees in Region 43. The instant Motion seeks to compel Defendant to produce all documents related to its analysis of and changes to the job descriptions, compensation policies, and performance evaluations used for the Defendant's retail positions, in response to the Plaintiff's Requests for Production of Documents 5, 6, and 7. The Defendant worked closely with a third party consultant called the Hay Group on this project, and thus the Plaintiffs refer to this collection of documents as Hay Group documents although that is not intended to limit the request to documents created by the Hay Group. The Defendant responded to Requests for Production Nos. 5, 6, and 7 by objecting on the basis of the attorney-client privilege and attorney work product doctrine, among other, more general objections. Further, in response to Requests for Production Nos. 5 and 7, it stated that in addition, it objects to the Request on the grounds that it is overbroad, not proportionate to the needs of the case, and to the extent it seeks documents that are not relevant to the Plaintiffs' allegations regarding the challenged practices or the alleged 'core group of decisionmakers' in Region 43. The Plaintiffs contend that these documents are highly relevant to the Plaintiffs' disparate impact claims. The Defendant has withheld some of the Hay Group documents from production, and argues that the Plaintiffs are not entitled to discover them because: 1) the Plaintiffs are attempting to circumvent the Court's prior Order mandating production only of responsive documents that were provided to the Region 43 decision makers; 2) the Hay Group documents are protected by attorney-client privilege; and 3) the Hay Group documents are protected by the work product doctrine. The Plaintiffs dispute that the documents are protected by either privilege or the work product doctrine, but assert that even if they were, Defendant has waived those protections by producing some Hay Group documents but not similar, related documents. Magistrate Judge Frensley granted in part and denied in part the instant Motion. He ordered the Defendant to produce non- privileged, non-protected documents responsive to the Plaintiffs' Requests for Production Nos. 5, 6, and 7, without regard to whether such documents were shared with the "core decisionmakers" of Region 43. He finds that in those cases, if any, where the Defendant can establish by reference to the criteria that a document is attorney-client privileged, then it may protect the document from production. Otherwise, he finds that the Hay Group documents are not, as a group, protected by the attorney-client privilege. The Magistrate Judge also finds that the Hay Group documents are relevant for the purposes of discovery in the matter. He says if, as the Plaintiff alleges, compensation system changes that affected the pay of employees within Region 43 were the result of decisions were made above the level of the Region 43 decisionmakers, with no discretion left to those decisionmakers to modify or otherwise deviate from the upper-level decisions, then documents reflecting those decisions are relevant to the Plaintiffs' claims of disparate impact, regardless of whether they were shared with Region 43 decisionmakers. Given that the Parties were engaged in ongoing discussion regarding the Hay Group documents were prepared in the course of business, and not in anticipation of litigation, the Magistrate finds that the Defendant proceeded reasonably in invoking the claw-back provision in early January. In light of that, he finds that disclosure of these documents does not constitute a waiver of any protection to which the documents may be entitled. Finally, he finds that to the extent that Court's prior Order, addressing another Motion to Compel filed by Plaintiffs, was made above the level of the Region 43 decision makers, as the Plaintiff asserts, he agrees that whether documents were provided to Region 43 decision makers is irrelevant, and therefore finds that its prior Order does not restrict the Plaintiffs' ability to discover Hay Group documents. A full-text copy of the Court's March 7, 2018 Order is available at https://is.gd/VZX04v from Leagle.com. Cheryl Phipps & Shawn Gibbons, On Behalf of Themselves and all Others Similarly Situated, Plaintiffs, represented by Brian C. Corman, Cohen, Milstein, Sellers & Toll PLLC, Christine Webber -- cwebber@cohenmilstein.com -- Cohen, Milstein, Sellers & Toll PLLC, David W. Garrison -- dgarrison@barretjohnston.com -- Barrett Johnston Martin & Garrison, LLC, Jocelyn D. Larkin, Impact Fund, Joseph M. Sellers -- jsellers@cohenmilstein.com -- Cohen, Milstein, Sellers & Toll, PLLC, Scott P. Tift -- stift@barretjohnston.com -- Barrett Johnston Martin & Garrison, LLC & Seth Marcus Hyatt -- shyatt@barrettjohnston.com -- Barrett Johnston Martin & Garrison, LLC. Wal-Mart Stores, Inc., Defendant, represented by Amanda Machin -- amachin@gibsondunn.com -- Gibson, Dunn & Crutcher, LLP, Aubrey B. Harwell, Jr. -- aharwell@nealharwell.com -- Neal & Harwell, PLC, Catherine Conway, Gibson Dunn & Crutcher LLP, Gerald David Neenan, Neal & Harwell, J. Graham Matherne -- gmatherne@wyattfirm.com -- Wyatt, Tarrant & Combs (Nashville Office), Mark A. Perry -- mperry@gibsondunn.com -- Gibson, Dunn & Crutcher, LLP, Michele L. Maryott -- mmaryott@gibsondunn.com -- Gibson, Dunn & Crutcher, LLP, Olivia Adendorff -- oadendorff@gibsondunn.com -- Gibson, Dunn & Crutcher, LLP (Dallas Office), Rachel S. Brass -- rbrass@gibsondunn.com -- Gibson, Dunn & Crutcher, LLP & Theodore J. Boutrous, Jr. -- tboutrous@gibsondunn.com -- Gibson Dunn & Crutcher LLP. WILSON SPORTING: Baseball Bat Non-Compliant, Sheeley & WalKer Say ----------------------------------------------------------------- THEODORE SHEELEY and TIMOTHY WAL KER, individually and on behalf of similarly situated individuals, the Plaintiff, v. WILSON SPORTING GOODS CO., a Delaware corporation, the Defendant, Case No. 2018-CH-04770 (Ill. Cir. Ct., Cook Cty., April 12, 2018), seeks to recover damages and restitution from Defendant for selling products that did not conform to its representations and warranties to consumers. The Defendant is one of the largest manufacturers and sellers of sporting goods and equipment in the country, including a number of different types of baseball bats under a variety of brands it owns and operates. The Defendant manufactures and distributes a popular, premium brand of baseball bats known as the "Delvlarini" brand. A large number of Defendant's customers play in various local and national leagues that adhere to USSSA standards for baseball bat manufacturing. Accordingly, a number of Defendant's DcMarini baseball bats arc specifically labeled and advertised as being "USSSA" compliant. However, a recent "audit" of several models of DcMarini "youth baseball bats" has revealed that the baseball bats purchased by Plaintiffs and the other members of the proposed Class are not actually USSSA compliant, and cannot be used for play in any league that adheres to USSSA regulations. Accordingly, Plaintiffs bring this action on their own behalf and on behalf of similarly situated consumers in Illinois and elsewhere nationwide to obtain redress for those who purchased DeMarini baseball bats that failed to comply with USSSA regulations. Wilson Sporting Goods Company is an American sports equipment manufacturer based in Chicago, Illinois. Since 1989, it has been a subsidiary of the Finnish group Amer Sports.[BN] Attorneys for Plaintiffs and the putative class members: Paul T. Geske, Esq. Myles McGuire, Esq. MCGUIRE LAW, P.C. 55 W. Wacker Drive, 9th Fl. Chicago, IL 60601 Telephone: (312) 893 7002 Facsimile: (312) 275 7895 E-mail: nuncguire@mcb,rpc.com pgeske@mcgpc.com - and - Scott A. Morgan, Esq. MORGAN LAW FINN, LTD. 55 West Wacker Drive, 9th Fl. Chicago, IL 60601 Telephone: (312) 327 3386 Facsimile: (888) 396 2478 E-mail: smorgan@smorgan-law.com YALE UNIVERSITY: Loses Bid to Dismiss ERISA Class Action -------------------------------------------------------- Jacklyn Wille, writing for Bloomberg BNA, reports that Yale University is the latest college to lose an early round in a proposed class action challenging how it manages its retirement plan. A federal judge on March 30 refused to dismiss most claims against the school, including claims challenging the retirement plan's administrative and investment fees. The Yale workers who filed suit are also moving forward with claims challenging the "locked-in" nature of the plan's record-keeping services, which the judge said may have prevented the school from properly monitoring the plan's investments and record-keeping fees. The workers scored another big win when the judge declined to dismiss claims that Yale was wrong to offer retail share classes of various plan investments. The Yale lawsuit is one of a growing number of Employee Retirement Income Security Act cases to argue that plan fiduciaries should be held liable if they offer more expensive retail share classes when identical institutional share classes are available at a lower cost. The federal courts have disagreed over whether this is a viable claim under ERISA. Judges have allowed such claims to proceed against Cornell, Emory, and MIT, while Johns Hopkins, Columbia, and the University of Pennsylvania saw such claims dismissed. In 2017, a long-running class action against Edison International forced the company to pay more than $13 million for retirement plan violations, including its decision to offer retail share classes. Yale is one of more than a dozen prominent colleges to be hit with proposed class actions challenging their retirement plans in recent years. So far, the University of Pennsylvania is the only school to defeat one of these cases outright, with judges allowing similar challenges to proceed against Cornell, Columbia, Duke, Emory, New York University, Johns Hopkins, Princeton, Vanderbilt, and the University of Chicago. The March 30 decision in the Yale case was mostly a victory for the university workers who filed suit, but the judge did dismiss some claims against the school. The judge dismissed allegations that the school acted disloyally in managing its retirement plan. The judge also said it wasn't wrong for Yale to offer "too many" investment options in its retirement plan. The workers said overly large investment lineups leave employees confused and paralyzed by indecision, but the judge said they offered no indication that any specific employee was actually confused by Yale's investment lineup. Judge Alvin W. Thompson of the U.S. District Court for the District of Connecticut wrote the decision. Schlichter Bogard & Denton LLP and Cohen & Wolf PC represent the university workers. Mayer Brown LLP represents Yale. The case is Vellali v. Yale Univ., D. Conn., No. 3:16-cv-01345- AWT, order partly denying motion to dismiss 3/30/18. [GN] * New Wisconsin Legislation Expected to Modify Class-Action Rules ----------------------------------------------------------------- Erika Strebel, writing for Wisconsin Law Journal, reports that Gov. Scott Walker was expected on April 3 to sign legislation making a long list of changes to the state's civil litigation rules. Among the many changes, Assembly Bill 773 modifies the state's construction statute of repose, which contractors commonly invoke as a defense in certain personal-injury lawsuits. The statute prevents injured plaintiffs from suing over negligent design for an injury that occurred more than 10 years after a project was substantially completed. A provision in AB 773 shrinks that window to seven years. Also under the bill, insurers will see a decrease in the interest rate they must pay on overdue claims. The proposed change lowers the rate from 12 percent to 7.5 percent. AB 773 will also make changes to the state's rules of discovery, which lawyers use to gather facts that are relevant to their cases. Among other things, the changes would adopt a new scope- of-discovery provision that includes a proportionality requirement identical to the one found in the Federal Rules of Civil Procedure. The changes will also, except in instances when a court orders otherwise or the parties in a case stipulate otherwise, limit the number of depositions that can be taken to 10, each of which can last no more than 7 hours. It will also limit the number of interrogatories to 25 and prevent parties from requesting records more than five years before a cause of action accrues. However, certain records will be exempt from that limit. The legislation will also modify the state's class-action rule. The Wisconsin Supreme Court has already revised the state's rule to have it match its federal counterpart. AB 773 modifies what the justices had done previously by allowing for interlocutory appeals of class-certification orders that will stall all proceedings in a case, although courts will still be able to consider and weigh in on settlements reached between parties. That modification to class-action rules is the only provision that won't take effect immediately now that the bill has been signed by Walker. That change will instead take effect on July 1, when the rest of the class-action rule approved by the high court goes into effect. [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Jessenius Pulido, Noemi Irene A. Adala, Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche Maricon Castillon-Lopez, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2018. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. * * * End of Transmission * * *