/raid1/www/Hosts/bankrupt/CAR_Public/180502.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, May 2, 2018, Vol. 20, No. 88
Headlines
3M CO: Faces Class Action Over Carcinogenic Pollutants
ACCOUNTABLE HEALTHCARE: Court Nixes Bid to Certify Class
ADT INC: Awaits Court's Ruling on Settlement Fairness
ADT INC: Class Certification Bid in TCPA Suit Underway
AFNI INC: Final Approval of Class Settlement Agreement Sought
ALAMEDA COUNTY, CA: Certification of Women Prisoners Class Sought
AMERICAN HOTEL: Court Won't Strike Class Allegations in TCPA Suit
AMETEK INC: $50K Settlement with Senior in "Cox" Denied
AMETEK INC: $1.5MM Settlement with Senior in "Greenfield" Denied
AQUA METALS: May 17 Hearing on Bids to Appoint Lead Plaintiff
ARAMARK CORRECTIONAL: "McCoy" Suit Partly Dismissed
BANK OF AMERICA: Court Dismisses Consolidated FX Suit
BEAR STATE: "Owens" Remanded to State Court
BG PERSONNEL: Ryan Seeks to Certify Consumers Class & Subclass
BJ'S WHOLESALE: Court Grants Summary Judgment in "O'Reilly"
BRAVO BRIO: Recorded $2.5MM Expense in 2017 over Case Settlement
BRAVO BRIO: "Andreescu" Agrees to Settle Suit for $1.6 Million
BROADCOM LTD: Bid for Attorneys' Fees Underway
BROADCOM LTD: Appeal in "Varjabedian" Suit Still Pending
BROADCOM LTD: Delaware Class Suit over PLX Deal Underway
BUDD PROPERTIES: 2 Classes Certified in "Martin" Suit
CALDWELL TRANSPORT: Court Certifies Class in "Luckett" Suit
CHAMPION PETFOODS: Faces "Slawsby" Suit Over Product Misbranding
CHICAGO, IL: Aviation Officers File Suit Over Lost Privileges
CVS RX SERVICES: Can Partly Compel Arbitration in "Cabrera" Suit
DEL TACO: Says Managers' Class Suit in California Concluded
DEL TACO: Discovery is Ongoing in Former Employee's Class Suit
DENTSPLY SIRONA: Parties in "Weinstat" Suit Reached Settlement
DENTSPLY SIRONA: Stipulation in "Hilderbrand" Suit Underway
DOW CHEMICAL: Tolling Ended When Certification Was Denied
DYNAMIC LEDGER: 2 Securities Suits Consolidated with GGCC's Suit
EARTHSTONE ENERGY: "Olenik" Class Action Suit Still Ongoing
FACEBOOK INC: Judge Certifies Class in Illinois BIPA Lawsuit
FGL HOLDINGS: Cross-Motions to Dismiss Pending in BIP Suit
FGL HOLDINGS: Says "Cressy" Class Action Concluded
FGL HOLDINGS: Time to Seek Review in "Ludwick" Suit Expired
FIRST TENNESSEE: Court Grants Dismissal of "Oneal" FCRA Suit
FLOWERS FOODS: Fails to Pay Workers Overtime, "Dickens" Suit Says
GALVESTON COUNTY, TX: People Who Can't Afford to Pay Bail Sue
GENER8 MARITIME: "Fragapane" and "Mohr" Suits Filed in New York
GGP INC: Faces "Susman" Suit Over Breach of Fiduciary Duty
GRAYHAWK HOMES: Court Conditionally Certifies Class in "Sizemore"
H&E EQUIPMENT: Can Partly Compel Responses to Interrogatories
HARRY CANTRELL: Court Certifies Class in "Caliste" Suit
HEALTH AND HUMAN: Healthy Futures Seeks to Certify Class
HERITAGE PROPANE: Class Action Benefits Florida Legal Aid Groups
HORTONWORKS INC: "Monachelli" Class Suit Concluded
HOTY LIVERY: $670K Settlement in "Lassen" Suit Has Final Approval
HUNTER WARFIELD: Illegally Collects Debt, "Sears" Suit Claims
HYUNDAI MOTOR: Faces Class Action Over Defective Theta II Engines
I PLAY: "Spearman" Discovery Stayed Pending Dismissal Bid Ruling
ILLINOIS TOOL: Court Limits Production of Docs in "Duffy"
INLAND COUNTIES: Dismissal of Wage & Hour Suit Partly Reversed
IRO INC: Faces "Crosson" Suit Over Blind-Inaccessible Website
J ALEXANDERS: Faces "Elstein" Shareholder Suit
JAGUAR ANIMAL: June 14 Hearing on Bid to Dismiss "Plant"
JOHNSON & JOHNSON: Ordered to Pay Bulk of Mesothelioma Verdict
JONES FINANCIAL: Bid to Dismiss Retirement Plan Suit Pending
JONES FINANCIAL: Parties in "White" Class Suit Reached Settlement
JUST ENERGY: Faces "Rovner" Suit in N.Y. Over Natural Gas Fee
KARN AUTOMOTIVE: Faces "Fairly" Suit Over Failure to Pay Overtime
KOOPLES USA: Faces "Conner" Suit Over Blind-Inaccessible Website
LAFAYETTE STEEL: Galindo Seeks to Certify Class
LENDINGCLUB CORP: Securities Suit Settlement Has Prelim Approval
LENDINGCLUB: July 19 Securities Settlement Fairness Hearing Set
LONGFIN CORP: Sued Over Share Price Drop After Ziddu.com Buy
MADERO RESTAURANT: "Valencia" Suit Seeks to Recover Unpaid Wages
MCDONALD'S: Judge Tosses Class Action Over "Extra Value Meal"
MDL 2672: Two U.S. Counties Can't Sue for Emissions Scandal
MDL 2785: Court Designates Coury & Viebacher as ESI Custodian
MICHIGAN: Judge Strikes Down State Law on Juvenile Sentences
MONTGOMERY, AL: Court Dismisses of "Johnson" Suit
MORNINGSTAR INC: "Green" RICO Suit Dismissed
MULESOFT INC: Faces Class Action Over Salesforce.com Merger
NATERA INC: Continues to Defend Calif. Class Action Suit
NORTHSTAR LOTTERY: Bid to Remand "Raqqa" to State Court Denied
OVASCIENCE INC: Suit by Westmoreland Retirement System Underway
OVASCIENCE INC: Bid to Consolidate Class Suits Pending
PAPA MURPHY'S: Continues to Defend "Lennartson" Class Suit
PARKOFF OPERATING: Court Grants Bid to Dismiss "Quinn" Suit
PCM INC: "Miller" Class Action Suit Concluded
PIRON LLC: Court Certifies Class of Cable Technicians in "Ali"
PJ CHEESE: Doesn't Properly Pay Delivery Drivers, Suit Claims
PREMIUM NUTRACEUTICALS: 9th Cir. Affirms Dismissal of "Matus"
PROGRESSUS THERAPY: "Shelton" Suit Settlement Has Prelim Approval
PULSE ELECTRONICS: July 27 Settlement Fairness Hearing Set
QUORUM HEALTH: Bid to Dismiss "Rao" Suit Still Pending
REGENCY VILLAGE: Court Narrows Claims in "Ridley"
REVLON INC: Bid to Dismiss in Merger-Related Suit Pending
RISE MEDICAL: "Horn" Class Contact Info Disclosure Protocol OK'd
SARAR USA: Court Narrows Claims in "Werst" Suit
SCHNUCK MARKETS: Banks Can't Sue to Recover Data Breach Losses
SOTHEBY'S: 9th Cir. Hears Arguments in Royalties Class Action
SOUTHERN CALIFORNIA: Order Granting Bid to Strike "Leon" Upheld
ST. JOSEPH COUNTY, IN: Certification of Class & Subclasses Sought
STEMLINE THERAPEUTICS: Court Dismisses Securities Fraud Suit
TBC CORPORATION: Hamilton Seeks to Certify Classes
TELIGENT INC: Econazole Pricing Antitrust Suit Still Ongoing
THC ORANGE COUNTY: Song Seeks to Certify 2 Classes
TOMMY HILFIGER: Sued for Allegedly Advertising False Discounts
TRUMP UNIVERSITY: Judge Inks $25MM Fraud Class Action Settlement
VEON LTD: Response to Westway Alliance Suit Due May 13
VOYA RETIREMENT: Bid to Dismiss Amended "Dezelan" Suit Pending
VOYA RETIREMENT: Continues to Defend "Goetz" Class Suit
ZAGG INC: Stotz-Charles Suit Already Settled
ZILLOW GROUP: Consolidated Vargosko & Shotwell Suits Underway
ZILLOW GROUP: $6.0MM Paid in "Freeman" Suit Settlement
*********
3M CO: Faces Class Action Over Carcinogenic Pollutants
------------------------------------------------------
Robert Kahn, writing for Courthouse News Service, reported that
ninety-one named plaintiffs accuse 3M Co. and five other
companies in a federal class action of making them sick by
polluting the communities of Airways Heights and Medical Lake,
Wash., near Fairchild Air Force Base, with firefighting chemicals
and other carcinogenic pollutants.
Also named as defendants are Tyco Fire Products LP, Buckeye Fire
Equipment Co., Chemguard Inc., Kidde-Fenwal Inc. and National
Foam Inc.
Attorneys for Plaintiffs and proposed class:
Breean L. Beggs, Esq.
Mary Elizabeth Dillon, Esq.
Andrew Biviano, Esq.
Daniel R. Hayward, Esq.
PAUKERT & TROPPMANN, PLLC
522 West Riverside Avenue, Suite 560
Spokane, WA 99201
Tel: 509-232-7760
Fax: 509-232-7762
-- and --
Paul J. Napoli, Esq.
Patrick Lanciotti, Esq.
Tate J. Kunkle, Esq.
NAPOLI SHKOLNIK PLLC
360 Lexington Avenue, 11th Floor
New York, NY 10017
Tel: (212) 397-1000
ACCOUNTABLE HEALTHCARE: Court Nixes Bid to Certify Class
--------------------------------------------------------
In the lawsuit styled Advantage Healthcare, Ltd., the Plaintiff,
v. Accountable Healthcare Staffing, Inc., the Defendant, Case No.
1:17-cv-09149 (N.D. Ill.,), the Hon. Judge John Z. Lee entered an
order striking Plaintiff's motion to certify class without
prejudice.
According to the docket made by the Clerk on April 27, 2018,
Plaintiff's motion to certify class is stricken without prejudice
in light of Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th
Cir. 2015), which overruled Damasco v. Clearwire Corp., 662 F.3d
891 (7th Cir. 2011), as well as Campbell-Ewald Co. v. Gomez, 136
S. Ct. 663, 670 (2016) (holding that a lapsed offer of judgment
has no effect on the justiciability of a case or a live
controversy between the litigating parties). As such, there is no
longer binding authority that requires a class certification
motion to be filed prematurely.
A copy of the Docket Entry is available at no charge at
http://d.classactionreporternewsletter.com/u?f=MgIEjFNq
ADT INC: Awaits Court's Ruling on Settlement Fairness
-----------------------------------------------------
ADT Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2017, that the parties in the Wireless Encryption
Litigation relating to ADT are awaiting court ruling on the
fairness of their settlement agrement.
The Company is subject to five class action claims regarding
wireless encryption in certain ADT security systems.
Jurisdictionally, three of the five cases are in Federal Court
(in districts within Illinois, Arizona, and California), and both
of the remaining two cases are in Florida State Court (both in
Palm Beach County Circuit Court). Each of the five plaintiffs
brought a claim under the respective state's consumer fraud
statute alleging that The ADT Corporation made misrepresentations
and material omissions in its advertising regarding the
unencrypted wireless signal pathways in certain security systems
monitored by The ADT Corporation.
The complaints in all five cases further allege that certain
security systems monitored by The ADT Corporation are not secure
because the wireless signal pathways are unencrypted, and can be
easily hacked. On January 10, 2017, the parties agreed to settle
all five class action lawsuits.
On October 16, 2017, the U.S. District Court for the Northern
District of California entered an order granting preliminary
approval of the settlement. Notice to class members was issued
November 16, 2017, and the settlement is currently in the
administration process.
A fairness hearing regarding the settlement was conducted on
February 1, 2018 and the Court has taken the matter under
advisement and requested further submissions from the parties.
The deadline for filing claims in the settlement has expired. The
settlement administrator will not pay any claims until the Court
has made a ruling regarding the fairness of the settlement.
ADT said "The Company believes its reserves are adequate for this
matter."
ADT Inc. is a provider of monitored security, interactive home
and business automation, and related monitoring services in the
United States and Canada. The company is based in Boca Raton,
Florida.
ADT INC: Class Certification Bid in TCPA Suit Underway
------------------------------------------------------
ADT Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2017, that the motion for class certification in a
TCPA Class Action relating to 2G-3G Radio Conversion Project, is
still pending.
In August 2016, the Company was served with a class action
complaint pending in the United States District Court for the
Northern District of Georgia filed by a customer alleging that
The ADT Corporation violated the Telephone Consumer Protection
Act of 1991 ("TCPA") by calling his cell phone, which was the
only telephone number he provided to The ADT Corporation for his
customer account, as part of The ADT Corporation's efforts to
communicate with customers affected by the Federal Communications
Commission order allowing wireless carriers to sunset 2G wireless
networks.
Plaintiff seeks to represent a nationwide class of all The ADT
Corporation customers who received such calls to their cell
phones from 2013 to present. The premise of the plaintiff's claim
is that The ADT Corporation's calls were telemarketing calls,
which require a higher level of consent, and not
transactional/business relationship calls because The ADT
Corporation used the 2G transactional calls in an attempt to sell
additional products and services.
Plaintiff filed a motion for class certification. The ADT
Corporation filed its opposition to class certification and
further filed a motion for summary judgment in September 2017.
The motions are fully briefed and are pending before the Court.
The Company firmly disputes liability in this case.
ADT Inc. is the provider of monitored security, interactive home
and business automation, and related monitoring services in the
United States and Canada. The company is based in Boca Raton,
Florida.
AFNI INC: Final Approval of Class Settlement Agreement Sought
-------------------------------------------------------------
In the lawsuit styled GEORGE E. HEEREMA, on behalf of himself and
those similarly situated, the Plaintiffs, v. AFNI, INC. and JOHN
DOES 1 to 10, the Defendants, Case No. 2:16-cv-00244-JBC
(D.N.J.), the Plaintiff will move the Court on May 4, 2018, for
an Order granting final approval of Parties' class settlement
agreement pursuant to Fed. R. Civ. P. 23.
A copy of the Notice of Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=pvZgFFOU
Attorneys for Plaintiff, George E. Heerema, and all others
similarly situated:
Philip D. Stern, Esq.
Andrew T. Thomasson, Esq.
STERN THOMASSON LLP
150 Morris Avenue, 2nd Floor
Springfield, NJ 07081-1315
Telephone: (973) 379 7500
- and -
Yongmoon Kim, Esq.
KIM LAW FIRM LLC
411 Hackensack Avenue, Suite 200
Hackensack, NJ 07601
Telephone: (201) 273 7117
ALAMEDA COUNTY, CA: Certification of Women Prisoners Class Sought
-----------------------------------------------------------------
In the lawsuit styled ALAMEDA COUNTY WOMEN PRISONERS And Former
Prisoners & Pregnant Prisoners, JACLYN MOHRBACHER, ERIN ELLIS,
DOMINIQUE JACKSON, CHRISTINA ZEPEDA, ALEXIS WAH, JAMIE JOHNSTON,
KELSEY ERWIN, DENISE ROHRBACH, SHANI JONES, ANDRANIA YANCY, DAWN
DEDRICK, JAMILA LONGMIRE, SANDRA GRIFFIN, NATALIE GARRIDO,
JAZMINE TATE, MONICA NUNES, ANDANNA IBE, MARCAYSHA ALEXANDER,
DIAMOND COOPER, MARY MAPA, ROSE PEREZ, MARTINA GOMEZ, TIKISHA
UPSHAW, ANNETTE KOZLOWSKI, And JANE DOEs Nos. 1 - X, on behalf of
themselves and others similarly situated, as a Class, and
Subclass, the Plaintiffs, v. ALAMEDA COUNTY SHERIFF'S OFFICE,
GREGORY J. AHERN, BRETT M. KETELES, TOM MADIGAN, T. POPE, T.
RUSSELL, D. SKOLDQVIST, LT. HATTAWAY, SGT. CALAGARI, DEPUTY
DIVINE (No. 512), DEPUTY DEBRA FARMANIAN, DEPUTY WEATHERBEE (No.
238), DEPUTY TANIA POPE, DEPUTY WINSTEAD, DEPUTY CAINE, ALAMEDA
COUNTY and John & Jane DOEs, Nos. 1 - 50 and, The CALIFORNIA
FORENSIC MEDICAL GROUP, a corporation; its Employees and Sub-
Contractors, and Rick & Ruth ROEs Nos. 1-50, and, ARAMARK
CORRECTIONAL SERVICES, LLC, a Delaware Corporation; its Employees
and Sub-Contractors, and Rick and Ruth ROES Nos. 51-100, the
Defendants, Case No. 3:18-cv-00050-JD (N.D. Cal.), the Plaintiffs
ask the Court to certify a class consisting of:
"all women prisoners who are now, or have been under the
custody and control of the Alameda County Sheriff's Office
from 2015 or will be in the future as all female prisoners are
housed together, fed the same food, and generally subjected to
the identical conditions, treatments and deprivations. The
subclass includes all pregnant prisoners during the same time
period. Defendants fail to protect them and keep them safe."
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=lmrLMJab
Attorneys for Plaintiffs:
Yolanda Huang, Esq.
Dennis Cunningham, Esq.
LAW OFFICES OF YOLANDA HUANG
475 14th Street, Suite 500
Oakland, CA 94612
Telephone: (510) 329 2140
Facsimile: (510) 580 9410
AMERICAN HOTEL: Court Won't Strike Class Allegations in TCPA Suit
-----------------------------------------------------------------
The United States District Court for the Northern District of
Illinois, Eastern Division, denied Defendant's Motion to Strike
Class Allegations in the case captioned E&G, INC., a West
Virginia Corporation, individually and as the representative of a
class of similarly-situated persons, Plaintiff, v. AMERICAN HOTEL
REGISTER COMPANY, an Illinois Corporation and JOHN DOES 1-5,
Defendants, Case No. 17-CV-1011 (N.D. Ill.).
Plaintiff E & G, Inc., brings a putative class action complaint
against defendant American Hotel Register Company and five
unnamed defendants, alleging violations of the Telephone Consumer
Protection Act of 1991 (TCPA), as amended by the Junk Fax
Prevention Act of 2005 (JFPA).
The Plaintiff seeks to represent a class consisting of:
All persons who (1) on or after four years prior to the
filing of this action, (2) were sent telephone facsimile messages
of material advertising the commercial availability or quality of
any property, goods, or services by or on behalf of Defendants,
(3) from whom Defendants did not obtain prior express invitation
or permission to send fax advertisements, and (4) with whom
Defendants did not have an established business relationship,
and/or (5) which did not display a proper opt-out notice.
Defendant American Hotel moves to strike the plaintiff's class
allegations, arguing that the class definition qualifies as an
improper fail-safe class, the proposed class fails to meet the
requirements under Rule 23(b)(2), and the proposed class is
overly broad and does not meet the requirements of typicality.
Fail-Safe Class
Defendant American Hotel says the plaintiff's proposed class is
an improper fail-safe class and should therefore be stricken. The
Plaintiff responds that it would be improper for the Court to
strike its class definition at the pleading stage.
While the Court has some concerns about the definition of the
plaintiff's proposed class that it may indeed be an improper
fail-safe class the Court will not strike it at this time.
Instead, the Court will allow the plaintiff to amend its class
definition if or when the plaintiff moves for class
certification.
Rule 23(b)(2)
Defendant American Hotel next argues that plaintiff's proposed
class under Rule 23(b)(2) must be stricken because the plaintiff
primarily seeks money damages rather than injunctive relief.
The Plaintiff responds that its allegations are sufficient under
Rule 23(b)(2) and that it would be premature for the Court to
rule on this issue. Rule 23(b)(2) certification is proper when
the party opposing the class has acted or refused to act on
grounds that apply generally to the class, so injunctive relief
is appropriate respecting the class as a whole.
Here, the Court has some concerns about the plaintiff's proposed
class and whether the relief sought is primarily monetary
damages. Nevertheless, the Court will allow the plaintiff to
amend if necessary and will reserve judgment on this issue until
the class-certification stage.
Typicality
The Defendant also argues that the plaintiff's claims do not
share the same essential characteristics as those of the putative
class and are not typical of other proposed class members'
claims.
A plaintiff's claim will fail the typicality requirement if the
claim is unique or has unique defenses. Once again, although
defendant has identified some potential problems with the
plaintiff's proposed class, the Court will allow the parties to
proceed with discovery and will reserve judgment on this issue
until the class-certification stage.
A full-text copy of the District Court's March 15, 2018
Memorandum Opinion and Order is available at
https://tinyurl.com/ybavf33q from Leagle.com.
E & G, Inc., a West Virginia corporation, individually and as the
representative of a class of similarly-situated persons,
Plaintiff, represented by Brian J. Wanca --
bwanca@andersonwanca.com -- Anderson & Wanca, Ross Michael Good -
- rgood@andersonwanca.com -- Anderson Wanca & Ryan M. Kelly --
rkelly@andersonwanca.com -- Anderson & Wanca.
American Hotel Register Company, an Illinois corporation,
Defendant, represented by David M. Schultz, Esq. --
dschultz@hinshawlaw.com -- Hinshaw & Culbertson LLP & John Paul
Ryan jryan@hinshawlaw.com -- Hinshaw & Culbertson LLP.
AMETEK INC: $50K Settlement with Senior in "Cox" Denied
-------------------------------------------------------
In the case, RONALD COX, individually; VICTOR COX, individually;
ADAM COX, individually, by and through is durable power of
attorney, VICTOR COX, Plaintiffs, v. AMETEK, INC.; THOMAS DEENEY;
and DOES 1 through 100, inclusive, Defendants, Case No. 3:17-cv-
01211-GPC-AGS (S.D. Cal.), Judge of the U.S. Gonzalo P. Curiel of
the U.S. District Court for the Southern District of California
denied without prejudice the motion for determination of good
faith settlement filed by Plaintiffs Ronald Cox, Victor Cox, and
Adam Cox.
The case is one of four related cases involving groundwater
contamination. The complaints in these four cases allege that
while Ametek owned and operated an aerospace parts manufacturing
facility in El Cajon, California, it placed its waste in an
underground sump on the facility property. The waste allegedly
breached the sump and created a massive plume of groundwater
contamination extending beyond the facility property. According
to the complaints, the plume extends underneath an elementary
school and three mobile home parks. In the case, three sons of
Arla Cox -- a deceased resident of one of the mobile home parks -
- assert a wrongful death action against Ametek and Deeney. In
short, the Plaintiffs contend that the contamination plume caused
their mother's death.
On Aug. 4, 2017, the Plaintiffs moved to amend their complaint so
as to add Senior Operations, LLC, the current owner of the
facility property, as a Defendant. The Court granted the motion
to amend on Oct. 24, 2017. The Plaintiffs have not yet filed
that amended complaint, however, because they have been engaged
in settlement negotiations with Senior. According to them, if
the Court grants the instant motion, they will not file an
amended complaint. As a result, Senior is not currently named as
a Defendant in the case.
According to the motion, the Plaintiffs and Senior have entered
into a Settlement Agreement and Release whereby Senior has agreed
to pay them $50,000 and the Plaintiffs have agreed to release all
claims that they have or may have against Senior. This
settlement, however, is contingent upon Court approval of the
settlement agreements in all four of the related cases. Senior
has reached a similar agreement with the plaintiffs in
Greenfield: the plaintiffs and Senior have agreed to settle that
case, but only if settlements are reached and approved in all
four of these related cases.
In light of the contingency that all four cases reach settlement
before the settlement in the case is effective, Ametek and Deeney
argue that the instant motion is premature. Ametek and Deeney
therefore request that that the Court postpones entering a good
faith determination until after the class certification issues
have been resolved, such that those settlements have final terms
and the global settlement can be fully and fairly evaluated.
Judge Curiel agrees with Ametek and Deeney that a finding of good
faith at this juncture would be premature and serves no purpose
beneficial to any of the interested parties. As the motion
indicates, the settlement in the case will not become effective
until settlements are approved in the other three actions,
including the two putative class actions in which no proposed
settlement has yet been offered to the Court. A determination,
today, that the terms of this proposed settlement were reached by
good faith efforts would be subject to change depending on the
outcomes of the settlement efforts in the other cases. In other
words, any determination of good faith as to the settlement
presented in the motion would be merely advisory. Accordingly,
the Judge denied without prejudice the motion for determination
of good faith settlement.
A full-text copy of the Court's March 16, 2018 Order is available
at https://is.gd/uqINm3 from Leagle.com.
Ronald Cox, individually, Victor Cox, individually & Adam Cox,
individually, by and through his durable power of attorney,
Victor Cox, Plaintiffs, represented by Brett D. Land --
info@baronbudd.com -- Baron & Budd PC, pro hac vice, Celeste A.
Evangelisti, Baron & Budd PC, Jason J. Julius, Baron & Budd, John
P. Fiske -- Fiske@BaronBudd.com -- Baron & Budd, P.C., Scott
Summy, Baron & Budd PC, pro hac vice & Zachary Sandman, Baron &
Budd PC, pro hac vice.
Ametek, Inc., a Delaware corporation, Defendant, represented by
Edward C. Walton -- ed.walton@procopio.com -- Procopio, Cory,
Hargreaves & Savitch, LLP, Joseph Duffy --
joseph.duffy@morganlewis.com -- Morgan, Lewis & Bockius LLP,
Kristen Lee Price -- ten.price@procopio.com -- Procopio, Cory,
Hargreaves & Savitch LLP & Sean Michael Sullivan --
sean.sullivan@procopio.com -- Procopio, Cory, Hargreaves &
Savitch LLP.
Thomas Deeney, individually, Defendant, represented by Edward C.
Walton, Procopio, Cory, Hargreaves & Savitch, LLP & Kristen Lee
Price, Procopio, Cory, Hargreaves & Savitch LLP.
AMETEK INC: $1.5MM Settlement with Senior in "Greenfield" Denied
----------------------------------------------------------------
In the case, GREENFIELD MHP ASSOCIATES, L.P.; STARLIGHT MHP, LLC;
STARLIGHT EXCHANGE, LLC; DAVIS GROUP EXCHANGE, LLC; and VILLA
CAJON MHC, L.P., Plaintiffs, v. AMETEK, INC.; SENIOR OPERATIONS,
LLC; and DOES 1 through 100, inclusive, Defendants, Case No.
3:15-cv-01525-GPC-AGS (S.D. Cal.), Judge of the U.S. Gonzalo P.
Curiel of the U.S. District Court for the Southern District of
California denied without prejudice Senior's motion for
determination of good faith settlement.
The case is one of four related cases involving groundwater
contamination. The complaints in these four cases allege that
while Ametek owned and operated an aerospace parts manufacturing
facility in El Cajon, California, it placed its waste in an
underground sump on the facility property. The waste allegedly
breached the sump and created a massive plume of groundwater
contamination extending beyond the facility property. According
to the complaints, the plume extends underneath an elementary
school and three mobile home parks. In this case, owners of the
mobile home parks assert tort claims against the Defendants
resulting from the contamination of their properties. A motion
for summary judgment filed by Ametek is currently pending before
the Court.
Before the Court is Senior's motion for determination of good
faith settlement. Ametek filed a response to the motion on Feb.
23, 2018, and Senior filed a reply on March 2, 2018.
According to the motion, the Plaintiffs and Senior have entered
into a Settlement Agreement and Release whereby Senior has agreed
to pay the Plaintiffs $1.5 million and release and dismiss with
prejudice all third-party cross-claims that it has asserted
against the Plaintiffs and their affiliated entities in the Cox I
Action and the Plaintiffs have agreed to release all claims and
dismiss with prejudice the action against Senior. This
settlement, however, is contingent upon Court approval of the
settlement agreements in all four of the related cases. Senior
has reached a similar agreement with the plaintiffs in Cox II:
the plaintiffs and Senior have agreed to settle that case, but
only if settlements are reached and approved in all four of these
related cases.
In light of the contingency that all four cases reach settlement
before the settlement in this case is effective, Ametek argues
that the instant motion is premature. Ametek therefore requests
that that the Court postpones entering a good faith determination
until after the class certification issues have been resolved,
such that those settlements have final terms and the global
settlement can be fully and fairly evaluated.
Judge Curiel agrees with Ametek that a finding of good faith at
this juncture would be premature and serves no purpose beneficial
to any of the interested parties. As the motion indicates, the
settlement in this case will not become effective until
settlements are approved in the other three actions, including
the two putative class actions in which no proposed settlement
has yet been offered to the Court. A determination, today, that
the terms of the proposed settlement were reached by good faith
efforts would be subject to change depending on the outcomes of
the settlement efforts in the other cases. In other words, any
determination of good faith as to the settlement presented in the
motion would be merely advisory. Accordingly, the Judge denied
without prejudice Senior's motion for determination of good faith
settlement.
A full-text copy of the Court's March 16, 2018 Order is available
at https://is.gd/sGOhXg from Leagle.com.
Greenfield MHP Associates, L.P., a limited partnership, Starlight
MHP, LLC, a California limited liability company, Starlight
Exchange, LLC, a Delaware limited liability company, Davis Group
Exchange, LLC, a Delaware limited liability company & Villa Cajon
MHC, L.P., a Utah limited partnership, Plaintiffs, represented by
Brett D. Land, Baron & Budd PC, pro hac vice, Carla Burke, Baron
& Budd PC, pro hac vice, Celeste A. Evangelisti, Baron & Budd PC,
Jason J. Julius, Baron & Budd, John P. Fiske, Baron & Budd, P.C.,
Scott Summy, Baron & Budd PC, pro hac vice, Zachary Sandman,
Baron & Budd PC, pro hac vice & Deborah S. Dixon --
ddixon@gomeztrialattorneys.com -- Gomez Trial Attorneys.
Ametek, Inc., a Delaware corporation, Defendant, represented by
Anna L. Nguyen -- anguyen@ww-envlaw.com -- Wactor and Wick,
Edward C. Walton -- ed.walton@procopio.com -- Procopio, Cory,
Hargreaves & Savitch, LLP, Joseph Duffy --
joseph.duffy@morganlewis.com -- Morgan, Lewis & Bockius LLP, Jon
K. Wactor -- jonwactor@ww-envlaw.com -- Wactor & Wick, Kristen
Lee Price -- kristen.price@procopio.com -- Procopio, Cory,
Hargreaves & Savitch LLP & Sean Michael Sullivan --
sean.sullivan@procopio.com -- Procopio, Cory, Hargreaves &
Savitch LLP.
Senior Operations LLC, a limited liability company, Defendant,
represented by David James Porter -- david.porter@bipc.com --
Buchanan Ingersoll & Rooney PC, pro hac vice, Jordan Webster --
jordan.webster@bipc.com -- Buchanan Ingersoll & Rooney PC, pro
hac vice & Kimberly Arouh -- kimberly.arouh@bipc.com -- Buchanan
Ingersoll & Rooney LLP.
AQUA METALS: May 17 Hearing on Bids to Appoint Lead Plaintiff
-------------------------------------------------------------
Aqua Metals, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission for the fiscal year ended
December 31, 2017, that multiple plaintiffs in the case, Stephen
R. Clarke, Thomas Murphy and Mark Weinswig: Arlis Hampton vs.
Aqua Metals, Inc. et al., Case No 3:17-cv-07142; Grant Heath vs.
Aqua Metals, Inc. et al., Case No 3:17-cv-07196-JST; Lotfy Arbab
vs. Aqua Metals, Inc. et al., Case No 3:17-cv-07270WHA, have
filed motions seeking appointment as lead plaintiff and a hearing
is set for May 17, 2018.
Beginning on December 15, 2017, three purported class action
lawsuits were filed in the United Stated District Court for the
Northern District California against the company, Stephen R.
Clarke, Thomas Murphy and Mark Weinswig: Arlis Hampton vs. Aqua
Metals, Inc. et al., Case No 3:17-cv-07142; Grant Heath vs. Aqua
Metals, Inc. et al., Case No 3:17-cv-07196-JST; Lotfy Arbab vs.
Aqua Metals, Inc. et al., Case No 3:17-cv-07270WHA.
Each of the complaints was filed by persons claiming to be
stockholders of Aqua Metals and generally allege violations of
the anti-fraud provisions of the federal securities laws based on
the alleged issuance of false and misleading statements of
material fact, and the alleged omission to state material facts
necessary to make other statements made not misleading, between
May 19, 2016 and November 9, 2017 with respect to the company's
lead recycling operations. The complaints seek unspecified
damages and plaintiffs' attorneys' fees and costs.
As of the date of this report, multiple plaintiffs have filed
motions seeking appointment as lead plaintiff. Briefing on those
competing motions was completed in early March, and a hearing is
set for May 17, 2018.
Aqua Metals said "We have not filed a responsive pleading in any
of the above actions and do not expect to do so until a lead
plaintiff has been appointed by the Court. We deny that the
claims in any of the complaints have any merit and we intend to
vigorously defend the actions."
Aqua Metals, Inc. was formed as a Delaware corporation on June
20, 2014 for the purpose of engaging in the business of recycling
lead through a novel, proprietary and patent-pending process that
the company developed and named "AquaRefining". Since its
formation, the company focused its efforts on the development and
testing of its AquaRefining process, the development of its
business plan, the raise of its present working capital and the
development of its initial lead acid battery, or LAB, recycling
facility in the Tahoe Regional Industrial Center, McCarran,
Nevada ("TRIC"). The company is based in Alameda, California.
ARAMARK CORRECTIONAL: "McCoy" Suit Partly Dismissed
---------------------------------------------------
In the case, DERON McCOY, JR., Plaintiff, v. ARAMARK CORRECTIONAL
SERVICES, et al., Defendants, Case No. 16-3027 (D. Kan.), Judge
Carlos Murguia of the U.S. District Court for the District of
Kansas (i) granted in part and denied in part Defendants Aramark,
Paul Church, Julie Dockendorff, and Rabbi M. Fellig's Motion to
Dismiss for Failure to State a Claim; (ii) granted in part and
denied in part Defendant Patricia Berry's Motion to Dismiss;
(iii) denied Defendant Cheryl Allen's Motion to Dismiss; (iv)
granted Defendant Allen's Motion for Extension of Time; (v)
denied the Plaintiff's Motion Requesting Class Certification; and
(vi) denied without prejudice the Plaintiff's Motion to Appoint
Counsel.
The Plaintiff, proceeding pro se, is currently incarcerated at El
Dorado Correctional Facility in El Dorado, Kansas ("EDCF"). He
filed the case on Jan. 27, 2016 and was granted leave to proceed
in forma pauperis. On Aug. 31, 2016, the Court entered an order
requiring the Kansas Department of Corrections ("KDOC") to review
the Plaintiff's complaint, and to file a Martinez Report. KDOC
filed its report on Feb. 28, 2017. The motions before the Court
are motions to dismiss. Because the Court resolves the issues in
the case relying only on the pleadings, without considering the
Martinez Report, it will not convert the pending motions to
dismiss to motions for summary judgment.
The Plaintiff's Third Amended Complaint, filed June 14, 2017,
claims he was denied his First Amendment right to practice his
religion pursuant to 42 U.S.C. Section 1983, when he was not
provided modified Kosher diet meals in accordance with his
religious beliefs. He claims the Defendants violated his rights
by failing to implement a policy or practice to purchase and
serve Kosher meals to him as required by his religion, also
citing the Religious Land Use and Institutionalized Persons Act
of 2000 ("RLUIPA").
Around March 13, 2014, while incarcerated at Lansing Correctional
Facility ("LCF"), the Plaintiff spoke with a chaplain who said he
could not confirm to the Plaintiff that the Certified Religious
Diet ("CRD") at LCF was certified Kosher. He includes an
Affidavit claiming that all Aramark facilities only provide the
CRD diet, not a truly certified Kosher diet.
After the chaplain told the Plaintiff that he could not confirm
that the CRD meals were Kosher, the Plaintiff started his own
investigation. He determined that the meal plans for all
religious inmates are sometimes marked with a certified Kosher
symbol but not always. When he was called to the kitchen to do
some electrical work, he observed that all meals are prepared in
the same kitchen, transported together, stacked together, placed
in the same location after eating, washed in the same machine,
and stored in the same place. The Plaintiff explains that he was
previously a Kosher cook when serving a prior sentence at
Leavenworth Correctional Facility. There, all Kosher meals were
stored, cooked, and served sealed. The Plaintiff claims that
defendants knowingly and intentionally failed to provide him with
Kosher meals, depriving him of his constitutional rights.
The Plaintiff claims that the First Amendment guarantees him the
right to have his meals prepared and served in conformity with
the Jewish dietary laws. He wants his meals to be served still
sealed, pre-packaged, and visibly marked Kosher. These meals
should be prepared in a separate room from the general prison
population's meals, and any utensils or tools used to prepare
them must be kept and cleaned separately.
The Plaintiff seeks $200 in damages, $77,000 in punitive damages,
costs of the suit, as well as a declaration from the Court that
the Defendants are violating the Plaintiff's rights, and a
permanent injunction directing the KDOC and the Defendants to
provide fully Kosher meals in conformity with Jewish dietary
laws.
Before the Court are (i) the Defendants' Motion to Dismiss for
Failure to State a Claim; (ii) Berry's Motion to Dismiss; (iii)
Allen's Motion to Dismiss; (iv) Allen's Motion for Extension of
Time; (v) the Plaintiff's Motion Requesting Class Certification;
and (vi) the Plaintiff's Motion to Appoint Counsel.
Defendant Fellig moves to dismiss the claims against him pursuant
to Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction and
12(b)(4) for insufficient process. Defendants Berry, Aramark,
Dockendorff, Church, and Allen argue that they cannot be held
liable based on supervisory liability alone. They argue that the
Plaintiff cannot recover damages because he claims no prior
physical injury, and the Prison Litigation Reform Act of 1996
("PLRA") bars recovery in the absence of physical injury. The
private Defendants argue that they were not acting under color of
state law for the same reasons discussed above under the Section
1983 analysis. Defendant Allen filed motion asking the court to
stay consideration of the Plaintiff's motion for summary judgment
against her until her motion to dismiss had been decided, or to
allow her more time to respond to the motion for summary
judgment.
Judge Murguia finds that the Plaintiff provides no evidence that
Aramark is Fellig's employer or resident agent. He has not made
a prima facie case that Fellig was properly served. Hence, the
Judge will grant Fellig's motion to dismiss for insufficient
service.
As to the Plaintiff's Section 1983 Claims, the Judge finds that
the extent that the Plaintiff seeks money damages or a
declaration from the Court that Berry violated his rights in the
past, those claims are barred by the Eleventh Amendment. He also
finds the allegations sufficient at this stage. However, the
Judge is aware of a previous suit filed by the Plaintiff seeking
Kosher TV-style meals that was dismissed in part because the
Plaintiff failed to otherwise conform to Kosher meal requirements
by purchasing non-Kosher items from the commissary.
Next, the Judge finds that any claims the Plaintiff makes that
Defendants Berry, Aramark, Dockendorff, Church, and Allen failed
to supervise their subordinates, leading to the deprivation of
his constitutional rights are dismissed, but to the extent that
he claims these Defendants intentionally created, promulgated,
implemented, or were responsible for the CRD menu -- which the
Plaintiff claims is not Kosher and therefore violates his rights
-- those claims remain.
The Judge finds that the Plaintiff has a right to receive Kosher
meals if his sincerely-held religious beliefs so require. The
Plaintiff has alleged that they do. The Plaintiff claims that
Defendants Berry, Aramark, Dockendorff, Church, and Allen are
responsible for choosing and implementing the CRD meals at the
facilities where he has been housed. At the motion to dismiss
stage, he finds the Plaintiff's allegations sufficient.
He will grant Defendants Aramark, Dockendorf, Church, and Allen's
motions to dismiss the Plaintiffs Section 1983 claims regarding
Fellig, and the official capacity Section 1983 claim against
Berry and for any retroactive relief against her. Otherwise they
will all be denied.
As to the Plaintiff's RLUIPA Claims, Judge Murguia holds that
because there is no cause of action for personal capacity claims
under RLUIPA, he will dismiss the Plaintiff's claims against
Berry. However, he finds that the Plaintiff has sufficiently
alleged that Defendants Aramark, Dockendorff, Church, and Allen
were acting under color of state law and substantially burdened
his religious beliefs.
Finding that the Plaintiff makes no argument in support of his
motion to appoint counsel, the Judge finds that the Plaintiff can
litigate these claims and understand the issues. The latter has
undertaken his own factual investigation and presents his claims
comprehensibly. The issues in the case are not scientific or
technically difficult to understand. The Plaintiff seems to have
a firm grasp of the facts and the law at issue. Therefore, the
Judge will deny the Plaintiff's motion to appoint counsel.
Because pro se plaintiffs are not allowed to represent putative
classes, the Plaintiff and Mr. Jefferson are not adequate class
representatives. The Judge will deny the Plaintiff's motion for
class certification and appointment of counsel.
Finally, as to Allen's Motion for Extension of Time, the Judge
finds that the balance of interests between the parties and in
judicial economy warranted a stay until the Defendant's motion to
dismiss was decided.
For the reasons he stated, Judge Murguia granted Defendants
Aramark, Church, Dockendorff, and Fellig's Motion to Dismiss as
to Fellig, on any individual capacity RLUIPA claims, and denied
in all other respects. He granted Berry's Motion to Dismiss
regarding the Defendant's Section 1983 claim against her in her
official capacity and for any retroactive relief, denied
regarding any individual capacity claim against her for money
damages or prospective relief under Section 1983, granted
regarding the Plaintiff's RLUIPA claims.
The Judge denied Allen's Motion to Dismiss regarding any
individual capacity RLUIPA claim and denied in all other
respects. He granted Allen's Motion for Extension of Time. He
ordered that Allen will respond to the Plaintiff's Motion for
Summary Judgment within three weeks of the order's entry.
Finally, the Judge denied the Plaintiff's Motion Requesting Class
Certification and denied with prejudice the Plaintiff's Motion to
Appoint Counsel.
A full-text copy of the Court's March 16, 2018 Memorandum and
Order is available at https://is.gd/o2VSQH from Leagle.com.
Aramark Correctional Services & Julie Dockendorff, Aramark
Dietitian, in her individual and official capacity, Defendants,
represented by Catherine A. Stevens -- cstevens@bscr-law.com --
Baker, Sterchi, Cowden & Rice, LLC, Leigh Ann Massey --
lmassey@bscr-law.com -- Baker, Sterchi, Cowden & Rice, LLC &
Sherri L. Price, Lansing Correctional Facility.
Patricia Berry, KDOC State Contract Monitor, in her official
capacity, Defendant, represented by Rachael D. Longhofer, Office
of Attorney General.
Cheryl Allen, KDOC Dietitian, in her individual and official
capacity, Defendant, represented by Elizabeth Marie Phelps.
M. Fellig, Rabbi, Aramark Religious Authority, in his individual
and official capacity & Paul Church, Defendants, represented by
Catherine A. Stevens, Baker, Sterchi, Cowden & Rice, LLC & Leigh
Ann Massey, Baker, Sterchi, Cowden & Rice, LLC.
Kansas Department of Corrections, Interested Party, represented
by Linden G. Appel, Kansas Department of Corrections & Sherri L.
Price, Lansing Correctional Facility.
BANK OF AMERICA: Court Dismisses Consolidated FX Suit
-----------------------------------------------------
The United States District Court for the Southern District New
York granted Defendant's Motion to Dismiss the Consolidated Class
Action Complaint in the case captioned JAMES CONTANT, et al.,
Plaintiffs, v. BANK OF AMERICA CORPORATION, et al., Defendants,
No. 17 Civ. 3139 (LGS)(S.D.N.Y.).
Plaintiffs, a group of individuals and businesses that purchased
foreign currency from retail foreign exchange dealers (RFEDs),
bring this putative class action against eighteen banks and their
affiliates seeking injunctive relief under the Sherman Antitrust
Act, 15 U.S.C. Section 1 et seq., and damages under certain state
antitrust and consumer protection laws. The Plaintiffs allege
that they paid inflated foreign currency exchange rates caused by
the Defendants' alleged conspiracy to fix prices in the foreign
exchange (FX) or foreign currency market.
The Court finds that the Complaint fails to plead facts
sufficient to establish antitrust standing as to the Plaintiffs'
claims under the Sherman Act and the state antitrust law of
California, Illinois and New York. The Complaint also fails to
plead sufficient facts to establish proximate cause, which is
required for each of the Plaintiffs' claims.
Antitrust Standing
In Associated General Contractors of California, Inc. v.
California State Council of Carpenters, 459 U.S. 519, 536-45
(1983) (AGC), the Court created a multi-factor "efficient
enforcer" doctrine to measure the link between the defendant's
conduct and the plaintiff's injury in a federal antitrust action.
Those factors include: (1) the directness or indirectness of the
asserted injury, which requires evaluation of the chain of
causation linking the plaintiffs' asserted injury and the
defendants' alleged price-fixing; (2) the existence of more
direct victims of the alleged conspiracy; (3) the extent to which
[the plaintiffs'] damages claim is highly speculative; and (4)
the importance of avoiding either the risk of duplicate
recoveries on the one hand, or the danger of complex
apportionment of damages on the other.
State Applications of the AGC Test
While the highest courts of the states at issue have not
considered whether the AGC factors apply to those states'
respective antitrust statutes, the Defendants claim that AGC
should be applied to the state law antitrust claims except under
Minnesota law. The Court is persuaded that the AGC efficient
enforcer doctrine applies under California, Illinois and New York
law.
California
At least one California intermediate appellate court and the
Ninth Circuit have applied the AGC factors to claims under the
Cartwright Act, California's state antitrust statute.
Illinois
The Illinois Appellate Court, the state's intermediate appellate
court, cited AGC approvingly in dismissing state antitrust claims
because the injury alleged was not sufficiently direct and the
damages were too speculative.
New York
New York's Supreme Court, Appellate Division, its second-highest
court, endorsed the lower court's application of the AGC factors
in an indirect-purchaser case.
Arizona
No Arizona appellate court has considered whether the AGC
efficient enforcer doctrine applies to the Arizona Antitrust Act
(AAA). The Arizona Supreme Court rejected Illinois Brick and
concluded that an indirect-purchaser of goods and services has
standing to sue under the AAA.
The Court thus declines to decide whether AGC applies to the AAA
and decides the motion to dismiss the Arizona Antitrust claim on
other grounds.
North Carolina
An intermediate North Carolina state court declined to apply AGC
and held that the AGC factors do not apply in determining which
indirect purchasers have standing to sue under the North Carolina
antitrust statutes.
As to the first factor, the Court finds that the Complaint fails
to show that the Plaintiffs' injury has a sufficiently direct
relationship to the alleged conspiracy. Directness in the
antitrust context means close in the chain of causation. The
Complaint does not allege facts showing a sufficiently direct
connection between the FX spot market, where the Defendants
allegedly manipulated prices, and the retail trading market,
where Plaintiffs purchased foreign currency.
The second factor, whether there are more direct victims of the
alleged conspiracy, weighs against finding that the Plaintiffs
are efficient enforcers based on the allegations in the
Complaint. As participants in the FX spot market, the plaintiffs
in In re Foreign Exchange Benchmark Rates Antitrust Litigation,
No. 13 Civ. 7789, 2016 WL 5108131, at *9 (S.D.N.Y. Sept. 20,
2016) (FORE") are more direct victims of the alleged conspiracy
to manipulate prices in that market than the Plaintiffs in this
case.
The third and fourth factors also weigh against the Plaintiffs.
Regarding the third factor, the Complaint's failure to allege how
prices in the retail trading market are determined and the
relationship between the FX spot market and the retail trading
market means that the Plaintiffs' alleged damages would
necessarily be 'highly speculative.
Under the fourth factor, the Complaint's failure to allege facts
showing a direct relationship between the alleged conspiracy and
the Plaintiffs' injuries raises the risk that the Plaintiffs'
damages are derivative of the FOREX plaintiffs' damages, and
therefore would be duplicative and excessive of any judgment in
FOREX. Based on the allegations in the Complaint, none of the
efficient enforcer factors weigh in the Plaintiffs' favor. The
Plaintiffs lack antitrust standing to bring their claims under
federal antitrust law as well as California, Illinois and New
York antitrust law.
Proximate Cause
To succeed on any of their claims, the Plaintiffs must prove that
the Defendants' conspiracy in the FX spot market proximately
caused the Plaintiffs' injuries in the FX retail investor market.
In determining proximate cause, courts ask: whether the injury
that resulted was within the scope of the risk created by the
defendant's wrongful act; whether the injury was a natural or
probable consequence of the conduct; whether there was a
superseding or intervening cause; whether the conduct was
anything more than an antecedent event without which the harm
would not have occurred.
A full-text copy of the District Court's March 15, 2018 Opinion
and Order is available at https://tinyurl.com/yd2u3vf5 from
Leagle.com.
James Contant, on behalf of themselves and all others similarly
situated, Plaintiff, represented by Frank Burton Ulmer --
fulmer@mcculleymccluer.com -- McCulley Mccluer PLLC, Michael C.
Dell'Angelo -- mdellangelo@bm.net -- Berger & Montague, P.C., R.
Bryant McCulley -- bmcculley@mcculleymccluer.com -- McCulley
McCluer PLLC, Stuart Halkett McCluer --
smccluer@mcculleymccluer.com -- McCulley Mccluer PLLC & Joshua
Ripley -- jripley@bm.net -- Berger & Montague, P.C.
Bank Of America Corporation, Bank of America, N.A. & Merrill
Lynch, Pierce, Fenner & Smith Inc., Defendants, represented by
Adam Selim Hakki -- ahakki@shearman.com -Shearman & Sterling LLP,
Jeffrey Jason Resetarits -- jeffrey.resetarits@shearman.com --
Shearman & Sterling LLP & Richard Franklin Schwed --
rschwed@shearman.com -- Shearman & Sterling LLP.
BEAR STATE: "Owens" Remanded to State Court
-------------------------------------------
Judge J. Leon Holmes of the U.S. District Court for the Eastern
District of Arkansas, Western Division, granted Owens and
Hurliman's motion to remand the case, JAMES OWENS, individually
and on behalf of all others similar situated; and EDWARD
HURLIMAN, individually and on behalf of all others similarly
situated, Plaintiffs, v. RICHARD N. MASSEY; J. MATTHEW MACHEN; W.
DABBS CAVIN; WILLIAM CHANGOSE; K. AARON CLARK; SCOTT T. FORD; G.
BROCK GEARHART; JOHN J. GHIRARDELLI; OMON FITZGERALD HILL; DANIEL
C. HORTON; IAN R. VAUGHAN; BEAR STATE FINANCIAL HOLDINGS, LLC;
and FRANK CONNER, Defendants, Case No. 4:17CV00714 JLH (E.D.
Ark.).
The action concerns the pending merger of two Arkansas banks.
Owens and Hurliman are shareholders of Bear State, a bank holding
company whose primary subsidiary is Bear State Bank. Owens and
Hurliman, individually and on behalf of a class of persons
holding common stock of Bear State, assert claims against Bear
State's officers and directors and its parent company, Bear State
Financial Holdings, LLC, for breach of fiduciary duty pursuant to
Ark. Code Ann. Section 4-27-830, Section 4-27-842, and Arkansas
common law in connection with a pending merger with Arvest Bank.
The Plaintiffs commenced the action in the Circuit Court of
Pulaski County, Arkansas. After they filed an amended complaint,
the Defendants removed the action to the Court asserting federal
subject matter jurisdiction under 28 U.S.C. Sections 1331,
1332(a), 1441, and 1446.
The amended complaint alleges that the Defendants breached their
statutory and common law fiduciary duties in connection with a
proposed merger of Bear State and Arvest Bank via the purchase of
Bear State's outstanding stock. To move forward with this
merger, Bear State required the approval of a majority of its
shareholders.
Owens and Hurliman allege that the Defendants unfairly deprived
shareholders of the true value of their investment in Bear State
through a fundamentally flawed sales process. Specifically, they
allege that in March of 2017, Randy Dennis of DD&F Consulting
Group, Inc., approached Richard Massey, Chairman of Bear State
Board of Directors, and proposed selling Bear State to Arvest.
At Massey's request, Dennis then spoke with Arvest's Chairman of
the Board about a potential transaction between Arvest and Bear
State. From April to June of 2017, Arvest and Bear State
exchanged information relevant to the proposed transaction.
Massey informed the board of Bear State about the proposed
transaction on June 26, 2017. On July 5, 2017, representatives
of Bear State informed financial institutions that Bear State was
interested in a potential transaction and gave those financial
institutions until July 21, 2017, to express their interest.
On July 20, 2017, "Company A" submitted a proposal to purchase
Bear State with stock rather than cash. To protect the parties
from fluctuations in Company A's stock price, Company A proposed
an agreement that would adjust the ratio of Company A's stock to
be paid if the worth of Company A's stock rose or fell. At the
high end, the potential imputed value of Company A's offer was
for $10.95 per share of Bear State's stock, which was $0.42
higher than Arvest's final offer. At a board meeting in July
2017, certain Defendants expressed concern about the liquidity of
Company A's shares. Dennis asked Company A to modify its
proposal to include cash consideration and provide certain
Defendants with seats on the combined company's board. Company A
did not commit to meeting these demands, so Bear State ceased
negotiations with Company A.
Owens and Hurliman allege that the Defendants disseminated proxy
statements on Oct. 6, 2017, that failed to disclose material
information about the proposed merger between Bear State and
Arvest. Specifically, the proxy statements allegedly omitted or
misrepresented cash flow and reconciliation projections,
comparable transaction multipliers, the assumptions behind the
discount rate used in financial analyses, and other material
information.
Owens and Hurliman request a declaration that the action is
maintainable as a class action and ask to be appointed class
representatives. They seek an injunction preventing the merger
between Bear State and Arvest until Bear State implements a
process that provides the best possible terms for shareholders"
and discloses the material information omitted from the proxy
statement, a rescission of the Merger Agreement between Bear
State and Arvest, and if the merger is completed, damages
incurred by shareholders as a result of the merger.
The Defendants argue that the Court has federal question
jurisdiction because the alleged misrepresentations in Bear
State's proxy statements raise substantial questions of federal
securities law and that the injunction defendants seek is only
available under federal law. Owens and Hurliman, however,
maintain that nowhere in the amended complaint are there any
references to federal laws or regulations and that their claims
arise under the statutes and common law of Arkansas. The
Defendants also assert that the Court has diversity of
citizenship jurisdiction. Owens and Hurliman argue that the
forum-defendant rule prevents diversity jurisdiction in the
matter.
Judge Holmes finds that the Plaintiffs' state-law claims do not
necessarily raise federal issues because violation of the federal
regulations is not an element of any of their claims: the claims
can be decided without reference to federal law. The amended
complaint does not expressly invoke claims or seek relief under
the Exchange Act. It contains no reference to the Exchange Act
or other federal laws or regulations. Nor do Plaintiffs' claims
require them to prove that the Defendants violated the Exchange
Act. Owens and Hurliman seek damages and an injunction for
breach of fiduciary duties under Arkansas law related to
misrepresentations in Bear State's proxy statement, which does
not require proof that the Defendants violated the Exchange Act.
The Judge holds that Owens and Hurliman, as masters of their
amended complaint, have alleged only state-law claims that the
proxy statements are materially misleading. While consideration
of federal law and regulations might be relevant to the issue of
whether the proxy statements are materially misleading, this does
not mean that a substantial federal question must be resolved.
Federal question jurisdiction is absent.
Finally, the Judge also finds that the forum-defendant rule
applies. The Defendants concede that, should the Court
determines that federal question jurisdiction does not exist, the
forum-defendant rule would apply. The Judge has determined that
no federal question exists.
For the foregoing reasons, Judge Holmes granted the Plaintiffs'
motion to remand and remanded the action to the Circuit Court of
Pulaski County, Arkansas.
A full-text copy of the Court's March 16, 2018 Opinion and Order
is available at https://is.gd/CKLubq from Leagle.com.
James Owens, individually and on behalf of all others similarly
situated & Edward Hurliman, individually and on behalf of all
others similarly situated, Plaintiffs, represented by Anthony
Bryce Brewer, Bryce Brewer Law Firm, LLC.
Richard N Massey, J Matthew Machen, W Dabbs Cavin, William
Changose, K Aaron Clark, Scott T Ford, G Brock Gearhart, John J
Ghirardelli, Omon Fitzgerald Hill, Daniel C Horton, Ian R
Vaughan, Bear State Financial Holdings LLC & Frank Conner,
Defendants, represented by Andrew King --
Andrew.King@KutakRock.com -- Kutak Rock LLP, Charles David
McDaniel, Jr. -- David.McDaniel@KutakRock.com -- Kutak Rock LLP &
Jess L. Askew, III -- Jess.Askew@KutakRock.com -- Kutak Rock LLP.
BG PERSONNEL: Ryan Seeks to Certify Consumers Class & Subclass
--------------------------------------------------------------
In the lawsuit styled KRYSTLE RYAN, on behalf of herself and on
behalf of all others similarly situated, the Plaintiff, v.
BG PERSONNEL, LP d/b/a BG STAFFING, the Defendant, Case No. 8:17-
cv-02239-SDM-TGW (M.D. Fla.), the Plaintiff seeks certification
of these consumers class and subclass:
National Class:
"all natural persons in the United States who (1) applied to
work for Defendant; (2) were the subject of a consumer report
that was procured by Defendant from a consumer reporting
agency (3) to whom Defendant relied upon the disclosure and
authorization forms procuring that report; (4) within five
years of the filing of this lawsuit through the date the Class
List is prepared.
Alternatively, if for any reason the Court is not inclined to
grant Plaintiff's Motion as to a national class action".
The Plaintiff in the alternative would ask the Court to certify a
Florida sub-class comprised of the following class of consumers:
Florida Sub-Class:
"all natural persons in the United States who (1) applied to
work for Defendant; (2) were the subject of a consumer report
that was procured by Defendant from a consumer reporting
agency (3) to whom Defendant relied upon the disclosure and
authorization forms before procuring that report; (4) within
five years of the filing of this lawsuit through the date the
Class List is prepared.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=Rs9yigng
Attorneys for Plaintiff:
Brandon J. Hill, Esq.
Luis A. Cabassa, Esq.
WENZEL FENTON CABASSA, P.A.
1110 North Florida Ave., Suite 300
Tampa, FL 33602
Telephone: (813) 224 0431
Facsimile: (813) 229 8712
E-mail: lcabassa@wfclaw.com
bhill@wfclaw.com
BJ'S WHOLESALE: Court Grants Summary Judgment in "O'Reilly"
-----------------------------------------------------------
The United States District Court for the District of Connecticut
granted Defendant's Motion for Summary Judgment in the case
captioned JOHN T. O'REILLY, Plaintiff, v. BJ'S WHOLESALE CLUB,
INC., Defendant, No. 3:16-CV-1351 (MPS)(D. Conn.), and denied the
Plaintiff's Motion for Summary Judgment.
The parties have each moved for summary judgment with respect to
the Plaintiff's breach of contract and Connecticut Unfair Trade
Practices Act (CUTPA) claims.
Plaintiff John T. O'Reilly brought this action against Defendant
BJ's Wholesale Club, Inc., after suffering an eye injury while
shopping at a BJ's Wholesale Club store.
Breach of Contract
The Plaintiff claims that Defendant's conduct breached the
express terms of an agreement between the parties. To prevail on
a breach of contract claim, a plaintiff must prove formation of
an agreement, performance by one party, breach of the agreement
by the other party, and damages.
Regardless of whether the Plaintiff's breach of contract claim is
based on the accident or the Defendant's refusal to provide the
Plaintiff with the incident report, the Court finds that the
Plaintiff has not established breach of any provision of the
Membership Services Agreement, which governed his relationship
with the Defendant at the time of the incident. The Agreement,
the Court notes, contains no provision establishing a card
member's right to receive an incident report following an
accident in a BJ's Wholesale Club store or for that matter, any
provision related to incident reports.
The Plaintiff's breach of contract claim also fails to the extent
it is based on store manager Glenn's promise to send the
Plaintiff a copy of the incident report.
There is no evidence in the record, however, that the Defendant's
refusal to provide the Plaintiff with the incident report prior
to discovery caused or exacerbated these injuries. The Plaintiff
has not demonstrated that his alleged damages injuries resulting
from blurred vision and falls, medical expenses, missed work
days, and lost income were caused by the refusal to provide the
incident report prior to the discovery process or by any other
breach of an agreement.
Accordingly, the Court grants the Defendant's motion for summary
judgment and denies the Plaintiff's motion for summary judgment
on Plaintiff's breach of contract claim.
Breach of the Implied Covenant of Good Faith and Fair Dealing
To prevail on a claim for breach of the implied covenant of good
faith and fair dealing, a plaintiff must prove three elements:
(i) first, that the plaintiff and the defendant were parties to a
contract under which the plaintiff reasonably expected to receive
certain benefits; (ii) second, that the defendant engaged in
conduct that injured the plaintiff's right to receive some or all
of those benefits; and (iii) third, that when committing the acts
by which it injured the plaintiff's right to receive benefits he
reasonably expected to receive under the contract, the defendant
was acting in bad faith.
The Plaintiff argues that the Defendant engaged in misleading
injured customers, inviting them to provide personal and
confidential medical records and information only to dissuade
members from taking legal action and belittling their injuries as
minimal and basically a nuisance. But the Plaintiff submits no
evidence suggesting that he was misled or that his injuries were
belittled, or that anyone attempted to dissuade him from taking
legal action, an attempt that, if it occurred, was in any event
unsuccessful.
Further, the Court finds that the Plaintiff has not put forth any
evidence that the Defendant declined to provide him with the
incident report for a dishonest purpose. The Plaintiff does not
dispute that the Defendant has a longstanding policy of declining
to provide copies of internal investigation reports until the
reports are requested during the discovery process of a lawsuit.
The Plaintiff also does not dispute that the Defendant's claims
adjusters communicated with the Plaintiff and his former counsel
to settle his claim before the Plaintiff filed this lawsuit.
The Defendant also represents that it was prepared to comply with
its internal policy had the Plaintiff actually made a request
that Defendant do so.
Therefore, the Court grants the Defendant's motion for summary
judgment and denies Plaintiff's motion for summary judgment on
Plaintiff's claim for breach of the covenant of good faith and
fair dealing.
CUTPA
The Plaintiff also claims that the Defendant's refusal to provide
him with the incident report following his accident violated the
CUTPA.
The Plaintiff's CUTPA claim to the extent it is based on the
Defendant's handling of items in the store and the accident fails
because it is based entirely on allegations of negligence. The
Plaintiff provides no evidence that the accident itself as
distinct from the Defendant's refusal to provide the incident
report involved any practice that offends public policy, is
immoral, unethical, oppressive, or unscrupulous, or causes
substantial injury to consumers.
The Court says the CUTPA claim also fails because the Plaintiff
has not demonstrated that the Defendant's conduct in refusing to
provide the incident report caused him to suffer an ascertainable
loss or any harm at all. While the ascertainable loss provision
does not require a plaintiff to prove a specific amount of actual
damages in order to make out a prima facie case a plaintiff still
must marshal some evidence of ascertainable loss in support of
his CUTPA allegations, and a failure to do so is indeed fatal to
a CUTPA claim on summary judgment.
Accordingly, the Court denies the Plaintiff's motion for summary
judgment and grants the Defendant's motion for summary judgment
on Plaintiff's CUTPA claim.
A full-text copy of the District Court's March 15, 2018 Ruling is
available at https://tinyurl.com/y9r2p78l from Leagle.com.
John O'Reilly, on behalf of himself and of all others similarly
situated, Plaintiff, pro se.
BJ's Wholesale Club, Inc., Defendant, represented by Kaelah M.
Smith -- kmsmith@morrisonmahoney.com -- Morrison Mahoney LLP,
Nicole Marie Paquette, Mullen & McGourty, P.C., 2 Waterside
Crossing, Suite 102A, Windsor, CT 06095 & Robert W. Cassot --
rcassot@morrisonmahoney.com -- Morrison, Mahoney LLP.
BRAVO BRIO: Recorded $2.5MM Expense in 2017 over Case Settlement
----------------------------------------------------------------
Bravo Brio Restaurant Group, Inc. said in its Form 10-K report
filed with the U.S. Securities and Exchange Commission for the
fiscal year ended December 31, 2017, that the company has
recorded $2.5 million of total expense during fiscal 2017,
related to the settlement of the suit entitled, Mamdooh Hussein
v. Bravo Brio Restaurant Group, Inc.
In May 2016, a former restaurant hourly employee filed a putative
class and collective action lawsuit in the United States District
Court for the Southern District of Missouri, Mamdooh Hussein v.
Bravo Brio Restaurant Group, Inc., alleging that the Company
violated Missouri wage and hour law and the Fair Labor Standards
Act, as interpreted by the Department of Labor, by not paying
regular minimum wage for time spent performing non-tipped duties.
In March 2017, the Company and the plaintiffs in this litigation
agreed to settle the litigation. Based upon the conditions of
this settlement, the Company recorded $2.5 million of total
expense during fiscal 2017. In 2016, the Company recorded $0.5
million in settlement and legal costs related to this matter.
Bravo Brio Restaurant Group, Inc. is the owner and operator of
two distinct Italian restaurant brands, BRAVO! Cucina Italiana
("BRAVO!") and BRIO Tuscan Grille ("BRIO"). The company had
positioned its brands as multifaceted culinary destinations that
deliver the ambiance, design elements and food quality
reminiscent of fine dining restaurants at a value typically
offered by casual dining establishments, a combination known as
the upscale affordable dining segment. The company is based in
Columbus, Ohio.
BRAVO BRIO: "Andreescu" Agrees to Settle Suit for $1.6 Million
--------------------------------------------------------------
Bravo Brio Restaurant Group, Inc. said in its Form 10-K report
filed with the U.S. Securities and Exchange Commission for the
fiscal year ended December 31, 2017, that the parties in Robert
Andreescu v. Bravo Brio Restaurant Group, Inc., had agreed to
settle the suit for $1.6 million.
In August 2016, a former restaurant hourly employee filed a
putative class and collective action lawsuit in the United States
District Court for the Western District of New York, Robert
Andreescu v. Bravo Brio Restaurant Group, Inc., alleging that the
Company violated New York wage and hour law and the Fair Labor
Standards Act, as interpreted by the Department of Labor, by not
paying regular minimum wage for time spent performing non-tipped
duties.
In December 2017, the Company and the plaintiffs in this
litigation agreed in principle to settle the litigation for $1.6
million. Based upon the conditions of this settlement, the
Company has recorded a total expense of $1.0 million in
settlement and legal costs during fiscal 2017, but the proposed
settlement may result in a loss of $0.6 million in excess of the
amount recorded.
Bravo Brio Restaurant Group, Inc. is the owner and operator of
two distinct Italian restaurant brands, BRAVO! Cucina Italiana
("BRAVO!") and BRIO Tuscan Grille ("BRIO"). The company had
positioned its brands as multifaceted culinary destinations that
deliver the ambiance, design elements and food quality
reminiscent of fine dining restaurants at a value typically
offered by casual dining establishments, a combination known as
the upscale affordable dining segment. The company is based in
Columbus, Ohio.
BROADCOM LTD: Bid for Attorneys' Fees Underway
----------------------------------------------
Broadcom Limited said in its Form 10-Q Report filed with the
Securities and Exchange Commission for the quarterly period ended
February 4, 2018, that a motion for an award of attorneys' fees
in the class action lawsuits related to the Brocade acquisition
remains pending.
On December 13, 2016, December 15, 2016, December 21, 2016,
January 5, 2017 and January 18, 2017, six putative class action
complaints were filed in the United States District Court for the
Northern District of California, or the U.S. Northern District
Court, captioned Steinberg v. Brocade Communications Systems,
Inc., et al., No. 3:16-cv-7081-EMC, Gross v. Brocade
Communications Systems, Inc., et al., No. 3:16-cv-7173-EJD, Jha
v. Brocade Communications Systems, Inc., et al., No. 3:16-cv-
7270-HRL, Bragan v. Brocade Communications Systems, Inc., et al.,
No. 3:16-cv-7271-JSD, Chuakay v. Brocade Communications Systems,
Inc., et al., No. 3:17-cv-0058-PJH, and Mathew v. Brocade
Communications Systems, Inc., et al., No. 3:16-cv-7271-HSG,
respectively.
The Steinberg, Bragan and Mathew complaints name as defendants
Brocade, the members of Brocade's board of directors, Broadcom,
BRCM, and Bobcat Merger Sub, Inc. The Gross, Jha and Chuakay
complaints name as defendants Brocade and the members of
Brocade's board of directors.
All of the complaints assert claims under Sections 14(a) and
20(a) of the Securities Exchange Act of 1934, as amended, or the
Exchange Act, and Rule 14a-9 promulgated thereunder. The
complaints allege, among other things, that the board of
directors of Brocade failed to provide material information
and/or omitted material information from the Preliminary Proxy
Statement filed with the SEC on December 6, 2016 by Brocade.
The complaints seek to enjoin the closing of the transaction
between Brocade and Broadcom, as well as certain other equitable
and declaratory relief and attorneys' fees and costs. On January
10, 2017, January 27, 2017 and February 15, 2017, the U.S.
Northern District Court granted motions to relate the cases, all
of which are now related to the Steinberg action and before the
Honorable Judge Edward Chen.
On January 11, 2017, Plaintiff Jha filed a motion for a
preliminary injunction, which was subsequently withdrawn on
January 18, 2017. On February 6, 2017, Plaintiff Gross
voluntarily dismissed the Gross action without prejudice, which
was ordered by the U.S. Northern District Court on February 15,
2017.
Broadcom Limited said in its Form 10-Q Report for the quarterly
period ended July 30, 2017, that the U.S. Northern District Court
on April 14, 2017, granted the Motion for Consolidation,
Appointment as Lead Plaintiff and Approval of Lead Plaintiff's
Selection of Counsel filed by Plaintiff Giulio D. Cessario, a
plaintiff in the Steinberg action, which consolidated these
actions under the caption In re Brocade Communications Systems,
Inc. Securities Litigation, Case No. 3:16-cv-07081-EMC. The U.S.
Northern District Court set this matter for an initial hearing on
September 14, 2017.
In its recent Form 10-Q report, the Company said that on December
29, 2017, Lead Plaintiff voluntarily dismissed the consolidated
action without prejudice and withdrew as Lead Plaintiff.
The Company also disclosed that on February 16, 2018, Plaintiffs
Gross, Chuakay and Jha filed a joint motion for an award of
attorneys' fees. On March 2, 2018, defendants filed a joint
opposition to the motion for attorneys' fees. The hearing on
Plaintiffs Gross, Chuakay and Jha's motion was set for April 5,
2018.
Broadcom Limited is a designer, developer and global supplier of
a broad range of semiconductor devices with a focus on complex
digital and mixed signal complementary metal oxide semiconductor
based devices and analog III-V based products.
BROADCOM LTD: Appeal in "Varjabedian" Suit Still Pending
--------------------------------------------------------
Broadcom Limited said in its Form 10-Q Report filed with the
Securities and Exchange Commission for the quarterly period ended
February 4, 2018, that the appeal to the Ninth Circuit by the
plaintiff in Gary Varjabedian, et al. v. Emulex Corporation, et
al., is still pending
On March 3, 2015, two putative shareholder class action
complaints were filed in the Court of Chancery of the State of
Delaware, or the Delaware Court of Chancery, against Emulex, its
directors, Avago Technologies Wireless (U.S.A.) Manufacturing
Inc., or AT Wireless, and Emerald Merger Sub, Inc., or Emerald
Merger Sub, captioned as follows: James Tullman v. Emulex
Corporation, et al., Case No. 10743-VCL (Del. Ch.); Moshe Silver
ACF/Yehudit Silver U/NY/UTMA v. Emulex Corporation, et al., Case
No. 10744-VCL (Del. Ch.). On March 11, 2015, a third complaint
was filed in the Delaware Court of Chancery, captioned Hoai Vu v.
Emulex Corporation, et al., Case No. 10776-VCL (Del. Ch.).
The complaints alleged, among other things, that Emulex's
directors breached their fiduciary duties by approving the
Agreement and Plan of Merger, dated February 25, 2015, by and
among AT Wireless, Emerald Merger Sub and Emulex and that AT
Wireless and Emerald Merger Sub aided and abetted these alleged
breaches of fiduciary duty. The complaints sought, among other
things, either to enjoin the transaction or to rescind it
following its completion, as well as damages, including
attorneys' and experts' fees.
The Delaware Court of Chancery has entered an order consolidating
the three Delaware actions under the caption In re Emulex
Corporation Stockholder Litigation, Consolidated C.A. No. 10743-
VCL. On May 5, 2015, the company completed its acquisition of
Emulex. On June 5, 2015, the Court of Chancery dismissed the
consolidated action without prejudice.
On April 8, 2015, a putative class action complaint was filed in
the U.S. Central District Court, entitled Gary Varjabedian, et
al. v. Emulex Corporation, et al., No. 8:15-cv-554-CJC-JCG. The
complaint names as defendants Emulex, its directors, AT Wireless
and Emerald Merger Sub, and purported to assert claims under
Sections 14(d), 14(e) and 20(a) of the Exchange Act.
The complaint alleged, among other things, that the board of
directors of Emulex failed to provide material information and/or
omitted material information from the Solicitation/Recommendation
Statement on Schedule 14D-9 filed with the SEC on April 7, 2015
by Emulex, together with the exhibits and annexes thereto. The
complaint sought to enjoin the tender offer to purchase all of
the outstanding shares of Emulex common stock, as well as certain
other equitable relief and attorneys' fees and costs.
On July 28, 2015, the U.S. Central District Court issued an order
appointing the lead plaintiff and approving lead counsel for the
putative class. On September 9, 2015, plaintiff filed a first
amended complaint seeking rescission of the merger, unspecified
money damages, other equitable relief and attorneys' fees and
costs. On October 13, 2015, defendants moved to dismiss the first
amended complaint, which the U.S. Central District Court granted
with prejudice on January 13, 2016.
Plaintiff filed a notice of appeal to the United States Court of
Appeals for the Ninth Circuit, or the Ninth Circuit Court, on
January 15, 2016. The appeal is captioned Gary Varjabedian, et
al. v. Emulex Corporation, et al., No. 16-55088.
Broadcom Limited said in its Form 10-Q Report for the quarterly
period ended July 30, 2017, that on June 27, 2016, the Plaintiff-
Appellant filed his opening brief, on August 17 and August 22,
2016, the Defendants-Appellees filed their answering briefs, and
on October 5, 2016 Plaintiff-Appellant filed his reply brief.
The Ninth Circuit Court heard oral argument on October 5, 2017.
In its recent disclosure, Broadcom said "We are unable to predict
the date on which the Ninth Circuit Court will issue any decision
at this time. We believe these claims are all entirely without
merit and intend to vigorously defend these actions."
Broadcom Limited is a leading designer, developer and global
supplier of a broad range of semiconductor devices with a focus
on complex digital and mixed signal complementary metal oxide
semiconductor based devices and analog III-V based products.
BROADCOM LTD: Delaware Class Suit over PLX Deal Underway
--------------------------------------------------------
Broadcom Limited said in its Form 10-Q Report filed with the
Securities and Exchange Commission for the quarterly period ended
February 4, 2018, that the Delaware class litigation related to
the company's acquisition of PLX, is on-going.
In June and July 2014, four lawsuits were filed in the Superior
Court for the State of California, County of Santa Clara, or the
Superior Court, challenging the company's acquisition of PLX. On
July 22, 2014, the Superior Court consolidated these California
actions under the caption In re PLX Technology, Inc. S'holder
Litig., Lead Case No. 1-14-CV-267079 (Cal. Super. Ct., Santa
Clara) and appointed lead counsel. That same day, the Superior
Court also stayed the consolidated action, pending resolution of
related actions filed in the Delaware Court of Chancery.
Also in June and July 2014, five similar lawsuits were filed in
the Delaware Court of Chancery. On July 21, 2014, the Delaware
Court of Chancery consolidated these Delaware actions under the
caption In re PLX Technology, Inc. Stockholders Litigation,
Consol. C.A. No. 9880-VCL (Del. Ch.), appointed lead plaintiffs
and lead counsel, and designated an operative complaint for the
consolidated action. On July 31, 2014, counsel for lead
plaintiffs in Delaware informed the Delaware Court of Chancery
that they would not seek a preliminary injunction, but intend to
seek damages and pursue monetary remedies through post-closing
litigation. Our acquisition of PLX closed on August 12, 2014.
On October 31, 2014, lead plaintiffs filed a consolidated amended
complaint. This complaint alleges, among other things, that PLX's
directors breached their fiduciary duties to PLX's stockholders
by seeking to sell PLX for an inadequate price, pursuant to an
unfair process, and by agreeing to preclusive deal protections in
the merger agreement. Plaintiffs also allege that Potomac Capital
Partners II, L.P., Deutsche Bank Securities, AT Wireless and
Pluto Merger Sub, Inc., the acquisition subsidiary, aided and
abetted the alleged fiduciary breaches. Plaintiffs also allege
that PLX's Solicitation/Recommendation statement on Schedule 14D-
9, as filed with the SEC, contained false and misleading
statements and/or omitted material information necessary to
inform the shareholder vote. The plaintiffs seek, among other
things, monetary damages and attorneys' fees and costs. On
September 3, 2015, the Delaware Court of Chancery granted motions
to dismiss filed by AT Wireless, the acquisition subsidiary and
two PLX directors, and denied motions to dismiss filed by several
other PLX directors, Potomac Capital Partners II, L.P. and
Deutsche Bank Securities.
On August 17, 2016, the five remaining PLX director-defendants
and Deutsche Bank Securities entered into a stipulation of
partial settlement to resolve claims against all of the former
PLX directors and Deutsche Bank Securities asserted in the
Delaware class action. The partial settlement also provides for a
release of all potential claims against AT Wireless, Pluto Merger
Sub, Inc., Avago and PLX. Defendant Potomac Capital Partners II,
L.P. is not a party to the settlement. This partial settlement
was approved by the Delaware Court of Chancery on December 20,
2016.
The Delaware class litigation is on-going. Broadcom said in its
Form 10-Q Report for the quarterly period ended July 30, 2017,
that on November 9, 2016, the sole remaining defendant, Potomac
Capital Partners II, L.P., filed cross-claims against the named
individual director defendants and Deutsche Bank Securities for
contribution.
In its recent disclosure, the Company said the Delaware class
litigation was scheduled for trial on April 10, 2018.
Under various contracts and statutes, PLX may owe indemnification
to each of these parties. The cross-claims are now barred
according to the terms of the approved partial settlement,
although Potomac Capital Partners II, L.P. might be entitled to
an offset (based on contributory fault) of any damages it might
owe to the class.
Class Suit Over BRCM Acquisition Dismissed
Broadcom Limited said in its Form 10-Q Report for the quarterly
period ended July 30, 2017, that on March 16, 2017, state actions
against the company were dismissed with prejudice pursuant to the
settlement.
Following the announcement of the Broadcom Merger, 11 putative
class action complaints were filed by and purportedly on behalf
of alleged BRCM shareholders. Two putative class action
complaints, or the Federal Actions, were filed in the United
States District Court for the Central District of California, or
the U.S. Central District Court. One putative class action
complaint was filed in the Superior Court of the State of
California, County of Santa Clara and eight putative class action
complaints were filed in the Superior Court of the State of
California, County of Orange, or the State Actions. The Federal
Actions and State Actions name as defendants, among other
parties, BRCM, members of BRCM's board of directors and Avago,
and allege, among other things, breaches of fiduciary duties and
aiding and abetting those alleged breaches. Additionally, the
Federal Actions allege violations of Sections 14(a) and 20(a) of
the Exchange Act and SEC Rule 14-a9.
On January 15, 2016, lead plaintiffs in the Federal Actions filed
a Second Amended Consolidated Class Action Complaint, or the
Federal Consolidated Complaint, which names as defendants, among
other parties, members of BRCM's board of directors and Avago,
and alleges breaches of fiduciary duties and aiding and abetting
those alleged breaches, as well as violation of Sections 14(a)
and 20(a) of the Exchange Act and SEC Rule 14-a9.
On September 23, 2016, the parties entered into a Stipulation and
Agreement of Compromise and Settlement, or the Stipulation, which
has been filed with the U.S. Central District Court. Pursuant to
the Stipulation, BRCM agreed to confirm certain facts concerning
the Broadcom Merger. Additionally, defendants agreed to pay or
cause to be paid attorneys' fees and expenses as may be awarded
by the U.S. Central District Court to plaintiffs' counsel for
their efforts in prosecuting the litigation, as well as the costs
of administering the settlement. The Stipulation includes a
release of all claims against defendants relating to or arising
from the litigation. On December 2, 2016, the U.S. Central
District Court granted preliminary approval of the settlement. On
February 27, 2017, the U.S. Central District Court granted final
approval of the settlement.
On March 16, 2017, the State Actions were dismissed with
prejudice pursuant to the settlement. The settlement did not have
an impact on our financial statements.
Broadcom said "We believe that the claims in the litigation,
including the Federal Consolidated Complaint, were without merit
and that no misconduct or damages occurred. Defendants entered
into the settlement to eliminate the burden, distraction, and
expense of further litigation."
Broadcom Limited is a designer, developer and global supplier of
a broad range of semiconductor devices with a focus on complex
digital and mixed signal complementary metal oxide semiconductor
based devices and analog III-V based products.
BUDD PROPERTIES: 2 Classes Certified in "Martin" Suit
-----------------------------------------------------
In the lawsuit styled EDWARD J. MARTIN, JR., et al., the
Plaintiffs, v. BUDD PROPERTIES, INC., et al., the Defendants,
Case No. 7:17-cv-00027-WLS (M.D. Fla.), the Hon. Judge W. Louis
Sands entered an order granting-in-part Plaintiffs' motion for
conditional certification. The Court conditionally certifies two
classes, maintenance class and clerical class, in this case to
proceed as a collective action.
The two classes are:
"class of hourly maintenance workers who, due to Defendants'
uniformly-applied illegal payment practices were denied wages
and overtime pay"; and
"class of hourly clerical workers who, due to Defendants'
uniformly-applied illegal payment practices were denied wages
and overtime pay".
The Court also approves Plaintiffs' notice to putative class
members and orders Defendants to serve on Plaintiffs within
fourteen days of the date of this Order contact information for
all persons employed by Defendants as maintenance or clerical
workers since February 13, 2014. The Plaintiffs must send out
notice to putative class members within 21 days of the filing of
this Order. The Putative class members have 90 days to join the
instant action as measured by ninety days from the mailing date
of their notice, or Thursday, August 16, 2018, whichever occurs
later. A putative class member's consent to join thereafter must
be approved by the Court. The Plaintiffs' request for equitable
tolling is denied without prejudice. Additionally, pursuant to
the Discovery Scheduling Order the Parties are ordered to
promptly confer and provide the Court with a joint proposed
scheduling order for post-certification discovery within twenty-
one days of the date of this Order. The proposed scheduling order
must include a deadline for any motion challenging conditional
certification and must state whether the Parties believe a second
discovery conference on the proposed order is necessary or
desired.
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=DMbVck2F
CALDWELL TRANSPORT: Court Certifies Class in "Luckett" Suit
-----------------------------------------------------------
In the lawsuit styled RICHARD LUCKETT, individually and on behalf
of all others similarly situated, the Plaintiff, v. CALDWELL
TRANSPORT COMPANY, LLC, TRAVIS ROBBINS and DAVID BEMIS, the
Defendants, Case No. 5:17-cv-00934-W (W.D. Okla.), the Court
entered an order:
1. granting Luckett's Motion for conditional certification of:
"all individuals who have signed a [D]river [C]ontract and
performed luggage delivery services for Caldwell Transport
Company, LLC, at any time between December 3, 2014, to the
present and were classified as independent contractors"
2. directing the parties to confer in good faith and submit
within 14 days a definition of the prospective class to be
conditionally certified and (a) a proposed notice that sets
forth that amended definition, (b) a proposed consent form and
(c) a proposed schedule, all of which should conform to this
Order; and
3. directing Defendants that within 21 days after the Court has
approved the proposed notice, consent form and schedule that
they shall produce the names, last-known mailing addresses,
last-known telephone numbers and last-known email addresses
for each former and current individual who signed a Driver
Contract and who performed luggage delivery services for
Caldwell from airports between December 3, 2014, to the
present, and the work locations and dates worked for each
individual.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=OZ37NVU9
CHAMPION PETFOODS: Faces "Slawsby" Suit Over Product Misbranding
----------------------------------------------------------------
Lisa Slawsby, individually and on behalf of all others similarly
situated v. Champion Petfoods USA, Inc. and Champion Petfoods LP,
Case No. 1:18-cv-10701-GAO (D. Mass., April 11, 2018), is an
action for the Defendants' negligent, reckless, and intentional
practice of misrepresenting and failing to fully disclose the
presence of heavy metals and toxins in their pet food sold
throughout the United States.
The Defendants manufacture, market, advertise, label, distribute,
and sell pet food under the brand names Acana and Orijen
throughout the Commonwealth of Massachusetts and the United
States. [BN]
The Plaintiff is represented by:
Glen DeValerio, Esq.
Daryl Andrews, Esq.
265 Franklin Street, Suite 1702
Boston, MA 02110
Telephone: (617) 936-2796
E-mail: glen@andrewsdevalerio.com
daryl@andrewsdevalerio.com
- and -
Patrick V. Dahlstrom, Esq.
POMERANTZ LLP
10 South LaSalle Street, Suite 3505
Chicago, IL 60603
Telephone: (312) 377-1181
E-mail: pdahlstrom@pomlaw.com
- and -
Gustavo F. Bruckner, Esq.
Gabriel Henriquez, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
E-mail: gfbruckner@pomlaw.com
ghenriquez@pomlaw.com
CHICAGO, IL: Aviation Officers File Suit Over Lost Privileges
-------------------------------------------------------------
Matt Reynolds, writing for Courthouse News Service, reported that
aviation security officers filed a class action against Chicago
and Illinois, claiming they were unconstitutionally stripped of
their police powers and concealed-carry privileges after a doctor
was dragged off a United Airlines flight last year.
In April 2017, footage of airline cops forcibly removing doctor
David Dao off United Flight 3411 bound for Kentucky lit up the
internet, prompting widespread outrage and condemnation of the
airline and the Chicago police force.
Three aviation security officers say in a class action filed on
April 11 that officials seized on the Dao incident to strip them
of their law enforcement powers and concealed-carry gun rights,
and erase employment histories that would have allowed them to
find work at other law enforcement agencies.
"While presumably it was politically expedient for the city of
Chicago to say that it had 300 police officers at the airports
charged with first-responder duties after Sept. 11, 2001, now --
after the public relations fallout from United Flight 3411 -- it
is politically expedient for a new directive identifying the
[aviation police officers, or APOs] as 'observers' rather than
police and first responders," according to the lawsuit filed by
lead attorney Robert Sweeney -- rsweeney@sweeneyscharkey.com --
with Sweeney & Scharkey.
The officers call attention to an April 5 letter from the
Illinois Law Enforcement Training and Standards Board that was
"purportedly" written just four days before the Dao incident and
sets in motion the justification to strip the aviation officers
of their law enforcement credentials.
Addressed to Chicago's First Deputy Chief of Staff Joan Coogan,
the officers claim the letter is evidence that the board wanted
to "create the false impression" that it decision to decertify
aviation officers "arose before" the Dao incident. The document
is attached as an exhibit to the complaint.
The letter, written by the board member Cora Beem, states that
the board learned that aviation police officers are
distinguishable from rank-and-file Chicago police because they
are not directed by the Chicago Police Superintendent, are not
permitted to carry firearms on or off duty, and do not share the
same pensions and benefits.
"Therefore, we cannot trace law enforcement authority from the
Illinois statutes to these particular employees, in the manner
that we can for CPD officers, and we can no longer find them [to]
be law enforcement officers," Ms. Beem wrote.
The aviation security officers were officially decertified last
July.
Ms. Beem is on extended leave and the Illinois Law Enforcement
Training and Standards Board said it could not comment on pending
litigation.
The potential class of 292 officers claims the city and state are
violating their due process rights under the Fifth and 14th
Amendments to the U.S. Constitution.
Bill McCaffrey, a spokesman with the Chicago Department of Law,
said on April 12 that he had not seen the lawsuit and could not
comment. A spokesperson for Illinois Attorney General Lisa
Madigan was not immediately available for comment.
The plaintiffs' attorney, Mr. Sweeney, said the city's actions
mean the aviation security officers will struggle to find law
enforcement jobs in other agencies and jurisdictions and that his
clients "want their history back." He noted that the officers
had testified in court and issued citations.
"The city wanted all the benefits of having a 292-person police
force out there when it was expedient and then when it suddenly
was not, they wiped it all away," Mr. Sweeney said in phone
interview on April 12.
"This feels personal," added officer Julio Dones in a prepared
statement. "It's about identity. I gave years in service to the
city and that's being taken away from me and denied. I did
everything that was asked and expected of me. But because of one
incident that didn't even involve me, 290 officers like me are
losing the most valuable things we have: our reputations and
experience."
For over three decades, the city has trained would-be officers at
the Chicago Police Academy or Cook County Sherriff's Academy.
Even though officers are not allowed to use firearms at work,
Illinois gun laws permit them to carry concealed firearms at
other times.
After the United incident, the city replaced the officers' stars
and with egg-shaped badges, and removed the words "police" from
their uniforms and vehicles, which were repainted to identify
them as aviation security, according to the lawsuit.
The aviation officers claim the city was happy to tout the
Chicago Department of Aviation's law enforcement credentials in
the wake of the 9/11 terror attack when Americans across the
country were jittery about air travel and the prospect of
subsequent attacks.
But Department Commissioner Ginger Evans told lawmakers in
Washington shortly after the Dao incident that the city did not
consider aviation security "police" and later that summer stated
that they "are not, and have never been, police." Mayor Rahm
Emanuel allegedly underlined Evans' comments in his statements to
the press.
The class action follows a lawsuit filed on April 10 by fired
airline security officer James Long, who claims the city failed
to properly train him on the appropriate use of force against
Dr. Dao.
United had decided to bump four passengers from the flight after
it overbooked and needed to dispatch crew members to Louisville.
Dr. Dao was among those randomly selected. He refused to budge,
and told the officers: "I'm not leaving this flight that I paid
money for. I don't care if I get arrested," according to
Mr. Long's complaint.
Mr. Long claims that he "assisted the subject by using minimal
but necessary force" and that Dr. Dao's injuries were a "direct
result of his fighting with aviation officers."
Dr. Dao is not a party to Mr. Long's complaint, but Mr. Long
blamed him for escalating the incident and said that United
should have foreseen that officers would have to use force to
haul him off the plane.
Footage showed Dao returning to his seat with a bloodied face
after his head had hit an armrest and officers dragged him away.
Dr. Dao, a Kentucky pulmonologist, suffered a concussion, broke
his nose and lost two teeth.
He reached a settlement with United three weeks after the viral
incident for an undisclosed amount of money.
CVS RX SERVICES: Can Partly Compel Arbitration in "Cabrera" Suit
----------------------------------------------------------------
In the case, SIGFREDO CABRERA and ENKO TELAHUN, on behalf of
themselves and all others similarly situated, Plaintiffs, v. CVS
RX SERVICES, INC., et al., Defendants, Case No. C 17-05803 WHA
(N.D. Cal.), Judge William Alsup of the U.S. District Court for
the Northern District of California granted in part and denied in
part the Defendants' motion to compel arbitration and granted the
Plaintiffs' motion for leave to file a second amended complaint.
The Defendants provide pharmacy services and operate retail
stores. CVS employed Telahun as a pharmacist and pharmacy
manager and Cabrera as a pharmacy service associate and pharmacy
technician.
Telahun began working at CVS in 2013. As part of his job,
Telahun completed various web-based training modules. One such
training, entitled "Arbitration of Workplace Legal Disputes,"
required Telahun to review, acknowledge, and agree to CVS's
arbitration policy. Cabrera started work as a pharmacy
technician trainee in 2016. By that time, newly hired CVS
employees (including Cabrera) had to electronically review and
execute a CVS Health Arbitration Agreement before beginning work.
Although not identical, CVS' arbitration agreements with Telahun
and Cabrera both covered any and all claims, disputes or
controversies arising out of or related to the Plaintiffs'
employment with CVS, including disputes regarding wages and other
forms of compensation, hours of work, meal and rest break
periods, seating, and expense reimbursement. Section 6 of the
arbitration agreements included a class action waiver, requiring
them to bring any Covered Claims in arbitration on an individual
basis only and providing that they waived any right to bring a
claim as a class, collective, representative or private attorney
general action. This waiver explicitly did not apply, however,
to claims brought as a private attorney general solely on the
employee's own behalf and not on behalf of or regarding others.
The Plaintiffs both had 30 days to opt out of the arbitration
agreement. Cabrera's arbitration agreement stated that
arbitration was not "a mandatory condition" of his employment.
And during Telahun's training module on arbitration, CVS informed
him that it would not tolerate retaliation against any colleague
who decided to opt out.
Cabrera initiated wage-and-hour putative class action in August
2017 in state court. He amended the complaint in September to
add Telahun as a Plaintiff and to include a claim pursuant to
California's Private Attorneys General Act of 2004 ("PAGA"). The
amended complaint generally alleged that CVS required them to
complete ongoing training sessions outside of working hours or
during breaks without compensation and failed to reimburse them
for expenses incurred as a result of their employment. Based on
these allegations, the Plaintiffs brought claims under the
California Labor Code, an unfair competition claim, and a PAGA
claim.
CVS removed the action to this district court and now moves to
compel the Plaintiffs to bring their claims in arbitration. The
Plaintiffs, in the face of CVS' motions to compel, move for leave
to file a second amended complaint. CVS argues that these
amendments would either be futile or prejudice CVS and that
amending the complaint to include Telahun as a second PAGA
representative would be futile because his PAGA claim would still
be subject to arbitration.
First, Judge Alsup finds that CVS has failed to show that adding
Christine McNeely as a class representative would be futile.
Second, he says the arbitration agreements' waiver of
representative PAGA actions is unenforceable as a matter of
California law. Under the terms of the arbitration agreements,
any PAGA action to which the agreements' class action waiver
cannot be enforced must be litigated in a civil court. Third,
CVS would not be prejudiced by the amendment. The Plaintiffs'
PAGA claim (and possibly McNeely's class claims) will proceed in
this forum regardless of whether the Plaintiffs' amendment is
permitted. And finally, CVS does not address the Plaintiffs'
request to include additional factual allegations that have been
discovered. Such amendment would not be futile or prejudice CVS.
As to the Defendants' motion to compel, the Judge finds that the
arbitration agreements are valid and enforceable. The
Plaintiffs' contentions lack evidentiary support. Neither the
Plaintiff disputes that he could have opted out of the
arbitration agreement. He says the arbitration agreements cover
"any and all" claims "arising out of or related to" the
Plaintiffs' employment with CVS, regardless of the party bringing
the claim.
The Judge also finds that the Plaintiffs did not meaningfully
dispute that they would be required to arbitrate the non-PAGA
claims contained in their first amended complaint. However, they
have abandoned such claims and no longer intend to pursue them in
any forum. CVS' motions to compel arbitration of the Plaintiffs'
non-PAGA claims are accordingly denied as moot.
With respect to the Plaintiffs' representative claim for civil
penalties, the result is straightforward. The arbitration
agreements purport to waive their right to bring a PAGA claim "on
behalf of or regarding others." However, the Judge explains,
such waiver is unenforceable under California law. The question
then becomes whether the parties agreed to arbitrate the
surviving representative claim. This order concludes that they
did not. As the arbitration agreements clearly state, to the
extent that the class action waiver is found unenforceable as to
any PAGA action, that action "must be litigated in a civil court
of competent jurisdiction." Accordingly, pursuant to the terms
of the parties' agreement, the Plaintiffs' representative PAGA
claim for civil penalties must remain pending in this forum.
CVS' motion to compel this claim to arbitration is denied.
Unlike their request for civil penalties, the Plaintiffs' claim
for unpaid wages is not implicated by the class action waiver
contained in CVS' arbitration agreement. Their PAGA claim for
unpaid wages accordingly falls squarely within the scope of the
parties' agreement to arbitrate and arbitration of this victim-
specific relief is therefore proper. CVS' motions to compel this
claim to arbitration are granted.
For the foregoing reasons, Judge Alsup granted the Plaintiffs'
motion for leave to amend. An evidentiary hearing is set for
April 9, 2018 at 8:00 a.m. At the hearing, the parties will be
prepared to address whether (or not) McNeely opted out of CVS'
arbitration agreement. To the extent described, the Judge
granted in part and denied in part the Defendants' motions to
compel arbitration. The Plaintiffs will file their second
amended complaint by March 23, 2018.
A full-text copy of the Court's March 16, 2018 Order is available
at https://is.gd/ipheTa from Leagle.com.
Sigfredo Cabrera, as individuals, on behalf of themselves and all
other similar persons similarly situated, Plaintiff, represented
by R. Craig Clark -- cclark@clarklawyers.com -- Clark Law Firm,
Walter Lewis Haines -- walter@whaines.com -- United Employees Law
Group, P.C. & Monique R. Rodriguez -- mrodriguez@clarklawyers.com
-- Clark Law Group.
Enko Telahun, Plaintiff, represented by R. Craig Clark, Clark Law
Firm & Monique R. Rodriguez, Clark Law Group.
CVS RX Services, Inc., a New York corporation, CVS Pharmacy,
Inc., a Rhode Island Corporation & Garfield Beach CVS, LLC, a
California limited liability company, Defendants, represented by
Tyler Ryan Andrews -- andrewst@gtlaw.com -- Greenberg Traurig,
Christiana Lynn Signs -- signsc@gtlaw.com -- GREENBERG TRAURIG &
James Norman Boudreau -- boudreauj@gtlaw.com -- Greenberg
Traurig, LLP, pro hac vice.
DEL TACO: Says Managers' Class Suit in California Concluded
-----------------------------------------------------------
Del Taco Restaurants, Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission for the fiscal
year ended January 2, 2018, that the purported class action
complaint filed in California has been dismissed with prejudice
in its entirety.
In July 2013, a former Del Taco employee filed a purported class
action complaint alleging that Del Taco has failed to pay
overtime wages and has not appropriately provided meal breaks to
its California general managers. On March 4, 2016, the Court
denied class certification on the overtime and meal period
claims. At that time, the Court granted class certification on
the wage statement issue only. On October 30, 2017, the Court
granted Del Taco's Motion to Decertify the Wage Statement Class.
Thereafter, the parties settled the matter with the former Del
Taco employee on an individual basis. As a result, the case was
dismissed with prejudice in its entirety.
Del Taco Restaurants, Inc. operates a chain of fast food
restaurants. The company consists of two separate Mexican fast-
food groups, 79 Del Taco units and 36 Taco Villa restaurants. The
company offers Mexican food items, such as tacos, burritos,
quesadillas, burgers, French fries, and soft drinks. The company
was incorporated in 1983 and is based in Atlanta, Georgia. Del
Taco Restaurants, Inc. operates as a subsidiary of W.R. Grace &
Co.
DEL TACO: Discovery is Ongoing in Former Employee's Class Suit
--------------------------------------------------------------
Del Taco Restaurants, Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission for the fiscal
year ended January 2, 2018, that discovery is ongoing on a
purported class action complaint filed by a former Del Taco
employee.
In March 2014, a former Del Taco employee filed a purported class
action complaint alleging that Del Taco has not appropriately
provided meal breaks and failed to pay wages to its California
hourly employees. Discovery is in process and Del Taco intends to
assert all of its defenses to this threatened class action and
the individual claims. Del Taco has several defenses to the
action that it believes should prevent the certification of the
class, as well as the potential assessment of any damages on a
class basis.
Del Taco said "Legal proceedings are inherently unpredictable,
and the Company is not able to predict the ultimate outcome or
cost of the unresolved matter. However, based on management's
current understanding of the relevant facts and circumstances,
the Company does not believe that these proceedings give rise to
a probable or estimable loss and should not have a material
adverse effect on the Company's financial position, operations or
cash flows. Therefore, Del Taco has not recorded any amount for
the claim as of January 2, 2018.
Del Taco Restaurants, Inc. operates a chain of fast food
restaurants. The company consists of two separate Mexican fast-
food groups, 79 Del Taco units and 36 Taco Villa restaurants. The
company offers Mexican food items, such as tacos, burritos,
quesadillas, burgers, French fries, and soft drinks. The company
was incorporated in 1983 and is based in Atlanta, Georgia. Del
Taco Restaurants, Inc. operates as a subsidiary of W.R. Grace &
Co.
DENTSPLY SIRONA: Parties in "Weinstat" Suit Reached Settlement
--------------------------------------------------------------
Dentsply Sirona, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission for the fiscal year ended
December 31, 2017, that the Company has reached a settlement in a
class action suit filed by Marvin Weinstat, DDS and Richard
Nathan, DDS.
On June 18, 2004, Marvin Weinstat, DDS and Richard Nathan, DDS
filed a class action suit in San Francisco County, California
alleging that the Company misrepresented that its Cavitron(R)
ultrasonic scalers are suitable for use in oral surgical
procedures. The complaint sought a recall of the product and
refund of its purchase price to dentists who have purchased it
for use in oral surgery. The court certified the case as a class
action in June 2006 with respect to the breach of warranty and
unfair business practices claims.
The certified class is defined as California dental professionals
who, at any time during the period beginning June 18, 2000
through September 14, 2012, purchased and used one or more
Cavitron(R) ultrasonic scalers for the performance of oral
surgical procedures on their patients, which Cavitrons(R) were
accompanied by Directions for Use that "Indicated" Cavitron(R)
use for "periodontal debridement for all types of periodontal
disease."
The case went to trial in September 2013, and on January 22,
2014, the San Francisco Superior Court issued its decision in the
Company's favor, rejecting all of the plaintiffs' claims.
Dentsply Sirona said in its Form 10-Q Report for the quarterly
period ended September 30, 2017, that the plaintiffs appealed the
Superior Court's decision, and the appeal is pending. The Company
is defending against this appeal.
In its recent disclosure, the Company said that on January 10,
2018, the California Court of Appeals affirmed the trial court's
judgment in the Company's favor. On February 15, 2018, the
Company reached a settlement on this matter, in which the
plaintiffs agreed to reimburse certain of the Company's costs and
not to appeal the California Court of Appeals decision.
Dentsply Sirona is the world's largest manufacturer of
professional dental products and technologies, with a 130-year
history of innovation and service to the dental industry and
patients worldwide. Dentsply Sirona develops, manufactures, and
markets a comprehensive solutions offering including dental and
oral health products as well as other consumable medical devices
under a strong portfolio of world class brands.
DENTSPLY SIRONA: Stipulation in "Hilderbrand" Suit Underway
-----------------------------------------------------------
Dentsply Sirona, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission for the fiscal year ended
December 31, 2017, that the stipulation reached by the parties in
the Hildebrand suit remains pending.
On December 12, 2006, Carole Hildebrand, DDS, and Robert Jaffin,
DDS, filed a complaint in the Eastern District of Pennsylvania
(the Plaintiffs subsequently added Dr. Mitchell Goldman as a
named class representative). The same law firm that filed the
Weinstat case in California filed this case.
The complaint asserts putative class action claims on behalf of
dentists located in New Jersey and Pennsylvania. The complaint
asserts that the Company's Cavitron(R) ultrasonic scaler was
negligently designed and sold in breach of contract and warranty
arising from alleged misrepresentations about the potential uses
of the product because the Company cannot assure the delivery of
potable or sterile water through the device. The court granted
the Company's Motion for Dismissal of the case for lack of
jurisdiction.
Following that dismissal, the plaintiffs filed a second complaint
under the name of Dr. Hildebrand's corporate practice, Center
City Periodontists, asserting the same allegations. The
plaintiffs moved to have the case certified as a class action and
the Company objected. The court granted the Company's Motion to
Dismiss plaintiffs' New Jersey Consumer Fraud and negligent
design claims, leaving only a breach of express warranty claim.
The court subsequently denied the Company's motion for summary
judgment on the express warranty claim. The court held hearings
during 2016 on plaintiffs' class certification motion. On July
24, 2017, the Court issued an order denying class certification
on multiple, independently sufficient grounds.
Dentsply Sirona Inc. said in its Form 10-Q Report for the
quarterly period ended September 30, 2017, that on October 6,
2017, the parties to the lawsuit filed a Stipulation of
Dismissal, dismissing all claims with prejudice, with the
plaintiffs agreeing to pay the Company's costs associated with
the litigation.
Dentsply Sirona is the world's largest manufacturer of
professional dental products and technologies, with a 130-year
history of innovation and service to the dental industry and
patients worldwide. Dentsply Sirona develops, manufactures, and
markets a comprehensive solutions offering including dental and
oral health products as well as other consumable medical devices
under a strong portfolio of world class brands.
DOW CHEMICAL: Tolling Ended When Certification Was Denied
---------------------------------------------------------
The Supreme Court of Delaware issued an Opinion holding that
class action tolling ended when the Texas state court denied
class certification on June 3, 2010, in the case captioned TLUIS
ANTONIO AGUILAR MARQUINEZ et al., Plaintiffs Below, Appellant, v.
THE DOW CHEMICAL COMPANY et al., Defendants Below, Appellee, No.
231, 2017 (Del.).
The United States Court of Appeals for the Third Circuit
certified the following question of law to the state Supreme
Court in accordance with the Delaware Constitution, Article IV,
Section 11(8)(a) and Delaware Supreme Court Rule 41:
Does class action tolling end when a federal district court
dismisses a matter for forum non conveniens and, consequently,
denies as moot all pending motions, which include the motion for
class certification, even where the dismissal incorporated a
return jurisdiction clause stating that the court will resume
jurisdiction over the action as if the case had never been
dismissed for f.n.c., Delgado v. Shell Oil Co., 890 F.Supp. 1324,
1375 (S.D. Tex. 1995)?
If it did not end at that time, when did it end based on the
procedural history of the case?
The plaintiff-appellants worked on banana plantations in Costa
Rica, Ecuador and Panama at various times in the 1970s and 1980s.
The defendants-appellees include United States corporations that
manufactured and distributed a pesticide called
dibromochloropropane (DBCP), and other United States corporations
that owned and operated the banana plantations. The plaintiffs
allege that they suffered adverse health consequences from
exposure to DBCP while working on the banana plantations.
In 1993, a putative class action lawsuit was filed in state court
in Texas as Jorge Carcamo v. Shell Oil Co., No. 93-C-2290
(Brazoria County, Texas). The plaintiffs here were members of
the putative class. The putative class included all persons
exposed to DBCP or DBCP containing products, designed,
manufactured, marketed, distributed or used by defendants between
1965 and 1990 in 25 countries including Costa Rica, Ecuador and
Panama.
After removal, Carcamo was consolidated with other DBCP-related
class actions in the United States District Court for the
Southern District of Texas. The cases were consolidated as
Delgado v. Shell Oil Co., Civil Action No. H-94-1337. The
Defendants moved to dismiss the consolidated cases for forum non
conveniens.
On July 11, 1995, the Texas District Court granted the
defendants' motion and dismissed the putative class action for
forum non conveniens (Delgado I).
The Delgado I court entered a final judgment on October 27, 1995,
which included an injunction enjoining the plaintiffs and anyone
acting in concert with them from commencing new DBCP-related
litigation in any court in the United States (Delgado I Final
Judgment"). The plaintiffs appealed the Delgado I Final Judgment,
challenging only the court's subject matter jurisdiction under
the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. Section
1330.
On May 31, 2012, Luis Antonio Aguilar Marquinez and others filed
a lawsuit in the United States District Court for the District of
Delaware. Fourteen of the plaintiffs had previously filed
identical lawsuits in either the Eastern District of Louisiana or
in Louisiana state court. As in Chavez, the Delaware District
Court dismissed the plaintiffs' claims under the first-filed
rule. The District Court later granted summary judgment to the
defendants as against the remaining plaintiffs, holding that
class action tolling stopped in July 1995 when the Delgado I
court dismissed the case for forum non conveniens.
Plaintiffs appealed to the Third Circuit.
PARTIES' CONTENTIONS
The Plaintiffs contend class action tolling in this case was not
terminated by the Texas District Court's July 1995 opinion and
order or the October 1995 Delgado I Final Judgment. Instead,
class action tolling terminated on June 3, 2010 when the Texas
state court denied class certification.
The defendant contend that under that legal standard, the tolling
provided by the Texas class action terminated at the latest in
1995 with the Delgado I Final Judgment dismissing the
consolidated action in favor of litigation in plaintiffs' home
countries.
The defendants argued that class action tolling ended on July 11,
1995, when the Texas District Court denied all other pending
motions as moot. The plaintiffs argued that the July 11, 1995
order denying "all pending motions as moot did not take effect
until when final judgment was entered on October 27, 1995."
The Hawai'i Supreme Court held "that the pendency of a class
action in another jurisdiction operates to toll our state's
applicable statute(s) of limitations until the court in our
sister jurisdiction issues an order expressly denying a motion
for class certification or expressly denying the last such
motion, if there is more than one motion." For the same reasons
in this case, the Hawai'i Supreme Court agreed with the
plaintiffs that the July 11, 1995 order did not terminate class
tolling in a sufficiently clear and unambiguous' way in order to
'put putative members of the class on notice that' the Hawai'i
state statute of limitations had begun to run against them. But,
according to the Court, the Texas district court's October 27,
1995 final judgment dismissing Carcamo/Delgado for f.n.c. clearly
denied class certification and triggered the resumption of our
state statute of limitations.
The state Supreme Court disagrees with the Fifth Circuit's and
the Hawai'i Supreme Court's application of class action tolling
to the unique circumstances of this case. Those courts gave no
effect to the conditional nature of the dismissal resulting from
the return jurisdiction clause in the Texas District Court's
Delgado I opinion and order. The return jurisdiction clause
allowed the Texas District Court to resume jurisdiction upon
motion of the plaintiffs, which included resumption of its
consideration of plaintiffs' class action certification request.
Under the state Supreme Court's view of class action tolling, a
conditional dismissal does not finally decide a pending request
for class certification. Thus, neither the 1995 Delgado I opinion
and order nor the 1995 Delgado I Final Judgment finally dismissed
the request for class action certification.
The Texas District Court's Delgado I opinion and order and the
Delgado I Final Judgment did not stop class action tolling.
Class action tolling ended when the Texas state court denied
class certification on June 3, 2010.
A full-text copy of the Supreme Court's March 15, 2018 Opinion is
available at https://tinyurl.com/y9z9l4br from Leagle.com
Barbara H. Stratton, Esquire, 1228 North King Street. 6 Harvey
Lane. Wilmington, Delaware 19801, Jonathan S. Massey, Esquire --
jmassey@masseygail.com -- (argued), Washington, D.C., and Scott
M. Hendler, Esquire -- shendler@hendlerlaw.com -- Austin, Texas,
for Appellants.
Donald E. Reid, Esquire -- dreid@mnat.com -- Wilmington,
Delaware, Michael L. Brem -- mbrem@sdablaw.com -- Houston, Texas,
(argued),James W. Semple, Esquire -- jsemple@morrisjames.com --
Wilmington, Delaware, Boaz S. Morag, Esquire -- bmorag@cgsh.com -
- New York, New York, Timothy Jay Houseal, Esquire --
thouseal@ycst.com -- Wilmington, Delaware, D. Ferguson McNeil,
Esquire -- jason@fergusonsams.com -- Houston, Texas, Lisa C.
McLaughlin, Esquire -- lcm@pgmhlaw.com -- Wilmington, Delaware,
Adam V. Orlacchio, Esquire orlacchio@blankrome.com --
Wilmington, Delaware, and Kelly E. Farnan, Esquire --
farnan@rlf.com -- Wilmington, Delaware, for Appellees.
DYNAMIC LEDGER: 2 Securities Suits Consolidated with GGCC's Suit
----------------------------------------------------------------
Magistrate Judge Seeborg Richard of the U.S. District Court for
the Northern District of California consolidated the case, GGCC,
LLC, et al., Plaintiffs, v. DYNAMIC LEDGER SOLUTIONS, INC., et
al., Defendants, Case Nos. 17-cv-06779-RS, 17-cv-06829-RS, 17-cv-
06850-RS, 17-cv-07095-RS (N.D. Cal.) with Okusko v. Dynamic
Ledger Solutions, Inc. et al, Case No. 17-cv-6829; ; and
MacDonald v. Dynamic Ledger Solutions, Inc., et al., Case No. 17-
cv-7095.
The securities class action is brought on behalf of individuals
who contributed to the Tezos Initial Coin Offering ("ICO") in
July 2017. Four related cases have been filed in (or removed to)
the Court asserting a variety of federal and state law claims.
At core, all of the cases revolve around the underlying assertion
that the Tezos ICO involved the sale of unregistered securities.
Five different Plaintiffs and Plaintiff groups initially moved
for appointment as the Lead Plaintiff and for approval of their
respective selections of counsel. One Plaintiff has since
conceded, leaving four remaining contenders. In conjunction with
their motions for appointment, the Plaintiffs have also proposed
varying approaches to consolidating and/or coordinating the four
actions at issue.
The Movants take varying positions on consolidation. All parties
agree that Okusko and GGCC should be consolidated. They
disagree, however, over what to do with Baker v. Dynamic Ledger
Solutions, Inc. et al, Case No. 17-cv-6850 and MacDonald. This
disagreement is based on the factors that distinguish these two
cases from the other three: MacDonald brings only state law
claims and Baker, which was removed from state court, has been
stayed pending a Supreme Court decision that will be relevant to
determining whether remand is appropriate.
Anvari and the Tezos Investors Group both assert MacDonald and
Baker should be consolidated with the other two actions -- a
position supported by Defendants Tezos Stiftung, Dynamic Ledgers
Solutions, Inc., Kathleen and Arthur Breitman, Draper Associates
V Crypto LLC, and Timothy Draper. Trigon Trading and the Gaviria
Group, by contrast, argue MacDonald should be coordinated but not
consolidated --i.e., MacDonald and his counsel should coordinate
with the other cases when possible regarding scheduling,
briefing, and discovery, but the case should not be litigated
with the others under a single operative complaint. Finally,
Baker argues his case should not be consolidated. Doing so, he
contends, would require lifting the stay recently issued in his
case, despite not yet having received the Supreme Court guidance
that was the reason for the stay, and would thus unjustly force
Baker to proceed in federal court.
Magistrate Judge Seeborg finds that Baker's arguments against
consolidation are more compelling than MacDonald's. Like
MacDonald, Baker arises from the same factual predicate, advances
similar legal theories, and seeks similar relief. It is quite
possible that at some point in the future these factors will make
Baker ripe for consolidation. For now, however, Baker is correct
that consolidating his action would run counter to the very
reason for which the action was stayed. Having refrained from
issuing a decision on Baker's remand motion until guidance is
provided by the Supreme Court, it would not make sense to force
Baker to proceed in federal court before that guidance is
forthcoming.
Moreover, given that Baker is stayed, there is little prejudice
that can flow from failing to consolidate the case at this
juncture. In light of this, GGCC, Okusko, and MacDonald will be
consolidated. Baker will be coordinated with the consolidated
action -- i.e., Baker and his counsel will be kept informed of
all case management and scheduling matters so later
consolidation, should that prove appropriate, can be as
streamlined as possible
Given that Anvari has the most significant financial interest in
this action and also satisfies the typicality and adequacy
requirements of Rule 23, Magistrate Judge Seeborg finds that
Anvari is the presumptive Lead plaintiff. The other movants have
failed to offer evidence sufficient to overcome that presumption.
Therefore, Anvari will be appointed the Lead Plaintiff in the
action.
The Judge also finds that Anvari's choice of counsel is
acceptable. LTL is a litigation firm with three offices and over
30 attorneys. Its lawyers have substantial experience litigating
complex class actions in state and federal court and appear to
have obtained favorable results for class members in multiple
cases. HGT's filings, as well as Mr. Ta's presentation at oral
argument, similarly make clear that its attorneys, though less
numerous, have reputable credentials and significant litigation
experience. Accordingly, Anvari's selection of LTL and HGT as
lead counsel comes nowhere near to being "so irrational" as to
"cast genuine doubt" on Anvari's adequacy. LTL Attorneys LLP and
HGT Law will therefore be appointed as the co-lead counsel.
For the foregoing reasons, Magistrate Judge Seeborg consolidated
Actions 17-cv-6829 (Okusko), 17-cv-7095 (MacDonald), and 17-cv-
6779 (GGCC) pursuant to Federal Rule of Civil Procedure 42(a) for
pretrial purposes. The consolidated action will be captioned: In
re Tezos Securities Litigation, and will be maintained in one
file under Master File No. 17-cv-06779-RS. All related actions
subsequently filed in, or transferred to, the District will be
consolidated with this action for pretrial purposes. The parties
will notify the Court of any other action pending or filed
outside of the District which may be related to the subject
matter of the consolidated action when they become aware of such
actions.
The Magistrate Judge ordered that every pleading filing in the
consolidated action will bear the following caption:
a. When a pleading is intended to be applicable to all
actions to which this Order applies, the words All Actions will
appear immediately after the words This document relates to: in
the caption above.
b. When a pleading applies only to some of the actions, the
document will list, immediately after the phrase This document
relates to: the docket number for each individual action to which
the document applies, along with the last name of the first-
listed Plaintiff in said action.
The Magistrate appointed Arman Anvari is appointed as the Lead
Plaintiff and LTL Attorneys LLP and Hung G. Ta, Esq. PLLC as the
lead counsel.
Within 10 days of the entry of the Order, the parties will meet
and confer and file with the Court a stipulation and proposed
order setting forth a proposed schedule for the filing of a
consolidated complaint and a briefing schedule for the
Defendants' anticipated motions in response to the consolidated
complaint. Anvari and his selected counsel will coordinate with
Baker and his counsel regarding case management matters so that
later consolidation of the Baker action, Case No. 17-cv-6850, if
necessary, can be completed as efficiently as possible.
A full-text copy of the Court's March 16, 2018 Order is available
at https://is.gd/6ABczt from Leagle.com.
GGCC, LLC, an Illinois Limited Liability Company, individually
and on behalf of all others similarly situated, Plaintiff,
represented by Jeremy Nash, Lite DePalma Greenberg, LLC, William
Richard Restis -- william@restislaw.com -- The Restis Law Firm,
P.C., Bruce Daniel Greenberg -- bgreenberg@litedepalma.com --
Lite Depalma Greenberg LLC & Joseph J. DePalma --
jdepalma@litedepalma.com -- Lite DePalma Greenberg, LLC.
Andrew Baker, Plaintiff, represented by James Quinn Taylor-
Copeland -- JAMES@TAYLORCOPELANDLAW.COM -- Taylor-Copeland Law.
Dynamic Ledger Solutions, Inc., a Delaware Corporation,
Defendant, represented by Brian E. Klein --
bklein@bakermarquart.com -- Baker Marquart LLP, Patrick Edward
Gibbs -- pgibbs@cooley.com -- Cooley LLP, Daniel Louis Sachs --
dsachs@cooley.com -- Cooley LLP, Jeffrey Michael Kaban --
jkaban@cooley.com -- Cooley LLP, Samantha Anne Kirby --
skirby@cooley.com -- Cooley LLP & Scott Matthew Malzahn --
smalzahn@bakermarquart.com -- Baker Marquart LLP.
Tezos Stiftung, A Swiss Foundation, Defendant, represented by
Andrew S. Gehring -- andrew.gehring@davispolk.com -- Davis Polk
and Wardwell LLP, Edmund Polubinski, III --
edmund.polubinski@davispolk.com -- Davis Polk and Wardwell LLP,
Neal Alan Potischman -- neal.potischman@davispolk.com -- Davis
Polk & Wardwell & Serge Alexander Voronov --
serge.voronov@davispolk.com -- Davis Polk & Wardwell LLP.
Kathleen Breitman, an Individual & Arthur Breitman, an
Individual, Defendants, represented by Brian E. Klein, Baker
Marquart LLP & Scott Matthew Malzahn, Baker Marquart LLP.
Trigon Trading Pty Ltd, Defendant, represented by Jacob Allen
Walker -- jake@blockesq.com -- Block & Leviton LLP.
Andrew Okusko, Movant, represented by Rosemary M. Rivas --
rrivas@zlk.com -- Levi & Korsinsky LLP.
Bruce MacDonald, Movant, represented by Reed R. Kathrein --
reed@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP & Joel
Anderson Fleming -- joel@blockesq.com -- Block & Leviton LLP.
David Lang, Ryan Coffey & Alejandro Gaviria, Movants, represented
by Danielle Suzanne Myers -- danim@rgrdlaw.com -- Robbins Geller
Rudman & Dowd LLP, Lucas F. Olts -- lolts@rgrdlaw.com -- Robbins
Geller Rudman & Dowd LLP & Shawn A. Williams --
shawnw@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP.
Nicolas Andreasson, Paul Martin & Richard Reckenbeil, Movants,
represented by Donald J. Enright -- denright@zlk.com -- Levi &
Korsinsky, LLP & Rosemary M. Rivas, Levi & Korsinsky LLP.
Pumaro, LLC & NIck Anthony, Movants, represented by Jeremy Nash -
- jnash@litedepalma.com -- Lite DePalma Greenberg, LLC & William
Richard Restis -- support@restislaw.com -- The Restis Law Firm,
P.C.
Trigon Trading Pty Ltd, Movant, represented by Jacob Allen
Walker, Block & Leviton LLP & Joel Anderson Fleming, Block &
Leviton LLP.
Arman Anvari, Movant, represented by Enoch H. Liang --
enoch.liang@ltlattorneys.com -- LTL Attorneys LLP & Hung G. Ta,
Hung G. Ta, Esq. PLLC.
Draper Associates V Crypto LLC, Interested Party, represented by
Christopher L. Wanger -- cwanger@manatt.com -- Manatt Phelps &
Phillips, LLP.
EARTHSTONE ENERGY: "Olenik" Class Action Suit Still Ongoing
-----------------------------------------------------------
Earthstone Energy, Inc. said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission for the fiscal year
ended December 31, 2017, that the case captioned Olenik v.
Lodzinksi et al., is still ongoing.
On June 7, 2017, litigation captioned Olenik v. Lodzinksi et al.
was filed in the Delaware Court of Chancery seeking class action
status, claiming a breach of fiduciary duty by the company' Board
and others and challenging the fairness of the Bold Transaction.
The plaintiff has requested an award of damages in an unspecified
amount.
The Company and the other defendants believe the suit is without
merit and have mounted a vigorous defense.
In May 2017, Earthstone completed a contribution agreement dated
as of November 7, 2016 and as amended on March 21, 2017, by and
among Earthstone, Earthstone Energy Holdings, LLC, Lynden US,
Lynden USA Operating, LLC, a Texas limited liability company,
Bold Energy Holdings, LLC, a Texas limited liability company, and
Bold Energy III LLC, a Texas limited liability company. The
purpose of the Bold Contribution Agreement was to provide for,
among other things, the business combination between Earthstone
and Bold, which owned significant developed and undeveloped oil
and natural gas properties in the Midland Basin of Texas.
Earthstone Energy said "In addition, we may be subject to
additional litigation relating to Bold or the Bold Transaction in
the future. We cannot predict the outcome of the ongoing
litigation or any litigation that may arise in the future, nor
can we predict the amount of time and expense that will be
required to resolve the ongoing litigation or any other
litigation. While we will evaluate and defend against the ongoing
litigation and any other litigation vigorously, the costs of the
defense, including legal fees of directors under indemnification
obligations, and other effects of such litigation could have an
adverse effect on our business, financial condition and results
of operations."
Earthstone Energy, Inc., a Delaware corporation, is a growth-
oriented independent oil and gas company engaged in the
acquisition and development of oil and gas reserves through
activities that include the acquisition, drilling and development
of undeveloped leases, asset and corporate acquisitions and
mergers and, to a lesser extent, exploration activities.
FACEBOOK INC: Judge Certifies Class in Illinois BIPA Lawsuit
------------------------------------------------------------
Nicholas Iovino, writing for Courthouse News Service, reported
that a class of up to 6 million Illinois residents can seek
billions of dollars in damages from Facebook on claims that it
harvested users' facial data without consent, a federal judge
ruled on April 16.
Rejecting arguments that the location of Facebook's servers
shields it from liability, U.S. District Judge James Donato
certified a class of Facebook users in Illinois who had their
facial data analyzed and collected by Facebook after June 7,
2011.
Lead plaintiff Nimesh Patel claims Facebook harvested users'
facial data for its "Photo Tag Suggest" function, starting in
2011, without express permission from users.
Under the Illinois Biometric Information Privacy Act of 2008,
companies are required to obtain consent before collecting or
disclosing biometric data, such as retina scans, fingerprints,
voiceprints, hand scans or facial geometry.
Attorneys for the plaintiffs estimate a class size of up to 6
million, with damages of $1,000 to $5,000 per class member, which
could net the plaintiffs an award of $6 billion to $30 billion.
Facebook said in a statement that it is reviewing the ruling but
believes that the case "has no merit." It argued in legal briefs
that its users suffered no actual harm and therefore lack
standing to sue.
Judge Donato rejected that argument in February, finding the
plaintiffs suffered "intangible harm" by losing control over
their private data.
Facebook also claimed that it cannot be sued for violating an
Illinois law because its servers are not in that state. Judge
Donato dismissed that argument, finding most elements of the
lawsuit are "deeply rooted in Illinois."
The judge rejected Facebook's request to deny class certification
based on differences among scanned and digital photographs. He
found the social network offered no evidence of a substantial
variation in how facial data is harvested from digital versus
film-camera photos.
Judge Donato also rejected Facebook's concerns that class
certification would enable the plaintiffs to seek an unreasonable
amount of damages: potentially $30 billion.
"Substantial damages are not a reason to decline class
certification because it is within the Court's discretion to
reduce a liquidated damages award to comport with due process at
a later stage of the proceedings," Judge Donato wrote in his
15-page ruling.
The ruling comes less than a week after Facebook CEO
Mark Zuckerberg spent nearly 10 hours over two days testifying
before U.S. Congress and answering questions about the Cambridge
Analytica scandal. He acknowledged that data firm Cambridge
Analytica improperly obtained up to 87 million Facebook users'
private data and used the information to help political clients,
including Donald Trump's 2016 presidential campaign.
Class attorney Paul Gellar -- PGeller@rgrdlaw.com -- with Robbins
Geller Rudman & Dowd, said the Illinois Legislature was
"prescient" in passing the Biometric Information Privacy Act to
protect its citizens from corporations that harvest people's
biometric identifiers without consent.
"Recent events show that Facebook's treatment of personal data is
a real concern at the national level," Mr. Gellar said in an
email on April 16. "Violation of the Illinois statute is a
paradigm for class treatment, and we and our co-counsel are
rolling up our sleeves and preparing for trial on behalf of the
class.
During a hearing in March, Judge Donato urged Facebook to
consider settling the multibillion-dollar class action, saying:
"Maybe it's time for Facebook to look at all of its privacy
practices, and not just those in the news."
Menlo Park-based Facebook, co-founded in 2004 by Zuckerberg,
claimed 1.4 billion daily users as of December 2017 and was
valued at $407.3 billion as of May 2017, according to Facebook
and Forbes.
FGL HOLDINGS: Cross-Motions to Dismiss Pending in BIP Suit
----------------------------------------------------------
FGL Holdings said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2017, that the parties in the case entitled,
Brokerage Insurance Partners v. Fidelity & Guaranty Life
Insurance Company, Fidelity & Guaranty Life, FS Holdco II Ltd,
and John Doe, have filed cross-Motions to Dismiss in Part, which
are pending before the Court.
On June 30, 2017, a putative class action complaint was filed
against the Company in the United States District Court for the
District of Maryland, captioned Brokerage Insurance Partners v.
Fidelity & Guaranty Life Insurance Company, Fidelity & Guaranty
Life, FS Holdco II Ltd, and John Doe, No. 17-cv-1815. The
complaint alleges that the Company breached the terms of its
agency agreement with Brokerage Insurance Partners ("BIP") and
other agents by changing certain compensation terms. The
complaint asserts, among other causes of action, breach of
contract, defamation, tortious interference with contract,
negligent misrepresentation, and violating of the Racketeer
Influenced and Corrupt Organizations Act ("RICO").
The complaint seeks to certify a class composed of all persons
who entered into an agreement with the Company to sell life
insurance and who sold at least one life insurance policy between
January 1, 2015 and January 1, 2017. The complaint seeks
unspecified compensatory, consequential, and punitive damages in
an amount not presently determinable, among other forms of
relief.
On September 1, 2017, the Company filed a counterclaim against
BIP and John and Jane Does 1-10, asserting, among other causes of
action, breach of contract, fraud, civil conspiracy and
violations of RICO. On September 22, 2017, Plaintiff filed an
Amended Complaint, and on October 16, 2017, the Company filed an
Amended Counterclaim against BIP, Agent Does 1-10, and Other
Person Does 1-10. The parties also filed cross-Motions to Dismiss
in Part, which are pending before the Court.
FGL Holdings said "As of the date of this report, the Company
does not have sufficient information to determine whether it has
exposure to any losses that would be either probable or
reasonably estimable."
FGL Holdings (the "Company", formerly known as CF Corp.), a
Cayman Islands exempted company, was originally incorporated in
the Cayman Islands on February 26, 2016 as a Special Purpose
Acquisition Company (SPAC), formed for the purpose of effecting a
merger, capital stock exchange, asset acquisition, stock
purchase, reorganization, or other similar business combination
with one or more target businesses.
FGL HOLDINGS: Says "Cressy" Class Action Concluded
--------------------------------------------------
FGL Holdings said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2017, that the class action complaint entitled,
Cressy v. Fidelity Guaranty Life Insurance Company, et al., has
been concluded.
On July 5, 2013, Plaintiff Eddie L. Cressy filed a putative class
Complaint captioned Cressy v. Fidelity Guaranty Life Insurance
Company, et al. in the Superior Court of California, County of
Los Angeles (the "Court"), Case No. BC-514340. The Complaint was
filed after the Plaintiff was unable to maintain an action in
federal court. The Complaint asserted, inter alia, that the
Plaintiff and members of the putative class relied on Defendants'
advice in purchasing allegedly unsuitable equity-indexed
insurance policies.
On January 2, 2015, the Court entered Final Judgment in Cressy,
certifying the class for settlement purposes, and approving the
class settlement reached on April 4, 2014. On August 10, 2015,
the Company tendered $1 to the Settlement Administrator for a
claim review fund. The Company implemented an interest
enhancement feature for certain policies as part of the class
settlement, which enhancement began on October 12, 2015. On
October 24, 2016, the parties filed a Joint Motion to amend the
January 2, 2015 Final Order and Judgment, to extend the deadline
for settlement completion from October 24, 2016 to December 5,
2016.
On December 5, 2016, Plaintiff Cressy filed a Notice of Filing
Declaration of Settlement Administrator and Status of Completion
of Settlement; the Declaration of Settlement Administrator
included a certification by the Settlement Administrator that the
Company had complied in all respects with the class settlement
and that all eligible claims had been paid and the interest
enhancement had been implemented pursuant to the terms of the
class settlement. On March 24, 2017, the Court entered a Minute
Order indicating that it was satisfied that the parties had fully
and finally performed all of the terms of the settlement and
recorded the matter as complete without the need for any further
hearings.
FGL Holdings (the "Company", formerly known as CF Corp.), a
Cayman Islands exempted company, was originally incorporated in
the Cayman Islands on February 26, 2016 as a Special Purpose
Acquisition Company (SPAC), formed for the purpose of effecting a
merger, capital stock exchange, asset acquisition, stock
purchase, reorganization, or other similar business combination
with one or more target businesses.
FGL HOLDINGS: Time to Seek Review in "Ludwick" Suit Expired
-----------------------------------------------------------
FGL Holdings said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2017, that the plaintiff's time to seek
discretionary review in the case entitled, Dale R. Ludwick, on
behalf of Herself and All Others Similarly Situated v. Harbinger
Group Inc., Fidelity & Guaranty Life Insurance Company, Raven
Reinsurance Company, and Front Street Re (Cayman) Ltd., has
expired, and the judgment in the case should be deemed final as
to the named Plaintiff.
On January 7, 2015, a putative class action complaint was filed
in the United States District Court, Western District of Missouri
(the "District Court"), captioned Dale R. Ludwick, on behalf of
Herself and All Others Similarly Situated v. Harbinger Group
Inc., Fidelity & Guaranty Life Insurance Company, Raven
Reinsurance Company, and Front Street Re (Cayman) Ltd.
The complaint alleges violations of RICO, requests injunctive and
declaratory relief and seeks unspecified compensatory damages for
the putative class in an amount not presently determinable,
treble damages, and other relief, and claims Plaintiff Ludwick
overpaid $0 for her annuity. On February 12, 2016, the District
Court granted the defendants' Joint Motion to Dismiss the
Plaintiff's claims. On March 3, 2016, Plaintiff Ludwick filed a
Notice of Appeal to the United States Court of Appeals for the
Eighth Circuit (the "Court of Appeals"). On April 13, 2017, the
Court of Appeals affirmed the District Court's decision to
dismiss the Plaintiff's claims. The Plaintiff's time to seek
discretionary review of this matter expired on July 12, 2017 and
the judgment should be deemed final as to the named Plaintiff.
FGL Holdings (the "Company", formerly known as CF Corp.), a
Cayman Islands exempted company, was originally incorporated in
the Cayman Islands on February 26, 2016 as a Special Purpose
Acquisition Company (SPAC), formed for the purpose of effecting a
merger, capital stock exchange, asset acquisition, stock
purchase, reorganization, or other similar business combination
with one or more target businesses.
FIRST TENNESSEE: Court Grants Dismissal of "Oneal" FCRA Suit
------------------------------------------------------------
The United States District Court for the Eastern District of
Tennessee granted Defendant's Motion to Dismiss the case
captioned RAYMOND ONEAL, individually and on behalf of all other
similarly situated, Plaintiff, v. FIRST TENNESSEE BANK,
Defendant, No. 4:17-CV-3-TAV-SKL (E.D. Tenn.).
The Defendant seeks the dismissal of this action on three
grounds: (1) under Federal Rule of Civil Procedure 12(b)(1), for
the plaintiff's alleged failure to plead standing under Article
III of the Federal Constitution; (2) under Rule 12(b)(5), for the
plaintiff's alleged failure to properly serve the defendant with
process; and (3) under Rule 12(b)(6), for the plaintiff's alleged
failure to state a plausible claim upon which the Court may grant
relief.
This case concerns an alleged violation of the federal Fair
Credit Reporting Act (FCRA). The Plaintiff claims defendant
negligently and willfully accessed his Equifax credit report for
a purpose not authorized by the FCRA.
The Plaintiff alleges that he reviewed his Equifax credit report
and discovered an unauthorized inquiry by the defendant.
According to the report, the defendant accessed the plaintiff's
Equifax credit report on November 30, 2015, for Account Review
purposes. The Plaintiff asserts that, on that date, he did not
have any account, debt, or other financial relationship with
defendant, all his business with the defendant having ended with
the bankruptcy discharge.
The Defendant moves for dismissal of this action of three
grounds: lack of subject-matter jurisdiction under Rule
12(b)(1), insufficient service of process under Rule 12(b)(5),
and failure to state a claim under Rule 12(b)(6).
The Court concludes that it lacks subject-matter jurisdiction
over this action because the plaintiff has failed to sufficiently
plead Article III standing. Therefore, the Court need not
consider the defendant's alternative grounds for dismissal under
Rules 12(b)(5) and (b)(6).
At issue here is the first prong of the standing test, injury in
fact. To establish injury in fact, the plaintiff must show "an
invasion of a legally protected interest that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical. But that does not mean standing is present
whenever a statute grants a person a statutory right and purports
to authorize that person to sue to vindicate it. A bare
procedural violation, divorced from any concrete harm, will not
suffice. However, as the various decisions discussed in the next
sections of this opinion make clear, the line between sufficient
and insufficient procedural injury remains elusive.
The Court will apply these principles to the two forms of injury
the plaintiff has alleged in this case an invasion of his legally
protected privacy interests and an increased risk of exposure of
his personal information via a data breach.
Invasion of Privacy
First, the plaintiff alleges that he suffered an invasion of his
legally protected privacy interests along with attending mental
and emotional distress from defendant's soft-pull inquiry
the Defendant denies that such an alleged injury is sufficient
for Article III standing.
The Court agrees with the defendant that this alleged injury is
insufficiently concrete.
The Court agrees with the defendant that the cases cited by the
plaintiff as factually analogous to this case are
distinguishable. Perrill v. Equifax Info. Servs., LLC, 205
F.Supp.3d 869, 873-75 (W.D. Tex. Aug. 31, 2016), featured the
disclosure of a credit report to a third party -- a government
agency holding taxing power over the plaintiff. Further, the
defendants in Firneno, 2016 WL 5899762, at *1; and Lavigne, 215
F. Supp. 3d at 1140, used the private information they accessed
to directly solicit the consumers affected, through targeted
mailing lists and automated telephone calls, respectively.
These alleged injuries are all far more substantial even if
intangible than the amorphous notion of an "invasion of privacy,
standing alone." And, while Burke dealt with the same type of
harm alleged here, 2016 WL 4249496, at *1, that decision is not
binding on this Court and was vacated after the parties agreed
that standing was lacking, 2016 WL 7451624, at *1. In any event,
the Court finds the holding in Burke, that any violation of the
FCRA styled as an invasion of privacy would constitute injury in
fact to be plainly inconsistent with the guidance set forth in
Spokeo. 136 S. Ct. at 1550, positing situations where technical
violations of the FCRA would be insufficiently concrete to confer
Article III standing.
In sum, the Court agrees with the majority of courts to address
the question at hand following the Spokeo decision: Absent
disclosure to a third party or an identifiable harm from the
statutory violation, no actionable invasion of privacy results
from a technical violation of the FCRA. Moreover, the
plaintiff's additional allegation of psychic harm does not shift
the balance. When reviewing a facial attack on subject-matter
jurisdiction, the court must accept the factual allegations of
the plaintiff's complaint as true. At the same time, however,
conclusory allegations or legal conclusions masquerading as
factual conclusions will not suffice. The one-sentence reference
to mental and emotional distress in the amended complaint is the
very definition of a legal conclusion masquerading as a factual
allegation .
Therefore, this allegation is insufficient to carry the
plaintiff's burden of proving Article III standing.
Risk of Data Breach
Second, the plaintiff alleges that the defendant's soft-pull
inquiry has exposed him to an increased risk of a data breach and
a resulting exposure of his personal information to third
parties. The Defendant denies that such an alleged injury is
sufficient for Article III standing.
The Court agrees with the defendant that this alleged injury is
insufficiently concrete.
After carefully considering the parties' arguments on this issue,
the Court finds that the plaintiff has failed to plead a concrete
risk of harm from a hypothetical future data breach. In
particular, the plaintiff fails to provide any indication of the
actual likelihood of such a risk. The amended complaint alleges
only that data breaches are increasingly common, and financial
institutions like the defendant are frequent targets of
cybercriminals. The Plaintiff does not aver, for example, that
defendant has been the target of hackers in the past or lacks the
security features necessary to ward off a data breach. Indeed, in
his brief responding to defendant's motion to dismiss, the
plaintiff merely argues in a conclusory fashion and without
elaboration that the risk to [him] is substantial and certainly
impending, establishing standing.
Legal conclusions masquerading as factual conclusions will not
suffice when defending a Rule 12(b)(1) motion.
The Court further finds that the plaintiff's attempts to
distinguish the data-breach cases unpersuasive. First, the fact
that the plaintiff has not asserted a freestanding data-breach
claim is immaterial. Regardless of whether a plaintiff relies on
the consequences of a data breach as an independent cause of
action, or as a form of injury attending an FCRA violation, the
critical question for standing purposes remains the same -- how
substantial is the risk that those consequences will actually
occur?
Second, the fact that most of the data-breach defendants were
lawfully in possession of the plaintiffs' private information --
unlike the defendant here, according to the plaintiff -- does not
alter the analysis. The Plaintiff has not alleged that the
defendant has misused, is misusing, or will misuse his credit
report in any way. Thus, just like in the data-breach cases, the
plaintiff is relying entirely on allegations of hypothetical,
future injury" arising from third-party access to the defendant's
computer systems.
In sum, the Court finds that neither of the plaintiff's asserted
injuries constitutes such a personal stake in the outcome of the
controversy" as to ensure an adequately adversarial process. As
such, the plaintiff has failed to sufficiently plead one of the
essential components of Article III standing. The Court therefore
lacks subject-matter jurisdiction over this action.
Accordingly, the Court will deny as moot the defendant's first
motion to dismiss and grant the defendant's second motion to
dismiss.
A full-text copy of the District Court's March 15, 2018
Memorandum Opinion is available at https://tinyurl.com/ya3swlw5
from Leagle.com.
Raymond Oneal, Individually and all others similarly situated,
Plaintiff, represented by Matthew M. Loker -- ml@kazlg.com --
Kazerouni Law Group, APC, pro hac vice & Robert Floyd Davis,
Davis, Kessler & Davis, 705 Dinah Shore Blvd., Winchester, TN
37398.
First Tennessee Bank, Defendant, represented by Jamie L. Morton
-jmorton@bakerdonelson.com -- Baker, Donelson, Bearman, Caldwell
& Berkowitz, Kristine Roberts -- klroberts@bakerdonelson.com --
Baker, Donelson, Bearman Caldwell and Berkowitz, PC, pro hac vice
& R. Mark Glover -- mglover@bakerdonelson.com -- Baker, Donelson,
Bearman Caldwell and Berkowitz, PC, pro hac vice.
FLOWERS FOODS: Fails to Pay Workers Overtime, "Dickens" Suit Says
-----------------------------------------------------------------
Justin Dickens, on behalf of himself and all other similarly
situated employees v. Flowers Foods, Inc., and Flowers Baking Co.
of Morristown, LLC, Case No. 7:18-cv-00163-EKD (W.D. Va., April
10, 2018), is brought against the Defendants for failure to pay
overtime pay for hours worked in excess of 40 hours per week.
The Defendants own and operate a corporation whose business
consists of distributing bakery and snack food products to retail
customers. [BN]
The Plaintiff is represented by:
Johneal M. White, Esq.
GLENN ROBINSON CATHEY MEMMER & SKAFF PLC
400 Salem Avenue, S.W., Suite 100
Roanoke, VA 24016
Telephone: (540) 767-2200
Facsimile: (540) 767-2220
E-mail: jwhite@glennrob.com
- and -
Gordon E. Jackson, Esq.
J. Russ Bryant, Esq.
Paula R. Jackson, Esq.
Robert E. Turner, Esq.
JACKSON, SHIELDS, YEISER & HOLT
262 German Oak Drive
Memphis, TN 38018
Telephone: (901) 754-8001
Facsimile: (901) 754-8524
E-mail: gjackson@jsyc.com
rbryant@jsyc.com
pjackson@jsyc.com
rturner@jsyc.com
- and -
Michael L. Weinman, Esq.
WEINMAN THOMAS LAW FIRM
112 S. Liberty Street, Suite 321
P.O. Box 266
Jackson, TN 38302
Telephone: (731) 423-5565
E-mail: mike@weinmanthomas.com
GALVESTON COUNTY, TX: People Who Can't Afford to Pay Bail Sue
-------------------------------------------------------------
Robert Kahn, writing for Courthouse News Service, reported that
in the latest in a series of class actions, Galveston County, its
judges and district attorney are accused of jailing without a
"meaningful hearing" people who cannot afford to pay a preset
bail.
Attorneys for Plaintiffs:
Trisha Trigilio, Esq.
Adriana Pinon, Esq.
Andre Segura, Esq.
American Civil Liberties Union Foundation of Texas
1500 McGowen Street, Suite 250
Houston, Texas 77004
Tel: 713-942-8146
Fax: 713-942-8966
Email: ttrigilio@aclutx.org
apinon@aclutx.org
asegura@aclutx.org
-- and --
Kali Cohn, Esq.
American Civil Liberties Union Foundation of Texas
6440 N. Central Expressway
Dallas, TX 75206
Tel: 214-346-6575
Fax: 713-942-8966
Email: kcohn@aclutx.org
-- and --
Brandon J. Buskey, Esq.
American Civil Liberties Union
Foundation Criminal Law Reform Project
125 Broad Street, 18th Floor
New York, NY 10004
Tel: 212-284-7364
Fax: 212-549-2654
Email: bbuskey@aclu.org
-- and --
Christopher M. Odell, Esq.
Hannah Sibiski, Esq.
ARNOLD & PORTER KAYE SCHOLER LLP
700 Louisiana Street, Suite 4000
Houston, TX 77002-2755
Telephone: 713-576-2400
Facsimile: 713-576-2499
Email: christopher.odell@arnoldporter.com
hannah.sibiski@arnoldporter.com
GENER8 MARITIME: "Fragapane" and "Mohr" Suits Filed in New York
---------------------------------------------------------------
Gener8 Maritime, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission for the fiscal year ended
December 31, 2017, that the company is defending against the
cases, Fragapane v. Gener8 Maritime, Inc. et al., and Mohr v.
Gener8 Maritime, Inc., et al, in the United States District Court
for the Southern District of New York.
On March 8, 2018, a lawsuit captioned Fragapane v. Gener8
Maritime, Inc. et al., No. 1:18-cv-02097 (S.D.N.Y.), was filed in
the United States District Court for the Southern District of New
York, on behalf of the public stockholders of the Company,
against the Company, the Company's directors, Euronav and Merger
Sub. On March 14, 2018, another lawsuit, captioned Mohr v. Gener8
Maritime, Inc., et al, No. 1:18-cv-02276 (S.D.N.Y.), was also
filed against the Company and its directors.
The complaints allege that the registration statement on Form F-4
filed by Euronav violates Section 14(a) of the Securities and
Exchange Act of 1934 because it omits and/or misrepresents
material information concerning, among other things, the (i)
sales process leading up to the Merger, (ii) financial
projections used by the Company's financial advisor in its
financial analyses and (iii) inputs underlying the financial
valuation analyses that were used by the Company's financial
advisor to support its fairness opinion. The complaints also
allege that the Company's directors are liable under Section
20(a) of the Exchange Act as controlling persons.
The Fragapane complaint further alleges that the Company's
directors breached their fiduciary duties to the Company's
stockholders by engaging in a flawed sales process, by agreeing
to sell the Company for inadequate consideration and by agreeing
to improper deal protection terms in the Merger Agreement.
The complaints seek, among other things, injunctive relief
against the proposed transaction with Euronav as well as other
equitable relief, damages and attorneys' fees and costs.
Gener8 Maritime said "From time to time in the future we may be
subject to legal proceedings and claims in the ordinary course of
business, principally personal injury and property casualty
claims. While we expect that these claims would be covered by our
existing insurance policies, those claims, even if lacking merit,
could result in the expenditure of significant financial and
managerial resources. We have not been involved in any such legal
proceedings which may have, or have had, a significant effect on
our financial position, results of operations or liquidity, nor
are we aware of any such proceedings that are pending or
threatened which may have a significant effect on our financial
position, results of operations or liquidity."
Gener8 Maritime, Inc. is a leading U.S. based provider of
international seaborne crude oil transportation services,
resulting from a transformative merger between General Maritime
Corporation, a well-known tanker owner, and Navig8 Crude Tankers
Inc., a company sponsored by the Navig8 Group, an independent
vessel pool manager.
GGP INC: Faces "Susman" Suit Over Breach of Fiduciary Duty
----------------------------------------------------------
Arthur Susman, on behalf of himself and all others similarly
situated v. Richard B. Clark, Mary Lou Fiala, J. Bruce Flatt,
Janice R. Fukakusa, John K. Haley, Daniel B. Hurwitz, Brian W.
Kingston, Christina M. Lofgren, Sandeep Mathrani, Brookfield
Property Partners L.P., and GGP Inc., Case No. 2018-0267 (Del.
Chan. Ct., April 10, 2018), is an action for damages as a result
of the Defendants' breach of fiduciary duty to secure and obtain
the best value reasonable under the circumstances for the benefit
of GGP shareholders, in connection with the definitive merger
agreement of GGP with Brookfield Property Partners L.P.
Under the merger agreement, BPY would acquire all of the shares
of GGP that BPY did not already own for $23.50 in cash per share
or either one unit of BPY or one share of a real estate
investment trust to be newly created by Brookfield.
Headquartered in Chicago, Illinois, GGP Inc. owns and operates
some of the most attractive luxury malls in the United States.
[BN]
The Plaintiff is represented by:
Ronald A. Brown Jr., Esq.
Stephen D. Dargitz, Esq.
J. Clayton Athey, Esq.
Samuel L. Closic, Esq.
PRICKETT JONES & ELLIOTT, P.A.
1310 King Street
Wilmington, DE 19801
Telephone: (302) 888-6500
E-mail: rabrown@prickett.com
jcathey@prickett.com
slclosic@prickett.com
- and -
Frank P. DiPrima, Esq.
LAW OFFICE OF FRANK DiPRIMA, P.A.
3 Carriage Hill Drive
Morristown, NJ 07960
Telephone: (973) 656-0251
E-mail: diprimalaw@aol.com
GRAYHAWK HOMES: Court Conditionally Certifies Class in "Sizemore"
-----------------------------------------------------------------
In the lawsuit styled MICHAEL CAMERON SIZEMORE, et al., the
Plaintiffs, v. GRAYHAWK HOMES INC, et al., the Defendants, Case
No. 4:17-cv-00161-LJA (M.D. Ga.), the Hon. Judge Leslie J. Abrams
entered an order:
a. conditionally certifying class of plaintiffs who: (1) are
or where employed by Grayhawk Homes, Inc. who worked as
construction superintendents or assistant superintendents
at any time since August 3, 2014; 1 and (2) who were not
paid overtime for work hours over 40 in a work week at the
rate of one and one-half times their regular rate of pay;
b. appointing Michael Cameron Sizemore, James Ellis Burditt,
Jr., Marc Eugene Hoefert, James Samuel Mitchell, Randy Carl
Rogers, and Aaron Matthew Sovern as class representatives;
c. directing Defendants to disclose to Plaintiff, within 15
days of this Order, the names, last known addresses, email
addresses (to the extent known); dates of birth; and job
titles of all potential class members employed by
Defendants since August 3, 2014, in electronic, importable,
and searchable format;
d. approving Plaintiff's proposed Notice and Opt-in form to
Plaintiff's Motion. The Notice shall be sent via mail, and
potential class members will have 60 days from the date the
notice is sent to respond; and
e. approving second Notice of the lawsuit to be sent to those
potential class members whose notices are returned as
undeliverable. The second Notice must be sent within 3 days
of the return of the first Notice. The potential class
member will have an additional 60 days from the date the
second Notice is sent to respond.
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=lNFXMWJ1
H&E EQUIPMENT: Can Partly Compel Responses to Interrogatories
-------------------------------------------------------------
In the case, IN & OUT WELDERS, INC. v. H & E EQUIPMENT SERVICES,
INC., ET AL, Civil Action No. 16-86-JWD-RLB (M.D. La.),
Magistrate Judge Richard L. Bourgeois, Jr. of the U.S. District
Court for the Middle District of Louisiana granted in part and
denied in part the Defendants' Motion to Compel the Plaintiff to
provide supplemental responses to Interrogatory Nos. 1, 2, 3, 4,
10, 11, 12, and 13, and Request for Production Nos. 6 and 7.
On Oct. 5, 2015, the Plaintiff brought the class action lawsuit
against H&E claiming that certain Loss Damage Waivers and
Environmental Charges contained in the Defendants' equipment
rental contracts constitute a breach of contract, are a violation
of the duty of good faith and fair dealing, and violate Florida's
Deceptive and Unfair Trade Practices Act and Texas' Deceptive
Trade Practices-Consumer Protection Act.
The Plaintiff alleges that the Loss Damage Waivers and
Environmental Charges are included on pre-printed contracts, and
that Defendants misrepresent the nature and purpose of these
fees, which the Plaintiff asserts are solely included to raise
profits. The parties are currently engaged in discovery
regarding class certification issues.
On Sept. 1, 2017, the Defendants propounded 14 interrogatories
and 12 requests for production on the Plaintiff. The Plaintiff
provided timely responses. On Oct. 5, 2017, the defense counsel
requested supplemental responses to Interrogatory Nos. 1, 2, 3,
4, 8, 10, 11, 12, and 13, and Request for Production Nos. 3, 4,
6, and 7.
On Oct. 17, 2017, the Plaintiff's counsel responded by stating
that information sought regarding the Plaintiff's business
dealings with other rental companies in Interrogatory Nos. 1, 2,
3, 4, and 11, and Request for Production Nos. 6 and 7 is
irrelevant. The Plaintiff's counsel clarified the Plaintiff's
response to Interrogatory No. 8, and asserted that responses to
Interrogatory Nos. 10, 12, and 13 are not appropriate at this
time in the litigation. Finally, its counsel stated that it
continues to search for documents responsive to Request for
Production Nos. 3 and 4.
On Oct. 19, 2017, the defense counsel provided additional
information and legal positions in support of the Defendants'
request for supplemental responses, acknowledging that the
parties had reached an impasse on Interrogatory Nos. 10, 12, and
13.
On Oct. 30, 2017, the parties held a telephone conference on the
foregoing discovery issues, but were unable to resolve the issues
without court intervention.
Through the instant motion, the Defendants seek an order
requiring the Plaintiff to provide supplemental responses to
Interrogatory Nos. 1, 2, 3, 4, 10, 11, 12, and 13, and Request
for Production Nos. 3, 4, 6, and 7. In their Supplemental
Memorandum, they represent that after the filing of the instant
motion, the Plaintiff confirmed that all documents responsive to
Request for Production Nos. 3 and 4 located after a reasonable
search have been produced. Accordingly, the only remaining
discovery requests at issue are Interrogatory Nos. 1, 2, 3, 4,
10, 11, 12, and 13, and Request for Production Nos. 6 and 7.
The Defendants' discovery requests, and the Plaintiff's
responses, are as follows:
a. INTERROGATORY NO. 1: Please identify each person or
entity from whom You have rented equipment during the period from
2009 to present.
RESPONSE TO INTERROGATORY NO. 1: The Plaintiff objects
to this interrogatory because it seeks information not relevant
to the issues raised in this lawsuit and not reasonably
calculated to lead to the discovery of admissible evidence.
Subject to said objections, and as to H&E, Plaintiff states that
it rented equipment from H&E from 2013 to 2016.
b. INTERROGATORY NO. 2: For each of the companies identified
in Response to Interrogatory No. 1, please state whether You paid
any charge related to (1) a full or partial waiver of liability
for loss or damage to the equipment (sometimes called Loss Damage
Waiver or Physical Damage Waiver or Rental Protection) and/or (2)
environmental charges or fees, and if so, state the date and
amount of each charge.
RESPONSE TO INTERROGATORY NO. 2: The Plaintiff objects
to this interrogatory because it seeks information not relevant
to the objections, and as to H&E only, the Plaintiff states that
it paid Loss Damage Waiver or Physical Damage Waiver charges and
environmental charges or fees to H&E. H&E is in possession of
date and amounts of these charges. To the extent that In & Out
possesses documents identifying transactions with H&E, it will
produce them.
c. INTERROGATORY NO. 3: For each of the companies identified
in Response to Interrogatory No. 1, please state whether you ever
negotiated or requested a change to any provision contained in
the company's form rental contract.
RESPONSE TO INTERROGATORY NO. 3: The Plaintiff objects
to this interrogatory because it seeks information not relevant
to the issues raised in this lawsuit and not reasonable
calculated to lead to the discovery of admissible evidence.
Subject to said objections, and as to H&E only, Plaintiff states
that it has never negotiated or requested that H&E change its
form rental contract.
d. INTERROGATORY NO. 4: Please state whether You have ever
complained or disputed any charge imposed by any of the companies
identified in Response to Interrogatory No. 1, and if so, for
each instance, identify the company or companies, state the
nature of the complaint, and state when it was made.
- RESPONSE TO INTERROGATORY NO. 4: The Plaintiff
objects to this interrogatory because it seeks information not
relevant to the issues raised in this lawsuit and not reasonably
calculated to lead to the discovery of admissible evidence.
Subject to said objections, and as to H&E only, the Plaintiff
states that it has complained or disputed numerous charges
imposed by H&E. While it is unaware of each time it complained
or disputed a charge by H&E, it has disputed H&E Loss Damage
Waiver charges, Environmental Charges, and pick-up/delivery
charges.
e. INTERROGATORY NO. 11: Please state whether You ever
obtained a refund or waiver of any charge related to (1) a full
or partial waiver of liability for loss or damage to the
equipment (sometimes called Loss Damage Waiver or Physical Damage
Waiver or Rental Protection) and/or (2) environmental charges or
fees, whether from H&E or any other person or entity from whom
You have rented equipment.
- RESPONSE TO INTERROGATORY NO. 11: The Plaintiff
objects to this interrogatory because it seeks information not
relevant to the issues raised in this lawsuit and not reasonably
calculated to lead to the discovery of admissible evidence.
Plaintiff further objects to the clause of this interrogatory
referring to full or partial waiver of liability for loss or
damage to equipment as confusing. Subject to said objections,
and as to H&E only, the documents reflecting any such refund or
waiver of charges are in H&E's possession. With respect to
transactions with H&E, Plaintiff is unaware of ever receiving a
refund or waiver of any charge related to (1) a full or partial
waiver of liability for loss or damage to the equipment
(sometimes called Loss Damage Waiver or Physical Damage Waiver or
Rental Protection) and/or (2) environmental charges or fees.
f. REQUEST FOR PRODUCTION NO. 6: Please produce any and all
documents related to any occurrence or event in which a piece of
equipment rented by In & Out (whether from H&E or some other
person or entity) was lost, damaged or stolen.
- RESPONSE TO REQUEST FOR PRODUCTION NO. 6: The
Plaintiff objects to this interrogatory because it seeks
information not relevant to the issues raised in this lawsuit and
not reasonably calculated to lead to the discovery of admissible
evidence. Subject to said objections, and as to H&E only, see
attached.
g. REQUEST FOR PRODUCTION NO. 7: Please produce any and all
documents in your possession relating to (1) any charge imposed
for a full or partial waiver of liability for loss or damage to
the equipment (sometimes called Loss Damage Waiver or Physical
Damage Waiver or Rental Protection) and/or (2) environmental
charges or fees, whether charged by H&E or any person or entity
from whom You have rented equipment.
- RESPONSE TO REQUEST FOR PRODUCTION NO. 7: The
Plaintiff objects to this interrogatory because it seeks
information not relevant to the issues raised in this lawsuit and
not reasonably calculated to lead to the discovery of admissible
evidence. Plaintiff further objects to the clause of this
interrogatory referring to full or partial waiver of liability
for loss or damage to equipment as confusing. Subject to said
objections, and as to H&E only, see attached documents.
h. INTERROGATORY NO. 10: Please describe any and all damages
claimed by In & Out in this action, including an itemization of
each item of damages claimed.
- RESPONSE TO INTERROGATORY NO. 10: The Plaintiff
objects to this interrogatory for itemized damages as premature
at this state and will be determined after expert review of
relevant documents to be produced by H&E. Subject to that
objection, the Plaintiff, on behalf of itself and each member of
the putative classes, seeks compensatory damages, treble damages,
attorney's fees, injunctive relief, restitution, and all other
available relief.
i. INTERROGATORY NO. 12: Please state all facts and identify
all documents supporting Your allegation that even when customers
pay a [Loss Damage Waiver], they are generally required [by H&E]
to claim any damages to equipment on their insurance.
- RESPONSE TO INTERROGATORY NO. 12: The Plaintiff
objects to this as a contention interrogatory that, if proper at
all, should be answered after the completion of discovery, rather
than during these early stages of the case.
j. INTERROGATORY NO. 13: Please state all facts and identify
all documents supporting Your allegations that what H&E claims is
`acceptable' [proof of insurance] is excessive and arbitrary and
H&E sets arbitrary time and scope requirements related to proof
of insurance.
- RESPONSE TO INTERROGATORY NO. 13: The Plaintiff
objects to this contention interrogatory that, if proper at all,
should be answered after the completion of discovery, rather than
during these early stages of the case.
Magistrate Judge Bourgeois finds that the information sought in
the Defendants' Interrogatory Nos. 1, 2, 3, 4, and 11, and
Requests for Production Nos. 6 and 7 is relevant to determining
the Plaintiff's experiences regarding the fees at issue, which,
when compared with the experiences of putative class members,
bears upon defining an appropriate class regarding the FDUTPA
claim.
The Magistrate Judge will require the Plaintiff to respond in
full to Interrogatory No. 10 to the best of its ability given the
information currently in its possession, custody, or control.
The Plaintiff may then supplement its response further, as
necessary, as additional information is obtained, including any
expert testimony.
The Magistrate Judge also finds it appropriate to require the
Plaintiff to answer Interrogatory Nos. 12 and 13 at this time
with the following limitations. With regard to Interrogatory No.
12, the Plaintiff must identify any documents in its possession,
custody, or control indicating that Defendants have required
Plaintiff to "claim any damages to equipment" on its insurance
policies even where it has paid a Loss Damage Waiver. With
regard to Interrogatory No. 13, the Plaintiff must identify any
documents in its possession, custody, or control indicating that
the Defendants' "acceptable" proof of insurance is "excessive and
arbitrary," and that the Defendants have set "arbitrary time and
scope requirements" related to proof of insurance. To the extent
necessary, the Defendants may seek additional information
identified in these interrogatories after a determination
regarding class certification is made.
Based on this, Magistrate Judge Bourgeois granted in part and
denied in part the Defendants' Motion to Compel. He ordered that
the Plaintiff must supplement its responses to Interrogatory Nos.
1, 2, 3, 4, 10, and 11, and Requests for Production Nos. 6 and 7,
within 14 days of the date of the Order. He further ordered that
the Plaintiff must supplement its response to Interrogatory Nos.
12 and 13, as detailed in the body of the Order, within 14 days
of the date of the Order.
A full-text copy of the Court's March 16, 2018 Order is available
at https://is.gd/C6x8jW from Leagle.com.
In & Out Welders Inc, Plaintiff, represented by Robert Lyle Salim
& Taylor C. Bartlett -- taylor@hgdlawfirm.com -- Heninger
Garrison Davis LLC, pro hac vice.
H&E Equipment Services, Inc. & H&E Equipment Exchange LLC,
Defendants, represented by Loretta G. Mince --
lmince@fishmanhaygood.com -- Fishman Haygood Phelps Walmsley
Willis & Swanson, Jeanette Amedee Donnelly --
jdonnelly@fishmanhaygood.com -- Fishman Haygood Phelps Walmsley
Willis & Swanson & Molly Louise Wells --
mwells@fishmanhaygood.com -- Fishman Haygood LLP.
HARRY CANTRELL: Court Certifies Class in "Caliste" Suit
-------------------------------------------------------
In the case, ADRIAN CALISTE, ET AL, v. HARRY E. CANTRELL, SECTION
"L" (5), Civil Action No. 17-6197 (E.D. La.), Judge Eldon E.
Fallon of the U.S. District Court for the Eastern District of
Louisiana granted the Plaintiffs' Motion to Certify a Class
Action.
On June 27, 2017, a group of Plaintiffs filed suit against
Magistrate Judge Harry Cantrell. The case arises from the
Defendant's allegedly unlawful practice of imposing unreasonably
expensive secured financial conditions of release upon arrestees
without inquiring about their ability to pay. The Plaintiffs are
two criminal defendants who were in the custody of the Orleans
Parish Sheriff's Office. The Defendant is the Magistrate Judge
for Orleans Parish Criminal District Court, where he is
responsible for setting bail upon arrest, and has a role in
managing the expenditures of the Judicial Expense Fund.
The Plaintiffs allege that the Defendant routinely sets a $2,500
minimum secured money bond. They contend Judge Cantrell sets
bond without considering the facts of the case to determine
whether a lower bond amount or an alternative condition of
release might be appropriate. They further aver that the
Defendant requires the use of a for-profit bail bond and does not
allow arrestees to post cash bail.
Under Louisiana law, 1.8% of a bond amount collected from a
commercial surety (but not from any other type of bond) is
allocated directly to the Court for its discretionary use;
Plaintiffs contend that the policy involves a conflict of
interest. The Plaintiffs argue that refusing to consider ability
to pay, alternative conditions of release, or a lower bond, as
well as the resulting institutional financial conflict, violate
the Due Process and Equal Protection clauses of the Fourteenth
Amendment.
The Plaintiffs seek a declaratory judgment that the Defendant's
bond policy, which results in the creation of a modern "debtor's
prison," is a violation of their constitutional rights, and a
declaration that the Defendant's financial conflict of interest
violates their Due Process rights.
Before the Court is the Plaintiffs' Motion to Certify a Class
Action. They seek certification under Rule 23(b)(2). They
maintain that the Defendant applies the same allegedly
unconstitutional practices to the entire class, their claims are
representative of the class claims, the named Plaintiffs' stake
in the controversy is sufficient to represent the class, and all
members of the class will seek declaratory relief.
Conversely, the Defendant argues that class certification is
unnecessary because the Plaintiffs' claims are moot. He argues
that he has agreed to follow a bail setting protocol that
resolves the Plaintiffs' claims. Further, the Defendant argues
that the conflict of interest claim is currently in litigation
before Judge Vance.
Judge Fallon finds that the Plaintiffs have satisfied the Rule
23(b)(2) standard. He also explains that when arguing that a
case or issue is moot, the Defendant bears a formidable burden:
Allegations by the Defendant that its voluntary conduct has
mooted the Plaintiff's case require close examination. Defendant
Cantrell has not met his formidable burden.
The Judge says while the Court encourages Judge Cantrell to
continue pursuing settlement of these issues by agreeing to
conform his bail practices to the requirements of Constitutional
law, the Judge has seen no formal recorded statement, such as a
consent judgment or settlement agreement, of such a commitment
and no evidence that such practices and procedures have already
been changed. Therefore, it is not absolutely clear that the
allegedly unconstitutional bail practices will not recur.
Additionally, he says the Defendant argues that the Plaintiffs'
conflict of interest claims are covered in Cain et al. v. City of
New Orleans et al., No. 15-4479, currently before Judge Vance.
While the claims pending in the Cain case are similar and
relevant to the claims in the instant lawsuit, they are
distinctly different claims.
In Cain, the Plaintiffs challenge practices by the Criminal
District Court and its collections department regarding the
handling of nonpayment of fines and fees. Here, the Plaintiffs
challenge the Defendant's practices regarding setting bail. In
Cain, the Plaintiffs claim a conflict of interest exists in the
collection of those fines and fees. Here, they claim a conflict
of interest exists in the setting and collecting of bail amounts.
These claims are clearly distinguished and resolution of one's
set of claims will not determine resolution of the other.
Therefore, the case pending before Judge Vance is no reason to
prevent or delay class certification.
Accordingly, Judge Fallon granted the Plaintiffs' motion to
certify the class.
A full-text copy of the Court's March 16, 2018 Order and Reasons
is available at https://is.gd/6dsftS from Leagle.com.
Adrian Caliste, individually and on behalf of all others
similarly situated & Brian Gisclair, individually and on behalf
of all others similarly situated, Plaintiffs, represented by Eric
A. Foley -- eric.foley@macarthurjustice.org. -- Roderick and
Solange MacArthur Justice Center, Alec George Karakatsanis,
American Civil Liberties Union Capital Punishment & Katharine
Murphy Schwartzmann -- katie.schwartzmann@macarthurjustice.org --
Roderick and Solange MacArthur Justice Center.
Harry E. Cantrell, Magistrate Judge of Orleans Parish Criminal
District Court, Defendant, represented by Celeste Brustowicz,
Burglass & Tankersley, L.L.C., Dennis J. Phayer, Burglass &
Tankersley, L.L.C., Christopher Kent Tankersley, Burglass &
Tankersley, L.L.C. & Elizabeth A. Doubleday, Burglass &
Tankersley, L.L.C..
HEALTH AND HUMAN: Healthy Futures Seeks to Certify Class
--------------------------------------------------------
In the lawsuit styled HEALTHY FUTURES OF TEXAS, individually and
on behalf of all others similarly situated, the Plaintiff, v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., the Defendants,
Case No. 1:18-cv-00992-KBJ (D.D.C.), the Plaintiff moves to
certify this case as a class action under Federal Rule of Civil
Procedure 23(b)(2) on behalf of themselves and the following
class:
"all entities awarded Teen Pregnancy Prevention Program grants
by the Department of Health and Human Services (HHS) in 2015,
with five-year project periods, whose grants HHS purported to
terminate or "shorten," effective June 30, 2018."
Excluded from the class are the plaintiffs in the following
actions: Policy and Research, LLC, v. HHS, No. 18-cv-346-KBJ
(D.D.C.), Planned Parenthood of Greater Washington and Northern
Idaho v. HHS, No. 2:18-cv-00055 (E.D. Wash.), King County v.
Azar, No. 18-cv-00242 (W.D. Wash.), and Healthy Teen Network v.
Azar, No. 18-cv-00468 (D. Md.).
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=2cl6HBnj
Counsel for Plaintiff and Proposed Class:
Sean M. Sherman, Esq.
Allison M. Zieve, Esq.
PUBLIC CITIZEN LITIGATION GROUP
1600 20th Street NW
Washington, DC 20009
Telephone: (202) 588 1000
HERITAGE PROPANE: Class Action Benefits Florida Legal Aid Groups
----------------------------------------------------------------
Alex Pickett, writing for Courthouse News Service, reported that
several Florida legal aid organizations will split more than $1.5
million from a recent class action lawsuit on April 11 as part of
a judgment against Heritage Propane for improperly charging
Floridians rent for propane tanks.
Pinellas County Circuit Court Judge Pamela Campbell ordered the
"cy pres" award in February. In cases where class action members
do not claim all funds after a judgment, the court can give the
remaining money to a charitable organization that reflects the
intent of the lawsuit.
In addition to the legal aid agencies, Judge Campbell allocated
$1.5 million to the Salvation Army to help clients with their
utility bills and other initiatives, $500,000 to the Florida Bar
Foundation and $100,000 to the Florida Justice Association
Research and Education Foundation.
"Every dollar counts for us," said Dennis Harrison, chief
development officer for Jacksonville Area Legal Aid, which will
receive more than $90,000. "[The money] helps the homeless,
keeps people out of shelters and helps folks in mortgage
foreclosure. The city itself benefits from this money," he said.
Mr. Harrison pointed to a 2016 study by the Florida Bar
Foundation that found every $1 of funding to legal aid groups
results in over $7 of cost savings and benefits to families.
The cy pres award stems from a 2005 lawsuit brought by Alfred
Williams against Heritage Propane, now Amerigas, after the
company began charging rental fees on his underground propane
tank purchased years earlier. In his complaint, Mr. Williams
asserted the original sales contract made no mention of rental
fees and Heritage Propane's new charges violated Florida law.
Judge Campbell certified the class action for 70,000 Florida
customers and after 12 years of litigation, the plaintiffs won a
$21 million judgment.
Jeffrey Liggio, lead attorney for the plaintiffs, said $7.7
million went to Floridians affected by the tank rental fees.
"They all got back 100 percent of what they lost," he said.
But the propane company did not keep accurate customer records,
he said, so some of the funds went unclaimed.
Mr. Liggio praised the judge's decision to distribute the
remaining funds to organizations "providing counseling and legal
representation to some of the less fortunate in our state."
"We think this is marvelous," he said.
HORTONWORKS INC: "Monachelli" Class Suit Concluded
--------------------------------------------------
Hortonworks, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission for the fiscal year ended
December 31, 2017, that the court in Monachelli v. Hortonworks,
Inc., Case No. 3:16-cv-00980-SI, has issued an order and final
judgment granting approval of the proposed settlement in the
case, and dismissing the matter with prejudice.
On February 29, 2016, a putative class action lawsuit alleging
violations of federal securities laws was filed in the U.S.
District Court for the Northern District of California, captioned
Monachelli v. Hortonworks, Inc., Case No. 3:16-cv-00980-SI. The
lawsuit names as defendants the Company, Robert G. Bearden, and
Scott J. Davidson. Plaintiffs allege that the defendants violated
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934
by allegedly making materially false and misleading statements
regarding the Company's business and operations.
On June 1, 2016, the court entered an order appointing a lead
plaintiff and lead counsel. On July 28, 2016, the lead plaintiff
and another named plaintiff filed an amended complaint seeking to
represent a class of persons who purchased or otherwise acquired
Hortonworks' securities between August 5, 2015 and January 15,
2016, inclusive, and seeking class certification, an award of
unspecified compensatory damages, an award of reasonable costs
and expenses, including attorneys' fees, and other further relief
as the court may deem just and proper. On December 5, 2016, the
court granted defendants' motion to dismiss the amended
complaint, with leave to amend.
The parties thereafter engaged in settlement negotiations and
have agreed to a class-wide settlement that would not have a
material effect on the Company's financial statements. On October
10, 2017, the Court issued an order and final judgment granting
approval of the proposed settlement and dismissing the matter
with prejudice.
Hortonworks, Inc.(R) delivers 100% open-source global data
management solutions so that customers can deploy modern data
architectures and realize the full value of their data. The
company's enterprise-ready solutions enable organizations to
govern, secure and manage data of any kind, wherever it is
located, and turn it into actionable intelligence that will help
them transform their businesses. The company is based in Santa
Clara, California.
HOTY LIVERY: $670K Settlement in "Lassen" Suit Has Final Approval
-----------------------------------------------------------------
In the case, ROGER LASSEN, JR., individually and on behalf of all
other similarly situated individuals, Plaintiff, v. HOTY LIVERY,
INC. SANTO SILVESTRO, and LYNDA SILVESTRO, Defendants, Case No.
3:13-cv-1529 (VAB)(D. Conn.), Judge Victor A. Bolden of the U.S.
District Court for the District of Connecticut granted the
Plaintiff's Motion for Final Approval of Settlement Agreement and
Release and the Amendment to the Settlement Agreement and
Release.
The Plaintiff, on behalf of himself and others similarly
situated, brought the action against the Defendants, asserting
claims under the Fair Labor Standards Act ("FLSA") and the
Connecticut Minimum Wage Act ("CMWA").
For nearly three years, Mr. Lassen worked as a limousine driver
for Hoyt Livery, a Connecticut company owned by Mr. Silvestro and
Ms. Silvestro. All drivers employed by Hoyt Livery, including
Mr. Lassen, were paid in accordance with a commission-based
system. Under the system, a dispatcher assigned drivers to work
trips requested by customers, and the assigned driver earned 40%
of whatever fee was charged to the customer for the requested
trip. The 40% figure included two components: 25% was designated
as a "commission," while 15% was designated as a "built-in
gratuity." Hoyt Livery required full-time drivers to be
available six days a week.
Until July 2013, Hoyt Livery did not maintain hourly time records
for its drivers. During the period relevant to this lawsuit,
Hoyt Livery drivers also did not receive additional compensation
if they worked more than 40 hours in a week. Regardless of how
many hours a driver worked in a week or how many trips a driver
took, all drivers earned the same 40% commission per trip. Hoyt
Livery has since changed their policy, and now pays drivers one
and a half times their weekly commission, if and when the driver
works more than forty hours during that workweek. The case
involves whether the previous payment structure complied with the
FLSA, and the CMWA.
On Sept. 17, 2014, the Court (Meyer, J.) granted the Plaintiff's
motion to certify conditionally a FLSA collective action and to
certify a Rule 23 class action as to the CMWA claims, with a
class consisting of all persons who have worked for the Defendant
as full time limousine drivers between Oct. 18, 2011 and the date
of final judgment in the matter. In addition to Mr. Lassen, nine
other Plaintiffs opted in to the FLSA collective action, while
the CMWA Class consists of thirty-five total members.
On March 22, 2017, Mr. Lassen filed an unopposed motion for
preliminary approval of the class action settlement, which the
Court granted in part and denied in part. The Court permitted
the parties to submit the proposed notice to CMWA Class members,
using the notice procedures outlined in the settlement agreement.
It, however, rejected two provisions of the settlement agreement
related to the FLSA collective action and the Opt-In Plaintiffs,
namely the (a) general release provision and (b) the
confidentiality provision. The Court directed the parties to
modify those provisions of the settlement agreement, as further
explained in the Court's June 5, 2017, Order.
On Dec. 5, 2017, on consent, the Plaintiffs' moved the Court to
order the unconditional preliminary approval of the proposed
class action settlement, as amended. Satisfied with the general
release provision, as amended, and the confidentiality provision,
as amended, the Court granted the motion on Dec. 6, 2017. On
Feb. 15, 2018, the Court held a Final Approval Hearing.
Upon consideration of the Settlement Agreement and Release and
the Amendment to the Settlement Agreement and Release, the
evidence and oral argument presented at the fairness hearing, and
the complete record and proceedings in the case to date, and for
good cause shown, Judge Bolden adopted all defined terms in the
Settlement Agreement and Release and the Amendment to the
Settlement Agreement and Release. He approved the settlement as
set forth in the Settlement Agreement and Release, and the
Amended Settlement and Release.
As provided for in the Settlement Agreement and Release, the
members of the CMWA Class who did not timely and properly opt-in
to the settlement under the procedures set forth in the
Agreement, a date determined to be Jan. 20, 2018, forever,
irrevocably and unconditionally release and discharge the
Defendants from all claims set out in Section 11 of the
Agreement.
The Defendants, without admitting liability or wrongdoing, will
cause to be paid a settlement fund of $670,000 to the Plaintiffs
and the Plaintiffs' Counsel, consistent with Section 8 of the
Settlement Agreement and Release, regarding timing and methods of
payments. The $670,000 in the Settlement Fund represents a total
of: (a) $120,000 to Mr. Lassen and the Opt-In Plaintiffs,
consistent with Section 8(a) of the Settlement Agreement and
Release, to be paid within 30 days of Final Approval of the
settlement; (b) $135,000 to the CMWA Class to be paid no later
than June 1, 2018; (c) an incentive award of $15,000 to Mr.
Lassen as the representative Plaintiff in the case to be paid
within 30 days of Final Approval of the settlements; and (d) an
amount not to exceed $400,000 in attorneys' fees and costs to the
Plaintiffs' Counsel, $200,000 of the $400,000 attorneys' fees and
costs to be paid within 30 days of Final Approval of the
settlement.
The Judge ordered that the half of the amounts in Sections 9(a)
and 9(b) that will be paid to Mr. Lassen, the Opt-In Plaintiffs,
and the CMWA Class members will be treated as wages from which
state and federal taxes will be withheld by the Defendants and
for which IRS W-2 forms will be issued, while the other half will
be treated as non-wage income for which IRS 1099 forms will be
issued. The entire amount (c), the incentive award for Mr.
Lassen, will be treated as non-wage income for which an IRS 1099
form will be issued.
The Settlement Agreement and Release and the Amendment to the
Settlement Agreement and Release will become final 35 days after
the later of (a) the date of the Order, if no appeals of the
Order is filed; or (b) the final judgment resulting from the
Order upon the conclusion of any appeals that may be filed.
A full-text copy of the Court's March 16, 2018 Order is available
at https://is.gd/o7si1J from Leagle.com.
Roger Lassen, Jr., individually and on behalf of all other
similarly situated individuals, Plaintiff, represented by Richard
Eugene Hayber -- rhayber@hayberlawfirm.com -- Hayber Law Firm LLC
& Deborah L. McKenna -- dmckenna@hayberlawfirm.com -- The Hayber
Law Firm, LLC.
Hoyt Livery Inc, Santo Silvestro & Lynda Silvestro, Defendants,
represented by Barry J. Miller -- bmiller@seyfarth.com --
Seyfarth Shaw, LLP, Jan A. Marcus -- jmarcus@kwcllp.com --
Keidel, Weldon & Cunningham, LLP & Anthony S. Califano --
acalifano@seyfarth.com -- Seyfarth Shaw.
Lindell Mann, Interested Party, pro se.
HUNTER WARFIELD: Illegally Collects Debt, "Sears" Suit Claims
-------------------------------------------------------------
Steven Sears, on behalf of himself and others similarly situated
v. Hunter Warfield, Inc., Case No. 4:18-cv-04079-SLD-JEH (C.D.
Ill., April 11, 2018), seeks to stop the Defendant's unfair and
unconscionable means to collect a debt.
Hunter Warfield, Inc. is a revenue recovery firm based in Tampa,
Florida. [BN]
The Plaintiff is represented by:
Aaron D. Radbil, Esq.
GREENWALD DAVIDSON RADBIL PLLC
106 E. 6th Street, Suite 913
Austin, TX 78701
Telephone: (561) 826-5477
Facsimile: (561) 961-5684
E-mail: aradbil@gdrlawfirm.com
- and -
James L. Davidson, Esq.
GREENWALD DAVIDSON RADBIL PLLC
5550 Glades Road, Suite 500
Boca Raton, FL 33431
Telephone: (561) 826-5477
Facsimile: (561) 961-5684
E-mail: jdavidson@gdrlawfirm.com
- and -
William Breedlove, Esq.
BREEDLOVE LEGAL LLC
3610 25th Street, Suite 3
Moline, IL 61265
Telephone: (309) 517-0704
Facsimile: (309) 517-0678
E-mail: william@breedlovelegal.com
HYUNDAI MOTOR: Faces Class Action Over Defective Theta II Engines
-----------------------------------------------------------------
Robert Kahn, writing for Courthouse News Service, reported that a
federal class action claims Hyundai and Kia sold hundreds of
thousands of cars with defective Theta II engines, whose fuel
injection system caused contaminants to enter the oil supply,
causing sudden engine failure, and refused to honor the warranty.
Attorneys for Plaintiff:
Jason S. Rathod, Esq.
Nicholas Migliaccio, Esq.
Esfand Nafisi, Esq.
MIGLIACCIO & RATHOD LLP
412 H. St. NE, Suite 302
Washington, D.C. 20002
Tel: (202) 470-3520
-- and --
Stacy M. Bardo, Esq.
BARDO LAW, P.C.
22 West Washington Street, Suite 1500
Chicago, IL 60602
Tel: (312) 219-6980
Fax: (312) 219-6981
Email: stacy@bardolawpc.com
I PLAY: "Spearman" Discovery Stayed Pending Dismissal Bid Ruling
----------------------------------------------------------------
In the case, DUSTY SPEARMAN, on behalf of herself and all others
similarly situated, Plaintiff, v. I PLAY, INC., Defendant, Case
No. 2:17-cv-01563-TLN-KJN (E.D. Cal.), Judge Troy L. Nunley of
the U.S. District Court for the Eastern District of California
granted the Defendant's Motion to Stay Discovery pending a ruling
on the motion to dismiss.
The case arises under the Class Action Fairness Act ("CAFA").
The Plaintiff seeks to bring her claims on behalf of herself and
all others similarly situated, including the Plaintiffs outside
of the State of California. The Defendant moves to dismiss,
challenging the Court's jurisdiction based on the Supreme Court's
ruling in Bristol-Myers Squibb Co. v. Superior Court of
California, San Francisco Cnty. The Defendant moves to stay
discovery pending a ruling on the motion to dismiss by asserting
the motion is potentially dispositive and no prejudice results to
the Plaintiff.
The Defendant asserts the motion to dismiss is potentially
dispositive of the entire case and that the decision on the
motion to dismiss can be made absent further discovery. The
Plaintiff argues two reasons for denying the motion to stay.
First, he asserts the filing is procedurally deficient because
the Defendant did not attempt to file a Joint Statement re
Discovery Disagreement pursuant to Local Rule 251. Second, the
Plaintiff contends the motion is an improper attempt to bar him
from testing the basis of jurisdiction through discovery.
Judge Nunley has taken a "preliminary peek" at the merits of the
underlying motions to dismiss in considering whether a limited
stay is warranted in the case. The Defendant moves to dismiss on
multiple grounds including challenging the Court's jurisdiction
based on the Supreme Court's ruling in Bristol-Myers. Without
determining whether jurisdiction exists, he is satisfied that the
argument has merit and a personal jurisdiction question is
potentially dispositive of the entire case.
As to the issue of additional discovery, the Judge notes that he
could order limited jurisdictional discovery in the event the
motion to stay is granted, but need not allow broad discovery of
the whole case. The motion to dismiss is fully briefed and can
be decided without additional discovery. Accordingly, he finds
that the Defendant has met its burden and a motion to stay may
issue.
As to the Plaintiff's argument that the motion is procedurally
improper, he finds he may rule on the matter regardless of
whether it were to find the motion is procedurally improper. In
other instances the Court has ruled on a motion to stay discovery
despite the lack of a Joint Statement re Discovery Disagreement.
Additionally, the Judge notes the Defendant states and the
Plaintiff does not deny that the Defendant sought a stipulation
to stay discovery prior to filing the motion. While not
identical, the failure to stipulate clearly demonstrates to the
Court that in this particular instance a Joint Statement re
Discovery Disagreement would not alter the arguments or positions
of the parties.
For the reasons set forth, Judge Nunley granted the Defendant's
Motion to Stay Discovery. He stayed the discovery until the
Court issues an order on the pending Motion to Dismiss.
A full-text copy of the Court's March 16, 2018 Order is available
at https://is.gd/YgalLx from Leagle.com.
Dusty Spearman, Plaintiff, represented by Lawrence Timothy Fisher
-- ltfisher@bursor.com -- Bursor and Fisher, PA, Michael Thomas
Fraser -- mfraser@thefraserlawfirm.net -- The Fraser Law Firm,
P.C., Thomas Andrew Reyda -- treyda@bursor.com -- Bursor &
Fisher, P.A. & Joel Dashiell Smith -- jsmith@bursor.com -- Bursor
& Fisher, P.A.
iPlay, Inc., Defendant, represented by Trenton H. Norris --
trent.norris@arnoldporter.com -- Arnold & Porter Kaye Scholer LLP
& George F. Langendorf -- george.langendorf@arnoldporter.com --
Arnold & Porter Kaye Scholer, LLP.
ILLINOIS TOOL: Court Limits Production of Docs in "Duffy"
---------------------------------------------------------
The United States District Court for the Eastern District of New
York granted in part and denied in part Plaintiffs' Motion to
Compel in the case captioned JOHN DUFFY III, on behalf of
plaintiff and the class members described herein, Plaintiff, v.
ILLINOIS TOOL WORKS INC. and SOUTH/WIN LTD., Defendants, No. 15-
cv-7407(JFB)(SIL) (E.D.N.Y.).
The Plaintiff commenced this putative class action against
Defendants Illinois Tool Works, Inc. (ITW) and South/Win, LTD
(SWL) (Defendants) alleging state-law claims for: (1) products
liability; (2) negligence; and (3) deceptive business practices
and false advertising under New York General Business Law.
Plaintiff Duffy claims that Rain-X damages certain windshield
washer systems, including the one on his car, and on that basis
commenced this putative class action against Defendants ITW and
SWL.
Duffy filed the instant motion to compel seeking: (i) the formula
for Rain-X(C) windshield washer fluid (Rain-X), the product at
issue; and (ii) the contact information of Rain-X purchasers who
complained to the Defendants about the product.
Rain-X Formula
The Court rules that the Rain-X formula, which is a trade secret,
should be disclosed. Under New York Law, a trade secret is
defined as "any formula, pattern, device or compilation of
information which is used in one's business, and which gives him
an opportunity to obtain an advantage over competitors who do not
know or use it."
Here, it is undisputed that the Rain-X formula is trade secret.
Considering the sensitive nature of the formula, the Court finds
that a modification of the SPO is necessary to adequately protect
the confidentiality of the Defendants' trade secret information.
Accordingly, the parties are directed to submit a modified SPO
incorporating the disclosure of the Rain-X formula and
restricting access to the Plaintiff's counsel and Rosen within
thirty days of this Order.
Consistent with this Order, the Defendants are also directed to
supplement their responses thirty days thereafter to the
Plaintiff's Interrogatories Nos. 3, 12, and 20, and the
Plaintiff's Requests for Production Nos. 1, 2, 3, 12, 18, 19, and
22.
Rain-X Customer Contact Information
The Plaintiff, however, is not entitled to the unredacted
information concerning third-parties at this time. The Second
Circuit in United States v. Amodeo, 71 F.3d 1044, 1050-51 (2d
Cir. 1995) has held that the privacy interests of innocent third
parties should weigh heavily in a court's decision as to whether
to withhold confidential information.
Here, Duffy has failed to proffer a concrete justification for
the disclosure of unredacted complainant contact information.
Significantly, the Defendants' discovery responses provide not
only the substance of the customers' feedback, but also balance
third-party privacy interests by redacting names and contact
information. The Plaintiff's submissions, however, are silent as
to how unredacted contact information is specifically relevant at
this stage of the litigation.
These individuals are not fact-witnesses to Duffy's claims. Nor
will their contact information establish the appropriateness of
class certification. Instead, the Plaintiff effectively seeks
access to prospective putative class members, which necessarily
implicate concerns regarding potential client recruitment.
Therefore, the redactions of specific customer information are
proper. Accordingly, the portion of the Plaintiff's motion
seeking the unredacted contact information of complaining
consumers is denied.
The Plaintiff's motion to compel is granted in part and denied in
part. Specifically, the portion of Duffy's motion seeking access
to the formula of Rain-X is granted. Further, the parties are
directed to submit a modified SPO restricting access of the Rain-
X formula to the Plaintiff's counsel and Rosen within thirty days
of this Order.
Within thirty days thereafter, the Defendants are directed to
provide supplemental responses to the Plaintiff's Interrogatories
Nos. 3, 12, and 20 and the Plaintiff's Requests for Production
Nos. 1, 2, 3, 12, 18, 19, and 22. The portion of the Plaintiff's
motion seeking the unredacted contact information of Rain-X
consumers is denied.
A full-text copy of the District Court's March 15, 2018
Memorandum and Order is available at https://tinyurl.com/yccmj9ur
from Leagle.com.
John Duffy III, on behalf of plaintiff and the class members
described herein, Plaintiff, represented by Abraham Kleinman --
akleinman@akleinmanllc.com -- Kleinman LLC, Tiffany N. Hardy,
Edelman, Combs, Latturner & Goodwin, L.L.C. & Dan Edelman,
Edelman, Combs, Latturner & Goodwin, LLC, 20 South Clark Street,
Suite 1500, Chicago, IL 60603.
Illinois Tool Works, Inc., Defendant, represented by Keara M.
Gordon -- keara.gordon@dlapiper.com -- DLA Piper, Raj N. Shah --
raj.shah@dlapiper.com -- DLA Piper LLP, pro hac vice, Michael
Sidney Wigotsky -- michael.wigotsky@dlapiper.com -- DLA Piper &
Raja Gaddipati -- raja.gaddipati@dlapiper.com -- DLA Piper LLP,
pro hac vice.
South/Win Ltd., Defendant, represented by Keara M. Gordon, DLA
Piper, Peter G. Siachos, Gordon & Rees LLP, Raj N. Shah, DLA
Piper LLP, pro hac vice, Scott Heck, Gordon & Rees,Michael Sidney
Wigotsky, DLA Piper & Raja Gaddipati, DLA Piper LLP, pro hac
vice.
INLAND COUNTIES: Dismissal of Wage & Hour Suit Partly Reversed
--------------------------------------------------------------
The Court of Appeals of California, Fourth District, Division
One, reversed in part and affirmed in part the trial court's
judgment granting Defendant's Motion for Summary Judgment in the
case captioned SHANNON MEEHAN et al., Plaintiffs and Appellants,
v. INLAND COUNTIES REGIONAL CENTER, INC., Defendant and
Respondent, No. D073010 (Cal. App.).
This is an appeal from a final judgment in a lawsuit that the
plaintiffs filed as a wage and hour class action. Plaintiffs
Shannon Meehan, Elsa Espinoza, and Ken Willits filed the action
on behalf of themselves and two classes of unnamed plaintiffs
against their employer (or, depending on the individual
plaintiff, former employer), Inland Counties Regional Center,
Inc. (Defendant). The Plaintiffs sought remedies for the
Defendant's alleged violations of state laws, rules, regulations
and orders related to overtime compensation.
The court denied the Plaintiffs' motion for adjudication and
granted the Defendant's motion.
STATEMENT OF THE CASE
The thrust of the Plaintiffs' complaint is that the Defendant has
not been paying certain employees required overtime wages,
entitling the Plaintiffs and the two classes they purport to
represent to damages, penalties, injunctive relief, declaratory
relief, and attorney fees and costs under the Labor Code, the
Business & Professions Code, and certain IWC wage orders.
The Plaintiffs requested the following relief: dismissal of all
individual and class claims related to the CSC Class, which
included the second and third causes of action and portions of
the fourth, fifth, and sixth causes of action; and entry of
judgment in favor of the Defendant on all claims related to the
AW (Alternative Workweek) Class, based on (1) the order granting
the Defendant's motion for summary adjudication as to the
Plaintiffs' individual claims in the first cause of action, and
(2) a stipulation between the Plaintiffs and the Defendant as to
the AW Class claims in the first cause of action and the
individual and class claims related to the AW Class in the
fourth, fifth, and sixth causes of action.
The Plaintiffs made this request expressly so that "Plaintiffs
would then have a Final Judgment from which to appeal."
First Cause of Action
In their first cause of action, the Plaintiffs allege that the
Defendant's (alternative workweek schedule) AWS unlawfully
deprived them, individually and the AW Class they purport to
represent, of overtime pay to which they are entitled. The
principal issue on appeal is whether, consistent with the
applicable statutes and wage orders, the Defendant properly
adopted its 9/80 AWS in 1991. If not, according to the complaint,
the Plaintiffs are entitled to overtime wages and related
penalties.
The Defendant contends that, prior to adopting its 9/80 AWS in
1991, it fully complied with the procedures in subdivision 3(B)
of Wage Order No. 4-89 (former Section 11040, subd. 3(B)), such
that the Defendant is not subject to the overtime requirements in
subdivision 3(A) of Wage Order No. 4-89 (former Section 11040,
subd. 3(A)).
In part on that basis, the Defendant moved for summary
adjudication of the first cause of action.
Standards of Review
The Court consider all the evidence in the moving and opposing
papers, except evidence to which an objection was made and
sustained, liberally construing and reasonably deducing
inferences from the Plaintiffs' evidence, resolving any doubts in
the evidence in favor of the Plaintiffs.
The Court review de novo the trial court's ruling on a motion for
summary adjudication.
The Trial Court Erred in Granting Defendant's Motion for Summary
Adjudication as to Plaintiffs' First Cause of Action
Subdivision 3(B) of Wage Order No. 4-89 contained a number of
requirements for an employer to establish that it did not violate
overtime regulations in adopting an AWS. (Former Section 11040,
subd. 3(B).)
To show compliance with Wage Order No. 4-89 subdivision 3(B), the
Defendant was required, in part, to establish the nonexistence of
a triable issue of the following material fact: approval of the
proposed AWS by at least two-thirds (2/3) of the employees in the
affected work unit following a secret ballot. (Former Sec 11040,
subd. 3(B).)
Based on the Defendant's separate statement of undisputed
material facts, the evidence on which the Defendant relied in
support of this statement included: (1) declaration testimony
from the Defendant's 1991 human resources coordinator; (2)
minutes from a March 1991 meeting of the Defendant's board of
trustees; (3) a May 1991 memorandum from the Defendant's 1991
assistant to the director; and (4) minutes from a May 1991
meeting of the Defendant's board of trustees.
However, the Cal. App. agrees with Plaintiffs that these evidence
does not establish as a matter of law that at least two-thirds of
the employees in the affected work unit approved the Defendant's
9/80 AWS in May 1991. That is because the Defendant never
submitted evidence of the number of employees in the affected
work unit. By only submitting evidence of the number of employees
who voted, at most the Defendant established that two-thirds of
those who voted approved the proposed AWS.
Very simply, there is no evidence let alone uncontradicted
evidence that establishes the material fact that two-thirds of
the affected unit approved the 9/80 WS in the 1991 election.
Thus, the Defendant did not meet its initial burden of
establishing, as a matter of law, its compliance with Wage Order
No. 4-89 subdivision 3(B)'s requirements for lawfully adopting
its 9/80 AWS.
In concluding otherwise, the trial court erred, and the Cal. App.
will reverse that portion of the judgment.
Plaintiffs Forfeited Appellate Review of the Trial Court's Denial
of Their Motion for Summary Adjudication of Plaintiffs' First
Cause of Action
To the extent Plaintiffs are relying on the presentation in their
reply brief, such reliance is misplaced, the Cal. App. says. On
this record, the Cal. App. will not consider an argument that the
Plaintiffs failed to develop in their opening brief.
The Plaintiffs forfeited appellate review of the trial court's
order denying their motion for summary adjudication.
That Portion of the Judgment Dismissing the Claims Related to the
CSC Class Claims Is Affirmed
Since the dismissals were obtained at the Plaintiffs' request,
under the doctrine of invited error, the Plaintiffs are estopped
from contending on appeal that the trial court erred in
dismissing the claims related to the CSC Class. Here, too, based
on the Plaintiffs' request to the trial court to dismiss all
claims related to the CSC Class, the Plaintiffs are estopped from
contending the dismissals are somehow erroneous.
The Court will affirm that portion of the judgment dismissing all
of the individual and class claims based on the CSC Class claims.
That Portion of the Judgment in Favor of Defendant on the AW
Class Claims in the First Cause of Action and Claims Related to
the AW Class Claims in the Fourth, Fifth, and Sixth Causes of
Action is Affirmed
The doctrines of forfeiture and estoppel apply to the AW Class
claim in the first cause of action and the individual and class
claims related to the AW Class in the fourth, fifth, and sixth
causes of action. Thus, because the Plaintiffs do not mention on
appeal any potential error associated with the judgment on these
claims, the Plaintiffs have forfeited appellate review of this
portion of the judgment the Plaintiffs invited any error that
might be associated with the requested relief and, accordingly,
are estopped from contending this portion of the judgment is
erroneous.
The Court will affirm the portions of the judgment in favor of
the Defendant on the AW Class claim in the first cause of action
and on the individual and class claims related to the AW Class in
the fourth, fifth, and sixth causes of action.
That portion of the judgment in favor of the Defendant on the
Plaintiffs' individual claims in the first cause of action is
reversed, and on remand the trial court is directed to vacate its
July 11, 2013 minute order granting the Defendant's motion
summary adjudication as to the Plaintiffs' first cause of action
and enter an order denying the motion.
In all other regards, the judgment which (1) dismissed the second
and third causes of action and the individual and class claims
related to the CSC Class in the fourth, fifth, and sixth causes
of action, and (2) was entered in favor of the Defendant on the
AW Class claim in the first cause of action and the individual
and class claims related to the AW Class in the fourth, fifth,
and sixth causes of action is affirmed.
A full-text copy of the Cal. App.'s March 15, 2018 Opinion is
available at https://tinyurl.com/y7d9cgjn from Leagle.com.
Law Offices of Todd Boley, Todd Boley -- boley@boleylaw.com --
David W. Hamilton and Justin Young -- young@boleylaw.com -- for
Appellants and Plaintiffs.
Lewis Brisbois Bisgaard & Smith, Jeffrey S. Ranen --
ranen@lbbslaw.com -- and Brendan T. Sapien
Brendan.sapien@lewsibrisbois.com -- for Respondents and
Defendants.
IRO INC: Faces "Crosson" Suit Over Blind-Inaccessible Website
-------------------------------------------------------------
Aretha Crosson, on behalf of herself and all other persons
similarly situated v. IRO, Inc., Case No. 1:18-cv-02123
(E.D.N.Y., April 10, 2018), is a civil rights action against IRO
for their failure to design, construct, maintain, and operate
their website to be fully accessible to and independently usable
by the Plaintiff and other blind or visually-impaired persons,
thus denying blind and visually impaired persons throughout the
United States with equal access to the goods and services IRO
provides to their non-disabled customers through
http//:www.Iroparis.com.
IRO, Inc. owns and operates IRO Stores which provide to the
public important and enjoyable goods and services such as women's
clothing, shoes, and accessories, amongst other products. [BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
44 Court St., Suite 1217
Brooklyn, NY 11201
Telephone: (917) 373-9128
E-mail: ShakedLawGroup@Gmail.com
J ALEXANDERS: Faces "Elstein" Shareholder Suit
----------------------------------------------
Margie Elstein's class action lawsuit against J. Alexander's
Holdings, Inc., is underway, according to the Company's Form 10-K
Report filed with the Securities and Exchange Commission for the
fiscal year ended December 31, 2017.
On December 8, 2017, Margie Elstein, a purported shareholder of
the Company, filed a putative class action lawsuit in the
Tennessee Chancery Court for Davidson County, 20th Judicial
District (the "Elstein Action") against the Company, members of
the Board, Fidelity Newport Holdings, LLC ("FNH"), then FNFV and
FNF. The Elstein Action alleges that the members of the Board
breached their fiduciary duties to shareholders because the
directors of the Company and Stephens, Inc. have conflicts of
interest related to the Company's acquisition of 99 Restaurants.
The Elstein Action also alleges that the Board and the Company
made materially inadequate disclosures and material omissions in
its preliminary proxy statement for the acquisition of 99
Restaurants. The Elstein Action further alleges that the FNH,
then FNFV and FNF defendants aided and abetted the Board's
purported breach of its fiduciary duties.
J. Alexander's Holdings, Inc., through its subsidiaries, owns and
operates full service restaurants in the United States. It
operates four complementary upscale dining restaurant concepts,
including J. Alexander's, Redlands Grill, Lyndhurst Grill, and
Stoney River Steakhouse and Grill (Stoney River). The company's
restaurants offer American menu. The company is based in
Nashville, Tennessee.
JAGUAR ANIMAL: June 14 Hearing on Bid to Dismiss "Plant"
--------------------------------------------------------
The United States District Court for the Northern District of
California set a Briefing Schedule in the case captioned TONY
PLANT, Individually and on Behalf of All Others Similarly
Situated, Plaintiff, v. JAGUAR ANIMAL HEALTH, INC., JAGUAR
HEALTH, INC., JAMES J. BOCHNOWSKI, LISA CONTE, JOHN MICEK III,
and ARI AZHIR, Defendants, Case No. 3:17-cv-04102-RS (N.D. Cal.).
This case was filed as a putative class action by plaintiff Tony
Plant, alleging violations of Section 14(a) and Section 20(a) of
the Securities Exchange Act of 1934 and related regulations with
respect to disclosures in a joint proxy statement/prospectus
(Proxy) soliciting stockholder approval of a merger with Napo
Pharmaceuticals, Inc.
The Parties filed a Case Management Statement, scheduling the
Plaintiff to file an amended complaint within thirty days after
the entry of an Order on the Plaintiff's Lead Motion, and the
Defendants to respond to the Amended Complaint within sixty days
after service.
The Plaintiff will file his response to the Motion to Dismiss on
April 23, 2018.
The Defendants will file their reply to the Motion to Dismiss on
May 14, 2018.
The Court will reset the hearing on the Motion to Dismiss from
April 19, 2018 to the next available date, which the parties
understand to be on June 14, 2018 at 1:30 p.m., or such other
date the Court deems appropriate.
A full-text copy of the District Court's March 15, 2018 Order is
available at https://tinyurl.com/y77deevd from Leagle.com.
Tony Plant, Plaintiff, represented by David Eldridge Bower --
dbower@monteverdelaw.com -- Monteverde & Associates PC.
Jaguar Animal Health, Inc, James J. Bochnowski, Lisa Conte,
Jiahao Qiu, Zhi Yang, Folkert Kamphuis, John Micek, III & Ari
Azhir, Defendants, represented by Pamela Palmer --
palmerp@pepperlaw.com -- Pepper Hamilton LLP, Christopher B.
Chuff -- chuffc@pepperlaw.com -- Pepper Hamilton LLP, pro hac
vice, Kevin Crisp -- crispk@pepperlaw.com -- Pepper Hamilton LLP
& M. Duncan Grant -- grantm@pepperlaw.com -- Pepper Hamilton LLP,
pro hac vice.
JOHNSON & JOHNSON: Ordered to Pay Bulk of Mesothelioma Verdict
--------------------------------------------------------------
Emilee Larkin, writing for Courthouse News Service, reported that
still plagued by allegations that its baby powder causes ovarian
cancer, Johnson & Johnson was ordered on April 11 to pay the bulk
of a $117 million verdict to a man with the deadly lung cancer
mesothelioma.
Described by Reuters as the second national trial to focus on
claims that Johnson & Johnson's talc products contain asbestos,
the New Brunswick-based manufacturer is also battling with 6,610
women across the country over its duty to warn that using talc
products for feminine hygiene can lead to ovarian cancer.
Though Johnson & Johnson denies that its baby powder contains
asbestos, or that its products cause cancer, 46-year-old
Stephen Lanzo, of New Jersey, claimed that his regular use of
baby powder led to his mesothelioma diagnosis.
The first stage of the trial ended with a jury in New Brunswick
ordering Johnson & Johnson to pay Mr. Lanzo and his wife $37
million in compensatory damages. On April 11, the jury tacked on
another $80 million in punitive damages.
Johnson & Johnson's talc supplier, Imerys Talc America, was
deemed responsible for 30 percent of the verdict, according to
the Reuters article, which cites an online broadcast of the trial
by Courtroom View Network.
"We are gratified that justice was achieved and that our clients
will be fairly compensated," Moshe Maimon, an attorney for the
Lanzos, said in a statement.
Both Johnson & Johnson and Imerys said they plan to appeal, with
the latter company pointing to evidence that Mr. Lanzo's
"asbestos exposure came from different sources."
Johnson & Johnson is also appealing verdicts it has faced in
various cases on the ovarian cancer front.
After a California jury ordered the company to pay one woman $417
million last year, five trials in Missouri ended with juries
finding the company liable in four of the cases, awarding a total
of $307 million in damages to the plaintiffs.
A Missouri appellate court threw out the first verdict there in
October, however, and a California judge tossed the $417 million
verdict as well. The plaintiff in the California case died
during the proceedings.
JONES FINANCIAL: Bid to Dismiss Retirement Plan Suit Pending
------------------------------------------------------------
The Jones Financial Companies, L.L.L.P. (JFC) said in its Form
10-K report filed with the U.S. Securities and Exchange
Commission for the fiscal year ended December 31, 2017, that the
motion to dismiss the class action suit related to a Retirement
Plan Litigation, is still pending.
On August 19, 2016, JFC, Edward Jones and certain other
defendants were named in a putative class action lawsuit
(McDonald v. Edward D. Jones & Co., L.P., et al.) filed in the
U.S. District Court for the Eastern District of Missouri brought
under ERISA, by a participant in the Edward D. Jones & Co. Profit
Sharing and 401(k) Plan (the "Retirement Plan").
The lawsuit alleges that the defendants breached their fiduciary
duties to Retirement Plan participants and seeks declaratory and
equitable relief and monetary damages on behalf of the Retirement
Plan. The defendants filed a motion to dismiss the McDonald
lawsuit which was granted in part dismissing the claim against
JFC, and denied in part as to all other defendants on January 26,
2017.
On November 11, 2016, a substantially similar lawsuit (Schultz,
et al. v. Edward D. Jones & Co., L.P., et al.) was filed in the
same court. The plaintiffs consolidated the two lawsuits by
adding the Schultz plaintiffs to the McDonald case, and the
Schultz action was dismissed. The plaintiffs filed their first
amended consolidated complaint on April 28, 2017. The defendants
filed a motion to dismiss the lawsuit on May 26, 2017, which has
been fully briefed by both parties and is pending.
The Jones Financial Companies, L.L.L.P. ("JFC") is a registered
limited liability limited partnership organized under the
Missouri Revised Uniform Limited Partnership Act.
JONES FINANCIAL: Parties in "White" Class Suit Reached Settlement
-----------------------------------------------------------------
The Jones Financial Companies, L.L.L.P. (JFC) said in its Form
10-K report filed with the U.S. Securities and Exchange
Commission for the fiscal year ended December 31, 2017, that the
parties in the case, White v. Edward D. Jones & Co., L.P., have
reached a settlement in principle subject to final court
approval.
Jones Financial said in its Form 10-Q Report for the quarterly
period ended September 30, 2017, that on September 22, 2017,
Edward Jones was named as a defendant in a purported collective
and class action lawsuit (White v. Edward D. Jones & Co., L.P.)
filed in the U.S. District Court for the Northern District of
Ohio by a former branch office administrator. The lawsuit was
brought under the Fair Labor Standards Act as well as Ohio law
and alleges that Edward Jones underpaid overtime compensation to
branch office administrators. The lawsuit seeks compensatory
damages in the amount of the unpaid wages as well as liquidated
damages in an equal amount.
On February 20, 2018, the court entered an order of dismissal,
without prejudice, on the basis that the parties reached a
settlement in principle subject to final court approval.
The Jones Financial Companies, L.L.L.P. ("JFC") is a registered
limited liability limited partnership organized under the
Missouri Revised Uniform Limited Partnership Act.
JUST ENERGY: Faces "Rovner" Suit in N.Y. Over Natural Gas Fee
-------------------------------------------------------------
Aron Rovner and Irving Friedman, individually and on behalf of
all others similarly situated v. Just Energy Group, Inc., Just
Energy New York Corp., National Grid PLC, National Grid USA,
Keyspan Energy Delivery New York; Keyspan Energy Delivery Long
Island, and Niagara Mohawk Power Corporation, Case No. 1:18-cv-
02159 (E.D.N.Y., April 11, 2018), seeks redress for the
Defendants' deceptive business practices, which concealed from
the Plaintiffs and the Class that they were being overcharged
millions of dollars for their natural gas supply.
The Defendants own and operate an electricity and gas utility
company in the United States. [BN]
The Plaintiff is represented by:
Stanley D. Bernstein, Esq.
Laurence J. Hasson, Esq.
BERNSTEIN LIEBHARD LLP
10 East 40th Street
New York, NY 10016
Telephone: (212) 779-1414
Facsimile: (212) 779-3218
E-mail: bernstein@bernlieb.com
hasson@bernlieb.com
KARN AUTOMOTIVE: Faces "Fairly" Suit Over Failure to Pay Overtime
-----------------------------------------------------------------
Alexander M. Fairly, IV, Individually, and on behalf of himself
and other similarly situated current and former employees v. Karn
Automotive Products, Inc., and James R. Karn Jr., Case No. 2:18-
cv-02241 (W.D. Tenn., April 10, 2018), is brought against the
Defendants for failure to pay overtime wages in violation of the
Fair Labor Standards Act.
The Defendants operate two automotive supply facilities, one in
Memphis, Tennessee and one in Jackson, Mississippi. [BN]
The Plaintiff is represented by:
J. Russ Bryant, Esq.
Robert E. Turner, IV, Esq.
JACKSON, SHIELDS, YEISER & HOLT
262 German Oak Drive
Memphis, TN 38018
Telephone: (901) 754-8001
Facsimile: (901) 759-1745
E-mail: rbryant@jsyc.com
rturner@jsyc.com
KOOPLES USA: Faces "Conner" Suit Over Blind-Inaccessible Website
----------------------------------------------------------------
Mary Conner, Individually and as the representative of a class of
similarly situated persons v. The Kooples USA, Inc. and The
Kooples Bloom, Inc., Case No. 1:18-cv-03135 (S.D.N.Y., April 10,
2018), is a civil rights action against Kooples for their failure
to design, construct, maintain, and operate their website to be
fully accessible to and independently usable by the Plaintiff and
other blind or visually-impaired persons, thus denying blind and
visually impaired persons throughout the United States with equal
access to the goods and services Kooples provides to their non-
disabled customers through http//:www.thekooples.com.
The Defendants own and operate The Kooples Stores which provide
to the public important and enjoyable goods and services such as
clothing, handbags, shoes, and accessories. [BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
44 Court St., Suite 1217
Brooklyn, NY 11201
Telephone: (917) 373-9128
E-mail: ShakedLawGroup@Gmail.com
LAFAYETTE STEEL: Galindo Seeks to Certify Class
-----------------------------------------------
In the lawsuit styled JUAN GALINDO, Individually and On Behalf of
All Others Similarly Situated, the Plaintiff, v. LAFAYETTE STEEL
ERECTOR, INC. d/b/a LSE CRANE AND TRANSPORTATION, the Defendant,
Case No. 7:18-cv-00069-DC (W.D. Tex.), the Plaintiff asks the
Court to certify class of:
"all individuals who worked for Defendant as a crane operator
or rigger in the last three years that were paid by the hour
and were also paid an hourly per diem."
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=kV8ZLGjb
The Plaintiff is represented by:
Daniel A. Verrett, Esq.
Edmond S. Moreland, Jr., Esq.
MORELAND LAW FIRM, P.C.
700 West Summit Drive
Wimberley, TX 78676
Telephone: (512) 782 0567
Telecopier: (512) 782 0605
E-mail: daniel@morelandlaw.com
edmond@morelandlaw.com
LENDINGCLUB CORP: Securities Suit Settlement Has Prelim Approval
----------------------------------------------------------------
In the case, In re LENDINGCLUB SECURITIES LITIGATION. This
Document Relates to: ALL ACTIONS, Case Nos. C 16-02627 WHA, C 16-
02670 WHA, C 16-03072 WHA (CONSOLIDATED) (N.D. Cal.), Judge
William Alsup of the U.S. District Court for the Northern
District of California granted the Lead Plaintiff's motion for
preliminary approval of a proposed settlement agreement.
The, which operated an online peer-to-peer marketplace to match
borrowers with lenders for various loans, completed an initial
public offering of its common stock in December 2014. The
registration statement that LendingClub issued and filed with the
Securities and Exchange Commission as part of that IPO contained
certain representations regarding, among other things,
LendingClub's internal controls, procedures, and data-security
protocols. In May 2016, however, numerous discrepancies,
weaknesses, and improprieties in LendingClub's business
operations came to light, causing its share price to drop and
various securities rating agencies to downgrade LendingClub.
These securities actions followed. All three were related to the
undersigned judge and subsequently consolidated with Water and
Power Employees' Retirement, Disability and Death Plan of the
City of Los Angeles ("WPERP") as the Lead Plaintiff.
A prior order certified the class of all persons and entities who
purchased or otherwise acquired the common stock of LendingClub
during the period from Dec. 11, 2014 through May 6, 2016 (for
claims under the Exchange Act of 1934) and all those who
purchased or acquired LendingClub common stock during the period
from Dec. 11, 2014 through June 8, 2015 (for claims under the
1933 Securities Act) and were damaged thereby (collectively, the
Class).
The Lead Plaintiff has now filed an unopposed motion for
preliminary approval of a proposed class settlement. The
proposed settlement agreement establishes a gross settlement fund
of $125 million. The lead counsel in both the federal and state
actions intend to seek up to approximately $16 million in
attorney's fees and $650,000 in litigation expenses, to be paid
out of the gross settlement fund. Additionally, the claims
administrator estimates that notice and administration expenses
may cost up to $1.25 million, which would also be paid out of the
gross settlement fund. The net settlement fund that remains
after these deductions will then be distributed on a pro rata
basis to class members who complete and timely submit a valid
proof-of-claim and release form, based on recognized losses
calculated from information provided on said form (including, for
example, when each claimant bought and sold LendingClub stock).
Any balance remaining after the initial distribution will be
reallocated among authorized claimants until the net settlement
fund dips below five thousand dollars. At that point, according
to the proposed settlement agreement, the remainder would be
donated to "Second Harvest Food Bank or to another 501(c)(3) non-
profit organization unaffiliated with Federal and State Lead
Counsel and approved by the Court" (Dkt. No. 333-1 Par 6.8). The
Court would prefer that the donation go to an organization with a
purpose that bears a closer nexus to the claims asserted herein.
At this stage, however, this detail does not preclude preliminary
approval of the proposed settlement agreement.
The gross settlement fund of $125 million represents
approximately 17% of the total estimated damages that would be
recoverable if the Lead Plaintiff prevailed at trial, i.e., $711
million. If LendingClub proved incapable of paying a judgment of
that size, however, then the remaining defendants would face only
approximately $140 million in damages, in which case the $125
million gross settlement would represent approximately 89% of the
total estimated damages recoverable at trial.
For purposes of the instant motion only, the parties also filed a
stipulated request to modify the foregoing class definition in
three ways. First, they wish to change the start of the class
period from Dec. 11, 2014, to Dec. 10, 2014, for claims under the
1933 Securities Act. Second, they wish to erase the exclusion of
short sellers who incurred losses during the class period as a
result of their short sales. Third, they wish to change the
"Defendants and their families" to "the Defendants and their
immediate families" in the list of excluded categories. The
purpose of these changes would be to fully subsume the class in a
parallel state litigation so that both that litigation and this
one could be settled in one fell swoop.
Again, the parties request these changes to the class definition
for purposes of settlement only. Should the settlement fall
through, the class definition would revert to that set forth in
the class certification order. Having considered the parties'
stipulation, Judge Alsup granted their request to modify the
class definition for purposes of the settlement only.
The Judge granted the Lead Plaintiff's unopposed motion for
preliminary approval of the class action settlement. Based
solely upon the assurances that the class counsel made during the
hearing on the motion, he appointed the firm of Gilardi & Co. LLC
as the claims administrator. He also approved the proof-of-claim
and release form.
The Judge directed that by March 23, 3018 at noon, the counsel
will resubmit the proposed notice and summary notice for Court
approval with the following modifications. First, the estimated
amount of attorney's fees that class counsel expect to request
must also be expressed as a dollar amount, not just as "14% of
the Net Settlement Fund." Second, the class members must be
clearly informed about how two groups of attorneys in the federal
and state litigations would split the requested fee award.
Third, in addition to making clear how the requested attorney's
fees, expenses, and administration costs will impact the
settlement fund, the notices must provide clear estimates of the
net amounts that will ultimately be distributed to class members.
All of the foregoing must be explained in plain English in both
the notice and the summary notice.
If the counsel submits revised versions of the proposed notices
with the foregoing revisions by March 17 at 5:00 p.m., then the
undersigned judge will try to respond by the following Monday.
In all events, the counsel will submit, along with the proposed
notices, a revised proposed timeline for administering the
settlement that takes into account the delay in obtaining Court
approval for said notices. The Judge vacated the final pretrial
conference and trial dates, as well as other pending deadlines in
the action, and will be reset if final approval is not granted.
A full-text copy of the Court's March 16, 2018 Order is available
at https://is.gd/XXLPXb from Leagle.com.
Steeve Evellard, individually and on behalf of all others
similarly situated, Plaintiff, represented by Jeremy A. Lieberman
--
jalieberman@pomlaw.com -- Pomerantz Grossman Hufford Dahlstrom &
Gross LLP, pro hac vice.& Jennifer Pafiti --
jpafiti@pomlaw.com -- Pomerantz LLP.
Water and Power Employees' Retirement, Disability and Death Plan
of the City of Los Angeles, Plaintiff, represented by Carissa
Jasmine Dolan -- cdolan@rgrdlaw.com -- Robbins Geller Rudman and
Dowd LLP, Michael Albert -- malbert@rgrdlaw.com -- Robbins Geller
Rudman and Dowd LLP, Rachel Lynn Jensen -- rachelj@rgrdlaw.com --
Robbins Geller Rudman & Dowd LLP, Scott H. Saham --
scotts@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Austin P.
Brane -- ABrane@rgrdlaw.com -- Robbins Geller Rudman Dowd LLP,
Danielle Suzanne Myers -- danim@rgrdlaw.com -- Robbins Geller
Rudman & Dowd LLP, Darren Jay Robbins -- darrenr@rgrdlaw.com --
Robbins Geller Rudman & Dowd LLP, Jason A. Forge --
jforge@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, Shawn
A. Williams -- shawnw@rgrdlaw.com -- Robbins Geller Rudman & Dowd
LLP & Thomas Harry Peters -- thom.peters@lacity.org -- Los
Angeles City Attorney's Office.
Nicole Wertz, individually and on behalf of all others similarly
situated, Plaintiff, represented by Jacob Allen Walker --
jake@blockesq.com -- Block & Leviton LLP & Lesley Elizabeth
Weaver -- lweaver@bfalaw.com -- Bleichmar Fonti & Auld LLP.
LendingClub Corporation, Defendant, represented by David Michael
Grable -- davegrable@quinnemanuel.com -- Quinn Emanuel Urquhart
Sullivan LLP, Joseph Caldwell Sarles --
josephsarles@quinnemanuel.com -- Quinn Emanuel Urquhart Oliver
and Hedges, Diane M. Doolittle -- dianedoolittle@quinnemanuel.com
-- Quinn Emanuel Urquhart & Sullivan, LLP, John Mark Potter --
johnpotter@quinnemanuel.com -- Quinn Emanuel Urquhart & Sullivan,
LLP, Kyle Kenneth Batter -- kylebatter@quinnemanuel.com -- Quinn
Emanuel Urquhart Sullivan, Robert Patrick Vance, Jr. --
bobbyvance@quinnemanuel.com -- Quinn Emanuel Urquhart and
Sullivan, LLP & Victoria Blohm Parker --
vickiparker@quinnemanuel.com -- Quinn Emanuel Urquhart Sullivan,
LLP.
Renaud LaPlanche, Defendant, represented by Scott Alexander
Edelman -- sedelman@milbank.com -- Milbank Tweed, pro hac vice,
Adam Joshua Fee -- afee@milbank.com -- Milbank Tweed, pro hac
vice, Lisa Marie Damm Northrup -- lnorthrup@milbank.com --
Milbank, Tweed, Hadley and McCloy LLP, Robert John Liubicic --
riubicic@milbank.com -- Milbank Tweed & Sarah L. Rothenberg --
s.rothenberg@jones-adams.com -- Milbank, Tweed, Hadley McCloy LLP
Litigation.
Carrie L Dolan, Defendant, represented by Charlene Sachi Shimada
-- charlene.shimada@morganlewis.com -- Morgan, Lewis & Bockius
LLP, Lucy Han Wang -- lucy.wang@morganlewis.com -- Morgan, Lewis
& Bockius LLP & Susan Diane Resley --
susan.resley@morganlewis.com -- Morgan Lewis & Bockius.
Daniel T. Ciporin, Jeffrey Crowe, Rebecca Lynn, John J. Mack,
Mary Meeker, John C. (Hans) Morris, Lawrence H. Summers & Simon
Williams, Defendants, represented by David Michael Grable --
davegrable@quinnemanuel.com -- Quinn Emanuel Urquhart Sullivan
LLP, Diane M. Doolittle -- dianedoolittle@quinnemanuel.com --
Quinn Emanuel Urquhart & Sullivan, LLP, John Mark Potter --
johnpotter@quinnemanuel.com -- Quinn Emanuel Urquhart & Sullivan,
LLP, Joseph Caldwell Sarles -- josephsarles@quinnemanuel.com --
Quinn Emanuel Urquhart Oliver and Hedges, Kyle Kenneth Batter --
kylebatter@quinnemanuel.com -- Quinn Emanuel Urquhart Sullivan,
Robert Patrick Vance, Jr. -- bobbyvance@quinnemanuel.com -- Quinn
Emanuel Urquhart and Sullivan, LLP & Victoria Blohm Parker --
vickiparker@quinnemanuel.com -- Quinn Emanuel Urquhart Sullivan,
LLP.
Morgan Stanley & Co. LLC, Goldman, Sachs & Co., Credit Suisse
Securities (USA) LLC, Citigroup Global Markets Inc., Allen &
Company LLC, Stifel Nicolaus & Company Incorporated, BMO Capital
Markets Corp., William Blair & Company, L.L.C. & Wells Fargo
Securities, LLC, Defendants, represented by Jonathan K. Youngwood
-- jyoungwood@stblaw.com -- Simpson Thacher & Bartlett LLP,
Simona Gurevich Strauss -- sstrauss@stblaw.com -- Simpson Thacher
& Bartlett LLP & Lee S.E. Brand -- lee.brand@stblaw.com --
Simpson Thacher.
Goldman Sachs & Co. LLC, Defendant, represented by Simona
Gurevich Strauss, Simpson Thacher & Bartlett LLP & Lee S.E.
Brand, Simpson Thacher.
Lyle Hansen, Movant, represented by Adam Christopher McCall --
amccall@zlk.com -- LEVI & KORSINSKY, LLP.
Ignacio Canals, Robert Stelly & Jin Chen, Movants, represented by
Jennifer Pafiti, Pomerantz LLP & Jeremy A. Lieberman, Pomerantz
Grossman Hufford Dahlstrom & Gross LLP.
Boston Retirement System, Movant, represented by Betsy Carol
Manifold -- manifold@whafh.com -- Wolf Haldenstein Adler Freeman
& Herz, Brittany Nicole DeJong -- dejong@whafh.com -- Wolf
Haldenstein Adler Freeman and Herz LLP, Marisa C. Livesay --
livesay@whafh.com -- Wolf Haldenstein Adler Freeman & Herz LLP &
Rachele R. Rickert -- rickert@whafh.com -- Wolf Haldenstein Adler
Freeman & Herz LLP.
Northern Ireland Local Government Officers' Superannuation
Committee, Movant, represented by Richard Martin Heimann --
rheimann@lchb.com -- Lieff Cabraser Heimann & Bernstein.
U.S. Equity Fund, Movant, represented by Robert J. Gralewski, Jr.
-- bgralewski@kmllp.com -- Kirby McInerney LLP.
Employees' Retirement System of the State of Hawaii, Movant,
represented by Blair Allen Nicholas -- blairn@blbglaw.com --
Bernstein Litowitz Berger & Grossmann.
Bart Stadnicki, 3rd party plaintiff, represented by Frank James
Johnson -- FrankJ@JohnsonFistel.com -- Johnson Fistel, LLP.
Kathy Geller, Interested Party, represented by Mark Cotton
Molumphy, Cotchett, Pitre & McCarthy LLP, Alexandra P. Summer --
asummer@cpmlegal.com -- Cotchett, Pitre & McCarthy, LLP, Beth A.
Kaswan -- BKASWAN@SCOTT-SCOTT.COM -- Scott & Scott Attorneys at
Law LLP, pro hac vice, Beth A. Kaswan, Scott & Scott Attorneys at
Law LLP, John T. Jasnoch, Scott+Scott Attorneys at Law LLP, Sean
Masson -- SMASSON@SCOTT-SCOTT.COM -- Scott & Scott Attorneys at
Law & William C. Fredericks -- WFREDERICKS@SCOTT-SCOTT.COM --
Scott and Scott Attorneys At Law.
Dylan Youngblood, Intervenor, represented by Alexandra P. Summer,
Cotchett, Pitre & McCarthy, LLP, Beth A. Kaswan, Scott & Scott
Attorneys at Law LLP, John T. Jasnoch, Scott+Scott Attorneys at
Law LLP, Mark Cotton Molumphy, Cotchett, Pitre & McCarthy LLP,
Sean Masson, Scott & Scott Attorneys At Law & William C.
Fredericks, Scott and Scott Attorneys At Law.
Alton Consulting, LLC, Intervenor, represented by Alexandra P.
Summer, Cotchett, Pitre & McCarthy, LLP, Beth A. Kaswan, Scott &
Scott Attorneys at Law LLP, John T. Jasnoch, Scott+Scott
Attorneys at Law LLP, Mark Cotton Molumphy, Cotchett, Pitre &
McCarthy LLP, Sean Masson, Scott & Scott Attorneys At Law &
William C. Fredericks, Scott and Scott Attorneys At Law.
LENDINGCLUB: July 19 Securities Settlement Fairness Hearing Set
---------------------------------------------------------------
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
In re LENDINGCLUB SECURITIES LITIGATION
Case No. 3:16-cv-02627-WHA
This Document Relates To:
ALL ACTIONS.
CLASS ACTION
SUMMARY NOTICE
IF YOU PURCHASED OR ACQUIRED LENDINGCLUB CORPORATION
("LENDINGCLUB") COMMON STOCK FROM DECEMBER 10, 2014, THROUGH MAY
6, 2016, INCLUSIVE, YOUR RIGHTS MAY BE AFFECTED BY A PROPOSED
SETTLEMENT IN LAWSUITS PENDING IN FEDERAL AND STATE COURTS (THE
"LITIGATIONS"). PLEASE READ CAREFULLY.
YOU ARE HEREBY NOTIFIED that a hearing will be held on July 19,
2018, at 8:00 a.m., before the Honorable William Alsup, United
States District Judge, at the United States District Court for
the Northern District of California (the "Court"), 450 Golden
Gate Avenue, San Francisco, California, for the purpose of
determining: (1) whether the proposed settlement in the
Stipulation of Settlement, dated February 21, 2018
("Stipulation"), of the Litigations for $125,000,000.00 in cash
(the "Settlement Amount") should be approved by the Court as
fair, reasonable, and adequate; (2) whether a Judgment should be
entered by the Court; (3) whether the Plan of Allocation is fair,
reasonable, and adequate and should be approved; and (4) whether
the applications by Federal and State Lead Counsel for attorneys'
fees and expenses should be approved.
The Litigations have been certified as class actions on behalf of
all investors (individuals and entities) who purchased or
acquired LendingClub common stock from December 11, 2014 through
May 6, 2016, for claims under the Securities Exchange Act of 1934
("Exchange Act"), and those who purchased or acquired LendingClub
common stock during the period from December 10, 2014 through
June 8, 2015, for claims under the Securities Act of 1933 (the
"1933 Act"), and were damaged thereby ("Class Members").1 A
detailed description of the Litigations, including the parties,
the claims and defenses, and other important information about
your rights and options are in the detailed Notice of Pendency
and Proposed Settlement of Class Action ("Notice").
At the Settlement Hearing, Federal Lead Counsel and State Lead
Counsel will request that the Court award aggregate attorneys'
fees for all counsel in both Litigations, according to the terms
of the retainer agreement between Federal Lead Plaintiff and
Federal Lead Counsel. These attorneys' fees are estimated to
amount to a combined $16,265,000 ($13,337,300 for Federal Lead
Counsel, and $2,927,200 for all State Counsel), or approximately
13% of the Settlement Amount. Class Members are not personally
liable for any such fees or any other expenses (estimated to be
$650,000 for litigation expenses, and $1,250,000 for Notice and
Administration Expenses). The net recovery for Class members
(also referred to as the "Net Settlement Fund") is estimated to
be $106,835,000 ($125,000,000 minus all of the foregoing fees and
expenses).
Federal Lead Counsel states that it has litigated this case on
behalf of Federal Lead Plaintiff and the Class for over 20 months
against 20 Defendants represented by four different firms. On
behalf of Federal Lead Plaintiff, Federal Lead Counsel defeated
four motions to dismiss the Complaint; prevailed against six law
firms to obtain class certification; succeeded in eliminating 115
of Defendants' combined 154 affirmative defenses; litigated
multiple discovery motions, leading to over 1 million pages of
additional evidence for the Class, and, in lieu of still more
documents, obtained an order allowing Federal Lead Counsel to
argue at trial that the Underwriter Defendants could have waived
the attorney-client privilege as to thousands of withheld
documents but chose not to, and that parts of the story concealed
under these privilege claims would have been unfavorable to the
Underwriter Defendants. Federal Lead Counsel obtained and
analyzed over 3.2 million pages of documents from Defendants and
over 500,000 pages of documents from third parties.
Additionally, Federal Lead Counsel oversaw Federal Lead
Plaintiff's production to Defendants of over 240,000 pages of
documents, and defended Federal Lead Plaintiff's representative's
deposition. Federal Lead Counsel deposed two defendants (Gerald
Walters of Wells Fargo Securities, LLC, and James Hoak of William
Blair & Co., L.L.C.) and, at the time this settlement was
reached, had scheduled, formed teams to prepare, and was
preparing to take 20 additional fact witness depositions (e.g.,
February 22, 2018 for third-party Colchis Capital; March 14, 2018
for defendant Carrie Dolan; April 13, 2018 for third-party
Deloitte & Touche). Pursuant to Federal Lead Plaintiff's
retainer agreement with Federal Lead Counsel, which the Court
reviewed prior to appointing Federal Lead Counsel, Federal Lead
Counsel will not receive any compensation for any of its time,
and no reimbursement for any of its expenses, absent a recovery
for Federal Lead Plaintiff and the Class.
State Lead Counsel states that it has also conducted extensive
work on behalf of those Class members with claims under the 1933
Act over the last two years. This work has included, among other
things, conducting a pre-suit investigation; filing the initial
complaint against all 20 Defendants on February 26, 2016 (in the
State Court); defeating Defendants' motion to stay the State
Action in its entirety; conducting extensive discovery of
Defendants and ultimately obtaining (and subsequently reviewing)
over 700,000 pages of documents pursuant to those requests and
related discovery negotiations and Court-supervised discovery
conferences; defeating five separate demurrers (motions to
dismiss) to State Plaintiffs' complaints; successfully obtaining
class certification from the State Court, over Defendants'
opposition, of a class (consisting of all Class members with 1933
Act claims) in June 2017; and participated in numerous case
management conferences, discovery conferences, and ex parte
hearings before the State Court. State Lead Counsel also
participated (with Federal Lead Counsel) in the depositions of
multiple Underwriter Defendants and, at the time this settlement
was reached, had also prepared to depose various third party
witnesses as well as "persons most qualified" representatives of
LendingClub on topics that State Lead Counsel had designated
pursuant to Cal. Civ. Pro 2520.230). State Lead Counsel also
managed the three State Class Representatives' responses to
Defendants' discovery requests, and defended each of their
depositions. State Lead Counsel were also full participants in
the Settlement Conferences and mediation process with Judge Spero
that resulted in the proposed settlement, and thereafter
represented (in consultation with their damages expert) the
interests of Class members with 1933 Act claims in connection
with formulating the proposed Plan of Allocation. Like Federal
Lead Counsel, State Lead Counsel's ability to recover any
attorneys' fees or reimbursement of its expenses has at all times
been fully contingent upon a successful recovery on behalf of the
Class.
To obtain the Notice or a copy of the Proof of Claim and Release
form ("Proof of Claim and Release"), visit the settlement website
at www.LendingClubSecuritiesClassAction.com or write to
LendingClub Securities Litigation, Claims Administrator, c/o
Gilardi & Co. LLC, P.O. Box 404041, Louisville, KY 40233-4041.
To get a payment from the Net Settlement Fund, you must submit a
Proof of Claim and Release by mail postmarked no later than June
25, 2018, or electronically no later than June 25, 2018,
establishing that you are entitled to recovery. Failure to
submit your Proof of Claim and Release by June 25, 2018, will
subject your claim to possible rejection and may preclude you
from receiving any payment from the settlement. If you are a
Class Member and do not exclude yourself by the deadline, you
will be bound by the settlement and any judgment entered in the
Litigations, whether or not you submit a Proof of Claim and
Release.
To be excluded from the settlement, you must submit a written
request for exclusion in accordance with all the instructions in
the Notice such that it is received no later than June 25, 2018.
All Class Members who do not timely exclude themselves will be
bound by the settlement (assuming it is approved by the Court)
even if they do not submit a timely Proof of Claim and Release.
To object to any aspect of the settlement, including the Plan of
Allocation, or the application for attorneys' fees and expenses,
you must submit a written objection in accordance with all the
instructions set forth in the Notice no later than June 25, 2018.
If you object, but also want to be eligible for a payment from
the settlement, you must still submit a timely Proof of Claim and
Release.
PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING
THIS NOTICE. If you have any questions about the settlement, you
may contact Federal and State Lead Counsel at the following
addresses:
Lead Counsel in the Federal Litigation:
ROBBINS GELLER RUDMAN & DOWD LLP
Theodore J. Pintar
655 West Broadway, Suite 1900
San Diego, CA 92101
TedP@rgrdlaw.com
Lead Counsel in the State Litigation:
SCOTT+SCOTT, ATTORNEYS AT LAW, LLP
William C. Fredericks
230 Park Avenue, 17th Floor
New York, NY 10169
or
COTCHETT, PITRE & MCCARTHY, LLP
Mark C. Molumphy
San Francisco Airport Office Center
840 Malcolm Road, Suite 200
Burlingame, CA 94010
DATED: March 26, 2018
BY ORDER OF THE COURT
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
1 All capitalized terms used herein that are not otherwise
defined shall have the meanings provided in the Stipulation,
which is available on the settlement website,
www.LendingClubSecuritiesClassAction.com.
LONGFIN CORP: Sued Over Share Price Drop After Ziddu.com Buy
------------------------------------------------------------
Courthouse News Service reported that Longfin shares dropped by
86 percent on April 3, from $71.10 per share in late March, after
the company announced that its acquisition of cryptocurrency
lender Ziddu.com spurred a regulatory investigation that led to a
court-imposed freeze on $27 million in illicit trading proceeds,
investors claim in a federal class action.
Attorneys for Plaintiffs:
Samuel H. Rudman, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
58 South Service Road, Suite 200
Melville, NY 11747
Tel: (631) 367-7100
Fax: (631) 367-1173
Email: srudman@rgrdlaw.com
-- and --
David C. Walton, Esq.
Brian E. Cochran, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101-8498
Tel: (619) 231-1058
Fax: (619) 231-7423
Email: davew@rgrdlaw.com
bcochran@rgrdlaw.com
-- and --
Corey D. Holzer, Esq.
HOLZER & HOLZER, LLC
1200 Ashwood Parkway, Suite 410
Atlanta, GA 30338
Tel: (770) 392-0090
Fax: (770) 392-0029
Email: cholzer@holzerlaw.com
MADERO RESTAURANT: "Valencia" Suit Seeks to Recover Unpaid Wages
----------------------------------------------------------------
Carlos Valencia and other similarly-situated individuals v.
Madero Restaurant LLC and Laysa D. Durski, Case No. 1:18-cv-
21440-RNS (S.D. Fla., April 11, 2018), seeks to recover money
damages for unpaid half-time overtime wages, and retaliation
under the Fair Labor Standards Act.
The Defendants own and operate Madero Steak House Miami located
at 1412 Ocean Drive, Miami Beach, FL 33139. [BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
MCDONALD'S: Judge Tosses Class Action Over "Extra Value Meal"
-------------------------------------------------------------
Courthouse News Service reported that a federal judge dismissed a
class action claiming a McDonald's "Extra Value Meal" costs more
than buying each item separately, noting that prices are visible
from the counter.
MDL 2672: Two U.S. Counties Can't Sue for Emissions Scandal
-----------------------------------------------------------
Robert Kahn, writing for Courthouse News Service, reported that
two U.S. counties -- Hillsborough and Salt Lake Counties --
cannot sue Volkswagen for its emissions cheating scandal because
only the Environmental Protection Agency can regulate that
conduct, a federal judge ruled on April 16, dismissing their
claims with prejudice.
MDL 2785: Court Designates Coury & Viebacher as ESI Custodian
-------------------------------------------------------------
The United States District Court for the District of Kansas
designated Coury and Viebacher as ESI custodian in the case
captioned IN RE: EpiPen (Epinephrine Injection, USP) Marketing,
Sales Practices and Antitrust Litigation. This Document Applies
to All Cases, Case No. 17-md-2785-DDC-TJJ, MDL No. 2785 (D.
Kan.).
The Court conducted a telephone status conference, during which
counsel for Mylan and Sanofi presented thorough arguments
regarding their respective positions on the disputed custodians.
The Court previously ordered Sanofi and Mylan, in-person status
conference, to make further efforts to reach agreement on their
lists of custodians for electronically stored information (ESI)
and to report on the status of their efforts. Sanofi and Mylan
reported they had not resolved their dispute regarding whether
three individuals, Mylan's Robert Coury (Coury), and Sanofi's
Christopher Viehbacher (Viehbacher) and Olivier Brandicourt
(Brandicourt) should be designated as custodians.
Standards Applied in the Court's ESI Custodian Decisions
First, determining what is relevant and proportional under the
circumstances for each matter often requires a highly fact-
specific inquiry.
Second, absent agreement among the parties, the party who will be
responding to discovery requests is entitled to select the
custodians it deems most likely to possess responsive information
and to search the files of those individuals.
Third, unless the party's choice is manifestly unreasonable or
the requesting party demonstrates that the resulting production
is deficient, the court should not dictate the designation of ESI
custodians.
Fourth, the party seeking to compel the designation of a
particular additional ESI custodian has the initial threshold
burden of showing that the disputed custodian's ESI likely
includes information relevant to the claims or defenses in the
case. This is because the party responding to discovery requests
is typically in the best position to know and identify those
individuals within its organization likely to have information
relevant to the case.
Fifth, mere speculation that one's position as a senior executive
might increase the relevance of that individual's files is not a
basis for designating that individual as a custodian.
ESI Custodian Rulings
Coury
Coury was replaced as CEO of Mylan, Inc., by Heather Bresch, who
remains in that position to date. Mylan has agreed to provide
Bresch as an ESI custodian but objects to Sanofi's request that
Coury be designated as an additional custodian. Mylan argues that
Coury has not held a managerial or operational role in the
company since 2012.
Sanofi argues Coury has relevant information because he was CEO
when Mylan raised the price of its EpiPen products by ten percent
three times over a 50-month period ending in 2011. Mylan does not
dispute Coury was Mylan, Inc.'s CEO during this time frame, which
includes the time when Class Plaintiffs allege Mylan began
significant EpiPen price increases.18 Sanofi also cites a Mylan
SEC filing indicating that even in his position as chairman of
the board of the Mylan parent entity, Coury was actively involved
in material transactions including those that involved Mylan's
EpiPen, which constituted a substantial percent of Mylan's
prescription drug business, and provided important guidance to
senior management during the relevant time period.
The Court finds Sanofi has met its burden of showing that Coury
is likely to have unique information and ESI, not available
through other Mylan custodians, relevant to the claims and
defenses in this case. Sanofi presented exhibits and information.
Coury will therefore be designated as an ESI a custodian in this
case.
Viehbacher
Mylan requests the Court compel Sanofi to designate Viehbacher, a
former Sanofi CEO, as an ESI custodian. Viehbacher was the CEO of
Sanofi from the end of 2008 through October 2014, during the time
when many of the facts asserted in this case allegedly occurred.
Mylan presented an exhibit showing that Viehbacher was part of a
small team making decisions regarding the Auvi-Q product launch,
media outreach efforts, and other Auvi-Q-related issues relevant
to this case.
The Court finds Mylan has met its burden of showing that
Viehbacher is likely to have unique information and ESI, not
available through other Sanofi custodians, relevant to the claims
and defenses in this case.
Viehbacher will therefore be designated as an ESI custodian in
this case.
Brandicourt
Mylan also requests that Brandicourt be designated as a custodian
in this case. Sanofi objects to the requested designation. Again
applying the same standards as above, the Court finds in this
instance that Mylan has not met its burden of showing that
Brandicourt is likely to have unique information and ESI, not
available through other Sanofi custodians, relevant to the claims
and defenses in this case.
Brandicourt therefore will not be designated as an ESI custodian
in this case.
A full-text copy of the District Court's March 15, 2018 Order is
available at https://tinyurl.com/ybmd3r3k from Leagle.com.
All Plaintiffs, Plaintiff, represented by Lynn Lincoln Sarko --
lsarko@kellerrohrback.com -- Keller Rohrback, pro hac vice, Paul
J. Geller -- PGeller@rgrdlaw.com -- Robins Geller Rudman & Dowd
LLP, pro hac vice, Rex A. Sharp -- rsharp@midwest-law.com -- Rex
A. Sharp, PA, Ryan C. Hudson -- rhudson@midwest-law.com -- Rex A.
Sharp, PA & Warren T. Burns -- wburns@burnscharest.com -- Burns
Charest LLP, pro hac vice.
Mylan N.V., Defendant, represented by Adam K. Levin --
adam.levin@hoganlovells.com -- Hogan Lovells US LLP, pro hac
vice, Benjamin Frederick Holt -- benjamin.holt@hoganlovells.com -
- Hogan Lovells US LLP, Brian C. Fries -- bfries@lathropgage.com
-- Lathrop Gage LLP, Carolyn Anne DeLone --
carrie.delone@hoganlovells.com -- Hogan Lovells US LLP, Daniel
Thomas Graham -- dgraham@clarkhill.com -- Clark Hill, PLC, pro
hac vice, David M. Foster -- david.foster@hoganlovells.com --
Hogan Lovells US LLP, pro hac vice, James Moloney --
jmoloney@lathropgage.com -- Lathrop Gage LLP, John Robert
Robertson -- robby.robertson@hoganlovells.com -- Hogan Lovells US
LLP, Jon Myer Talotta -- jon.talotta@hoganlovells.com -- Hogan
Lovells US LLP, Justin Bernick -- justin.bernick@hoganlovells.com
-- Kathryn M. Ali -- kathryn.ali@hoganlovells.com -- Hogan
Lovells US LLP, pro hac vice & Timothy Robert Herman --
therman@clarkhill.com -- Clark Hill, PLC, pro hac vice.
MICHIGAN: Judge Strikes Down State Law on Juvenile Sentences
------------------------------------------------------------
Courthouse News Service reported that a federal judge in Michigan
struck down a state law that took away good-behavior credits for
inmates who were sentenced to life in prison as minors, before
being resentenced to lengthy terms after the U.S. Supreme Court
found life without parole unconstitutional for juveniles.
The case is HENRY HILL, et al., Plaintiffs, vs. RICK SNYDER, et
al., Defendants, Case No. 10-cv-14568 (E.D. Mich.).
MONTGOMERY, AL: Court Dismisses of "Johnson" Suit
-------------------------------------------------
The United States District Court for the Middle District of
Alabama, Northern Division, adopted the Recommendation of a
Magistrate Judge dismissing the action in the case captioned
JEREMY LAMAR JOHNSON, individually and on behalf of all others
similarly situated, Plaintiff, v. CITY OF MONTGOMERY, a
municipality organized and existing under the laws of the State
of Alabama, Defendant, Civil Action No. 2:17cv552-MHT (M.D.
Ala.).
There are no objections to the recommendation. After an
independent and de novo review of the record, the court concludes
that the magistrate judge's recommendation should be adopted.
An appropriate judgment will be entered.
A full-text copy of the District Court's March 15, 2018 Opinion
is available at https://tinyurl.com/y8qux2o9 from Leagle.com.
Jeremy Lamar Johnson, individually and on behalf of all others
similarly situated, Plaintiff, represented by Jeffrey Paul Mauro
-- jpmauro@baddleymauro.com -- Baddley Mauro & Yates LLC, John
Parker Yates -- parker@baddleymauro.com -- Baddley Mauro & Yates
& Thomas Edmund Baddley, Jr.- tbaddley@baddleymauro.com --
Baddley Mauro & Yates LLC.
City of Montgomery, a municipality organized and existing under
the laws of the State of Alabama, Defendant, represented by Joel
Thomas Caldwell -- caldwell@copelandfranco.com -- Copeland,
Franco, Screws & Gill, P.A., Robert David Segall --
segall@copelandfranco.com -- Copeland Franco Screws & Gill,
Shannon Lynn Holliday -- holliday@copelandfranco.com -- Copeland
Franco Screws & Gill, PA & Richard Hamilton Gill --
gill@copelandfranco.com -- Copeland Franco Screws & Gill PA.
MORNINGSTAR INC: "Green" RICO Suit Dismissed
--------------------------------------------
Judge Virginia M. Kendall of the U.S. District Court for the
Northern District of Illinois, Eastern Division, granted
Morningstar's and the Prudential Defendants' motions to dismiss
the case, MICHAEL D. GREEN, Individually and On Behalf of All
Others Similarly Situated, Plaintiff, v. MORNINGSTAR, INC., et
al., Defendants, Case No. 17 C 5652 (N.D. Ill.).
Green brings the putative class action against Defendants
Morningstar, Prudential Investment Management Services, LLC
("PIMS") and Prudential Retirement Insurance and Annuity Company
("PRIAC") ("Prudential Defendants") alleging that they violated
the Racketeer Influenced Corrupt Organizations Act ("RICO") by
way of their administration of the Plaintiff's retirement plan
and other plans.
Green participates in a defined contribution plan, or a 401(k)
Retirement Savings Plan, through his employer, Rollins Inc.
Rollins serves as the sponsor for this retirement plan, which has
more than 10,000 participants and beneficiaries. Operationally,
the Rollins Plan "designates" 17 different investment
alternatives, including one Rollins stock fund, and it gives
individual investors the ability to choose how their Plan
accounts will be invested by allocating their accounts among
those designated investment alternatives. PRIAC provides
recordkeeping and administrative services to the Rollins Plan,
and in connection with such services, PRIAC offers an optional
plan participant-level automated investment advice program called
GoalMaker. PIMS, a registered broker-dealer, generally promotes
or advertises GoalMaker to retirement plans and their
participants, as well as to other unspecified "retirement
investor groups."
At some unspecified time, Green used GoalMaker, and the program
selected each of the seven available funds for Green's
investment. Accordingly, he alleges that he has paid higher fees
to the Prudential Defendants for retirement investments than he
would have in the absence of their illegal conduct.
Based on these allegations, Green has brought a one-count
complaint alleging that an enterprise made up of PIMS, PRIAC, and
Morningstar worked together to procure "kickbacks" in violation
of RICO, through their self-interested administration of
GoalMaker by (1) developing and configuring GoalMaker in a way
intended to produce revenue-sharing payments; (2) repeatedly
influencing the selective limitation of investment choices to be
utilized by GoalMaker in the Rollins Plan (and other plans) to
maximize the revenue-sharing payments made to the Prudential
Defendants; and (3) accepting revenue sharing payments, either
directly in the case of the Prudential Defendants or indirectly
in the form of "software development-related, consulting fees,
and other revenues" in the case of Morningstar. Green seeks to
bring suit on behalf of investors in all retirement plans (not
limited to the Rollins Plan) in which the Defendants are involved
and that used GoalMaker over the past four years. According to
the complaint, this could involve more than 5 million individual
class member investors.
Currently before the Court are Morningstar's motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6) and the
Prudential Defendants' Motion to Dismiss pursuant to Rule
12(b)(6), or in the alternative for judgment on the pleadings
pursuant to Federal Rule of Civil Procedure 12(c). The
Defendants first challenge whether Green has standing to bring
the action, particularly with regard to step two: that the injury
was directly and proximately caused by their conduct.
In particular, Morningstar argues that its provision of GoalMaker
to PRIAC is too remote from the alleged injury to make it a
proper defendant. The Prudential Defendants argue that Green
failed to allege both but-for and proximate causation because he
failed to allege that he would have paid lower fees if Prudential
had not received revenue-sharing payments and also that the
independent actions of Rollins (as the sponsor) and Green himself
with regard to his investment decisions make his injury too
attenuated from Prudential's actions.
Judge Kendall explains that under the RICO statute, an enterprise
is defined as any individual, partnership, corporation,
association, or other legal entity, and any union or group of
individuals associated in fact although not a legal entity. To
adequately plead an association-in-fact enterprise, which Green
alleges, a plaintiff must allege facts to plausibly suggest a
group of persons associated together for a common purpose of
engaging in a course of conduct. This definition is interpreted
broadly, but it requires at least three structural features: a
purpose, relationships among those associated with the
enterprise, and longevity sufficient to permit these associates
to pursue the enterprise's purpose.
The Judge finds that assuming that such facts adequately set
forth the structure of the association-in-fact enterprise, the
complaint still fails with regard to the remaining two elements.
First, regarding longevity, the complaint does not directly
address the duration of the enterprise; it only conclusively
mentions the concept in passing, alleging that the facts indicate
longevity sufficient to permit these associates to pursue the
enterprise's purpose sufficing to make the instant RICO
enterprise actionable. Second, the complaint fails to
sufficiently allege a common purpose among the RICO Defendants.
As explained below, however, Green fails at step three of the
analysis because the complaint does not sufficiently plead that
the Defendants were engaged in the conduct of an association-in-
fact enterprise or that each Defendant engaged in a pattern of
racketeering activity. As such, the Court does not reach the
issue of causation here, but cautions that the matter is not free
from doubt. Even if the complaint sufficiently alleged the
existence of an enterprise, it fails to adequately allege that
each member of the alleged enterprise -- PRIAC, PIMS, and
Morningstar -- participated in the enterprise's affairs as
opposed to simply pursuing their own affairs. The facts that
Green does allege are consistent with each Defendant going about
its own business, which is insufficient to state a RICO claim.
The Judge also finds that the complaint also fails to allege a
pattern of racketeering activity. The complaint, in large part,
he says, treats all of the Defendants collectively as one and it
frequently fails to differentiate between PRIAC and PIMS. Such
"lumping together" of the Defendants is not sufficient to state a
RICO claim under Section 1962(c), particularly under this element
which requires allegations sufficient to demonstrate that each
RICO Defendant engaged in at least two predicate acts.
For the reasons he stated, Judge Kendall granted the Defendants'
motions and dismissed without prejudice the case. The Plaintiff
will have one more time to replead the cause of action in
conformity with the Opinion.
A full-text copy of the Court's March 16, 2018 Memorandum Opinion
and Order is available at https://is.gd/ZWfVwR from Leagle.com.
Michael D Green, Individually and On Behalf of All Others
Similarly Situated, Plaintiff, represented by Austin Patrick
Tighe, Jr., Nix Patterson & Roach LLP, Garrett W. Wotkyns --
gwotkyns@schneiderwallace.com -- Schneider Wallace Cottrell
Konecky LLP, pro hac vice, Elena N. Liveris, Law Offices of
Michael M. Mulder, James A. Bloom -- jbloom@schneiderwallace.com
-- Schneider Wallace Cottrell Konecky Wotkyns, LLP, pro hac vice,
John J. Nestico -- jnestico@schneiderwallace.com -- Schneider
Wallace Cottrell Konecky Wotkyns, LLP, pro hac vice & Michael M.
Mulder, Law Offices of Michael M. Mulder.
Morningstar, Inc., Defendant, represented by Craig Christopher
Martin -- cmartin@jenner.com -- Jenner & Block LLP, Amanda S.
Amert -- aamert@jenner.com -- Jenner & Block LLP, Ashley Marie
Schumacher -- aschumacher@jenner.com -- Jenner & Block LLP,
Brienne M. Letourneau -- bletourneau@jenner.com -- Jenner & Block
LLP, Cristina Covarrubias -- ccovarrubias@jenner.com -- Jenner &
Block LLP & Howard Steven Suskin -- hsuskin@jenner.com -- Jenner
& Block LLP.
Prudential Investment Management Services LLC, Defendant,
represented by Edward Bellamy Lefebvre -- tlefebvre@pullcom.com -
- Pullman & Comley, LLC, pro hac vice, Joel S. Feldman --
JFELDMAN@SIDLEY.COM -- Sidley Austin LLP, Mark Bruce Blocker --
MBLOCKER@SIDLEY.COM -- Sidley Austin LLP, Tara Azad Amin --
TAMIN@SIDLEY.COM -- Sidley Austin Llp, James T. Shearin --
jtshearin@pullcom.com -- Pullman & Comley, pro hac vice, Kevin P.
Zimmerman -- KEVIN.ZIMMERMAN@SIDLEY.COM -- Sidley Austin Llp &
Maria D. Melendez -- MMELENDEZ@SIDLEY.COM -- Sidley Austin LLP,
pro hac vice.
Prudential Retirement Insurance and Annuity Company, Defendant,
represented by Joel S. Feldman, Sidley Austin LLP, Mark Bruce
Blocker, Sidley Austin LLP, Tara Azad Amin, Sidley Austin Llp,
Kevin P. Zimmerman, Sidley Austin Llp & Maria D. Melendez, Sidley
Austin LLP, pro hac vice.
MULESOFT INC: Faces Class Action Over Salesforce.com Merger
-----------------------------------------------------------
Robert Kahn, writing for Courthouse News Service, reported that
shareholders say directors are selling Mulesoft too cheaply
through an unfair process to Salesforce.com, for $36 plus 0.071
shares of Salesforce.com per Mulesoft share, or $6.5 billion, in
a federal class action.
Attorneys for Plaintiff
Brian D. Long, Esq.
Gina M. Serra, Esq.
RIGRODSKY & LONG, P.A.
300 Delaware Avenue, Suite 1220
Wilmington, DE 19801
Telephone: (302) 295-5310
Facsimile: (302) 654-7530
Email: bdl@rl-legal.com
gms@rl-legal.com
Of Counsel:
Richard A. Maniskas, Esq.
RM LAW, P.C.
1055 Westlakes Drive, Suite 300
Berwyn, PA 19312
Telephone: (484) 324-6800
Facsimile: (484) 631-1305
Email: rm@maniskas.com
NATERA INC: Continues to Defend Calif. Class Action Suit
--------------------------------------------------------
Natera, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2017, that the Company continues to defend a
purported class action suit in California.
On each of February 17, 2016, March 10, 2016, March 28, 2016 and
April 4, 2016, purported class action lawsuits were filed in the
Superior Court of the State of California for the County of San
Mateo (the "San Mateo Superior Court"), against Natera, its
directors, certain of its officers and 5% stockholders and their
affiliates, and each of the underwriters of the Company's July 1,
2015 initial public offering (the "IPO").
The complaints assert claims under Sections 11, 12(a)(2) and 15
of the Securities Act of 1933, as amended. The complaints allege,
among other things, that the Registration Statement and
Prospectus for the Company's IPO contained materially false or
misleading statements, and/or omitted material information that
was required to be disclosed, about the Company's business and
prospects. Among other relief, the complaints seek class
certification, unspecified compensatory damages, rescission,
attorneys' fees, and costs.
The Company removed these actions to the United States District
Court for the Northern District of California, and the actions
were subsequently remanded back to the San Mateo Superior Court.
The Company has appealed the remand and discovery has been
stayed, or held, pending the appeal.
Natera said in its Form 10-Q Report for the quarterly period
ended September 30, 2017, that the Company filed a demurrer, or a
request for dismissal as a matter of law, in the San Mateo
Superior Court, which was granted on October 23, 2017.
The San Mateo Superior Court demurred the claims under Sections
12(a)(2) and 15 of the Securities Act of 1933, as amended,
without leave to re-file. The San Mateo Superior Court granted
the demurrer as to Section 11 of the Act with leave to re-file
prior to November 24, 2017.
Plaintiffs refiled an amended complaint on November 22, 2017. The
Company filed a motion for judgment on the pleadings on January
25, 2018.
The Company intends to continue to defend the matter vigorously,
but cannot provide any assurance as to the ultimate outcome or
that an adverse resolution would not have a material adverse
effect on its financial condition and results of operations. The
Company is unable to predict the ultimate outcome and is unable
to make a meaningful estimate of the amount or range of loss, if
any, that could result from any unfavorable outcome.
Natera, Inc. is a growing diagnostics company with proprietary
molecular and bioinformatics technology that we are deploying to
change the management of genetic disease worldwide. The company
is based in San Carlos, California.
NORTHSTAR LOTTERY: Bid to Remand "Raqqa" to State Court Denied
--------------------------------------------------------------
Judge Michael J. Reagan of the U.S. District Court for the
Southern District of Illinois denied the Plaintiffs' motion to
remand the case, RAQQA, INC., MICHAEL CAIRO, JASON VAN LENTE, and
JOHN BEAN, for themselves and on behalf of all other Illinois
citizens similarly situated, Plaintiff, v. NORTHSTAR LOTTERY
GROUP, LLC, Defendant, Case No. 17-cv-246-MJR-DGW (S.D. Ill.).
The Plaintiffs filed the putative class action in case number 17-
L-51 in the Circuit Court for the Twentieth Judicial Circuit, St.
Clair County, Illinois on behalf of two classes of Illinois
citizens: business entities that served as retailers for Illinois
Lottery instant game tickets and the individuals who purchased
instant game tickets. The Plaintiffs allege that Northstar, as
private manager for the Illinois Lottery, materially
misrepresented the odds of winning the games associated with the
instant tickets.
The Defendant timely removed the action to the Court alleging
diversity of citizenship subject matter jurisdiction. After
filing their notice of removal, it moved to dismiss the class
action complaint, arguing, in part, that the Plaintiffs lacked
standing to bring their claims. The Plaintiffs then moved to
remand the action to state court, arguing that, because the
Defendant raised a standing challenge, they fail to meet the
burden imposed on a removing party to establish subject matter
jurisdiction.
Judge Reagan finds that the Plaintiffs do not challenge that the
case meets the jurisdictional requirements of 28 U.S.C. Section
1332. The parties agree that they are diverse. The named
Plaintiffs are Illinois citizens seeking to bring the action on
behalf of a class of Illinois citizens. Northstar is a limited
liability company whose corporate members are citizens of
Delaware, Rhode Island, and Georgia. The Plaintiffs do not
challenge that the amount in controversy requirement is
satisfied.
With the parties in agreement as to the diversity jurisdiction
requirements, the Judge finds that the Court's remand analysis
typically ends. The Plaintiffs, however, take issue with the
Defendant removing the action to federal court then challenging
Article III standing. The Judge says their argument, however,
confuses the concepts of justiciability and subject matter
jurisdiction.
Justiciability and subject matter jurisdiction, though related in
that both act to limit the power of federal courts to adjudicate
a claim, must be treated as two distinct issues. The Plaintiffs
point to nothing in the removal statutes that limits a litigant's
ability to raise questions of justiciability post-removal. The
Plaintiffs do not challenge that the action satisfies the
requirements of the federal diversity statute, which confers
subject matter jurisdiction to the Court.
Judge Reagan finds that the Defendant's standing challenge
addresses justiciability and not subject matter jurisdiction, and
it does not mandate that the case be remanded to state court.
Accordingly, he denied the Plaintiffs' motion to remand.
A full-text copy of the Court's March 16, 2018 Memorandum and
Order is available at https://is.gd/0XAJr8 from Leagle.com.
Raqqa, Inc., for themselves and on behalf of all other Illinois
Citizens similarly situated, Michael Cairo, for themselves and on
behalf of all other Illinois Citizens similarly situated & Jason
Van Lente, for themselves and on behalf of all other Illinois
Citizens similarly situated, Plaintiffs, represented by Derek Y.
Brandt -- dyb@mccunewright.com -- McCune Wright Arevalo LLP,
Robert J. Sprague -- rsprague@spragueurban.com -- Sprague & Urban
Generally Admitted, Tor A. Hoerman -- Tor@THLawyer.com --
TorHoerman Law LLC, Chad A. Finley, TorHoerman Law, Kenneth J.
Brennan, TorHoerman Law LLC, Timothy E. Hoerman, Timothy E.
Hoerman, Ltd. & Tyler J. Schneider, TorHoerman Law.
John Bean, for themselves and on behalf of all other Illinois
Citizens similarly situated, Plaintiff, represented by Derek Y.
Brandt, McCune Wright Arevalo LLP, Robert J. Sprague, Sprague &
Urban Generally Admitted, Tor A. Hoerman, TorHoerman Law LLC,
Chad A. Finley, TorHoerman Law, Kenneth J. Brennan, TorHoerman
Law LLC & Tyler J. Schneider, TorHoerman Law.
Northstar Lottery Group, LLC, Defendant, represented by Jason G.
Winchester -- jgwinchester@jonesday.com -- Jones Day, Nicole C.
Henning, Jones Day, Rebekah E. Blake -- eblake@jonesday.com --
Jones Day, Sharyl A. Reisman -- sareisman@jonesday.com -- Jones
Day & Troy A. Bozarth -- tbozarth@heplerbroom.com -- HeplerBroom
LLC.
OVASCIENCE INC: Suit by Westmoreland Retirement System Underway
---------------------------------------------------------------
OvaScience, Inc. continues to defend a lawsuit by the
Westmoreland County Employee Retirement System, OvaScience said
in its Form 10-K report filed with the U.S. Securities and
Exchange Commission for the fiscal year ended December 31, 2017.
On October 9, 2015, a purported class action lawsuit was filed in
the Suffolk County Superior Court in the Commonwealth of
Massachusetts against the company, several of its officers and
directors and certain of the underwriters from the company's
January 2015 follow-on public offering of its common stock. The
plaintiffs purport to represent those persons who purchased
shares of the company's common stock pursuant or traceable to its
January 2015 follow-on public offering. The plaintiffs allege,
among other things, that the Company defendants made false and
misleading statements and failed to disclose material information
in the Company's January 2015 Registration Statement and
incorporated offering materials. Plaintiffs allege violations of
Sections 11, 12 and 15 of the Securities Act of 1933, as amended,
and seek, among other relief, unspecified compensatory damages,
rescission, pre-and post-judgment interest and fees, costs and
disbursements.
On December 7, 2015, the OvaScience defendants filed a notice of
removal with the Federal District Court for the District of
Massachusetts. On December 30, 2015, plaintiffs filed a motion to
remand the action to the Superior Court. Oral argument on the
motion to remand was held on February 19, 2016. On February 23,
2016, the District Court granted plaintiffs' motion to remand the
action to the Superior Court.
On February 26, 2016, a second putative class action suit was
filed in the Suffolk County Superior Court in the Commonwealth of
Massachusetts against the Company, several of our officers and
directors and certain of the underwriters from the January 2015
follow-on public offering. The complaint is substantially similar
to the complaint filed in October 2015. The two actions
subsequently were consolidated and plaintiffs filed a First
Amended Class Action Complaint on June 17, 2016. Defendants filed
motions to dismiss the complaint. Those motions were denied by
order dated December 22, 2016. On August 17, 2016, an additional
plaintiff, Westmoreland County Employee Retirement System
("Westmoreland") moved to intervene in the consolidated action.
The defendants opposed Westmoreland's motion to intervene. The
Superior Court granted Westmoreland's Motion to Intervene on
October 26, 2017. On August 7, 2017, the plaintiffs filed their
motion for class certification, which the defendants opposed.
Oral argument on the motion for class certification was held on
September 29, 2017. On November 7, 2017, the Superior Court
denied the plaintiffs' motion for class certification.
On August 14, 2017, the Defendants filed their motion for summary
judgment against plaintiffs Heather Carlson, Cesar Castellanos,
Philipp Hofmann, and Carlos Rivas, which the plaintiffs opposed.
Oral argument on the motion for summary judgment was held on
October 18, 2017.
On November 21, 2017, the Superior Court allowed the Defendants'
motion for summary judgment, and the claims asserted by
plaintiffs Heather Carlson, Cesar Castellanos, Philipp Hofmann,
and Carlos Rivas in the consolidated actions were dismissed,
leaving Westmoreland as the sole remaining plaintiff.
On November 22, 2017, Westmoreland filed a putative class action
complaint in the U.S. District Court for the District of
Massachusetts against the same defendants alleging the same
claims as are alleged in the state court case (the "Westmoreland
Federal Action"). On January 17, 2018, the lead plaintiff in a
different case, a purported shareholder class action alleging
violations of Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934 (the "Dahhan Action") filed a motion to intervene in
the Westmoreland Federal Action and to consolidate the
Westmoreland Federal Action with the Dahhan Action.
OvaScience said "We have opposed this motion, which is pending.
On January 22, 2018, Westmoreland filed a motion to voluntarily
dismiss the Superior Court action without prejudice. We have
opposed that motion and the Court has scheduled oral argument on
April 3, 2018. We believe that the complaints in both cases are
without merit and intend to defend against the litigation. There
can be no assurance, however, that we will be successful. A
resolution of these lawsuits adverse to the Company or the other
defendants could have a material effect on our consolidated
financial position and results of operations in the period in
which the lawsuit is resolved. At present, we are unable to
estimate potential losses, if any, related to the lawsuit."
OvaScience, Inc. is a company focused on the discovery and
development of new treatment options for women and families
struggling with infertility. OvaScience is leveraging the
breakthrough discovery of egg precursor, or EggPCSM, cells to
transform the treatment landscape for women's fertility. The
company is based in Waltham, Massachusetts.
OVASCIENCE INC: Bid to Consolidate Class Suits Pending
------------------------------------------------------
OvaScience, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2017, that the lead plaintiff in a purported
shareholder class action lawsuit filed in the U.S. District Court
for the District of Massachusetts, has moved to consolidate the
Westmoreland Federal Action with the case.
On March 24, 2017, a purported shareholder class action lawsuit
was filed in the U.S. District Court for the District of
Massachusetts against the Company and certain of its present and
former officers alleging violations of Sections 10(b) and 20(a)
of the Securities Exchange Act of 1934. On July 5, 2017, the
Court entered an order approving the appointment of Freedman
Family Investments LLC as lead plaintiff, the firm of Robins
Geller Rudman & Dowd LLP as lead counsel, and the Law Office of
Alan L. Kovacs as local counsel.
Plaintiff filed an amended complaint on August 25, 2017.
OvaScience said "We have filed a motion to dismiss the amended
complaint, which is pending. On January 17, 2018, the lead
plaintiff moved to consolidate the Westmoreland Federal Action
with this case. We have opposed this motion, which is pending. We
believe that the complaint is without merit and intend to defend
against the litigation. There can be no assurance, however, that
we will be successful. A resolution of this lawsuit adverse to
the Company or the other defendants could have a material effect
on our consolidated financial position and results of operations
in the period in which the lawsuit is resolved. At present, we
are unable to estimate potential losses, if any, related to the
lawsuit."
OvaScience, Inc. is a company focused on the discovery and
development of new treatment options for women and families
struggling with infertility. OvaScience is leveraging the
breakthrough discovery of egg precursor, or EggPCSM, cells to
transform the treatment landscape for women's fertility. The
company is based in Waltham, Massachusetts.
PAPA MURPHY'S: Continues to Defend "Lennartson" Class Suit
----------------------------------------------------------
Papa Murphy's Holdings, Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission for the fiscal
year ended January 1, 2017, that the company continues to defend
itself in a class action lawsuit filed by John Lennartson.
Papa Murphy's said "We are named as a defendant in a putative
class action lawsuit filed by plaintiff John Lennartson on May 7,
2015, in the United States District Court for the Western
District of Washington. The lawsuit alleges we failed to comply
with the requirements of the Telephone Consumer Protection Act
(TCPA) when we sent SMS text messages to consumers. Mr.
Lennartson asks that the court certify the putative class and
that statutory damages under the TCPA be awarded to plaintiff and
each class member."
On October 14, 2016, the Federal Communications Commission (FCC)
granted the company a limited waiver from the TCPA's written
consent requirements for certain text messages that the company
sent up through October 16, 2013 to individuals who, like Mr.
Lennartson, provided written consent prior to October 16, 2013.
On October 20, 2016, the company filed a motion for summary
judgment seeking dismissal. On October 27, 2016, Mr. Lennartson
filed a motion seeking to extend the time to respond to the
summary judgment motion on the basis that he intends to appeal
the FCC's waiver.
On November 4, 2016, the Court granted Mr. Lennartson's motion to
continue his response to the company's summary judgment motion
until he can complete his appeal of the FCC's waiver order. In
addition, on January 9, 2017, Mr. Lennartson filed an amended
complaint adding additional plaintiffs, some of whom provided
consent after October 16, 2013, and who are therefore differently
situated from Mr. Lennartson, as well as additional Washington
state law claims. On October 27, 2017, plaintiffs moved to
certify their putative class, which we opposed, and on November
22, 2017, the company moved for summary judgment on all of
plaintiffs' claims.
Papa Murphy's "We and the plaintiffs have commenced negotiations
regarding the proposed terms of a settlement agreement, and the
Court has issued a stay of the case for 30 days while the parties
pursue settlement negotiations. Successful completion of these
negotiations, in addition to necessary court approvals and other
conditions, would result in the final resolution of the lawsuit;
however, we provide no assurance that any final settlement
agreement will be reached by the parties or approved by the
Court, or that the lawsuit will be finally resolved. An adverse
judgment or settlement related to this lawsuit could have a
material adverse effect on our consolidated financial position,
results of operations, or cash flows."
Papa Murphy's Holdings, Inc. is a franchisor and operator of the
largest Take 'N' Bake pizza chain in the United States. The
company was founded in 1981 and is based in Vancouver,
Washington.
PARKOFF OPERATING: Court Grants Bid to Dismiss "Quinn" Suit
-----------------------------------------------------------
Judge Robert Reed of the Supreme Court of New York County granted
the Defendants' motion to dismiss the case, COURTNEY QUINN, ET
AL., Plaintiffs, v. PARKOFF OPERATING CORPORATION, GRAMERCY PARK
ESTATES LLC, SEADYCK REALTY CO., LLC, 19 SEAMAN LLC, and ELBRIDGE
REALTY CORPORATION, Defendants, Case No. 155195/17 (N.Y. Sup.).
The Plaintiffs, individually, and on behalf of all others
similarly situated, commenced the purported class action against
the Defendants. They allege that the Defendants used illegal and
fraudulent practices in their ownership and operation of the
apartment buildings located at: (1) 144 East 22nd Street in
Manhattan; (2) 1-9 Seaman Avenue in Manhattan; (3) 11-19 Seaman
Avenue in Manhattan; and (4) 500 West 235th Street in the Bronx
(collectively, Parkoff Buildings). Allegedly, the Defendants:
(1) inflated rents that exceeded the amounts they are legally
permitted to charge tenants; (2) impermissibly failed to provide
tenants in buildings receiving J-51 tax benefits with rent-
stabilized leases; and (3) misrepresented the amount of
"Individual Apartment Improvements" ("IAIs") performed on the
Plaintiffs' apartments and those of similarly situated tenants.
The New York City Department of Housing Preservation &
Development ("HPD") administers tax incentive programs to promote
the construction and preservation of affordable, high quality
housing for low- and moderate-income families in New York City.
One such New York City program is the so-called J-51 program, a
property tax exemption and abatement available to landlords for
renovating a residential apartment building.
The Parkoff Buildings receive, or have received, tax abatements
or exemptions pursuant to the J-51 tax benefit program. The
landlords of these buildings are required to register the
apartments with the Division of Housing and Community Renewal
("DHCR"), and to provide their tenants with appropriate riders
detailing the tax credit.
The Defendants, the complaint alleges: (1) have provided their
tenants with free market leases, instead of their statutorily
entitled rent-stabilized leases; (2) claimed erroneous and
undocumented IAIs; and (3) failed to register apartments with
DHCR. The Defendants' conduct violates the J-51 Program and New
York City's Rent Stabilization Law ("RSL"), as codified by the
Rent Stabilization Code ("RSC"), and General Business Law Section
349, et seq.
The Plaintiffs, individually and on behalf of the "Class," seek a
judgment providing: (1) declaratory and injunctive relief,
directing defendants to provide appropriate rent-stabilized
leases; (2) an independent audit of rents that defendants demand;
(3) disgorgement of rent overcharges; (4) compensatory and
statutory damages; and (5) reasonable attorneys' fees and
expenses.
Defendant Parkoff is the indirect owner, operator, and managing
entity of the Parkoff Buildings. Defendants Gramercy Park,
Seadyck Realty, 19 Seaman, and Elbridge Realty are the registered
owners of 144 East 22nd Street, 1-9 Seaman Avenue LLC, 11-19
Seaman Avenue, and 500 West 235th Street, respectively.
Allegedly, the Parkoff Buildings are subject to the RSL because:
(1) they are multiple dwelling residential buildings, containing
six or more units, which were built prior to 1974, and not
operated as a cooperative or condominium; or (2) they receive
benefits under the J-51 tax benefit program. The apartments of
the Plaintiffs and the class were all subject to rent control or
rent stabilization and previously were registered as such with
DHCR.
Allegedly, the Defendants failed to comply with the requirements
of the RSL by failing to provide their tenants with rent-
stabilized leases, failing to properly register the apartments
with DHCR, increasing rents beyond the limits set forth by the
Rent Guidelines Board, and improperly declaring the apartments
deregulated due to high rent vacancy. The Defendants did so by:
(1) altering the records provided to tenants to justify charging
higher initial rents; (2) inflating or misrepresenting the amount
of IAIs that were completed; and (3) using such false information
to increase rents or deregulate apartments that should remain
rent stabilized.
The complaint describes the proposed class consisting of current
and former tenants of the Parkoff Buildings who, between June 7,
2013 and the present date, resided in rent-stabilized or
unlawfully-deregulated apartments, and who paid rent more than
the legal limit based on misrepresentations by the Defendants, or
any predecessor in interest, concerning legal regulated rents and
improvements. The Plaintiffs also propose a sub-class (Sub-
Class) consisting of all current tenants in the Parkoff Buildings
who currently reside in a rent-stabilized apartment or unlawfully
deregulated apartment.
The complaint contains six causes of action for: (1) violation of
RSL Section 26-512 (on behalf of the Class); (2) violation of RSL
Section 26-512 (on behalf of the Sub-Class); (3) declaratory
relief (on behalf of the Sub-Class) determining: (a) the
apartments are subject to the RSL and RSC; (b) the Plaintiffs and
the members of the Sub-Class are each entitled to a rent
stabilized lease; (c) the amount of the legal regulated rent for
their apartments; (d) any leases offered by the Defendants to the
Plaintiffs and members of the Sub-Class are invalid unless they
are offered on forms and terms prescribed by DHCR; and (e) the
Plaintiffs and members of the Sub-Class are not required to pay
rent increases until legal rent-stabilized lease offers are made
to, and accepted by, the Plaintiffs and members of the Sub-Class;
(4) violation of General Business Law Section 349 (on behalf of
the Class); (5) illegality and mistake of contract (on behalf of
the Class); and (6) illegality and mistake of contract (on behalf
of the Sub-Class).
The Defendants move for an order: (1) pursuant to CPLR 3211 (a)
(7) or CPLR 3016 (b), dismissing the fourth, fifth, and sixth
causes of action; (2) pursuant to CPLR 3211 (a) (7), CPLR 901-
902, and CPLR 3211 (a) (1), dismissing the class allegations; and
(3) pursuant to CPLR 3211 (a) (1), 3211 (a) (2) or 3211 (a) (7),
dismissing the first three causes of action.
As to RSL claims, Judge Reed finds that the Plaintiffs have not
demonstrated why the doctrine of primary jurisdiction should not
be invoked. Indeed, the Plaintiffs concede that DHCR has
expertise in rent regulation and the ability to investigate fraud
claims, albeit, they question the level of that expertise. This
challenge as to DHCR's expertise is unavailing. The issues
raised are not likely to involve statutory interpretations or
policy determinations by DHCR.
As to General Business Law Section 349 claim, the Judge finds
that the Plaintiffs' allegations of unlawfully deceptive acts and
practices under General Business Law Section 349 present only
private disputes between landlords and tenants, and not consumer-
oriented conduct aimed at the public at large, as required by the
statute. The claim is not validly stated because the action is
limited to the Plaintiffs' apartments, and does not involve the
public at large.
Next, the Judge finds that a complaint can allege both a breach
of contract and a violation of RSL. The fifth and the sixth
causes of action allege that the Defendants, either directly or
indirectly, entered into leases which falsely misrepresented the
amount of rent that they or the entities controlled by them were
legally entitled to collect. The complaint, however, does not
identify any lease provisions that were breached.
As to class allegations, the Judge finds that the Sub-Class was
not designated solely for the purpose of damages, but for the
purpose of establishing liability in the first instance.
Finally, as to the Defendants' argument that the claims of
Plaintiffs Thomas Pierce and April Townes (5B at 11 Seaman
Avenue); Antonio Vazquez and Jennifer Duprey (4E at 15 Seaman
Avenue); Christopher Ford (3D at 500 West 235th Street); Steven
Katchen (4F at 500 West 235th Street); and Ron Yosipovich (4J at
500 West 235th Street) are are time-barred, the Judge holds that
he does not reach the issue on whether the Plaintiffs purport to
challenge only the propriety of rent increases based on IAIs
performed in their apartments more than four years prior to the
filing of the complaint.
For these reasons, Judge Reed granted the Defendants' motion to
dismiss the complaint and dismissed the complaint with costs and
disbursements to the Defendants as taxed by the Clerk upon the
submission of an appropriate bill of costs. He directed the
Clerk of Court to enter judgment accordingly.
A full-text copy of the Court's March 16, 2018 Order is available
at https://is.gd/Wh3282 from Leagle.com.
Newman Ferrara LLP, By: Jarred I. Kassenoff, 1250 Broadway, 27th
Floor, New York, New York 10001, for Plaintiffs.
KATSKY KORINS LLP, By: Adrienne B. Koch, Esq. --
akoch@katskykorins.com -- 605 Third Avenue, New York, New York
10158, for Defendants.
PCM INC: "Miller" Class Action Suit Concluded
---------------------------------------------
PCM, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2017, that the case entitled, Miller v. PCM Inc.,
has been concluded.
PCM, Inc. said in its Form 10-Q Report for the quarterly period
ended September 30, 2017, that on May 3, 2017, a purported
securities class action was filed in the United States District
Court for the Central District of California, entitled Miller v.
PCM Inc., Case No. 2:17-cv-03364-VAP-KS (C.D. Cal. filed May 3,
2017). In the original complaint in this action, plaintiff,
purportedly on behalf of a putative class of purchasers of PCM
securities from June 17, 2015 through May 2, 2017, alleged that
the Company and certain of its officers violated Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C.
Sections 78j(b), 78t(a), and Rule 10b-5, 17 C.F.R. Section
240.10b-5, promulgated thereunder, by intentionally or recklessly
making false and/or misleading statements and/or failing to
disclose that the financial statements of En Pointe, a company
PCM acquired in 2015, materially overstated the profitability of
En Pointe's business.
In its recent disclosure, the Company said that on July 27, 2017,
the court appointed three individuals as lead plaintiffs and
approved their selection of lead plaintiffs' counsel. On
September 8, 2017, lead plaintiffs filed an amended complaint,
purportedly on behalf of a putative class of purchasers of PCM
securities from August 10, 2015 through May 2, 2017, reiterating
the claims asserted against the defendants in the original
complaint and alleging that defendants also failed to disclose
purported harm caused to PCM's business by the alleged breakdown
of a contractual relationship between En Pointe/PCM and Ovex
Technologies, Ltd. and failed to conduct proper impairment
analyses of goodwill and intangible assets relating thereto.
On October 6, 2017, defendants filed a motion to dismiss the
amended complaint for failure to state a claim for relief
pursuant to Federal Rules of Civil Procedure 12(b)(6) and 9(b)
and the Private Securities Litigation Reform Act of 1995, based
upon lead plaintiffs' failure to plead both loss causation and a
strong inference of defendants' scienter. On November 3, 2017,
lead plaintiffs filed their opposition to defendants' motion to
dismiss.
On January 3, 2018, the court issued an order granting
defendants' motion to dismiss the amended complaint without
prejudice and ordered lead plaintiffs to file a second amended
complaint by January 24, 2018. On January 24, 2018, by
stipulation among the parties, lead plaintiffs agreed not to file
a second amended complaint or appeal the court's January 3, 2018
order (or any eventual judgment dismissing the action) and the
parties agreed to bear their own costs and fees.
As a result, on February 2, 2018, the court dismissed the action
with prejudice and entered judgment for defendants. This lawsuit
is now fully and finally concluded.
PCM, Inc. is a leading multi-vendor provider of technology
solutions, including hardware products, software and services,
offered through its dedicated sales force, ecommerce channels and
technology services teams. The company is based in El Segundo,
California.
PIRON LLC: Court Certifies Class of Cable Technicians in "Ali"
--------------------------------------------------------------
In 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.), Judge Linda V. Parker of the U.S. District
Court for the Eastern District of Michigan, Southern Division,
granted in part and denied in part the Plaintiffs' Motion to
Certify Class.
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"). They 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, Comcast 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 Installations, 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 the
applications for employment. They stated Comcast required them
to complete and pass a background check before they could begin
work.
According to the Plaintiffs, both Piron and Reynolds
Installations paid them. They allege the pay was inconsistent
and varied in the form of cash, personal checks and money orders.
They stated they never received time records and were charged for
unsatisfactory services, including charges for faulty equipment
and unhappy customers. They allege they worked at least twelve-
hour shifts, six days a week but were not paid minimum wage and
did not receive overtime wages. The Plaintiffs stated they
regularly would overhear Piron employees complaining of their
pay, specifically Mario Welch and Keith Jones.
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 them as independent contractors. According to
the Plaintiffs, the Defendants owe them minimum wage and overtime
wage benefits for willfully violating FLSA.
On May 9, 2017, the Plaintiffs filed a motion for conditional
class certification. Piron, Hannah, and Comcast filed responses
on July 10, 2017. The Plaintiffs filed reply briefs on July 24,
2017. To further support its position for limiting the potential
class, on Aug. 15, 2017, Comcast filed a brief with new
authority. In the Plaintiffs' reply briefs, the Plaintiffs
attached amended declarations alleging they had personal
knowledge of Piron's pay practices and policies. In response, on
Jan. 11, 2018 and with leave of Court, Comcast filed a
supplemental brief. On Jan. 25, 2018, also with leave of Court,
the Plaintiffs filed a response to Comcast's supplemental brief.
On Oct. 12, 2017, the clerk entered default against Monroe for
failing to respond to the Complaint, and at the Plaintiffs'
request, the Court reserved on default judgment. On Feb. 12,
2018 and Feb. 13, 2018, in response to the Court's Show Cause
Order, the Plaintiffs filed proof of service for Reynolds and
Reynolds Installations. Neither Reynolds nor Reynolds
Installations has filed a response to either the complaint or the
motion to certify.
The Plaintiffs request a class defined as all current and former
employees (including those misclassified as independent
contractors) of Piron or Reynolds Quality, who worked in
Michigan, for Aero and Comcast, who were not paid at least $7.25
per hour for every hour worked and/or did not make at least one
and one half times their regular rate of pay for hours worked in
excess of 40 hours in a workweek.
Judge Parker finds that in the Plaintiffs' amended declarations,
they allege they heard other individuals, who were employed
solely by Piron, complaining about their pay. Specifically, Ali
alleges he heard Keith Jones and Mario Welch complain about
Piron's pay. However, while Piron may have engaged in FLSA
violations, the Plaintiffs have not sufficiently alleged or
provided any documentary evidence of any Piron employee, who was
not also an employee of Reynolds Installations, who were the
subject of FLSA violations. Although at this stage of the
litigation, the Plaintiffs only are required to make a modest
factual showing, they have not sufficiently shown that the other
employees they heard complaining were employees of Piron.
Further, the Judge finds that the Plaintiffs have not made a
factual showing that the individuals' complaints were based on
the FLSA violations at issue in the case. The Plaintiffs
summarily state that they heard other employees complain about
Piron not paying them for the hours they worked and for overtime.
At a minimum, the Plaintiffs could have provided affidavits from
Mario Welch and Keith Jones to support its claims that they were
solely employees of Piron and were subject to FLSA violations.
Therefore, nothing in the record supports expanding the class to
individuals employed by "Piron or Reynolds Installations."
Accordingly, for the reasons she stated, Judge Parker granted in
part and denied in part the Plaintiffs' motion. She granted the
motion to the extent that the Court conditionally certifies the
action as a collective action on behalf of all current and former
employees (including those misclassified as independent
contractors) of Piron and Reynolds Quality, who worked in
Michigan, for Aero and Comcast, who were not paid at least $7.25
per hour for every hour worked and/or did not make at least one
and one half times their regular rate of pay for hours worked in
excess of 40 hours in a workweek.
The Judge approved, with the above modification, the Plaintiffs'
proposed notice and consent forms to be sent via U.S. Mail and e-
mail. She appointed the Law Offices of Bryan Yaldou, PLLC as the
interim Class Counsel.
She directed the Defendants are to serve the Claims Administrator
with a computer-readable and exportable Excel file containing the
full name, last known address, last known telephone number,
employee ID number and last known e-mail of all putative class
members identified above within 30 days from the date of the
entry of the Order.
She authorized the Claims Administrator to promptly disseminate
the approved notice and consent form, with the modification, to
all Collective Group Members pursuant to the "opt-in" mechanism
for collection class actions authorized by the FLSA. The Judge
required the Claims Administrator to file all opt-in consent
forms they receive within 60 days of sending the court-approved
notice. The Court is requiring the Defendants to refrain from
communication with the Collective Group Members concerning the
lawsuit or the underlying issues.
A full-text copy of the Court's March 16, 2018 Opinion and Order
is available at https://is.gd/EdBEsA 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 -- dbretz@clarkhill.com -- Clark Hill & Ellen E. Hoeppner -
- ehoeppner@clarkhill.com -- Clark Hill PLC.
Steve Hannah, Defendant, pro se.
PJ CHEESE: Doesn't Properly Pay Delivery Drivers, Suit Claims
-------------------------------------------------------------
Karaese Smith, individually and on behalf of similarly situated
persons v. PJ Cheese, Inc., Case No. 7:18-cv-00582-LSC (N.D.
Ala., April 11, 2018), is brought against the Defendants for
failure to pay delivery drivers' minimum wages in violation of
the Fair Labor Standards Act.
PJ Cheese, Inc. owns and operates approximately 124 Papa John's
franchise stores in Alabama, Mississippi, Tennessee, Texas and
Virginia. [BN]
The Plaintiff is represented by:
Brandy Robertson, Esq.
William L. Bross, Esq.
W. Lewis Garrison Jr., Esq.
HENINGER GARRISON DAVIS, LLC
2224 First Avenue North
Birmingham, AL 35203
Telephone: (205) 326-3336
Facsimile: (205) 326-3332
E-mail: brobertson@hgdlawfirm.com
william@hgdlawfirm.com
lewis@hgdlawfirm.com
- and -
Mark A. Potashnick, Esq.
WEINHAUS & POTASHNICK
11500 Olive Blvd., Suite 133
St. Louis, MO 63141
Telephone: (314) 997-9150
Facsimile: (314) 997-9170
E-mail: markp@wp-attorneys.com
- and -
Richard M. Paul III, Esq.
PAUL LLP
601 Walnut, Suite 300
Kansas City, MO 64106
Telephone: (816) 984-8100
Facsimile: (816) 984-8101
E-mail: Rick@PaulLLP.com
PREMIUM NUTRACEUTICALS: 9th Cir. Affirms Dismissal of "Matus"
-------------------------------------------------------------
In the case, ROBERT MATUS, individually and on behalf of all
others similarly situated, Plaintiff-Appellant, v. PREMIUM
NUTRACEUTICALS, LLC, a Georgia Corporation; DOES, 1-20,
Inclusive, Defendants-Appellees, Case No. 16-55910 (9th Cir.),
the Court of Appeals for the Ninth Circuit affirmed the district
court order granting the Defendant's motion to dismiss.
Matus, a California consumer, brings the class action on behalf
of all purchasers of Vydox, a product manufactured and marketed
by the Defendant, a Georgia company. The district court granted
the Defendant's motion to dismiss for lack of personal
jurisdiction, finding that Premium had not expressly aimed its
tortious conduct at California.
The Appellate Court finds that Matus does not allege that general
personal jurisdiction exists over Premium, but rather focuses
only on specific personal jurisdiction. Matus alleges that
Premium's "intentional act" was false advertising. Premium
committed that act in the state of Georgia by publishing language
on its public, commercial website, for all the world to see,
visit, and consider. This was a global, universal publication
without any express aiming at the California market. In short,
Matus cannot show the "something more" to satisfy the "express
aiming" requirement of the purposeful direction prong.
As a fallback, Matus turns to the "forum-related activities"
prong, which requires that the claim be one which arises out of
or relates to the defendant's forum-related activities. In an
effort to fit within this prong, Matus points to Premium's online
business in California, but his claims do not "arise from" an
online purchase that Matus made from Premium's website because
Matus bought his Vydox from an independent online reseller, not
from Premium.
The Appellate Court finds that there is no evidence that the
reseller was in California, and so no evidence that Premium sold
its product to a California-based reseller. Rather, Matus'
claims "arise from" only the online activities that Premium aimed
at the entire world. If Premium can be haled into California
merely on the basis of its universally accessible website, then,
under Matus's proposed rule, it can be haled into every state,
and respectively, every online advertiser worldwide can be haled
into California. Absent anything more, Matus' showing is
inadequate to satisfy the Due Process Clause. Accordingly, the
Appellate Court affirmed.
A full-text copy of the Court's March 16, 2018 Memorandum is
available at https://is.gd/0Y6WwE from Leagle.com.
PROGRESSUS THERAPY: "Shelton" Suit Settlement Has Prelim Approval
-----------------------------------------------------------------
In the case, TERRI SHELTON, LAURA THOMPSON, individually and on
behalf of all those similarly situated, Plaintiffs, v. PROGRESSUS
THERAPY, LLC, A Delaware Limited Liability Company, PROGRESSUS
THERAPY, INC., A Florida Corporation, PROGRESSUS, INC., A
Delaware Corporation, INVO HEALTHCARE Liability Company, INVO
HEALTHCARE, LLC, A Delaware Limited Liability Company, THERAPY
STATION ASSOCIATES, LLC, A California Limited Liability Company,
and DOES 1 through 200, Defendants, Case No. 2:17-cv-00518-TLN-
EFB (E.D. Cal.), Judge Troy L. Nunley of the U.S. District Court
for the Eastern District of California granted the Plaintiffs'
Motion for Preliminary Approval of Class Action and PAGA
Settlement.
The Plaintiffs' Motion was scheduled for hearing on Feb. 8, 2018.
The Court submitted the Motion, and having considered the papers
submitted in support of their Motion, the lack of opposition, and
good cause appearing, Judge Nunleu granted preliminary approval
of the Settlement based upon the terms set forth in the Joint
Stipulation of Class Action and PAGA Settlement. A Final
Fairness Hearing is set in accordance with the Implementation
Schedule set forth.
The Judge approved the Notice of Class Action and Claim Form
submitted with the Motion. He also approved the procedure for
the Class Members to participate in, to opt out of, and to object
to, the Settlement as set forth in the Settlement and in the
Notice. He directed the mailing of the Notice and Claim Forms by
first class mail to the Class Members in accordance with the
Implementation Schedule.
The Judge confirmed certified the class, for settlement purposes,
of all current and former hourly non-exempt individuals employed
by Defendants within the State of California who provided
occupational therapy, speech-language pathology, physical
therapy, psychology and behavior, early intervention, special
education, audiology, and/or social work treatment and services
who worked during the period from Oct. 28, 2012, through the date
of Preliminary Approval of the Motion.
He appointed Plaintiffs Shelton and Thompson as the class
representatives and the law firm of Gurnee Mason & Forestiere,
LLP as the Class Counsel for settlement purposes only. He also
appointed CPT Group, Inc. as the Settlement Administrator and
preliminarily approved its reasonable Administration Costs
estimated not to exceed $35,000.
The Judge further preliminarily approved the Class Counsel's
attorney's fees of up to $322,000 and costs not to exceed $6,185
subject to be finally determined and approved in a separate fee
motion seeking such awards to be filed at least 14 days after
Class Notice is mailed. He further ordered that the Class
Counsel will file a motion for Final Approval of the Settlement,
with the appropriate declarations and supporting evidence,
including a declaration setting forth the identity of any
Settlement Class Members who request exclusion from the
Settlement or made any objections to it, by June 6, 2018.
Judge Nunley further ordered that each Settlement Class Member
will be given a full opportunity to object to the proposed
Settlement, request for attorneys' fees and costs, and to
participate at the Final Approval Hearing, which the Court sets
to commence on Aug. 23, 2018, at 2:00 p.m. Any Settlement Class
Member seeking to object to the proposed Settlement may file such
objection in writing with the Court and will timely serve such
objection on the Class Counsel and the Defendants' Counsel prior
to the Response Deadline set forth in the Settlement Agreement
period or may appear at the Final Approval Hearing to orally make
the objection.
He ordered the following Implementation Schedule, subject to
changes based upon stipulation of the parties and order of the
Court, adopted for further proceedings:
a. Deadline for the Defendants to provide class list to
Settlement Administrator - 14 calendar days after Preliminary
Approval
b. Deadline for the Settlement Administrator to provide the
class list to the Settlement Administrator - 14 calendar days
after the Defendants mail Notice of Settlement and Claim Form to
Class Members (28 days after Preliminary Approval)
c. Deadline for the Plaintiffs to file motion for the
approval of the Class Counsel Award of attorney's fees and costs
- 14 calendar days after mailing the Notice of Settlement and
Class Form to the Class Members Administrator (42 days after
Preliminary Approval)
d. First reminder mailed to the Class Members - 20 calendar
days after class notice is mailed (48 days after Preliminary
Approval)
e. Second reminder mailed to the Class Members - 40 calendar
days after class notice is mailed (68 days after Preliminary
Approval)
f. Last day for the Class Members to file any requests for
exclusions, objections or disputed claim amounts - 60 calendar
days from date notice is mailed (88 days after entry of
Preliminary Approval)
g. Deadline for the parties' replies to any Class Member
objections - 70 calendar days from date notice is mailed (98 days
after entry of Preliminary Approval)
h. Deadline for the Class Members to withdraw their
objections to the Settlement - 10 business days before date of
Final Approval Hearing
i. Deadline for the Plaintiffs to file motion for class
action settlement - 28 business days before date of Final
Approval of Approval Hearing
Judge Nunley stayed, pending further order of the Court, all
proceedings in the Lawsuit, except those contemplated in the
Order and in the Settlement.
A full-text copy of the Court's March 16, 2018 Order is available
at https://is.gd/mb1xJs from Leagle.com.
Terri Shelton & Laura Thompson, Plaintiffs, represented by John
A. Mason -- info@gurneelaw.com -- Gurnee Mason & Forestiere LLP &
Nicholas P. Forestiere, Gurnee Mason & Forestiere Llp.
Progressus Therapy, LLC, Progressus Therapy, Inc., Progressus,
Inc., Invo Healthcare Associates, LLC, Invo Healthcare, LLC &
Therapy Station Associates, LLC, Defendants, represented by Jason
S. Campbell -- jscampbell@winston.com -- Winston & Strawn LLP.
PULSE ELECTRONICS: July 27 Settlement Fairness Hearing Set
----------------------------------------------------------
NOTICE OF PENDENCY OF CLASS AND DERIVATIVE ACTION, PROPOSED
SETTLEMENT, SETTLEMENT HEARING AND RIGHT TO APPEAR
TO: ALL RECORD AND BENEFICIAL HOLDERS OF PULSE COMMON STOCK
DURING THE PERIOD BEGINNING ON SEPTEMBER 25, 2014 THROUGH APRIL
13, 2015, THE DATE OF THE CONSUMMATION OF PULSE'S GOING-PRIVATE
TRANSACTION (THE "MERGER"), INCLUDING ANY AND ALL OF THEIR
RESPECTIVE SUCCESSORS-IN-INTEREST, REPRESENTATIVES, TRUSTEES,
EXECUTORS, ADMINISTRATORS, HEIRS, ASSIGNS OR TRANSFEREES,
IMMEDIATE AND REMOTE, AND ANY PERSON OR ENTITY ACTING FOR OR ON
BEHALF OF, OR CLAIMING UNDER, ANY OF THEM, AND EACH OF THEM.
PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOUR
RIGHTS WILL BE AFFECTED BY THE LEGAL PROCEEDINGS IN THIS
LITIGATION. IF THE COURT APPROVES THE PROPOSED SETTLEMENT, YOU
WILL BE FOREVER BARRED FROM CONTESTING THE FAIRNESS,
REASONABLENESS AND ADEQUACY OF THE PROPOSED SETTLEMENT AND FROM
PURSUING THE SETTLED CLAIMS (DEFINED HEREIN).
IF YOU HELD PULSE COMMON STOCK FOR THE BENEFIT OF ANOTHER, PLEASE
PROMPTLY TRANSMIT THIS DOCUMENT TO SUCH BENEFICIAL OWNER.
MATTHEW ODINOTSKI and JOHN SOLAK
on Behalf of Themselves and All Others Similarly
Situated, and Derivatively on behalf of PULSE
ELECTRONICS CORPORATION,
Plaintiff,
v.
KAJ VAZALES, MARK TWAALFHOVEN, STEVEN
G. CRANE, DAVID W. HEINZMANN, JOHN E.
MAJOR, GARY E. SUTTON/NANCY SUTTON AS
EXECUTOR OF GARY E. SUTTON'S ESTATE,
ROBERT E. SWITZ., OAKTREE CAPITAL
MANAGEMENT, L.P., and OCM PE HOLDINGS,
L.P.
Defendants
and
PULSE ELECTRONICS CORPORATION, a
Pennsylvania corporation, Nominal Defendant
Lead Case No. 37-2015-00009254-CU-SL-CTL
Consolidated with:
37-2015-00010500-CU-SL-CTL
37-2015-00012857-CU-SL-CTL
Assigned to: Judge Richard E.L. Strauss
Dept. C-75
Pursuant to an Order of the Superior Court of California for San
Diego County (the "Court") dated April 5, 2018, and further
pursuant to California Code of Civil Procedure ("CCP") Section
382, this Notice is to inform you of (i) the Court's
determination to provisionally certify the above-captioned action
("Action") pursuant to CCP Sec. 382, (ii) the proposed settlement
of the Action (the "Settlement") as provided for in a Stipulation
and Agreement of Compromise and Settlement (the "Stipulation")
dated as of October 30, 2017, and (iii) your right to participate
in a hearing to be held on July 27, 2018 at 9:00 AM, before the
Court at 330 West Broadway, San Diego, CA 92101 (the "Settlement
Hearing") to determine whether the Court should (i) finally
certify the Action pursuant to CCP Sec. 382, (ii) certify
plaintiffs Matthew Odinotski, John Solak, Andreas Hahn, and AB
Value Partners, LP ("Plaintiffs") in the Action as
representatives of the Class, (iii) approve the Settlement as
fair, reasonable, adequate and in the best interests of the
Class, including the releases provided therein, and (iv) consider
the attorneys' fees and expenses to be paid to Plaintiffs'
Counsel and incentive awards to the Plaintiffs.
This Notice describes the rights you may have in the Action and
pursuant to the Stipulation and what steps you may take, but
are not required to take, in relation to the Settlement.
If the Court approves the Settlement, the parties will ask the
Court at the Settlement Hearing to enter an Order and Final
Judgment dismissing the Action with prejudice in accordance with
the terms of the Stipulation.
In consideration for the Settlement and dismissal with prejudice
of the Action, and the releases provided herein, Defendants
agree to provide the Class additional compensation of $825,000
(the "Settlement Amount"). Any attorneys' fees, incentive
awards, costs, expenses (including notice and administrative
expenses) or other Court-approved deductions shall be paid out of
-- and shall not be in addition to -- the Settlement Amount.
The Settlement Amount minus Court-approved deductions (the "Net
Settlement Amount") will be distributed to all members of
the Class who owned Pulse common stock immediately prior to the
time the Merger became effective ("Eligible Class Members") on a
pro rata basis, based on the number of outstanding Pulse shares
owned by each such Eligible Class Member at that time. There
were approximately 5 million outstanding shares owned by Eligible
Class Members at the time of the Merger. Accordingly, the
expected payment, assuming the Court approves Plaintiffs'
Counsel's request for attorneys' fees and costs in the amount not
to exceed $310,000.00 and notice and claims administration costs
of approximately $50,000.00, will be approximately $.09 per
share, but may vary based upon the amount of other Court-approved
costs.
Inquiries or comments about the Settlement may be directed to the
attention of Counsel for Plaintiffs as follows:
Brodsky & Smith, LLC
Evan J. Smith
9595 Wilshire Boulevard, Suite 900
Beverly Hills, CA 90212
877-534-2590
esmith@brodskysmith.com
Any member of the Class who wishes to object to the Settlement,
the Order and Final Judgment to be entered in the Action,
and/or Plaintiffs' Counsel's attorneys' fees, or who otherwise
wishes to be heard, may file a written objection and/or may
appear in person or by his attorney at the Settlement Hearing and
present evidence or argument that may be proper and relevant.
Written objections are permitted, but are not mandatory. In the
event written objections are filed, the papers, briefs, pleadings
or other documents submitted by any person shall be filed with
the Court and served upon counsel below not later than ten (10)
court days prior to the Settlement Hearing on July 27, 2018, or
no later than July 13, 2018.
BY ORDER OF THE SUPERIOR COURT OF CALIFORNIA FOR SAN DIEGO
COUNTY FOR THE STATE OF CALIFORNIA
QUORUM HEALTH: Bid to Dismiss "Rao" Suit Still Pending
------------------------------------------------------
Quorum Health Corporation said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission for the fiscal year
ended December 31, 2017, that the motion to dismiss in the case
entitled, Zwick Partners LP and Aparna Rao, Individually and On
Behalf of All Others Similarly Situated v. Quorum Health
Corporation, Community Health Systems, Inc., Wayne T. Smith, W.
Larry Cash, Thomas D. Miller and Michael J. Culotta, is still
pending.
On September 9, 2016, a shareholder filed a purported class
action in the United States District Court for the Middle
District of Tennessee against the company and certain of its
officers. The Amended Complaint, filed on September 13, 2017,
purports to be brought on behalf of a class consisting of all
persons (other than defendants) who purchased or otherwise
acquired securities of QHC between May 2, 2016 and August 10,
2016 and alleges that we and certain of our officers violated
federal securities laws, including Sections 10(b) and/or 20(a) of
the Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder, by making alleged false and/or misleading statements
and failing to disclose certain information regarding aspects of
our business, operations and compliance policies.
On April 17, 2017, Plaintiff filed a Second Amended Complaint
adding additional defendants, Community Health Systems, Inc.,
Wayne T. Smith and W. Larry Cash. On June 23, 2017, the company
filed a motion to dismiss, which Plaintiffs opposed on August 22,
2017.
Quorum Health said "We are vigorously defending ourselves in this
matter. We are unable to predict the outcome of this matter.
However, it is reasonably possible that we may incur a loss in
connection with this matter. We are unable to reasonably estimate
the amount or range of such reasonably possible loss because the
motion to dismiss is still pending and discovery is stayed
pending resolution of the motion to dismiss. Under some
circumstances, losses incurred in connection with adverse
outcomes in this matter could be material."
Quorum Health Corporation provides hospital and outpatient
healthcare services in the United States. Its hospital and
outpatient healthcare services include general and acute care,
emergency room, general and specialty surgery, critical care,
internal medicine, obstetric, diagnostic, psychiatric, and
rehabilitation services.
REGENCY VILLAGE: Court Narrows Claims in "Ridley"
-------------------------------------------------
The United States District Court for the Southern District of
Texas, Houston Division, granted in part and denied in part
defendant Penbar, Inc. d/b/a Regency Village Skilled Nursing and
Rehab Center's Motion to Dismiss the case captioned ARK RIDLEY,
et al., Plaintiffs, v. REGENCY VILLAGE, INC., et al., Defendants,
Civil Action No. H-17-974 (S.D. Tex.).
Regency employed the Plaintiffs and others similarly situated as
licensed vocational nurses, registered nurses, certified medical
assistants, and certified nurse assistants. Regency scheduled its
nurses to work numerous twelve-hour shifts per week, and many
nurses regularly worked more than forty hours per week. Regency's
timekeeping software automatically deducted thirty minutes or one
hour, during each twelve-hour shift, for a lunch break. The
Plaintiffs filed this Fair Labor Standards Act collective action
claiming that Regency should have paid overtime wages to nurses
for the meal break time automatically deducted when the nurses
worked more than forty hours per week.
Regency argues that the Plaintiffs fail to state sufficient facts
to support their FLSA claim for failure to pay overtime.
Under the FLSA, employers must pay overtime compensation to non-
exempt employees for each hour worked beyond forty hours per
week. In Hoffman, 2009 WL 485224, at *3, the district court
denied an employer's 12(b)(6) motion to dismiss FLSA claims made
by two technicians to recover unpaid overtime. There, the
technicians alleged that they were classified as non-exempt, that
they regularly worked more than 40 hours per workweek, and that
they were not paid time-and-a half for those overtime hours.
Hoffman held that those are all factual allegations not legal
conclusions and, if proven, they give rise to a plausible claim
for relief.
Relying on Hoffman, this court previously held that allegations
were sufficient when the plaintiff alleged that he was a
nonexempt employee, that he regularly worked more than forty
hours per work week, and that he was not paid at the overtime
rate for those hours. In the instant case, the Plaintiffs allege
that they: (1) were employed by Regency; (2) were subject to an
automatic meal deduction; (3) regularly performed compensable
work during the meal breaks; (4) regularly worked more than forty
hours per week; and (5) were not paid overtime for their work
during meal breaks in the weeks they worked over forty hours.
The Plaintiffs' alleged facts, if proven, give rise to a
plausible claim for relief. Thus, Regency's motion to dismiss the
Plaintiffs' FLSA claims is denied.
Regency lodges the following arguments to dismiss the Plaintiffs'
Rule 23 class allegations and the underlying state law causes of
actions: (1) supplemental jurisdiction over the state law claims
is unwarranted; (2) the FLSA pre-empts the Plaintiffs' state law
causes of actions; (3) Rule 23 claims are incompatible with FLSA
claims and must be dismissed; (4) the Plaintiffs' state law
claims cannot be maintained as a class action; and (5) the
Plaintiffs' claims for unjust enrichment and quantum meruit fail
because the Plaintiffs allege a contract governs the parties'
relationship. The Plaintiffs argue that their Rule 23 claims
essentially replicate their FLSA claim and that the court should
not decline supplemental jurisdiction just because the Rule 23
claims may have more parties.
The state claims will predominate if they constitute[the real
body of a case, to which the federal claim is only an appendage.
The state claims may predominate in terms of proof, of the scope
of the issues raised, or of the comprehensiveness of the remedy
sought. Just based on the elements alone, it is clear that the
Rule 23 claims do not replicate the FLSA claim. The Rule 23
claims will require proof beyond that required for the FLSA
claim. Further, as Regency notes, the court will have to
consider the validity of the alleged contracts. While the state
law claims may not be complex, they do require substantially more
proof and the discussion of substantially more issues than the
FLSA claim. Thus, the Rule 23 claims constitute the real body of
the case and predominate the federal claim.
The common law factors support declining supplemental
jurisdiction. Because this case is still at the motion to dismiss
stage, few judicial resources have been expended. And given the
irreconcilable difference between Rule 23 classes and FLSA
classes, judicial resources can be preserved by trying the claims
separately.
Further, it is both convenient and fair to try a case between
Texas citizens alleging only state causes of action in a Texas
state court. THe Plaintiffs are not precluded from litigating
those claims in state court. Finally, comity demands that the
'important interests of federalism and comity' be respected by
the federal courts, which are courts of limited jurisdiction and
'not as well equipped for determinations of state law as are
state courts.
Here, not only would the court be making determinations of state
law, but those determinations would predominate any federal
issues of law. The court finds a statutory and common law basis
for declining supplemental jurisdiction. Thus, Plaintiffs' Rule
23 claims are dismissed without prejudice.
Accordingly, Regency's motion to dismiss is granted in part and
denied in part.
A full-text copy of the District Court's March 15, 2018
Memorandum Opinion is available at https://tinyurl.com/y84f4gqq
from Leagle.com.
Mark Ridley, Stephanie Ketchum, Olga Guevara & Maria Fernandez,
Plaintiffs, represented by Michael Todd Slobin, Shellist Lazarz
Slobin LLP & Ricardo J. Prieto -- rprieto@eeoc.net -- Shellist
Lazarz Slobin LLP.
Regency Village Inc., doing business as & Penbar, Inc., doing
business as, Defendants, represented by Allison C. Williams --
acwilliams@littler.com -- Littler Mendelson & David Bryce Jordan
-- djordan@littler.com -- Littler Mendelson PC.
REVLON INC: Bid to Dismiss in Merger-Related Suit Pending
---------------------------------------------------------
Revlon, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2017, that the motion to dismiss a third amended
complaint filed in the lawsuit over the Elizabeth Arden merger
agreement is pending.
Following the announcement of the execution of the Elizabeth
Arden Merger Agreement, several putative shareholder class action
lawsuits and a derivative lawsuit were filed challenging the
Merger. In addition to the complaints filed on behalf of
plaintiffs Parker, Christiansen, Ross and Stein on July 25, 2016,
a lawsuit (Hutson v. Elizabeth Arden, Inc., et al., Case No.
CACE-16-013566) (referred to as the "Hutson complaint") was filed
in the Seventeenth Judicial Circuit in and for Broward County,
Florida (the "Court") against Elizabeth Arden, the members of the
board of directors of Elizabeth Arden, Revlon, Products
Corporation and Acquisition Sub.
In general, the Hutson complaint alleges that: (i) the members of
Elizabeth Arden's board of directors breached their fiduciary
duties to Elizabeth Arden's shareholders with respect to the
Merger, by, among other things, approving the Merger pursuant to
an unfair process and at an inadequate and unfair price; and (ii)
Revlon, Products Corporation and Acquisition Sub aided and
abetted the breaches of fiduciary duty by the members of
Elizabeth Arden's board of directors. The plaintiff seeks relief
similar to that sought in the Parker case.
By Order dated August 4, 2016, all five cases were consolidated
by the Court into a Consolidated Amended Class Action.
Thereafter, on August 11, 2016, a Consolidated Amended Class
Action Complaint was filed, seeking to enjoin defendants from
consummating the Merger and/or from soliciting shareholder votes.
To the extent that the Merger was consummated, the Consolidated
Amended Class Action Complaint seeks to rescind the Merger or
recover rescissory or other compensatory damages, along with
costs and fees.
The grounds for relief set forth in the Consolidated Amended
Class Action Complaint in large part track those grounds as
asserted in the five individual complaints, as previously
disclosed. Class counsel advised that post-consummation of the
Merger they were going to file a Second Consolidated Amended
Class Action Complaint. The Second Consolidated Amended Class
Action Complaint (which superseded the Consolidated Amended Class
Action Complaint) was ultimately filed on or about January 26,
2017. Like the Consolidated Amended Class Action complaint, the
grounds for relief set forth in the Second Consolidated Amended
Class Action Complaint in large part track those grounds as
asserted in the five individual complaints.
Revlon, Inc. said in its Form 10-Q Report for the quarterly
period ended September 30, 2017, that the defendants' motions to
dismiss the Second Consolidated Amended Class Action Complaint
were filed on March 28, 2017. Plaintiffs' response was filed on
June 6, 2017 and defendants' replies were filed on July 13, 2017.
A hearing on the defendants' motion to dismiss was held on
September 19, 2017.
In its recent disclosure, the Company said that on November 20,
2017, the defendants' motion was granted and the case was
dismissed, with leave to amend under limited circumstances. On
December 8, 2017, plaintiffs filed a Third Amended Complaint,
seeking relief on the same grounds sought in the First and Second
Amended Complaints, but alleged as direct, as opposed to
derivative, claims. On January 12, 2018, the defendants once
again moved to dismiss.
The Company anticipates briefing, followed by a hearing that is
expected to occur in the next few months. The Company believes
the allegations contained in the Third Consolidated Amended Class
Action Complaint are without merit and intends to continue to
vigorously defend against them. Additional lawsuits arising out
of or relating to the Merger Agreement or the Merger may be filed
in the future.
The Company believes that the outcome of all pending legal
proceedings in the aggregate is not reasonably likely to have a
material adverse effect on the Company's business, prospects,
results of operations, financial condition and/or cash flows.
However, in light of the uncertainties involved in legal
proceedings generally, the ultimate outcome of a particular
matter could be material to the Company's operating results for a
particular period depending on, among other things, the size of
the loss or the nature of the liability imposed and the level of
the Company's income for that particular period.
Revlon, Inc. ("Revlon" and together with its subsidiaries, the
"Company") conducts its business exclusively through its direct
wholly-owned operating subsidiary, Revlon Consumer Products
Corporation ("Products Corporation") and its subsidiaries. Revlon
is an indirect majority-owned subsidiary of MacAndrews & Forbes
Incorporated (together with certain of its affiliates other than
the Company, "MacAndrews & Forbes"), a corporation wholly-owned
by Ronald O. Perelman. The company is based in New York.
RISE MEDICAL: "Horn" Class Contact Info Disclosure Protocol OK'd
----------------------------------------------------------------
In the case, ANNETTE HORN, an individual on behalf of herself and
others similarly situated, Plaintiff, v. RISE MEDICAL STAFFING,
LLC; ADVANCED MEDICAL PERSONNEL SERVICES, INC.; and DOES 1 to 10
inclusive, Defendants, Case No. 2:17-cv-01967-MCE-KJN (E.D.
Cal.), Magistrate Judge Kendall J. Newman of the U.S. District
Court for the Eastern District of California approved the
parties' proposed privacy notice and opt-out procedure set forth
in the Stipulation Re Privacy Notice and Opt-Out Procedure for
Disclosure of Putative Class Member Contact Information.
On March 13, 2018, the parties filed the Stipulation, which
provides for the disclosure to the Plaintiff's counsel of
specific contact information pursuant to a proposed procedure of
first notifying the individuals at issue of the Plaintiff's
request for their contact information and providing them with an
opportunity to object to and opt-out of such disclosure.
Having considered the Stipulation and proposed privacy notice and
opt-out procedures contained, Magistrate Judge Newman approved
the proposed privacy notice and opt-out procedure set forth in
the Stipulation. Rise will provide the agreed upon third party
administrator with the requested contact information by March 16,
2018. The third party administrator will mail a privacy notice
and opt-out postcard in the form attached to the Stipulation as
Exhibit A to the individuals whose contact information is sought
by March 28, 2018. Those individuals will have 30 days to opt-
out by returning to the third party administrator a pre-
addressed, postage pre-paid postcard in the form attached to the
Stipulation as Exhibit B. The third party administrator will
release to the Plaintiff's counsel the requested contact
information for all individuals who do not timely opt-out. The
parties will split 50/50 the fees and costs of the third party
administrator.
A full-text copy of the Court's March 16, 2018 Order is available
at https://is.gd/pj2avL from Leagle.com.
Annette Horn, Plaintiff, represented by Matthew Bryan Hayes --
mhayes@helpcounsel.com -- Hayes Pawlenko LLP & Kye Douglas
Pawlenko -- kpawlenko@helpcounsel.com -- Hayes, Pawlenko, LLP.
Rise Medical Staffing, LLC, Defendant, represented by Kenneth
Dawson Sulzer -- ksulzer@constangy.com -- Constangy Brooks Smith
& Prophete LLP, Sarah Kroll-Rosenbaum --
skrollrosenbaum@constangy.com -- Constangy Brooks Smith &
Prophete & Sayaka Karitani -- skaritani@constangy.com --
Constangy Brooks Smith & Prophete, LLP.
Advanced Medical Personnel Services, Inc., Defendant, represented
by Sarah Kroll-Rosenbaum, Constangy Brooks Smith & Prophete &
Sayaka Karitani, Constangy Brooks Smith & Prophete, LLP.
SARAR USA: Court Narrows Claims in "Werst" Suit
-----------------------------------------------
Judge Vernon S. Broderick of the U.S. District Court for the
Southern District of New York granted in part and denied in part
the Defendants' partial motion to dismiss the case, AMBER WERST,
CONNELL LEWIS, SUSAN CAPPS, AND ROHAN BAILEY, on behalf of
themselves and all others similarly-situated, Plaintiffs, v.
SARAR USA INC., SARAR GROUP, TUFAN AKSAHIN, in his professional
and individual capacities, BULENT KURTYILMAZ, in his professional
and individual capacities, and JOHN DOE AND JANE DOE #1-10,
Defendants, Case No. 17-CV-2181 (VSB)(S.D. N.Y.).
Plaintiffs Werst, Lewis, Caps, and Bailey, on behalf of
themselves and other employees similarly situated, bring the
action for alleged violations of the Fair Labor Standards Act
("FLSA") (Claims I, V, & VIII), the New York Labor Law ("NYLL")
(Claims II, III, & IV), the Equal Pay Act of 1963 ("Equal Pay
Act") (Count VI), and the District of Columbia Human Rights Act
of 1977 (Count VII). Since the initial filing of the complaint,
Justin Swan, Rohan Bailey, Patrick Silas, Aremu Rasaq, and Evrim
Aznabay have consented to opt-in as Plaintiffs under the FLSA.
The Plaintiffs allege a systemic practice of the Defendants
failing to pay their employees overtime compensation, properly
record employees' time, and provide employees with required lunch
breaks.
On May 4, 2017, the Plaintiffs filed a letter requesting: (1) a
waiver of the pre-motion conference requirement under my
Individual Rules and permission to immediately file a motion
seeking judicial notice of the collectives; or, in the
alternative (2) a pre-motion conference so that Plaintiffs could
immediately move for judicial notice of the collectives; or, in
the alternative (3) that I order the statute of limitations be
tolled on June 1, 2017. In response, the Defendants did not
object to a pre-motion conference, but opposed waiving the pre-
motion conference requirement as well as the tolling of the
statute of limitations. The Defendants also advised of their
intent to move for an injunction restraining the Plaintiffs'
counsel from contacting the Defendants' employees and to file a
partial motion to dismiss.
On May 8, 2017, Judge Broderick directed the parties to appear
for a conference on May 24, 2017 to discuss their proposed
motions. At the conference, he permitted the Defendants to file
their proposed partial motion to dismiss. As part of the
briefing for that motion, he directed the parties to each include
a section devoted to whether equitable tolling was appropriate
under the circumstances.
Separately, the Judge directed the parties to submit letters in
support of their positions on an injunction restraining the
Plaintiffs' counsel from contacting the Defendants' employees.
On June 6, 2017, after considering the parties' submissions, he
declined to restrict the Plaintiffs' counsel's communications
with the potential opt-in Plaintiffs, denying with leave to renew
the Defendants' motion for an injunction.
On June 23, 2017, the Plaintiffs filed the Amended Complaint.
The Amended Complaint alleges that they were employed by the
Defendants at Sarar locations across the United States, including
one location in New York City.
On June 26, 2017, the Judge denied the Defendants' pending
partial motion to dismiss as moot with leave to re-file. On July
20, 2017, the Defendants re-filed their partial motion to dismiss
the Amended Complaint. The Defendants move to dismiss the
following claims: (1) the Plaintiffs' claims arising under the
FLSA for failure to state a claim (Claims I, V, & VIII); (2) the
Plaintiffs' claims arising under the NYLL for failure to state a
claim (Claims II, III, & IV); (3) Plaintiff Werst's claims under
the Equal Pay Act for failure to state a claim (Claim VI); (4)
all claims against the Individual Defendants for lack of personal
jurisdiction; and (5) all claims against the Individual
Defendants for insufficient process. They also request that the
Judge denies any equitable tolling of the statute of limitations.
On Aug. 3, 2017, the Plaintiffs filed their opposition to the
Defendants' partial motion to dismiss. On Aug. 17, 2017, the
Defendants filed their reply in further support of their partial
motion to dismiss.
Judge Broderick finds that the Plaintiffs have sufficiently
alleged that the Individual Defendants transacted business in New
York, and that their claims against the Individual Defendants
arise, at least in part, out of their business in New York (e.g.,
their control over employment practices with respect to
Plaintiffs, including the firing and hiring of employees).
Crediting the allegations in the Amended Complaint as true, he
finds that the Plaintiffs meet the requirements of specific
personal jurisdiction under New York law. Accordingly, the
Plaintiffs therefore establish specific personal jurisdiction
over Aksahin and Kurtyilmaz, and the Defendants' motion to
dismiss the Amended Complaint against the Individual Defendants
under Rule 12(b)(2) will be denied.
Because he finds that the Plaintiffs establish a prima facie
showing of personal jurisdiction, the Defendants' arguments as to
process must fail. The Judge says the Court has jurisdiction
over the Individual Defendants, and the Individual Defendants
were properly served under New York state law. Accordingly, the
Defendants' motion to dismiss the Amended Complaint under Rule
12(b)(5) will be denied.
Because the Plaintiffs have adequately pleaded their FLSA claims,
their NYLL claims will therefore survive as well. Accordingly,
the Defendants' motion to dismiss the Plaintiffs' overtime claims
under the FLSA and NYLL will be denied.
The Judge also finds that the Amended Complaint not only alleges
that the Defendants routinely -- in fact, always -- auto-deducted
lunch breaks from the Plaintiffs, but also alleges that Sanabria
personally observed Defendant Aksahin arbitrarily write off time
and fail to give employees credit for time they worked during
lunch. These corroborating allegations allow the Court to draw
the reasonable inference that the Defendants are liable for the
misconduct alleged. Accordingly, he will deny the Defendants'
motion to dismiss as to Plaintiffs' gap-time claims.
He further finds that the Plaintiffs fail to provide any factual
context to nudge Werst's Equal Pay Act claim from conceivable to
plausible under the standards articulated in Twombly and Iqbal.
Accordingly, the Defendants' motion to dismiss Werst's Equal Pay
Act claim will be granted, and that claim will be dismissed.
Finally, the Judge finds that the Plaintiffs have not identified
any unusual procedural history or discovery logjam that has
contributed to a delay in prosecuting the action. Accordingly,
the Plaintiffs' request to toll the statute of limitations for
the putative collectives will be denied without prejudice to
renew.
For the foregoing reasons, Judge Broderick granted in part and
denied in part the Defendants' partial motion to dismiss. The
Defendants' motion is granted as to Werst's Equal Pay Act claim,
and Claim VI of the Amended Complaint is dismissed. The
remainder of the Defendants' motion is denied. Additionally, he
denied without prejudice to renew the Plaintiffs' request to toll
the statute of limitations for the putative collectives.
The Judge directed the parties to meet and confer regarding the
scheduling of discovery and submit a proposed Case Management
Plan and Scheduling Order on or before April 6, 2018. He
respectfully directed the Clerk of Court to terminate the pending
motion at Document 44.
A full-text copy of the Court's March 16, 2018 Opinion and Order
is available at https://is.gd/mlBgeY from Leagle.com.
Connell Lewis, on behalf of themselves and all others similarly-
situated, Amber Werst, on behalf of themselves and all others
similarly-situated, Susan Capps, on behalf of themselves and all
others similarly-situated & Justin Swann, Plaintiffs, represented
by John Russell Stevenson -- jrs@jrstevensonlaw.com -- Stevenson
Marino LLP & Justin Robert Marino -- jmarino@stevensonmarino.com
-- Stevenson Marino LLP.
Rohan Bailey, Patrick Silas, Aremu Rasaq & Evrim Aznabay,
Plaintiffs, represented by Justin Robert Marino, Stevenson Marino
LLP.
Sarar USA Inc., Tufan Aksahin, in his professional and individual
capacities & Bulent Kurtyilmaz, in his professional and
individual capacities, Defendants, represented by Omar T.
Mohammedi -- Law Firm of Omar T. Mohammedi, LLC & Aparna
Anantharaman, Law Firm of Omar T. Mohammedi, LLC.
SCHNUCK MARKETS: Banks Can't Sue to Recover Data Breach Losses
--------------------------------------------------------------
Lorraine Bailey, writing for Courthouse News Service, reported
that the Seventh Circuit ruled on April 11 that customers' banks
cannot recover directly from the grocery chain Schnuck Markets
after hackers stole the information of 2.4 million customer
credit and debit cards and made millions worth of unauthorized
purchases.
In 2013, the St. Louis-based grocery chain Schnuck Markets
discovered that hackers had compromised its computer systems and
stolen customers' personal information, including the credit card
information and debit card PIN numbers for 2.4 million cards.
By the time Schnuck publicly admitted the breach, the financial
losses from unauthorized credit card purchases and cash
withdrawals had reached into the millions.
Schnuck not only faced a consumer class action over the security
breach, but customers' banks also sued seeking to recover losses
they suffered in investigating the fraudulent activity and
reissuing cards.
However, a federal judge ruled against the banks, and the Seventh
Circuit affirmed on April 11.
The Chicago-based appeals court found that allowing the banks'
lawsuit would create a new form of liability in addition to the
remedies already provided by the contracts between banks, card
networks, and retailers that govern how credit card payments are
processed and how losses are covered.
"Given this network of contracts and contractual remedies, we
decline plaintiffs' invitation to apply a version of the stranger
paradigm. We doubt the wisdom of recognizing new, supplemental
liabilities without a clear sense of why they are necessary,"
U.S. Circuit Judge David Hamilton wrote for a unanimous three-
judge panel.
While the banks may be disappointed in the amounts they were
reimbursed under the contracts, neither Illinois nor Missouri law
allows a separate tort recovery for businesses who are
disappointed with their contractual remedy, according to the 39-
page opinion.
Judge Hamilton noted, "It might be possible for the plaintiff
banks to state a different kind of claim under the [Illinois
Consumer Fraud Act] by alleging that Schnucks violated the
Illinois Personal Information Protection Act by failing to
disclose the breach for two weeks after learning of it."
However, he said that argument was not properly preserved for
appeal because it was not clearly asserted before the lower
court.
SOTHEBY'S: 9th Cir. Hears Arguments in Royalties Class Action
-------------------------------------------------------------
Martin Macias, writing for Courthouse News Service, reported that
attorneys in a seven-year class action lawsuit between a group of
California artists and Sotheby's and Christie's sparred before a
Ninth Circuit panel on April 10 over whether a state law
requiring royalties from auction sales is pre-empted by federal
copyright law.
The April 10 session marks the second time the case has come
before the Ninth Circuit. This time, the artists seek reversal
of U.S District Judge Michael Fitzgerald's finding of pre-emption
in April 2016.
The California Royalty Resale Act requires resellers of fine art
to pay a 5 percent royalty to the creator if the seller is based
in California or the sale takes place in the Golden State.
Attorney Michael Bowse with Browne George Ross, representing the
artists, told the panel his clients have the right to "dictate
transactions" involving their works.
He called California "the center of filmmaking" and home to many
artists because the state "prides itself on protecting the arts."
The Copyright Act has nothing to do with reproduction or
redistribution of art, Mr. Bowse said, but does provide the
artist with the opportunity to receive royalty payments. The 5
percent royalty "doesn't operate as a burden" in sales of fine
arts, he said.
But the auction houses say the state law is pre-empted by the
first-sale doctrine of the Copyright Act, which allows someone
who owns a copyrighted work such as a painting or a copy of a
book to sell it without the permission of the copyright owner.
Mr. Bowse pushed against the doctrine, saying it "terminated" the
rights of artists for full control over distribution of their
work.
U.S Circuit Judge Paul Watford said copyright protections could
end after artists sell their creative work.
"I think it hurts your position," Judge Watford said. "Seems to
me if the principle holds, the California law can't sit with that
principle."
The class, which could include hundreds of artists, say the
auction houses "engaged in a pattern of conduct to conceal" sales
of fine art and didn't tell artists so they could collect
royalties.
In order to skirt state law, auction houses "deliberately
concealed" whether the artist's residency was in California and
whether or not the sale took place in California, according to an
October 2011 complaint.
The company eBay was originally a defendant but won dismissal
after establishing it is an online marketplace, not a seller of
goods such as fine arts.
But Mr. Bowse said he believes eBay is seller and auctioneer, not
only a marketplace, since they receive bids and settle disputes
between parties.
The case has been bouncing between federal court and appellate
court for the last seven years.
The litigation began in 2011 as a trio of class actions targeting
Christie's, Sotheby's, and eBay. The named plaintiffs are heirs
of prominent California sculptor Robert Graham, painter and
photographer Chuck Close, artist Laddie John Dill and the
foundation established by painter and printmaker Sam Francis.
In 2015, the full Ninth Circuit struck down a clause of the state
law, finding it violates the dormant Commerce Clause of the U.S.
Constitution.
Three months later, the panel remanded the case to U.S. District
Judge Michael Fitzgerald, who ruled against the artists.
Judge Fitzgerald found the California statute conflicts with the
federal copyright law. By granting artists some say in later
sales of their works, the law "disrupts Congress's efforts to
balance the interests of copyright holders and downstream
consumers [and] it must be pre-empted," Fitzgerald ruled.
Mr. Bowse said on April 10 the California statute is "important
because it is designed to protect artists who lack bargaining
power and leverage." He said California "stepped in to protect
the rights of artists" when the value of their work increases
substantially.
"That value is created by [the artists] and not by anybody else,"
he said.
California enacted its royalty act to encourage creativity by
allowing artists to receive some benefit when the value of their
paintings, drawing and sculptures rise, often dramatically.
It was prompted in part by the 1973 sale of a work by Robert
Rauschenberg for $85,000 that the artist had sold for just $900,
according to an amicus brief by California Lawyers for the Arts.
The brief notes authors, musicians and playwrights generally
receive royalties whenever their works are published or
performed. But visual artists who make one-of-a-kind works, such
as painters and sculptors, do not.
Artists seek the payment of royalties, with interest, not paid
under the state's royalties act, along with "punitive damages"
from the auction houses over their "intentional election to flout
the law," according the original complaint.
Artists are also seek a court order ensuring auction houses
comply with "obligations under the Resale Royalties Act."
SOUTHERN CALIFORNIA: Order Granting Bid to Strike "Leon" Upheld
---------------------------------------------------------------
In the case, CASSANDRA LEON, Plaintiff and Appellant, v. SOUTHERN
CALIFORNIA PERMANENTE MEDICAL GROUP, Defendant and Respondent,
Case No. E065978 (Cal. App.), Judge Douglas P. Miller of the
Court of Appeals of California for the Fourth District, Division
Two, affirmed the trial court's order granting the special motion
to strike pursuant to section 425.16.
The Plaintiff and Appellant appeals the grant of the Defendant
and Respondent SCPMG' special motion to strike her complaint
("SLAPP") filed pursuant to Code of Civil Procedure section
425.16.
Leon filed a lawsuit against her employer Stratham Fund Six in
Leon v. Stratham Fund Six, Ltd. (as Lincoln Apartments) et.al,
Riverside Superior Court No. RIC 1105646 (civil action) for
wrongful termination. She had a complicated pregnancy and missed
work, which allegedly resulted in her being fired.
Prior to the trial in the civil action, Leon's counsel served a
subpoena on her treating physician Dr. Alia Shbeeb. Shbeeb was
employed at Kaiser Permanente Hospital, which was owned, operated
and/or managed by SCPMG. A medical/legal coordinator at SCPMG
accepted service on behalf of Shbeeb and responded to the
subpoena that it usually requested an upfront fee of $1,800 (four
hours of the witness fee) for the appearance of its physicians.
The medical/legal coordinator also advised Leon's counsel that
any cancellation less than 24 hours prior to testimony would
result in a $200 cancellation fee. Her counsel did not object to
the prepayment of the fee or to the email being sent by a SCPMG
medical/legal coordinator rather than Shbeeb herself. The civil
action settled and Shbeeb's testimony was not needed.
Leon then filed a Second Amended Complaint ("SAC") on behalf of
herself and a class of persons similarly situated contending the
practice of SCPMG requiring up front witness fees, minimum fees
and cancellation fees was an unfair business practice because it
was unauthorized and violated Government Code section 68092.5.
SCPMG filed its SLAPP motion. The trial court granted the SLAPP
motion and dismissed Leon's lawsuit.
Leon appeals the dismissal on the following grounds: (1) the
public interest exception of Code of Civil Procedure section
425.17 barred SCPMG's SLAPP motion; (2) the SAC was not subject
to a SLAPP motion; (3) she had shown a prima facie case of
liability on all of her causes of action; and (4) the litigation
privilege of Civil Code section 47 did not apply.
Judge Miller finds that the public interest exception in Code of
Civil Procedure section 425.17 does not apply. He says Leon's
lawsuit would not enforce an important right affecting the public
interest. The lawsuit at most would change SCPMG's policy, and
in fact did, of collecting expert witness fees in advance and
charging a cancellation fee. This did not lead to a wholesale
change in the collection of expert witness fees. Additionally,
there is no evidence in the SAC as to how many people were
actually subject to these fees. Any persons who objected to the
fees could seek a remedy in the trial court. This is not the
type of "public interest" that is protected by Code of Civil
Procedure section 425.17.
Having concluded as such, he says he needs not determine if the
fees sought by SCPMG under Government Code section 68092.5 were
proper.
Next, the Judge finds that having concluded that the public
interest exception in Code of Civil Procedure section 425.17 does
not apply, he addresses Leon's additional claims that the trial
court erred by granting SCPMG's SLAPP motion. He holds that the
litigation privilege of Civil Code section 47, subdivision (b)
applied to the email communications. As such, no admissible
evidence was presented to support that Leon could prevail on her
claims as it was protected by the litigation privilege of Civil
Code section 47. The SLAPP motion was properly granted by the
trial court.
For these reasons, Judge Miller affirmed the trial court's order
granting the special motion to strike pursuant to section 425.16.
The Respondent is awarded its costs on appeal.
A full-text copy of the Court's March 16, 2018 Opinion is
available at https://is.gd/gfwxi3 from Leagle.com.
Osbornlaw, Richard G. Osborn -- info@osbornlawcorp.com; Skapik
Law Group, Mark J. Skapik and Blair J. Berkley for Plaintiff and
Appellant.
Sheppard Mullin Richter & Hampton, Moe Keshavarzi --
mkeshavarzi@sheppardmullin.com -- John T. Brooks --
jbrooks@sheppardmullin.com -- and A. Alex Kuljis --
akuljis@sheppardmullin.com -- for Defendant and Respondent.
ST. JOSEPH COUNTY, IN: Certification of Class & Subclasses Sought
-----------------------------------------------------------------
In the lawsuit styled TASHIANNE WILBURN and QUANAN WILBURN, as
the natural parents and guardians of Z.W., a minor child, and on
behalf of all others similarly situated, the Plaintiff, v.
CYNTHIA NELSON, in her official capacity as the Executive
Director of the St. Joseph County Juvenile Justice Center, THE
BOARD OF COUNTY COMMISSIONERS OF ST. JOSEPH COUNTY: Andrew
Kostielney, Deborah Fleming, and Dave Thomas; THE ST. JOSEPH
COUNTY COUNCIL: Robert Kruszynski, Jr., Corey Noland, James
O'Brien, Rafael Morton, Diana Hess, Mark Telloyan, Mark
Catanzarite, Robert McCahill, and Mark Root, Case No. 3:17-cv-
00331-PPS-MGG (N.D. Ind.), the Plaintiffs asks the Court to
certify classes:
Juvenile Class:
"all detainees under the age of 18 years old who have been
held or will be held in any form of solitary confinement at
the St. Joseph County Juvenile Justice Center since September
7, 2016."
IDEA Subclass:
"all members of the Juvenile Class with a disability, as
defined by the Individuals with Disabilities in Education Act
("IDEA"), who have been or will be denied the special
education and related support services to which they are
entitled under the IDEA; and
Disability Subclass:
"all members of the Juvenile Class with psychiatric and/or
intellectual disabilities, as defined by the Americans with
Disabilities Act and Section 504 of the Rehabilitation Act of
1973, who have been or will be denied the programs, services,
and benefits (including the individualized assessment)
mandated by the Americans with Disabilities Act and/or Section
504 of the Rehabilitation Act of 1973."
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=R5b1WMzs
STEMLINE THERAPEUTICS: Court Dismisses Securities Fraud Suit
------------------------------------------------------------
The case captioned IN RE STEMLINE THERAPEUTICS, INC. SECURITIES
LITIGATION, No. 17 Civ. 832 (PAC)(S.D.N.Y.), is a securities case
brought by buyers of stock in Stemline Therapeutics, Inc.
("Stemline"), which develops a highly sophisticated and
complicated drug for the treatment of an otherwise fatal blood
cancer. The buyers contend they were misled by Stemline's
claimed ability to remediate certain fatal side effects of its
drug.
Lead Plaintiffs Adam Ludlow, Daljit Singh, and Kenneth Walsh, and
Representative Plaintiff Marion Beeler ("Plaintiffs") bring this
consolidated class action1 against Stemline, its officers and
directors, Ivan Bergstein, Ron Bentsur, Eric L. Dobmeier, Alan
Forman, David Gionco, Kenneth Zuerblis ("Individual Defendants"),
and its underwriter, Jefferies LLC ("Jefferies"), alleging
violations of: Sections 10(b) and 20(a) of the Exchange Act
(Counts I, II); and Sections 11, 12(a)(2), and 15 of the
Securities Act (Counts III-V). Plaintiffs, who allegedly
purchased Stemline securities (1) pursuant and/or traceable to
Stemline's secondary public offering on or about January 20, 2017
("Offering") and/or (2) on the open market between January 20,
2017 and February 1, 2017 ("Class Period"), claim that they
suffered injury from Stemline's misleading statements in the
Offering's prospectus concerning its ability to remediate side
effects of the drug under development.
Stemline, Individual Defendants, and Jefferies move to dismiss
the Amended Complaint.
On January 19, 2017, the day after the death of a patient as a
result of severe capillary leak syndrome, a now-known side effect
of SL-401, Stemline announced the Offering of its common stock to
fund the potential commercialization of SL-401. On January 20,
2017, Stemline filed the offering documents (Form 424B5),
including the Prospectus, with the U.S. Securities and Exchange
Commission (SEC) and, on the same day, offered 4.5 million shares
of Stemline common stock at $10.00 per share, totaling $45
million.
On February 2, 2017, The Street published an article revealing
that on January 17, 2017, a BPDCN patient had been diagnosed with
CLS and had died the next day.
Later the same day, Stemline issued a press release, confirming
that a BPDCN patient had developed CLS and had died, and that it
had learned of the death on January 18, 2017. Stemline, however,
clarified that the cause of the patient's death had not yet been
determined. That day, Stemline's stock price fell by $4.15, from
$9.75 to $5.60, or approximately 42.5%. A deluge of litigation
immediately followed. See supra, n.1. The stock price rebounded
swiftly, however, and by March 10, 2017, it climbed back to the
level before the disclosure of the patient's death.
Count I: Claims under Section 10(b) and Rule 10b-5 against All
Defendants
The Plaintiffs contend that the Defendants made two types of
misleading statements about SL-401 and its clinical trials in the
Prospectus: (1) statements incorporated by reference to
historical SEC filings; and (2) affirmative statements. The
Court disagrees: these statements were neither false nor
misleading.
Statements Incorporated by Reference
Statements incorporated by reference were not misstatements.
The Plaintiffs contend that by incorporating its 2015 10-K form
into the Prospectus, Stemline falsely stated that enhanced safety
and dosage protocols it had developed to combat a severe, life-
threatening side-effect of SL-401 had eliminated any further CLS
occurrence. This is a complete mischaracterization. Stemline
never claimed to have eliminated the CLS side effect. The
incorporated 2015 10-K form merely stated that its dosage
guideline was designed to minimize the risk of severe capillary
leak syndrome (CLS) and that since implementation of these
measures, severe CLS [had] not been observed at doses up to 12
ug/kg/day.
The Plaintiffs cannot make up statements and then attribute them
to the defendants in order to support a Section 10(b) claim.
Statements incorporated by reference were not misleading.
While the incorporated statements could have created a duty to
disclose the new occurrence of severe CLS, they could have done
so only if they would have led a reasonable investor to believe
that the historical data in the incorporated statements were
somehow representative or predictive of SL-401's performance as
of the Offering date. Nothing supports such an inference here.
The Prospectus and the incorporated documents were very clear
that the data in the incorporated documents were historical only.
In view of ample disclaimers, a reasonable investor could not
have deemed the incorporated statements to be representative of
the drug's performance as of the Offering date. Thus, the
incorporated statements could not have created any duty to
disclose the new occurrence of severe CLS, and the purported
failure to disclose it could not have rendered the incorporated
statements misleading.
Affirmative Statements in Prospectus
While the Plaintiffs' primary argument for their Section 10(b)
claim is that Stemline falsely claimed it had eliminated the risk
of CLS, it is clear that Stemline never claimed that it had
eliminated CLS risks; elimination is a fabrication by the
Plaintiffs. Plaintiffs also contend that following affirmative
statements in the Prospectus were misleading:
(1) SL-401's safety profile has continued to remain
predictable and manageable over increasing treatment duration,
drug exposure, and patient experience.
(2) [F]avorable clinical data [were] observed to date with SL-
401.
To a reasonable investor, a recurrence of a known side effect,
CLS, would not have been unexpected. CLS was a known fatal side
effect of SL-401. It had caused two deaths in the past, and the
deaths were not disclosed contemporaneously, but only later.
For these reasons, the Plaintiffs have failed to plead that
Stemline made misstatements or omissions actionable under Section
10(b) of the Exchange Act. The Court draws the same conclusion
with respect to Individual Defendants and Jefferies. The
Plaintiffs have failed to plead that Individual Defendants and
Jefferies made actionable misstatements or omissions, or that any
actionable misstatements or omissions could be attributed to
Individual Defendants and Jefferies.
Accordingly, the Plaintiffs' Section 10(b) claim fails as a
matter of law. The motion to dismiss the Section 10(b) claim is
granted.
Count II: Claim under Section 20(a) against Individual Defendants
The Plaintiffs allege control person liability under Section
20(a) of the Exchange Act against Individual Defendants. The
Plaintiffs have failed to plead a primary violation by Stemline.
The Plaintiffs' control person liability claim fails as a matter
of law.
The motion to dismiss the Section 20(a) claim is granted.
Counts III and V: Claims under Sections 11 and 12(a)(2) of the
Securities Act
The Plaintiffs have failed to state viable claims under Sections
11 and 12(a)(2) because they have not pleaded sufficient facts to
establish that any defendant made any material misrepresentations
or omissions in connection with a registered security offering.
See supra at 7-10. The motion to dismiss the claims under
Sections 11 and 12(a)(2) is granted.
Count IV: Claim under Section 15 of the Securities Act
The Plaintiffs have not pleaded sufficient facts to support
primary liability under Sections 11 and 12. See supra at 11. The
motion to dismiss the claim under Section 15 is granted.
A full-text copy of the District Court's March 15, 2018 Opinion
and Order is available at https://tinyurl.com/ydes6na5 from
Leagle.com.
Adam Ludlow, Daljit Singh & Kenneth Walsh, individually and on
behalf of all others similarly situated, Lead Plaintiffs,
represented by Jacob A. Goldberg -- jgoldberg@rosenlegal.com --
The Rosen Law Firm, P.A., Leah Heifetz --
lheifetz@rosenlegal.com -- Mulholland & Knapp, LLP, Phillip C.
Kim -- pkim@rosenlegal.com -- The Rosen Law Firm P.A., Alexa J.
Mullarky -- amullarky@glancylaw.com -- Glancy Prongay & Murray
LLP, Austin Patrick Van -- avan@pomlaw.com -- Pomerantz LLP,
Jeremy Alan Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP,
Joseph Alexander Hood, II -- ahood@pomlaw.com -- Pomerantz LLP &
Kara M. Wolke -- kwolke@glancylaw.com -- Glancy Prongay & Murray
LLP.
Kenneth Hoberman, Defendant, represented by Adam Michael Harris -
- Adam.Harris@ropesgray.com -- Ropes & Gray, LLP & Gregg L.
Weiner -- gregg.weiner@ropesgray.com -- Ropes & Gray, LLP.
Ron Bentsur, Eric L Dobmeier, Kenneth Zuerblis & Alan Forman,
Defendants, represented by Amy D. Roy -- amy.roy@ropesgray.com --
Ropes & Gray LLP & Gregg L. Weiner, Ropes & Gray, LLP.
TBC CORPORATION: Hamilton Seeks to Certify Classes
--------------------------------------------------
In the lawsuit styled JULIE HAMILTON, individually and on behalf
of all others similarly situated, et al., the Plaintiffs, v. TBC
CORPORATION, DYNAMIC TIRE CORPORATION, and DOES 1-10, the
Defendants, Case No. 2:17-cv-01060-DMG-JEM (C.D. Cal.), the
Plaintiff will move the Court on June 22, 2018 for an order:
1. allowing this action to be maintained as a class action
pursuant to Rule 23(a) and Rule 23(b)(3);
2. certifying a class:
under Rule 23(a) and Rule 23(b)(3):
"all persons in the United States who purchased or acquired
a Power King Towmax STR trailer tire, from January 1, 2011
to the present."
under Rule 23(c)(4) for liability-only class:
"all persons in the United States who purchased or acquired
a Power King STR trailer tire, from January 1, 2011 to the
present"
under Rule 23(a) and Rule 23(b)(3) of the following class:
"all persons who reside in California, Arizona, Colorado
and Florida who purchased or acquired a Power King Towmax
STR trailer tire, from January 1, 2011 to the present."
3. appointing Plaintiffs as representative of the class; and
4. appointing the law firm of Keller, Fishback & Jackson LLP,
as counsel for the class.
A copy of the Notice of Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=P2oThPv3
Attorneys for Plaintiffs and the Proposed Class:
Daniel L. Keller, Esq.
Stephen M. Fishback, Esq.
Dan C. Bolton, Esq.
KELLER, FISHBACK & JACKSON LLP
28720 Canwood Street, Suite 200
Agoura Hills, CA 91301
Telephone: (818) 342 7442
Facsimile: (818) 342 7616
E-mail: dkeller@kfjlegal.com
sfishback@kfjlegal.com
dbolton@kfjlegal.com
TELIGENT INC: Econazole Pricing Antitrust Suit Still Ongoing
------------------------------------------------------------
Teligent, Inc. said in its Form 10-Q/A Report filed with the
Securities and Exchange Commission for the quarterly period ended
September 30, 2017, that the company continues to defend itself
in a class action antitrust suit entitled, In re Generic
Pharmaceuticals Pricing Antitrust Litigation.
To date, twelve putative class action antitrust lawsuits have
been filed against the Company along with co-defendants,
including Taro Pharmaceuticals U.S.A., Inc. and Perrigo Company
PLC regarding the pricing of econazole nitrate cream. The actions
have been transferred by the Judicial Panel on Multidistrict
Litigation to the Eastern District of Pennsylvania for pre-trial
proceedings as part of the In re Generic Pharmaceuticals Pricing
Antitrust Litigation matter, and consolidated into direct
purchaser, end payer and indirect reseller actions.
The class plaintiffs seek to represent nationwide or state
classes consisting of persons who directly purchased, indirectly
purchased or reimbursed patients for the purchase of generic
econazole from any of the defendants from July 1, 2014 until the
time the defendants' allegedly unlawful conduct ceased or will
cease.
The plaintiffs allege a conspiracy to fix prices for generic
econazole in violation of federal antitrust laws or state
antitrust, consumer protection, and other laws. Plaintiffs seek
treble damages for alleged price overcharges for generic
econazole during the alleged period of conspiracy, and the end
payer and indirect reseller class plaintiffs also seek injunctive
relief against the defendants.
Teligent said "All of these cases are in their initial stages and
motions to dismiss have been filed with respect to each of the
complaints. Due to the early stage of these cases, we are unable
to form a judgment at this time as to whether an unfavorable
outcome is either probable or remote or to provide an estimate of
the amount or range of potential loss. We believe these cases are
without merit, and we intend to vigorously defend against these
claims."
Teligent, Inc., a specialty generic pharmaceutical company,
develops, manufactures, and markets generic topical, branded
generic, and generic injectable pharmaceutical products in the
United States and Canada. The company sells generic
pharmaceutical products in topical, injectable, complex, and
ophthalmic dosage forms. The company is based in Buena, New
Jersey.
THC ORANGE COUNTY: Song Seeks to Certify 2 Classes
--------------------------------------------------
In the lawsuit styled EMMY SONG, as an individual and on behalf
of all others similarly situated, the Plaintiff, v. THC - ORANGE
COUNTY, INC., a California Corporation; and DOES 1 through 100,
inclusive, the Defendants, Case No. 8:17-cv-00965-JLS-DFM (C.D.
Cal.), the Plaintiff will move the Court on July 13, 2018 for an
order certifying following classes:
Rounding Class:
"all current and former California non-exempt employees of
Defendant who worked at any time during the period of June 6,
2013, through the present"; and
Wage Statement Class:
"all current and former California non-exempt employees of
Defendant who received wage statements for overtime wages at
any time from June 6, 2016, through the present."
A copy of the Notice of Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=lsh6jZex
The Plaintiff is represented by:
Larry W. Lee, Esq.
Mai Tulyathan, Esq.
DIVERSITY LAW GROUP, P.C.
515 S. Figueroa St., Suite 1250
Los Angeles, CA 90071
Telephone: (213) 488 6555
Facsimile: (213) 488 6554
E-mail: lwlee@diversitylaw.com
ktulyathan@diversitylaw.com
- and -
Edward W. Choi, Esq.
LAW OFFICES OF CHOI & ASSOCIATES
515 S. Figueroa St., Suite 1250
Los Angeles, CA 90071
Telephone: (213) 381 1515
Facsimile: (213) 465 4885
E-mail: edward.choi@calaw.biz
- and -
Alex Cha, Esq.
LAW OFFICES OF ALEX CHA
1055 W 7th St., Fl. 28
Los Angeles, CA 90017
Telephone: (213) 351 3513
Facsimile: (213) 351 3514
E-mail: alex@alexchalaw.com
TOMMY HILFIGER: Sued for Allegedly Advertising False Discounts
--------------------------------------------------------------
Robert Kahn, writing for Courthouse News Service, reported that a
class claims Tommy Hilfiger Wholesale advertises false discounts
in its outlet stores, in San Diego Superior Court.
TRUMP UNIVERSITY: Judge Inks $25MM Fraud Class Action Settlement
----------------------------------------------------------------
Courthouse News Service reported that a federal judge on April 9
signed off at last on the $25 million settlement of class actions
against President Donald Trump and his now-defunct Trump
University real estate, putting a bow on consumer fraud claims
that dogged the president since 2010.
The cases are SONNY LOW, J.R. EVERETT and JOHN BROWN, on Behalf
of Themselves and All Others Similarly Situated, Plaintiffs, vs.
TRUMP UNIVERSITY, LLC, a New York Limited Liability Company and
DONALD J. TRUMP, Defendants, No. 3:10-cv-0940-GPC(WVG)(S.D.
Calif.); and ART COHEN, Individually and on Behalf of All Others
Similarly Situated, Plaintiff, vs. DONALD J. TRUMP, Defendant,
No. 3:13-cv-02519-GPC-WVG (S.D. Calif.).
VEON LTD: Response to Westway Alliance Suit Due May 13
------------------------------------------------------
Veon Ltd. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2017, that responsive pleading to the motions to
dismiss is expected until May 13, 2018.
On November 4, 2015, a class action lawsuit was filed in the
United States against Veon and certain of its current and former
officers by Charles Kux-Kardos, on behalf of himself and other
investors in the Company alleging certain violations of the
United States federal securities laws in connection with the
Company's public disclosures relating to its operations in
Uzbekistan.
On December 4, 2015, a second complaint was filed by Westway
Alliance Corp. that asserts essentially the same claims in
connection with essentially the same disclosures.
On April 27, 2016, the court consolidated the two actions and
appointed Westway as lead plaintiff. On May 6, 2016, a motion for
reconsideration was filed on the appointment of Westway as lead
plaintiff and on September 26, 2016, the court affirmed the
selection of Westway as the lead plaintiff. An amended complaint
was filed on December 9, 2016. Briefing on Veon's motion to
dismiss the amended complaint was completed by May 2017.
On September 19, 2017, the Court in the Southern District of New
York rendered a decision granting in part Veon's motion to
dismiss the Amended Complaint.
On February 9, 2018, Veon filed its Answer and Affirmative
Defenses to the allegations that remain in the Amended Complaint
after the Court's September 19, 2017 Order. Motions to dismiss
have been or will be filed by all the Individual Defendants by
March 12, 2018. Plaintiff Westway has until April 13, 2018 to
file any response(s) to the motions to dismiss. Reply briefing by
the Individual Defendants are due to be filed by May 14, 2018. No
date has been set for any hearing on the pending motions.
Veon said "The Company and the Individual Defendants intend to
vigorously defend the action at all phases moving forward."
Veon Ltd. is a leading global provider of connectivity and
internet services. Present in some of the world's most dynamic
markets, VEON provides more than 240 million customers (including
the Italy Joint Venture) with voice, fixed broadband, data and
digital services.
VOYA RETIREMENT: Bid to Dismiss Amended "Dezelan" Suit Pending
--------------------------------------------------------------
Voya Retirement Insurance and Annuity Company said in its Form
10-K report filed with the U.S. Securities and Exchange
Commission for the fiscal year ended December 31, 2017, that the
company's motion to dismiss the amended complaint in the case
captioned, Dezelan v. Voya Retirement Insurance and Annuity
Company, is still pending.
Dezelan v. Voya Retirement Insurance and Annuity Company (USDC
District of Connecticut, No. 3:16-cv-1251) (filed July 26, 2016),
a putative class action in which plaintiff, a participant in a
403(b) Plan, seeks to represent a class of plans whose assets are
invested in VRIAC "Group Annuity Contract Stable Value Funds."
Plaintiff alleges that VRIAC has violated the Employee Retirement
Income Security Act of 1974 by charging unreasonable fees and
setting its own compensation in connection with stable value
products. Plaintiff seeks declaratory and injunctive relief,
disgorgement of profits, damages and attorney's fees.
The Company denies the allegations, which it believes are without
merit, and intends to defend the case vigorously.
Voya Financial said in its Form 10-Q Report for the quarterly
period ended September 30, 2017, that the company has moved to
dismiss the complaint. On July 19, 2017, the district court
granted the Company's motion to dismiss, but permitted the
plaintiff to file an amended complaint.
The plaintiff has filed a first amended complaint, and the
Company has moved to dismiss that complaint.
Voya Retirement Insurance and Annuity Company (VRIAC") is a stock
life insurance company domiciled in the State of Connecticut.
VRIAC and its wholly owned subsidiaries (collectively, "the
Company") provide financial products and services in the United
States. VRIAC is authorized to conduct its insurance business in
all states and in the District of Columbia, Guam, Puerto Rico and
the Virgin Islands.
VOYA RETIREMENT: Continues to Defend "Goetz" Class Suit
-------------------------------------------------------
Voya Retirement Insurance and Annuity Company said in its Form
10-K report filed with the U.S. Securities and Exchange
Commission for the fiscal year ended December 31, 2017, that the
company continues to defend itself in a class action suit
entitled Goetz v. Voya Financial and Voya Retirement Insurance
and Annuity Company (USDC District of Delaware, No. 1:17-cv-1289)
(filed September 8, 2017.
A putative class action in which plaintiff, a participant in a
401(k) plan, seeks to represent other participants in the plan as
well as a class of similarly situated plans that "contract with
[Voya] for recordkeeping and other services." Plaintiff alleges
that "Voya" breached its fiduciary duty to the plan and other
plan participants by charging unreasonable and excessive
recordkeeping fees, and that "Voya" distributed materially false
and misleading 404a-5 administrative and fund fee disclosures to
conceal its excessive fees. The Company denies the allegations,
which it believes are without merit, and intends to defend the
case vigorously.
Bid to Amend "Patricio" Suit Opposed
Voya Financial said in its Form 10-Q Report for the quarterly
period ended September 30, 2017, that the plaintiff in the case,
Patrico v. Voya Financial, Inc., et al., has filed a motion for
leave to file a first amended complaint, and the company has
opposed that motion.
Patrico v. Voya Financial, Inc., et al (USDC SDNY, No. 1:16-cv-
07070) (filed September 9, 2016), a putative class action in
which plaintiff, a participant in a 401(k) Plan, seeks to
represent a class of plans "for which Voya or its subsidiaries
provide recordkeeping, investment management or investment
advisory services and for which Financial Engines provides
investment advice to plan participants." Plaintiff alleges that
the Company and its affiliates have violated ERISA by charging
unreasonable fees in connection with in-plan investment advice
provided in conjunction with Financial Engines, a third-party
investment adviser. Plaintiff seeks declaratory and injunctive
relief, disgorgement of profits, damages and attorney's fees. The
Company denies the allegations, which it believes are without
merit, and intends to defend the case vigorously.
On June 20, 2017, the district court granted the Company's motion
to dismiss, but permitted the plaintiff to file an amended
complaint. The plaintiff has filed a motion for leave to file a
first amended complaint, and the Company has opposed that motion.
Voya Financial, Inc. provides its principal products and services
through five segments: Retirement, Investment Management,
Annuities, Individual Life and Employee Benefits. In addition,
the company has a Closed Block Variable Annuity ("CBVA") segment.
Activities not directly related to the company's segments such as
the company's corporate operations, corporate level assets and
financial obligations are included in Corporate. The company is
based in New York.
ZAGG INC: Stotz-Charles Suit Already Settled
--------------------------------------------
Zagg Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2017, that the case, Eric Stotz and Alan Charles v.
mophie inc., U.S. District Court, Central District of California,
Civil Action No. 2:16-cv-08898-GW-FFM, has been settled.
On January 13, 2017, Eric Stotz and Alan Charles, individually
and on behalf of a purported class, filed a first amended class
action complaint alleging that they purchased certain external
battery packs and that the battery packs did not extend the life
of the phones' internal batteries as advertised and adversely
affected the phones' internal battery life. Plaintiffs allege
violations of California's unfair competition law, California's
Consumer Legal Remedies Act, New York's unlawful deceptive acts
and practices statute, and New York's false advertising law.
The case was settled by the Company in January 2018. The court
ordered a dismissal with prejudice of all individual and putative
class claims on January 23, 2018.
Zagg said "The settlement amount is not considered material to
the Company's financial position, results of operations, or
liquidity."
ZAGG(R) Inc and its subsidiaries are innovation leaders in mobile
tech accessories for smartphones and tablets. The Company is
committed to enhance every aspect of performance, productivity
and durability in mobile devices with creative product solutions.
The company is based in Midvale, Utah.
ZILLOW GROUP: Consolidated Vargosko & Shotwell Suits Underway
-------------------------------------------------------------
Zillow Group, Inc. said in its Form 10-K Report filed with the
Securities and Exchange Commission for the fiscal year ended
December 31, 2017, that the Company is defending against the
class action lawsuits entitled, Vargosko v. Zillow Group, Inc. et
al, and Shotwell v. Zillow Group, Inc. et al., which have been
consolidated.
Zillow Group said in its Form 10-Q Report for the quarterly
period ended September 30, 2017, that in August and September
2017, two purported class action lawsuits were filed against the
company and certain of its executive officers, alleging, among
other things, violations of federal securities laws on behalf of
a class of those who purchased our common stock between February
12, 2016 and August 8, 2017.
One of those purported class actions, captioned Vargosko v.
Zillow Group, Inc. et al, was brought in the U.S. District Court
for the Central District of California. The other purported class
action lawsuit, captioned Shotwell v. Zillow Group, Inc. et al,
was brought in the U.S. District Court for the Western District
of Washington.
The complaints allege, among other things, that during the period
between February 12, 2016 and August 8, 2017, the company issued
materially false and misleading statements regarding its business
practices. The complaints seek to recover, among other things,
alleged damages sustained by the purported class members as a
result of the alleged misconduct.
Zillow Group "We anticipate that a consolidated amended complaint
will be filed in the first quarter of 2018. We intend to deny the
allegations of wrongdoing and vigorously defend the claims in
these lawsuits. We have not recorded an accrual related to these
lawsuits as of September 30, 2017, as we do not believe a loss is
probable."
Zillow Group, Inc. operates the leading real estate and home-
related information marketplaces on mobile and the web, with a
complementary portfolio of brands and products to help consumers
find vital information about homes and connect with local
professionals. The company is based in Seattle, Washington.
ZILLOW GROUP: $6.0MM Paid in "Freeman" Suit Settlement
------------------------------------------------------
Zillow Group, Inc. said in its Form 10-K Report filed with the
Securities and Exchange Commission for the fiscal year ended
December 31, 2017, that the company made the voluntary payments
contemplated by the class action settlement agreement, in the
case Ian Freeman v. Zillow, Inc., in the amount of $6.0 million
in October 2017.
In November 2014, a former employee filed a putative class action
lawsuit against us in the United States District Court, Central
District of California, with the caption Ian Freeman v. Zillow,
Inc. The complaint alleged, among other things, claims that we
failed to provide meal and rest breaks, failed to pay overtime,
and failed to keep accurate records of employees' hours worked.
After the court granted the company's two motions to dismiss
certain claims, plaintiff filed a second amended complaint that
includes claims under the Fair Labor Standards Act. On November
20, 2015, plaintiff filed a motion for class certification. On
February 26, 2016, the court granted the plaintiff's motion for
class certification.
On May 5, 2016, the parties agreed to settle the lawsuit, which
was later memorialized in a settlement agreement executed by the
parties on December 2, 2016, with payment by Zillow, Inc. of up
to $6.0 million. On June 9, 2016, the Ninth Circuit Court of
Appeals granted the company's petition for permission to appeal
the order granting class certification. The settlement does not
contain any admission of liability, wrongdoing, or responsibility
by any of the parties.
On April 10, 2017, the parties executed an amendment to the
settlement agreement providing that the settlement class includes
all current and former inside sales consultants employed by
Zillow, Inc. in (i) its California offices from November 19, 2010
through the date on which the court granted preliminary approval
and (ii) its Washington offices from March 1, 2013 through the
date on which the court granted preliminary approval.
On May 26, 2017, the court granted preliminary approval of the
settlement of the class action lawsuit, and on October 3, 2017,
the court granted final approval of the settlement of the class
action lawsuit.
Zillow Group said "We made the voluntary payments contemplated by
the class action settlement agreement in the amount of $6.0
million in October 2017. We have recorded a liability related to
the settlement for $6.0 million as of September 30, 2017 and
December 31, 2016. We do not believe that any additional loss
will be incurred related to this matter given the court granted
final approval of the settlement of the class action lawsuit in
October 2017."
Zillow Group, Inc. operates the leading real estate and home-
related information marketplaces on mobile and the web, with a
complementary portfolio of brands and products to help consumers
find vital information about homes and connect with local
professionals. The company is based in Seattle, Washington.
*********
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